United States v. California and SB 50

Federal lawsuit against California’s law to protect federal public lands may not be an easy win

Monday the federal government filed a lawsuit against the state of California challenging SB 50, a state law that attempts to give the state the ability to purchase federal public lands that are sold or disposed of.  The lawsuit has gotten a lot of attention in the press, some with assessments that the federal government’s case is very strong.  I think those assessments are too one-sided, and that the state actually has a better case than some of those analyses make out.  Here I want to try and elaborate why that is the case (warning, this will get a little wonky).

I’ve written about SB 50 earlier, but the basic framework of the state law is this:  California (like all states) has a land recording system in which sellers/buyers of property record their deeds at a county land records office.  Recording your transaction is not a requirement for someone to transfer a piece of land, but if you don’t record your transaction, you run the risk of losing the property to a later transaction, and the land becomes a lot harder to sell if you don’t record the transaction (also banks won’t generally give you a mortgage).

SB 50 prohibits land recording offices from recording a transaction from the federal government to a private party unless there is a certificate stating that the State Lands Commission (which manages California’s state-owned lands) was offered a right of first refusal for the transaction, and declined to exercise that right, or the Commission waived its right of first refusal.  The holder of a right of first refusal has the ability to match any other purchaser’s offering price for a property.

The federal complaint claims that SB 50 has been interfering with routine property transactions by the federal government in California (e.g., selling off an excess Post Office site and transferring ownership of a shuttered military facility).  It raises two legal claims: One, SB 50 violates the federal constitution by improperly imposing state regulation on the federal government (an “intergovernmental immunity” claim), and two, that SB 50 is preempted by the Property Clause of the federal constitution (which gives Congress the power to dispose or and issue rules and regulations for federal lands) and various federal land disposal statutes.

To me, the key question about the success of the lawsuit is the distinction between what are called facial versus as applied challenges to statutes.  A facial challenge means that the plaintiff is asking the court to completely strike down the statute on the grounds that the statute is so unconstitutional that it should not be applied in any context at all.  An as applied challenge means that the plaintiff is asking the court to strike down the statute only as applied to specific situations or circumstances.  Courts generally tend to disfavor facial challenges to statutes, though they do sometimes grant them.  The federal complaint reads to me as a facial challenge to SB 50 – while it gives specific examples of how SB 50 is interfering with federal land disposal, it uses those only as illustrations, and the arguments it makes would generally lead towards completely striking the statute down.

The question is whether the court should strike down SB 50 as facially unconstitutional, or whether it should instead require the federal government to raise as applied challenges, and then determine whether SB 50 should apply to specific land transactions or not.

The federal government’s intergovernmental immunity argument basically is that SB 50 interferes with a wide range of federal laws that provide for the federal government to dispose of its lands, discriminates against the federal government, and impairs the accomplishment of federal policy to the extent that it prevents sale or disposal of federal lands pursuant to those federal laws.

One argument that California is likely to make here is that SB 50 does not directly regulate the federal government – it regulates the private recipient of the land from the federal government who records their land transaction with the county.  It’s unclear how much traction this argument might get with the court, since there is caselaw indicating that intergovernmental immunity also applies to state regulation of federal contractors or employees, if the state regulation is intrusive enough.

The Property Clause argument by the federal government is that the constitution gives the federal government power to dispose of its lands, and any state interference with that power is preempted by the Property Clause (pursuant to the Supremacy Clause of the US Constitution, which provides that federal constitutional and statutory provisions are supreme over conflicting state laws).  There is (fairly old) Supreme Court caselaw that holds that the Property Clause broadly restricts or prevents states from interfering with federal land disposal.

The federal complaint also points to a provision of the federal act admitting California as a state in which the state promised not to interfere with land disposal by the federal government, and to various federal laws that provide for land disposal.  Again, the complaint argues that these preempt SB 50.

Based on these arguments, a court might hold that SB 50 is facially unconstitutional or preempted, and strike it down.

But there is an alternative way of understanding how federal power intersects with state power when it comes to the federal public lands.  There are a number of recent Supreme Court decisions (such as Kleppe v. New Mexico and California Coastal Commission v. Granite Rock) from the past 40 years in which the Supreme Court has considered how state regulation of activities on federal public lands interacts with federal power under the Property Clause.  The basic principles that the Supreme Court has developed is that state law can apply to activities on federal public lands – even activities affirmatively authorized or approved by the federal government under federal law – so long as the state regulation does not conflict with the relevant federal law.  For instance, states can impose at least a limited range of environmental regulations on mining activities on federal lands, so long as those regulations do not absolutely prohibit mining.  (For more discussion of this caselaw, see earlier posts of mine on the Rinehart case from the California Supreme Court.)

