The sovereign State of California generally doesn’t like it when the sovereign United States of America conveys federal public lands with public values out of federal public ownership. Neither do I. But neither do I agree with the State of California’s recent attempt to legislate the circumstances under which federal public lands can be conveyed by the federal government. I support the federal government’s lawsuit against California in this case because I believe the best thing for America’s federal public lands is for the United States to prevail.
Some Background: Dual Sovereignty and Resulting Tensions
The founding fathers, in drafting and approving the United States Constitution, recognized the dual sovereignty of the individual states of and the United States of America. The federal constitution granted and reserved certain powers to the federal government and certain powers to state governments, and it prohibited each from having certain powers. Tensions between the powers of the states and the federal government are built-in, and conflicts are often resolved using the courts, in particular the federal courts.
Today, such tensions are high. California (a generally progressive, liberal, and environmentally conscious state) sued the Trump administration (a generally reactionary, illiberal, and environmentally unconscious executive department) twenty-four times in seventeen subject areas in 2017. More suits have been filed in 2018.
Tensions between individual states and the United States have been high in previous instances. It must be noted that Texas—where some citizens favor secession (while I support the national government letting Texas again become a sovereign nation or giving it back to Mexico from which it was stolen, I would support another civil war if Texas tried again to leave on its own)—sued the Obama administration forty-eight times.
It’s the way our system works. I believe California has a better win-loss record than Texas, but we’re still in the early innings.
California’s Recent Bill in Question: Void Ab Initio
On October 6, 2017, Governor Jerry Brown (D) signed into law Senate Bill 50, which declares that any “conveyance” of any “federal public lands” is “void ab initio” (“to be treated as invalid from the outset”) unless the California State Lands Commission(SLC) has been given a right of first refusal to acquire the federal property. SB 50 forbids any county recorder from recording any such deed of conveyance unless it receives a certificate from the SLC waiving its right of first refusal. Further, any person who knowingly attempts to record such a conveyance is subject to a fine of up to $5,000.
A “conveyance” is “any method, including sale, donation, or exchange, by which all or a portion of the right, title, and interest of the United States in and to federal lands located in California is transferred to another entity” and “federal public lands” include “surface estate, subsurface estate, or any improvements on those estates,” so SB 50 covers the sale of any federal property, from old post offices to undeveloped natural public lands.
The Federal Government’s Response
On April 2, 2018, the United States of America, on behalf of itself and nine federal departments and agencies, filed a complaint for declaratory and injunctive reliefin the United States District Court for the Eastern District of California against the State of California, Governor Brown, and the California State Land Commission saying that SB 50 is, in effect, void ab initio.
United States Attorney General Jeff Sessions
The Office of Public Affairs of the U.S. Department of Justice (DOJ) not only issued a standard media release announcing this lawsuit but also concurrently released an additional statement by Sessions entitled “Statement by Attorney General Sessions on Today’s New Lawsuit Against the State of California” in which Sessions—in a mere 426 words—speaks to the resistance of the states, guns, drugs in general, opioids, securing borders from drug traffickers and criminal aliens, national security, cyber security, radical Islamic extremists, patently meritless lawsuits, waste of taxpayer dollars and DOJ resources, ideological judging, forum shopping, procedural delays, the ability of just one of more than six hundred federal district court judges to impede the federal government, limitless and ever-more extreme injunctions, and partisan actors—and mentioning some topics more than once!
One can only hope that the issuance was cathartic for the embattled (both from above and from the states) attorney general. (By “cathartic” I mean in the psychological sense of “providing relief through open expression of strong emotions” and not the physiological sense of “accelerating defecation.” However, perhaps Attorney General Sessions got a twofer out of it.)
In the concurrent diatribe, Sessions made no mention of the actual case or controversy at hand: California interfering with the supreme power of the federal government to dispose of federal lands. However, Sessions did say in the actual relevant media release:
The Constitution empowers the federal government—not state legislatures—to decide when and how federal lands are sold. California was admitted to the Union upon the express condition that it would never interfere with the disposal of federal land. And yet, once again, the California legislature has enacted an extreme state law attempting to frustrate federal policy. The Justice Department shouldn’t have to spend valuable time and resources to file this suit today, but we have a duty to defend the rightful prerogatives of the U.S. military, the Interior Department, and other federal agencies to buy, sell, exchange or donate federal properties in a lawful manner in the national interest. We are confident that we will prevail in this case—because the facts are on our side.
