The U.S. District Court for the Eastern District of California entered orders in two cases recently declaring California statutes unconstitutional because they discriminated against the United States in violation of the United States Constitution. The cases are United States v. California, No. 2:18-cv-721, and United States v. Kernen Construction, 2:17-cv-1424.
In United States v. California, decided recently, the court struck down California Senate Bill 50, “SB 50,” enacted in October 2017 for the express purpose of “discouraging” conveyances of federal land. The statute provided that any conveyance of a property interest in federal land would be void unless the State Lands Commission was given a right of first refusal over government proposals to sell federal land. After the United States filed suit last spring, California amended the statute, narrowing its application to federal lands managed by the National Forest Service, the federal Bureau of Reclamation, the federal Bureau of Land Management, the U.S. Fish and Wildlife Service, or the National Park Service; and federal lands containing national monuments, national marine sanctuaries, national conservation lands, or lands in the National Register of Historic Places.
Nonetheless, the court ruled that the statute both regulated the United States and discriminated against persons with whom the United States deals, in violation of the Supremacy Clause of the United States Constitution. The order explains that SB 50 directly regulates the United States and “trespasses on the federal government’s ability to convey land to whomever it wants” by requiring it to offer a right of first refusal.
In addition, the court found the statute discriminates against purchasers and grantees of federal lands, because only they must present a certificate of compliance from the Lands Commission in order to record conveyance documents, and only they are subject to monetary penalties if they fail to do so. In addition to declaring the statute unconstitutional, the court permanently enjoined California and the Lands Commission from enforcing it.
Attorney General Jeff Sessions issued a statement following the district court’s ruling declaring SB 50 unconstitutional. He stated, “The court’s ruling is a firm rejection of California’s assertion that, by legislation, it could dictate how and when the federal government sells federal land. This was a stunning assertion of constitutional power by California, and it was properly and promptly dismissed by the district judge. It is unfortunate that, in the interim, California forced both the Justice Department and the court to spend valuable time and resources to dispose of its baseless position.”
In United States v. Kernen Construction, the court entered an order on Oct.16, 2018, ruling that California Health & Safety Code § 13009.2 is unconstitutional because it unconstitutionally discriminated against the United States in violation of the Supremacy Clause. Section 13009.2 was specifically intended to reduce damages the United States may recover for wildfires caused by the neglect of other parties.
The statute imposed four different limitations on compensation for the United States but did not impose any of those limitations on recoveries by private landowners. The court found that Section 13009.2 “systemically undervalues damage to National Forest Land,” and explained that when private parties are excluded in this way from the burdens imposed by a state statue, there is no political check against abuse of the statue’s regulatory authority, and the federal government’s operations may be unfairly burdened. The court found no “sensible distinction” to justify disparate treatment of the United States as a landowner seeking damages caused by wildfires.
“Since the founding of the Republic, it has been fundamental to our constitutional system that a state may not discriminate against the United States or those with whom it deals,” said U.S. Attorney McGregor W. Scott for the Eastern District of California. “We have vigorously defended this principle in these cases, and we will continue to do so as necessary.”
In United States v. California, the United States is represented by acting Assistant Attorney General Jeffrey H. Wood of the Justice Department’s Environment and Natural Resources Division, with lead counsel Deputy Assistant Attorney General Eric Grant, Justin Heminger, Stacy Stoller and Peter McVeigh, and Civil Chief David Shelledy and Assistant U.S. Attorney Joseph Frueh of the U.S. Attorney’s Office for the Eastern District of California. In United States v. Kernen Construction, the United States is represented by Civil Chief Shelledy and Assistant U.S. Attorneys Colleen Kennedy and Benjamin Wolinsky.