WASHINGTON — In its latest legal salvo against California, the Department of Justice announced Monday it is filing suit against what it branded an “extreme” state law that tries to give California power to veto sales of federal land to private interests.
The state law, which was signed in 2017, gave state officials the right to purchase any federal land in California the U.S. government tries to sell to private ownership. About 50 percent of California is public land.
Justice officials argue the state law is unconstitutional under the supremacy clause, which says when state laws conflict with federal laws the federal law is the ultimate authority and because it discriminates against land sales by the federal government specifically.
Federal law says the Bureau of Land Management can select public land for sale if it meets certain criteria.
“Under our federalism, states have the right to pursue their own policy objectives, but they do not have the right to actively obstruct federal policy, interfere with federal actions, or discriminate against the United States,” said Jesse Panuccio, acting associate attorney general.
“California has once again passed an extreme statute, found in no other state, to obstruct the federal government. This time, by interfering with the conveyance of federal lands,” he said.
The litigation marks the second time in a month that McGregor Scott, U.S. attorney for California’s eastern district, has helped launch a lawsuit against the state. On March 7, Scott joined Attorney General Jeff Sessions at a California Peace Officers’ Association meeting to announce a lawsuit against California’s sanctuary policies for undocumented immigrants.
In 2017, California filed 24 lawsuits against the Trump administration. Involved were 17 separate issues, including immigration, environmental protection and the president’s proposed U.S.-Mexico border wall.
State officials characterized the latest Justice suit as another “attack” by the Trump administration on Californian’s “very way of life.”
“Safeguarding public lands is in our DNA as Californians — so much so that we have enshrined the principle in our state constitution,” said Lt. Gov. and State Lands Commission Chairman Gavin Newsom, who is also a leading candidate for governor. “We will use every legal and administrative tool to thwart Trump’s plans to auction off California’s heritage to the highest bidder.”
Senior Justice officials were not shy about the targeting of California, saying during a briefing on the issue Monday their action was a “product of the extreme nature of laws that have been passed in California recently.”
Panuccio called the state law “another example of California avoiding federal law, and no state legislature can, statute by statute, undermine the rule of law and the U.S. Constitution.”
He warned that, “Whether California legislators and the governor like it or not, they must comply with the terms of their admission to the union and their oaths of office to uphold the U.S. Constitution.”
The latest Justice litigation helps bolster Trump’s standing with GOP lawmakers in Utah, Wyoming, Idaho and other western states who have long complained about excessive federal landholdings in their states. Some of the lawmakers have called for federal legislation that would transfer federal public lands to the state or private ownership.
California passed its own legislation after then-Rep. Jason Chaffetz, R-Utah, introduced legislation that would have transferred millions of acres of federal land to private or state ownership. He withdrew the bill in February 2017 after public pressure from hunting and fishing groups.
Trump administration officials have said they’re opposed to selling federal land to other interests, but senior Justice officials said the state initiative goes beyond selling land within public parks. The federal attorneys argued it could disrupt how the federal government contracts with private actors to build facilities for the military, for example.
The complaint lists three examples of how the federal government planned to sell certain public lands in the state that could be prevented by the California law, including the Department of the Army’s plans to sell to a developer about 78 acres of federal property in Alameda County for construction of facilities at Camp Parks, an Army military installation.
Interior Secretary Ryan Zinke, a former congressman from Montana, has repeatedly said he opposes the sale of federal lands. His goal, he said, is to work with the states to open up recreational opportunities on public lands.
“We’re not transferring or selling public land,” Zinke said in a January interview with conservative radio commentator Josh Tolley. “What we’re doing is we’re working with the states to open up recreation opportunities. We don’t want to be in an adversarial role. And that’s been the tension out west, is that the local voice, communities, have been ignored. And that’s not right.”
David Hayes, a former Interior Department official in the Clinton and Obama administrations, called it “odd” for the Justice Department to go after California on this issue if the Trump administration is not interested in selling federal lands.
“Whatever the motivation, I suspect that Attorney General Xavier Becerra will have something to say about state prerogatives that attach should the feds renege on their promises,” said Hayes, who directs the State Energy & Environmental Impact Center, a group that assists attorneys general on environmental litigation.
California officials assert they have the authority to implement the state legislation because they wouldn’t be preventing sales of the land. Instead, they would prevent private purchasers from recording deeds to the land unless the state was allowed the opportunity to buy the land first.
Recording a deed is how a purchaser gives public notice of the right to a parcel of land. Without a recorded deed many banks will not lend money to buy or develop the property and a purchaser cannot get title insurance, making a recorded deed much more valuable than an unrecorded deed.
The land recording system is set up under state and not federal law, so California officials argue the state is within its rights to pass laws regarding recorded deeds. A person who does record a deed in violation of the law could be fined up to $5,000.
Senior Justice officials argued that saying the federal government could sell land but not record a deed is “a distinction without a difference.”