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County wants right to comment on tribal fee-to-trust applications

The San Diego County Board of Supervisors took a position supporting the right of public agencies to make comments or take positions on proposals to add off-reservation land to tribal trust territory.

The 5-0 vote June 19 directs the county’s chief administrative officer to add a policy statement in the county’s legislative program opposing legislation which would limit or restrict the ability of federal, state, and local government agencies or departments to comment or take a position on any tribal fee-to-trust applications.

“We think that the county has a right to have an input,” said Supervisor Bill Horn.

The county’s position was taken after Senate Bill 162 was amended to prohibit state agencies from opposing fee-to-trust land acquisition applications for the purpose of housing, environmental protection, or cultural preservation. “We never want to stifle public discourse,” said Supervisor Pam Slater-Price. “We need to leave the public discourse open.”

San Diego County has 19 reservations and 18 tribal governments, which is more than any other county in the United States. In February 2011, State Senator Joel Anderson introduced SB 162 which would have amended the state’s Business and Professions Code to require that the existing Gaming Policy Advisory Committee meet at least twice a year and to require that the California Gaming Control Commission consult with the committee on proposed regulations. A 36-0 State Senate vote in May 2011 sent SB 162 to the State Assembly.

In April 2012, SB 162 was amended to remove the original changes and change the amended code from the Business and Professions Code to Section 11019.8 of the Government Code, which encourages and authorizes all state agencies to cooperate with federally-recognized tribes in California on matters of economic development and improvement.

The existing code states that cooperation may include but not be limited to providing information on programs available to assist tribes, providing technical assistance on the preparation of grants and applications, conducting meetings and workshops, and other reasonably-expected steps to assist tribes in becoming economically self-sufficient.

The April amendments added the cooperation example of consulting with respect to the transfer of fee land into federal trust status, particularly when the application is for the purpose of housing, environmental protection, or cultural preservation.

The May 21 amendments added that a state agency shall not oppose a fee-to-trust land acquisition application for the purpose of housing, environmental protection, or cultural preservation.

The Board of Supervisors recommendation was introduced by Horn and Supervisor Dianne Jacob. Horn and Jacob noted that a state agency would lose the ability to oppose fee-to-trust applications even if a negative impact to the community, public infrastructure, or the environment was identified.

“I think it’s very important not to limit input at any level,” Jacob said.

Horn and Jacob noted that off-reservation impacts often occur regardless of the stated use for a fee-to-trust proposal, that subsequent land use decisions for those areas are subject only to tribal government authority, that local governments would lose property tax and possible sales tax and Transient Occupancy Tax revenue, that there would be no requirements to comply with a jurisdiction’s standard permitting process which evaluates or requires mitigation for potential impacts in the area, and that if the land is used for a purpose other than initially evaluated there is no federal requirement for the new use to be further assessed or for the impacts to be mitigated.

Horn also noted that none of the tribes in his district expressed support for the elimination of state input on fee-to-trust proposals.

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