From this perspective, state regulation of private parties who purchase or receive land from the federal government is no different than regulation of private parties who receive oil and gas leases from the federal government, or mining claims, or grazing permits.  Such regulation is permissible if it doesn’t conflict with the relevant federal laws.  This framework would lead to an analysis that focuses on the specific federal statute that the land transaction occurred pursuant to, to determine whether state regulation is in conflict with that federal statute.

And that is where things get interesting. Because it turns out that at least some federal statutes expressly require the federal government to only transfer lands to private parties if the transfer is in compliance with state law.  Most importantly from the perspective of transfer of federal public lands that are important for conservation, the Federal Land Policy and Management Act (FLPMA) provides the framework for land sales and disposal by the Bureau of Land Management (BLM) which controls large areas of the California desert.  FLPMA has a provision that prohibits “conveyances of public lands containing restrictions which would, at the time of the conveyance, constitute a violation of any law or regulation pursuant to State and local land use plans, or programs.”  43 U.S.C. § 1718.  There is a good argument that SB 50 does not conflict with FLPMA or a land disposal pursuant to FLPMA – and thus it would not violate intergovernmental immunity or be preempted.

What about other federal statutes that do not explicitly specify that land transfers must comply with state law?  Here the nature of the right that SB 50 seeks to exercise – the right of first refusal – is important, as I noted in my prior blog post.  The right of first refusal (at least in theory) should not affect the sale price of the property – the state only gets to match the price agreed upon between the federal government and the buyer.  So to the extent that the federal statute is only focused on the price, and not on the buyer, then the right of first refusal doesn’t really conflict with the operation of the statute.  Of course, there may be other issues that come up in analyzing whether there is a conflict between federal and state law in this context, but again, this would undercut the argument that there is always a conflict between federal and state law here.

There may also be federal laws that seek to transfer federal lands to specific parties that are not the State of California, and these laws are much more likely to present a conflict with SB 50.  Here, preemption is most likely to occur.

What about the act admitting California to the Union in which California disclaimed interference with disposal of federal lands?  As A matter of constitutional law, the Supreme Court has held that acts admitting states to the Union cannot expand the constitutional power of the federal government vis-à-vis the states.  So the question is really whether, as a matter of statutory law, this federal law preempts all state law here.  FLPMA, for instance, was enacted long after California was admitted to the Union, and a good case can be made that FLPMA repeals any restrictions on state authority in this context, at least with respect to land disposal pursuant to FLPMA.   That kind of analysis puts us back in the statute-by-statute specific analysis I indicated above.

How might a court decide whether to adopt a facial or as applied challenge approach?  At least for the preemption issues, it will depend on whether the court believes that all state laws in this context are automatically preempted, regardless of any possible conflict (what is called field preemption) or whether only state laws that directly conflict with federal law are preempted (what is called conflict preemption).  Again, more recent Supreme Court caselaw appears to take the conflict preemption approach, while older Supreme Court caselaw appears to take a field preemption approach.

It’s hard to say which approach a court will take at the moment – but hopefully this analysis has made clear that this is far from a slam dunk for the federal government.


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Reader Comments

8 Replies to “United States v. California and SB 50”

  1. Interesting well written accessible analysis, thanks, interesting to analyse relationships between Federal and State powers and law thanks richard

  2. It is refreshing to observe that after two weeks of intense political attacks, and despite the best efforts of nefarious contributors to this forum, EPA Secretary Scott Pruitt is still on the job and doing very well and will continue to reform the agency and make America great again. Thank you Mr. Pruitt – May God Grant You Many Years.

    1. Here is BQRQ, showing again how unfazed he is by Pruitt’s transparent corruption. As long as you’re on his side, all unethical behavior is just fine for him.

  3. President Trump on Friday praised embattled EPA chief Scott Pruitt, denied that he was thinking about naming him attorney general to replace Jeff Sessions — and blamed the “Fake News Media” for Pruitt’s mounting ethical woes.

    “Do you believe that the Fake News Media is pushing hard on a story that I am going to replace A.G. Jeff Sessions with EPA Chief Scott Pruitt, who is doing a great job but is TOTALLY under siege?” Trump tweeted at 10:46 a.m. “Do people really believe this stuff? So much of the media is dishonest and corrupt!”


    1. BQRQ unironically uses what may be the most extraordinary bullsh*tter ever to occupy the Oval Office as his source of information. It is amazing to see people who still haven’t figured out that Trump has zero concern with speaking truthfully.

