The United States Department of Justice (DOJ) is suing the state of California to overturn a state law granting it the power to veto the sale of federal lands within the state to private individuals.
The California law, signed in September 2017, gives the state the first right of purchase for any federal lands in the state the U.S. government tries to sell to private individuals. If the state does not want federal land up for sale, under the new law California has the right to direct the sale to buyers it prefers. Currently, about 50 percent of the land in California is owned by the federal government.
DOJ’s lawsuit says California’s law, which took effect in January 2018, is delaying legitimate land sales, some in the works for years, and depressing their value. For instance, Sessions noted under the cloud of the new California law, the federal government received no bids for the auction of 1.7 acres owned by the U.S. Postal Service, forcing the government to suspend the auction. In addition, a developer who had wished to purchase property at the now-closed Alameda Naval Air Station requested a delay in the transaction due to the uncertainties created by the law.
‘Extreme State Law’
The Supremacy Clause of the United States Constitution makes explicit it, federal laws made pursuant to it, and treaties made under its authority, are the supreme law of the land. Accordingly, U.S. Attorney General Jeff Sessions says, California’s law is unconstitutional since the federal law is the ultimate authority concerning federal land disposal and because the California law specifically discriminates against land sales by the federal government.
“The Constitution empowers the federal government — not state legislatures — to decide when and how federal lands are sold,” said Sessions in a DOJ press release announcing the lawsuit on April 2. “California was admitted to the Union upon the express condition 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,” Sessions said.
No Deed, No Sale
California argues the state legislation is lawful because it does not prevent the federal government from selling federal lands, it just prevents prevent those attempting to buy the property from recording deeds to it unless the state was given the chance to purchase the land first.
As Kate Irby and Stuart Leavenworth in explain in McClatchy News article, purchasers recording a deed is how they give public notice they have the right to the parcel of land. Absent a recorded deed, most banks and other legal lenders will not lend money to purchase or develop a property. In addition, absent a legal, recorded deed purchasers cannot obtain title insurance for a property.
“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,” write Irby and Leavenworth. “A person who does record a deed in violation of the law could be fined up to $5,000.”
In response, DOJ argues allowing the federal government to sell a property but not allowing the purchaser to record a deed is the equivalent of forbidding the sale, “a distinction without a difference.”
“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,” Jesse Panuccio, acting associate attorney general told McClatchy News. “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.”
Kenneth Artz ([email protected]) writes from Dallas, Texas.
Artz has more than 20 years’ experience in nonprofit organizations, publishing, newspaper reporting, and public policy advocacy.
