County of Sonoma Agenda Item Summary Report Agenda Item Number: 18 (This Section for use by Clerk of the Board Only.) Clerk of the Board 575 Administration Drive Santa Rosa, CA 95403 To: Board of Supervisors Board Agenda Date: March 10, 2015 Vote Requirement: Majority Department or Agency Name(s): County Administrator s Office/County Counsel Staff Name and Phone Number: Chris Thomas 565-2431 Jeff Brax 565-2421 Title: Lytton Intergovernmental Agreement Recommended Actions: Supervisorial District(s): Fourth Adopt a Resolution Authorizing the Chair to Sign a Memorandum of Agreement with the Lytton Rancheria of California regarding the development of tribal homelands within Sonoma County. The term of the agreement is for 22 years from date of approval by both parties. Executive Summary: This item requests approval of an intergovernmental agreement reached by staff and representatives of the Lytton Rancheria of California, a federally recognized tribe of Indians whose traditional lands lie within Sonoma County but does not currently have any tribal homelands held in trust by the federal government on their behalf as a sovereign nation. This agreement provides for assistance by the County in reestablishing the tribal homelands and suitable lands for tribal housing while mitigating potential off reservation impacts of tribal development on those lands. The agreement has a term of 22 years. Background Lytton history in the County Originally recognized with land in the area north of Healdsburg in the 1930 s by the United States, the tribe now known as the Lytton Rancheria of California was dissolved in 1958 and the land was sold off. In 1991, the tribe was fully restored as a federally recognized tribe and today has approximately 270 members. As a part of the 1991 settlement that restored the tribe, some steps were established for the process of taking various lands into trust and the County made a commitment to assist in helping the tribe find suitable lands for tribal housing and economic development. In an effort to reestablish a tribal homeland and tribal housing for its members, in 2007, the tribe applied to the federal government to have 124 acres into trust and began the environmental review process under the National
Environmental Protection Act to identify any necessary mitigation for the project. Sonoma County has a government-to-government relationship with all five federally recognized tribes in the County, respects their tribal sovereignty, and understands the significance of their status as federally recognized tribes. The County also recognizes and respects the need for tribes to preserve their cultural heritage and pursue economic self-reliance, including through the acquisition of trust land. With regards to the latter, the County has a long history of advocating for a thorough environmental review and appropriate mitigations to address any environmental impacts that would be borne by others not on these trust lands. Process for taking tribally held lands into trust does not work well for tribes and counties. As has been noted for several years in the County s legislative platform, the current administrative process that the federal government uses to take lands held in fee by tribes into trust for their use as sovereign governments does not work well for tribes or counties. The Indian Reorganization Act (IRA), 25 U.S.C. 461 et seq., authorizes the Secretary of the Interior to acquire land in trust for tribes, as a foundation for tribal self-governance and economic development. Under the IRA, the Secretary has discretion to acquire any interest in lands, water rights, or surface rights to lands, within or without existing reservations... for the purpose of providing land for Indians. 25 U.S.C. 465. Title 25 of the Code of Federal Regulations, Part 151, provides a regulatory framework for consideration of fee-to-trust applications, including, for example, different criteria for on-reservation land and off-reservation land. Tribal trust land may be used for a number of activities, including governmental operations, cultural activities, and commercial developments. There are myriad potential off-reservation impacts of tribal trust land development on local governments, such as loss of jurisdiction over local land, loss of tax base, loss of planning/zoning authority, environmental impacts, and additional services that may be required by development. The current laws and regulations governing the fee-to-trust application process do not sufficiently address the potential effects on local jurisdictions; in particular, notice to local governments of a pending fee-to-trust application is often inadequate and late, local governments are afforded only a limited opportunity to comment on narrow issues raised by the application, and there is little opportunity for local government concerns to be meaningfully included in the fee-to-trust process. In addition, the fee-to-trust land acquisition criteria have been characterized as almost meaningless by CSAC and independent legal analyses. (Waples, K.J., Extreme Rubber-Stamping: The Fee-to-Trust Process of the Indian Reorganization Act of 1934, 40 Pepp. L. R. 1 (2012).) At the same time, many federally recognized Tribes wait years in order to have their applications for trust lands to be acted upon and have expressed concerns about the efficiency of the federal bureaucracy and a lack of consideration and respect accorded in the process for sovereign governments who are legitimately trying to exercise their sovereign rights. Negotiations over appropriate mitigations in trust process led to an agreement to try to address mutual goals Over the last several years staff and representatives of the tribe have worked on getting to agreement on the appropriate level of mitigation for the project that had been studied under the existing