  4. EPA Says ‘Unprecedented’ Number of Death Threats Against Pruitt:

    “………..According to EPA’s Assistant Inspector General, Scott Pruitt has faced an unprecedented amount of death threats against him and his family,” agency spokesman Jahan Wilcox said late Friday. “Americans should all agree that members of the president’s Cabinet should be kept safe from these violent threats……….”


  5. Germany’s Die Welt Proclaims Donald Trump ‘Most Successful Climate Protector in the World’:

    “…….The International Energy Agency (IEA) released its “Global Energy and CO2 Status Report, 2017” on March 22, which contained the bombshell news that the “biggest drop in emissions came from the United States,” which made folks at Die Welt sit up and take notice.

    Global energy-related carbon dioxide emissions increased overall by 1.4 percent in 2017, the report revealed, and in most major economies, carbon dioxide emissions increased as well.

    The United States led the small pack of countries that managed to lower greenhouse gas emissions, accompanied by UK, Japan, and Mexico. According to IEA figures, the United States managed to reduce CO2 emissions in 2017 by 0.5 percent, or 25 million tons, to 4810 million tons…..”


    1. It’s not surprising that Breitbart (and BQRQ) didn’t understand that Die Welt was trolling Trump with their headline, essentially pointing out that his desire to roll back CO2 emission limits and promote the coal industry have been thus far ineffective. Here are a couple of paragraphs of the original Die Welt article ran through Google Translate:

      “The 45th US President also took steps to end his perceived “war on coal”. This included the withdrawal from the World Climate Agreement of Paris, which Trump underwent major international protests last August.

      Now, however, shows that these steps have changed nothing in the pioneering role of the United States. On the contrary: Earlier CO2 savings could be explained by the fact that in the US many coal-fired power plants were displaced by cheap and tend to clean natural gas, which was brought using the controversial conveyor fracking from the ground.

      But this time the climate success of the United States is not based on Fracking Gas: The CO2-saving in the year 2017 was due rather to the increased use of renewable energy, which reached a record share of 17 percent, while the share of CO2 low-carbon nuclear power at 20 Percent persisted.”

      “In addition, the Trump-led central government in Washington energy and climate policy has little impact on the individual states. Regionally, the expansion of wind and solar power was further promoted and expanded independently of Washington.”

      And to address BQRQ’s continual praise of Scott Pruitt’s actions, a little reality check is in order:

      The Myth of Scott Pruitt’s EPA Rollback

      His ethics woes are overshadowing the central fact of his tenure: He hasn’t done much.

      “But Pruitt did not kill or roll back Obama’s strict fuel-efficiency standards; he merely announced his intention to launch a process that could eventually weaken them. In fact, Pruitt has not yet killed or rolled back any significant regulations that were in place when President Donald Trump took office. While Pruitt is often hailed (or attacked) as Trump’s most effective (or destructive) deregulatory warrior, the recent spotlight on his ethics—allegations of a sweetheart housing deal; pay raises for favored aides; lavish spending on travel, furniture and security; and retaliation against underlings who questioned him—has arguably overshadowed his lack of regulatory rollbacks during his first 15 months in Washington. The truth is that Scott Pruitt has done a lot less to dismantle the EPA than he—or his critics—would have you believe.

      It’s not for lack of trying. Pruitt has taken aim at just about every major Obama-era EPA rule, which has made him a pariah on the left, a hero on the right and the bureaucratic face of Trump’s vocal advocacy for fossil-fuel interests and other industrial polluters. But so far he’s only managed to delay a few rules that hadn’t yet taken effect. His supporters, critics and boss have all promoted the perception that he’s repealed Obama’s environmental legacy and shredded America’s environmental rulebook—and no one has promoted that perception more energetically than Pruitt, who frequently sued Obama’s EPA when he was Oklahoma’s attorney general. Nevertheless, that perception is wrong.”


      Fortunately, most of America’s institutions have thus far shown resilience against the stupidity of Trump. Credit should be given to the fourth estate, who have put his idiocracy on full display. Finally, it is a relief to see that America’s opinion of Trump is lower than it has been for any President at this point in their term since we started keeping track in the 1950s.

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About Eric

Eric Biber is a specialist in conservation biology, land-use planning and public lands law. Biber brings technical and legal scholarship to the field of environmental law…

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About Eric

Eric Biber is a specialist in conservation biology, land-use planning and public lands law. Biber brings technical and legal scholarship to the field of environmental law…

READ more