Law & the Courts

The Justice Department Sues California

(Mike Blake/Reuters)
The state is trying to grab control of federal lands.

On Monday, the Department of Justice filed suit against the state of California, challenging a state law that purports to prevent the federal government from selling federal lands without the permission of a state agency.

Passed by the California legislature in October 2017, Senate Bill 50 declares that, with limited exceptions, “conveyances of federal public lands in California are void” unless the State Lands Commission is provided a “right of first refusal” or “the right to arrange for the transfer of the federal public land to another entity.” The statute also prohibits purchasers of federal land from recording the deed to the newly acquired property without an accompanying “certificate of compliance” from the state commission and provides for a $5,000 civil penalty for buyers who violate this provision.

In its complaint, filed in a federal district court in Sacramento, the DOJ alleged that SB 50 violates both the supremacy clause and the property clause of the United States Constitution. The supremacy clause declares that the federal Constitution and federal laws are “the supreme Law of the Land,” while the lesser-known property clause provides that “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.” The DOJ then cites nearly 30 federal statutes that authorize different federal agencies to dispose of federal property and regulate the circumstances under which such sales may take place.

Yet in passing SB 50, the state of California expressly declared the state’s policy is to “discourage conveyances that transfer ownership of federal public lands in California from the federal government.” This policy, and the specific provisions adopted in SB 50 in furtherance of this policy, interfere with the federal government’s constitutionally infused prerogative to determine the best use for federal property and cannot survive the supremacy clause.

California’s attempt to manage federal lands through SB 50 also violates the express condition placed on the state for “admission into the Union.” As the complaint sets forth, on September 9, 1850, Congress enacted “an Act for the Admission of the State of California into the Union,” which, among other things, provided “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, and shall pass no law and do no act whereby the title of the United States to, and right to dispose of, the same shall be impaired or questioned.”

Given the clarity of this command, in conjunction with the governing constitutional provisions, SB 50 seems destined for a quick demise — but not without a cost: As Attorney General Jeff Sessions pointed out in a scathing statement announcing the lawsuit, California is wasting government resources on litigation. “The Department of Justice is fighting every day to take illegal guns and drugs off our streets, combat the opioid epidemic and secure our borders from drug traffickers and criminal aliens, and protect our national security from radical Islamic extremists and foreign threats to our cyber security,” he wrote. “But once again, we see that too many of our resources are being diverted to deal with meritless and unnecessary lawsuits.”

The federal government is not the only one to bear the cost.

However, the federal government is not the only one to bear the cost. California’s attempt to stymie the sale of federal properties also hurts those whom the sales were intended to benefit, such as the veterans whom the Department of Veterans Affairs seeks to assist with its plans to revitalize its 388-acre West Los Angeles Campus to allow for the development of permanent supportive housing and related services. But this and other projects have been delayed because of California politicians’ futile attempts to restrain the federal government.

Restrain may not be the correct word, though. Resistance seems the more apt descriptor, but as Attorney General Sessions stressed, “government-by-litigation isn’t what the American people voted for and attempting to thwart an administration’s elected agenda through endless, meritless lawsuits is a dangerous precedent.”

Nonetheless, California seems undeterred — as further seen yesterday, when Democratic attorney general Xavier Becerra threatened to sue the Environmental Protection Agency following EPA administrator Scott Pruitt’s announcement that the federal government intended to roll back the fuel-efficiency standards for cars adopted by the previous administration. This development is yet more proof that, notwithstanding the cost to taxpayers — both federal and state — California remains committed to using the courts to overturn the consequences of the 2016 presidential election.

Margot Cleveland is a lawyer, CPA, stay-at-home mom, and former full-time faculty member and current adjunct professor at the college of business at the University of Notre Dame.

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