2014 California Legislative Update

1. 2014 California Legislative Update ______________________________________ Presentation for California Indian Law Association 14th Annual Conference October 17, 2014 Adam P. Bailey abailey@hobbsstraus.com

2. Political Overview Supermajorities Near, But Not Guaranteed New Chamber Leaders • Assembly Speaker Toni Atkins (D-San Diego) • Senate President Pro Tem Kevin De Leon (D-LA)

3. California Enacted Laws Assembly Bill (AB) 52 – Tribal Cultural Resources Creates a new category in CEQA for “Tribal Cultural Resources” Impact to TCR will trigger an EIR under CEQA Agencies are required to consult with tribes if they request it from the agency • A significant impact to a TCR will require consultation before the project moves forward. Agencies must avoid damaging cultural resources regardless of consultation.

4. California Enacted Laws Assembly Bill (AB) 52 – Tribal Cultural Resources (Con’td) The law preserves existing CEQA standards for feasibility, timeframes, and ability to approve projects—even if there are significant impacts to TCRs. Definition of tribe was changed from federally recognized tribes only to tribes on the N.A. Heritage Commission’s list. Bill goes into effect July 1, 2015.

5. California Enacted Laws AB 1739 / SB 1168 / SB 1319 – Groundwater Requires local governments to create “groundwater sustainability agencies” that must have groundwater plans implemented by 2020. If localities fail, the state will take over to come up with a plan. Requires plans for “medium” and “high” priority groundwater basins.

6. Medium and High Priority Basins in Yellow & Orange

7. California Enacted Laws AB 1739 / SB 1168 / SB 1319 – Groundwater (cont’d) The new law states that federally reserved water rights to groundwater (i.e., Winters rights) “shall be respected in full” in basin management, and states that “federal law shall prevail” in adjudications. (Cal. Water Code Sec. 10720.3 – SB 1168). Federally recognized tribes can voluntarily agree to participate in the management or development of plans, via a JPA or other agreement.

8. California Enacted Laws SB 406 – Tribal Court Civil Money Judgment Act Creates new court procedures for enforcing tribal court civil money judgments – removes tribes from the current procedure under the Uniform Foreign-Country Money Judgments Recognition Act. Temporary change until 2018 pending California Law Revision Commission study due January 1, 2017. Streamlined requirements and timelines No tax judgments, fines or penalties, or family support payments.

9. California Enacted Laws AB 1233 – Reimbursements for Medi-Cal Admin. Costs Enables tribes and tribal health care entities to claim administrative costs under Medi-Cal for facilitating Medi-Cal applications. Tribes participating in the State Medi-Cal Administrative Activities plan can recoup costs. Opens up the California Healthcare Eligibility, Enrollment, and Retention System (Call-HEERS) web portal to tribes for this purpose.

10. California Enacted Laws AB 1143 – Foreign LLC Contract Voidability Nonqualified foreign limited liability corporations Explicitly includes tribal corporations Failure to pay taxes or submit tax returns can result in any opposing parties in a case or conflict to ask that contracts be voided. This applies already to in-state and foreign qualified LLCs – the bill closes a loophole for nonqualified LLCs.

11. California Enacted Laws SB 1460 – Tribal Child Welfare Background Checks Tribes can request background checks from the State DOJ for the purpose of foster care qualifications or placements. Recognizes tribal authority to complete approval for tribal foster homes under ICWA; State foster care need not duplicate approval. Requires the State to share data about abusers or suspected abusers.

12. California Enacted Laws AB 1317 – State Agency Reorganization Grants authority to Governor to reorganize state government Mostly just shuffling Moves Rural Indian Crime Prevention Program and Rural Indian & Law Enforcement Advisory Committee to the Office of Emergency Services.

13. California Enacted Laws SB 680 – Tobacco Master Settlement Agreement Requires manufacturers not party to the Master Settlement Agreement to pay into state escrow account based on number of cigarettes sold (figured using excise taxes) Targets payments for cigarettes sold in tribal shops. Allows enforcement by Attorney General for “tax evading sales.” Not applicable to cigarettes sold on tribal land to tribal members.

14. California Enacted Laws SB 940 – CA Conservatorship Jurisdiction Act Enacts a Uniform Adult Guardianship & Protective Proceedings Jurisdiction Act for California Conservatorship confers some state court authority and jurisdiction. Does not allow California courts to acquire jurisdiction over Indian conservatees under tribal jurisdiction, but does enable them to do so if tribes expressly decline to exercise jurisdiction.

15. California Enacted Laws AB 1618 – Juvenile Case File Access Expands access to juvenile case files of a dependent child or ward to include attorneys, officers, case workers, and similar persons who work for Tribes, tribal courts, or tribal programs in that capacity. Includes tribes for which children are eligible for membership.

16. California Enacted Laws AB 1471 – SB 866 – Water Bond Program Eligibility Tribes are eligible applicants for programs under the new water bond . $520 million for water quality programs $1.5 billion for ecosystem & watershed protection $810 million for water security $2.7 billion for storage projects $725 million for water recycling $900 million for groundwater stability $395 million for flood management (i.e., levees)

17. California Enacted Laws AB 1812 – Health Data Disclosure Allows disclosure of health data beyond current approved agencies IHS is now included as a recipient, as are Tribal epidemiology centers. • CMS, HRSA, NIH, National Cancer Institutes, and Veterans’ Affairs.

18. California Enacted Laws ACR 168 – DC Football Team Name Change AB 1973 – Native American Day SR 58 – ACR 36 – Native American Heritage Month

19. DEAD BILLS AB 2264 – Clinic Licensing Would have required State DHHS to negotiate with federally recognized tribes that wanted to take over clinic licensure for the States. SB 1324 – Native American Memorial

20. Gaming Roundup!

21. Enacted Gaming Laws AB 1042 – Special Distribution Fund Implements more oversight of how funds in the SDF. Finance to consult with CGCC to make specific recommendations on how to spend payments to local communities. Reduced to $9.1 million outlays this year.

22. Enacted Gaming Laws AB 1916 – Tribal Nation Grant Fund Creates the TNGF, as authorized by the Graton Rancheria Compact. Will not replace either SDF or Revenue Sharing Trust Fund (RSTF). TNGF funded with four compacts – Graton, North Fork, Ramona, and Coyote Valley. No criteria for grants, but will not be funded significantly for another seven years.

23. Compacts Ratified AB 277 – North Fork Mono Band & Wiyot Tribe (Prop 48) AB 1267 – Shingle Springs Band of Miwok SB 668 – Fort Independence Paiute SB 1224 – Karuk Tribe SB 1356 – Viejas Band of Kumeyaay AB 1245 – Ramona Band of Cahuilla

24. Dead Bills AB 328 – RSTF Solvency Attempted to add more funding to RSTF with revenue contributions from San Manuel, Morongo, and Pechanga. AB 1098 – Enterprise Rancheria Compact Ratification Tribe has filed suit for failure to negotiate in good faith.

25. Internet Poker AB 2291 / SB 51 / SB 1366 / Tribal Draft Bill would authorize and provide for state regulation of online, INTRASTATE wagering on poker. Tribes are split over “bad actor” language. PokerStars acquired by Amaya Gaming. Tribal sides insist an agreement is close.

26. National Laws PL 113-168 – Tribal General Welfare Exclusion Act Complementary to June 3 IRS revenue procedure 2014-35. Treats tribal government payments for General Welfare as tax exempt. • Made pursuant to a government program • Promotion of general welfare, based on individual or family need • Are not compensation for services. Suspends General Welfare audits of tribes.

27. National Laws PL 113-128 – Workforce Innovation & Opportunity Act Reauthorizes Workforce Improvement Programs, including tribal programs. Small increase in Youth workforce funding from $12 million to $15 in 2020. Larger program starts at $46 million in 2015, increasing to $54 million in 2020. Now requires Tribes to performance indicators, that will be drafted with consultation. Four year grants, instead of two years.

28. National Laws PL 113-146– Veterans’ Access Choice & Accountability Allows Veterans to seek care at non-VA facilities—including IHS and tribal facilities. • Must live more than 40 miles from VA facility. $10 billion in mandatory appropriations for health care. Also contains $5 billion for staffing and infrastructure improvements, and increases oversight.

29. Questions? Adam P. Bailey Hobbs, Straus, Dean & Walker Sacramento, CA Phone: 916-442-9444 Email: abailey@hobbsstraus.com