SB 50 and the battle over federal property conveyances in California

In the ongoing battle between California and the Trump administration over everything from immigration laws to environmental regulations, earlier this month, Attorney General Jeff Sessions filed a lawsuit against the state of California claiming that Senate Bill 50 (Allen, Chapter 535, Statutes of 2017) unlawfully prevents the federal government from buying and selling federal lands in California.

Out of concern that the Trump administration may attempt to erode protections for national monuments and other lands in California with significant natural, cultural, historic or scientific resources in favor of greater mining and leasing opportunities, Gov. Jerry Brown signed SB 50 in law last October to discourage the federal government from conveying or re-designating federal public lands in California. With limited exception, SB 50 prohibits conveyances of federal public lands in the state unless the California State Lands Commission is given a "right of first refusal" or "the right to arrange for the transfer of the federal public land to another entity." Under SB 50, purchasers of federal land are prohibited from recording a deed to the property without an accompanying "certificate of compliance" from the commission. Buyers who fail to comply must pay a $5,000 civil penalty.

On April 2, the U.S. Department of Justice filed a complaint in the U.S. District Court for the Eastern District of California for declaratory and injunctive relief against the state claiming that SB 50 violates the U.S. Constitution's supremacy and property clauses. According to the federal government, SB 50 unlawfully gives California the power to veto the federal government's sales of its land to private parties. The lawsuit claims that SB 50 has already interfered with the Navy's sale of federal land in Alameda County, the Veterans Affairs Department's efforts to lease part of its land in Los Angeles for veterans' housing, and the U.S. Post Office's plan to auction property in Sacramento, among other conveyances.

In its complaint, the Justice Department reviewed the powers of the federal government to dispose its real property. The supremacy clause states that federal law "shall be the supreme law of the land; and the judges in every state shall be bound thereby." U.S. Const. art. VI cl 2. The property clause gives Congress the power to dispose of property belonging to the United States. U.S. Const. art. IV, Section 3, cl. 2.

The complaint notes that California was admitted into the Union on Sept. 9, 1850, upon the "express condition" that the state "shall never interfere with the primary disposal of the public lands within its limits." According to the Justice Department, California did just that, and the state law should be invalidated.

But California is not thwarted Sessions. On April 27, State Lands Commission staff released a notice inviting public comments through May 11 on proposed draft SB 50 regulations. According to its notice, commission staff "believes that the Legislature intended that SB 50 address conveyances of federal public lands with high value for environmental conservation or preservation, tourism, scientific study, or recreation, such as national parks and monuments."

The draft SB 50 regulations focus on categories of public trust-type land conveyances by clarifying that SB 50 does not apply -- or is limited in its applicability to -- other types of non-public trust type conveyances such as military defense base realignment or base closures. If adopted, the regulations could potentially moot some of the claims raised by the federal government in its lawsuit.

For now, the Trump administration is moving forward with executive orders and policies to open up more federal lands to oil and gas exploration and development and mining of mineral resources throughout the West. And while California may be winning the battle of public opinion, it could very well lose the war under SB 50 as it tries to rein in the Trump administration's efforts to unload federal lands in California.