The California Public Utilities Commission (CPUC) has moved forward with a policy that it adopted back on December 5, 2019, to assist California Tribes with reclaiming a small portion of their ancestral lands. Specifically, the CPUC seeks to "encourage, and where possible, facilitate transfers of Real Property to California Native American Tribes" by requiring that utilities in the state offer California Native American Tribes a right of first refusal over certain property.
While the CPUC has tried various means to solicit comments and feedback from the Tribes regarding the implementation of the process, only eight of the 164 California Tribes have weighed in at all. Those eight Tribes include the Agua Caliente Band of Cahuilla Indians, the Ewiiaapaayp Band of Kumeyaay Indians, the Habematolel Pomo of Upper Lake, the Manzanita Band of the Kumeyaay Nation, the Paskenta Band of Nomlaki Indians, the San Fernando Band of Mission Indians, the Yoche Dehe Wintun Nation, and the Yurok Tribe.
All of these California Tribes engaged in a very cursory fashion, without reacting to any of the extensive and substantial comments provided by the utilities and other traditional stakeholders at the CPUC. The result is that the CPUC has largely fashioned its policies based on limited feedback from the very stakeholders its policy is meant to support.
Importantly, the Commission defined "first right of refusal" as meaning that the utility:
[D]isposing of the surplus property has to contact the Tribe or Tribes whose ancestral territory surrounds the surplus property and provide such tribe(s) the first right to take/purchase or refuse transfer of the property, before the IOU can seek third party purchasers for such surplus property. The right of first refusal is similar in concept to a call option, in that the Tribe will have the right, but not the obligation, to purchase or accept transfer of the surplus land within a reasonable time period, as determined by the Commission, after notice by the IOU is provided to the Tribe.
But how this policy will be implemented will obviously impact its success. To that end, the Commission has proposed guidelines on its policy and implementation.
But, again, for whatever reason, very few Tribal representatives have participated and given feedback as to whether these transfer procedures meet their needs and whether the Tribes will actually be able to take advantage of a policy meant to benefit their sovereign nations. Regardless, the implementation procedures are slated to be approved by a resolution at the Commission's November 5, 2020, meeting.
The draft resolution does provide for additional opportunities for Tribal engagement, starting with a workshop that will be convened shortly after the adoption of the proposed guidelines on November 5, 2020.
Our hope in drafting this blog is that Tribes will choose to participate in that workshop and, more importantly, avail themselves of the opportunity that this program will hopefully reclaim property that was once a part of their ancestral territory. In addition, we hope that California Tribes will increasingly participate at the CPUC in a more concerted fashion as the CPUC increases its tribal consultation efforts.
California Tribes can and should use their combined strength and resources to influence the energy, water, and telecommunication policies established by the CPUC that affect the conservation, renewable energy, and economic development efforts that many of these Tribes are actively engaging in. And as large utility consumers, the California Tribes should actively participate in the ratemaking processes at the CPUC to ensure cost effective rates for their members and businesses.