Strange Bedfellows: A Closer Look at the Constitution
The Constitution makes for strange bedfellows. Very rarely do I agree with the Trump administration, but Attorney General Jeff Sessions is on the side of the United States Constitution in this case. (Nonetheless, he’s still generally awful.)
Of the AG’s five sentences, I fully concur with the first, second, and fifth sentences, and even though I would have said it differently, the fourth sentence. As for Sessions’s third sentence, California’s SB 50 is not so much “extreme” as a clumsy (pronounced “unconstitutional”) way to prevent the federal government from privatizing federal public lands when it is not in the public interest to do so.
To understand the constitutionality (or lack thereof) of California’s gambit, one has to begin at the beginning. The United States Constitution says in Article VI, the “supremacy clause”:
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.[emphasis added]
When California became a state in 1850, it accepted the United States Constitution as supreme. In fact, the California Constitution says in Article III, Section 1 that the “State of California is an inseparable part of the United States of America, and the United States Constitution is the supreme law of the land.”
Next, the US Constitution says in Article IV, Section 3, Clause 2, the “property clause,” that “The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States.” Regarding the property clause, the Supreme Court has found that “the power over the public land thus entrusted to Congress is without limitations” (United States v. Gratiot, 1840, 39 U. S. 527). (My previous Public Lands Blogpost entitled “The Constitutionality of Federal Public Lands” goes into some detail on the property clause.)
On September 9, 1850, Congress passed An Act for the Admission of the State of California into the Union, which said that “the said state of California is admitted into the Union upon the express condition that the people of said State, through their legislature or otherwise, shall never interfere with the primary disposal of the public lands within its limits.”
SB 50 so interferes and therefore is unconstitutional. As the federal government’s complaint says, SB 50 “delays and otherwise obstructs conveyances of real property owned by the United States, including by creating a potential cloud on marketable title.” The people of and the State of California accepted the terms of the deal and cannot be allowed to renege. (Please see my previous Public Lands Blogpost entitled “Statehood and Federal Public Lands: A Deal is a Deal.”)
California Governor Jerry Brown
Jerry Brown: Stand Down
The best thing for America’s federal public lands is for the United States to win this case against California.
Why? The idea that states might be able to control the federal government’s disposal of federal public lands is a two-edged sword. If the State of California can interfere with the federal government’s management, including sale, of federal public lands in California (albeit with honorable intent to serve the public interest in keeping public lands public), so can the State of Utah (albeit with nefarious intent to privatize public lands).
Jerry Brown: Go Around
There are more artful (pronounced “constitutional”) ways for California to achieve its end of ensuring that federal public lands with important public values stay in public ownership.
· Outbid everyone else. When the federal government puts a parcel of federal property up for sale, California could bid on it like anyone else. The state, after all, has the deepest pockets of any potential bidder.
· Use the power of eminent domain. If the federal government sells a parcel of federal public lands that the State of California believes is important to keep in public ownership, the state can use its power of eminent domain to take the former-federal, now-private property for public use. Legal precedent has established that the power of eminent domain by the states is sweeping for any public use—as long as just compensation is provided.
· Prezone the federal land. The state could zone the federal public lands within the state so that if any did come into private ownership, the new private owner would know—before they bought the property—what uses would or would not be allowed on such a parcel. In this way, the new private landowner could claim no taking of property without compensation since the owner knew, before buying, the rules of the game.
· Lobby to improve the laws pertaining to the federal public lands. Through its congressional delegation and directly, California could lobby Congress to enact legislation
o giving the states the right of first refusal in the sale of federal properties;
o forbidding the sale of Bureau of Land Management holdings as it generally does for Forest Service, Fish and Wildlife Service, and National Park Service holdings; and/or
o elevate the conservation status (and therefore public awareness) of federal public lands in California, so any anti–public lands federal administration doesn’t even try for those lands.