application. It was recognized that other mutual goals could be addressed such as timely consideration in legislation with a comprehensive agreement that established a framework for an ongoing government to government relationship here in Sonoma County; guarantees of no gaming (which, among other things, could not be achieved in a trust application); an overall compliance with the general plan and zoning ordinance with appropriate environmental review and mitigations for limited exceptions; and a judicially enforceable agreement that could serve for more than the next 20 years to ensure that a tribal homeland could be reestablished within the tribe s traditional lands. The agreement for the Board s consideration provides for these mutual goals and addresses the environmental impacts of the proposed tribal housing development. Key features of the agreement include: County support for 124 acres of land owned by the Tribe off of Windsor River Road to be taken into trust for 147 residential units to be used for tribal members and their families and a limited number of tribal employees. In addition, this land would also hold a tribal community center, round house and retreat and the tribe would complete the environmental mitigations included in the environmental assessment associated with the trust application process to date. The environmental mitigation measures and best management practices are incorporated in this agreement. Further the Tribe agrees to maintain the rural nature of Windsor River Road through the use of landscape screening and open wire fencing. The County would also support approximately 376 acres in additional lands in the area west of Windsor currently owned by the tribe to be taken into trust. Some of those lands, those currently within the Windsor urban growth boundary, would be used for additional tribal housing and tribal community buildings and the Tribe agrees to develop those lands consistent with the Windsor General Plan. For the rest of the lands to be taken into trust under this agreement, the Tribe agrees to develop those consistent with the County General Plan and Zoning Ordinance in effect today with one exception for a potential winery and resort project sometime in the future. In the event the Tribe elects to develop the resort and winery project sometime in the future, it will complete a full Environmental Impact Statement and fully mitigate any off trust land impacts. The Tribe also agrees to provide a mutually beneficial public benefit commensurate with the scope of the resort and winery project. In addition to the specific mitigation measures above, the Tribe agrees to pay the County $6.1 million for one-time impacts such as County roads, parks, woodlands, and administrative costs. The Tribe will also annually pay the County 30% of 1% of assessed valuation on all trust properties and payments in lieu of any transient occupancy taxes that would otherwise have been due for similar uses on non-tribal lands. The Tribe also agrees not to engage in any gaming or gaming activities in Sonoma County for the term of this agreement. The County also agrees not to oppose or challenge the taking of additional tribally owned properties (up to a maximum of 800 acres) in the area west of Windsor during the course of the agreement. The Tribe agrees to develop these consistent with the County General Plan and Zoning Ordinance as above and will ensure access to all privately owned non-tribal properties in the area should any future acquisitions
and trust actions be taken. The County will continue to have the right to comment on any federal environmental review in order to ensure that any off trust land impacts are fully mitigated. The agreement also provides for dispute resolution, court enforceability through a waiver of sovereign immunity for this purpose, and a framework for regular future consultation and coordination with the County over the course of the agreement. In addition, separate agreements have been reached with schools and fire agencies and the Town of Windsor is working on negotiations with the Tribe at this time which may result in a more environmentally favorable option of providing water and sanitary sewer services to the residential developments. While the date of any lands actually being taken into trust, either through legislation or through the administrative process is unknown, this agreement provides the best assurance that any impacts from that action and the subsequent development of that trust land will be fully mitigated for the next 22 years and will establish a framework for government to government cooperation on tribal development for the future. Prior Board Actions: Comments on the original trust application and environmental analysis were authorized in 2009, 2011, and 2012. Strategic Plan Alignment Goal 2: Economic and Environmental Stewardship Approving the intergovernmental agreement ensures that any environmental impacts to the unincorporated county area as a result of the establishment and development of the identified tribal homelands can be mitigated and not borne as a cost to the citizens of the county. Expenditures Fiscal Summary - FY 14-15 Funding Source(s) Budgeted Amount $ $ Add Appropriations Reqd. $ State/Federal $ $ Fees/Other $ $ Use of Fund Balance $ $ Contingencies $ $ $ Total Expenditure $ Total Sources $
Narrative Explanation of Fiscal Impacts (If Required): The agreement provides for $6.1 million in mitigation payments and certain ongoing payments in lieu of property and transient occupancy taxes that are triggered by identified lands being taken into trust by the federal government on behalf of the Lytton Band of Pomo Indians. The date of any such action is unknown at this time. Should the lands be taken into trust, staff will return with any necessary budgetary adjustments. Position Title (Payroll Classification) Staffing Impacts Monthly Salary Range (A I Step) Additions (Number) Deletions (Number) Narrative Explanation of Staffing Impacts (If Required): Attachments: Resolution, Memorandum of Agreement Related Items On File with the Clerk of the Board: