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standing finance committees of the NM Legislature. The LFC does not assume
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|
SPONSOR |
McSorley |
DATE TYPED |
|
HB |
|
||
|
SHORT
TITLE |
Streamline Capital Outlay Process |
SB |
SJM 67/aSIAC |
||||
|
|
ANALYST |
Gilbert |
|||||
APPROPRIATION
|
Appropriation
Contained |
Estimated
Additional Impact |
Recurring or
Non-Rec |
Fund Affected |
||
|
FY04 |
FY05 |
FY04 |
FY05 |
||
|
|
|
|
NFI |
|
|
(Parenthesis
( ) Indicate Expenditure Decreases)
LFC Files
No
Responses From
Attorney
General’s Office (AGO)
Office
of Indian Affairs (OIA)
SUMMARY
Synopsis of SIAC
Amendment
The Senate Indian and Cultural Affairs Committee
amend the bill as follows:
q Removes
the Office of Attorney General as an entity in the streamlining of the capital
outlay process- Reference “Administrative Implications” “ Other Substantive
Issues” below;
q Clarifies
language on the need for a “new capital request or reauthorization” of some capital
projects;
q Strikes
language on collaboration between the NM Office of Indian Affairs with the Environment
Department and the Transportation Department and the Office of Cultural Affairs
on providing archaeological clearances. Reference “Administrative Implications”
below.
q Inserts
language that the Office of the
Governor, Department of Finance and the NM Office of Indian Affairs collaborate
with the NM Indian nations, tribes and pueblos to develop a strategic plan for
capital projects.
Synopsis of Original Bill
Senate
Joint Memorial 67 states that capital projects in Indian nations, tribes and
pueblos linger without completion because of partial funding, lack of project
readiness, and lack of a reliable reporting system.
The
bill also concludes that training for the tribes in how to develop scopes of
work, joint powers agreements (JPAs) and use of boiler plate forms may streamline
and expedite the capital outlay process.
Therefore, this bill requests the Department of Finance and Administration
(DFA) to work with the New Mexico Office of Indian Affairs (OIA), the New
Mexico Attorney General’s Office (AGO), and other state agencies to streamline
the capital outlay process on tribal lands.
This
bill also recommends that the AGO work collaboratively with the OIA to develop
a standard method for determining indigency to allow power projects in the communities.
Significant Issues
Senate
Joint Memorial 67 instructs the AGO to collaborate with OIA on developing
boiler plate forms for scopes of work and JPAs.
According
to the AGO, they have already developed and utilized standard language for JPAs
including provisions relating to equal opportunity compliance, arbitration,
liability and conflict resolution (sovereign immunity), and
non-discrimination. A standard JPA
document was approved by both the Navajo Nation and the AGO. The AGO turned over responsibility for development
and review of JPAs for capital outlay projects to General Counsel for the OIA
in 2003. We understand that the OIA
presently uses the same standardized language in its JPAs and this Office
continues to provide legal assistance to OIA’s General Counsel when requested.
FISCAL IMPLICATIONS
The
AGO stated that this bill will result in allocating additional staff resources
to work with the OIA on more standardized forms and training.
The
bill relates to the 302 tribal capital outlay projects that are administered by
the OIA, which totals $20.1 million in state appropriations.
ADMINISTRATIVE IMPLICATIONS
Although
the AGO supports the continued provision of training for tribes in developing
appropriate scopes of work for capital projects receiving a state legislative
appropriation, the AGO cannot serve as legal counsel to tribal governments or
tribal governmental entities. We believe
that the OIA utilizes a standardized scope of work document; however, our
experience has been that scope of work documents are
specific to each tribal project.
Therefore, the AGO is uncertain what greater role it can play in
furthering this objective.
The
Office of Indian Affairs indicated that it is currently performing the
following task:
Boilerplates
and training: To streamline the process, the Office of
Indian Affairs already utilizes standard language for its joint powers
agreements and it has also developed boiler plate forms for the scope of work
and the subcontractor form. On several occasions, the OIA has also
provided tribes training on the state’s capital outlay process.
Reporting: In addition to its own
internal reporting, the Office of Indian Affairs works with the Capital Outlay
Monitoring System (CPMS) which is run by the DFA.
Environmental
assessments and archaeological clearances: The
OIA continues to work with tribal governments in ensuring that they provide the
state with copies of archaeological clearances and environmental assessments
because that is a federal-tribal
government function. Because tribal
lands are held in trust by the federal government, the OIA and the AGO have
worked out a mechanism through the joint powers agreements to ensure that they are
provided with the information by the Tribes.
The
OIA has found that the reason why tribal capital outlay projects are delayed is
because they are severely under funded; not because of the lack of boilerplates
or reporting mechanisms.
OTHER SUBSTANTIVE ISSUES
This
bill also recommends that the AGO work collaboratively with the OIA to develop
a standard method for determining indigency to allow power projects in the communities. This recommendation is unclear. If the appropriation covers a power project
associated with residential homes, for example, the AGO has deferred to a tribe’s
certification that the associated housing program serves the needs of indigent
citizens. The AGO has not raised
indigency as a legal barrier for larger power projects on tribal lands. Rather, a legal issue for power projects has
been ownership of the rights-of-way involved, for example, in line
extensions. Since the Whitehorse Lake appropriation
(1993) and the Burnham chapter power line extension project in San Juan County
(1994), the AGO has taken the legal position that in order to avoid violating
the Anti-donation Clause of the New Mexico Constitution (Art. IX, § 14),
ownership must be in the pueblo, tribe, or nation itself, or for the Navajo
Nation in the Navajo Tribal Utility Authority (NTUA) – which entity this office
recognizes to be, for purposes of anti-donation clause analysis, the Nation
itself, engaged in the performance of a governmental function. In no event, however, may a private utility
company (including cooperatives) own the rights of way or the lines
themselves. Therefore, the AGO is not
certain how it would implement this provision of SJM 67.
The
comments and testimony consistently presented in various public forums during
the last two years indicates that the tribes need assistance from the State of
The
bill only targets capital outlay projects on tribal lands. Tribal governments are sovereign entities who
have jurisdiction over their Nation’s lands, including issues related to
developing their capital infrastructure. The State and the 22 New Mexico
Indian Tribes have a long history of partnering to address some of the needs of
common citizens including developing the basic infrastructure needs of tribal
communities. The Office of Indian Affairs has not only served as a
liaison between State and Tribal Governments, it has worked with Tribal offices
to ensure that state funds are being utilized in the most appropriate manner
and timeframe, including capital outlay.
POSSIBLE QUESTIONS
Why
is SJM 67 only targeting tribal capital outlay projects? The OIA believes there are serious problems
associated with capital outlay projects across the board and that the Governor
wants them addressed.
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