State to U.S. : You Can’t Transfer Federal Lands, Unless We Say So

Jabbing a stick toward the eye of the Trump Administration, the California Legislature and Governor have proclaimed that the Federal Government, as of the first of this year, may not transfer federal property in California without the permission of the State. The State Lands Commission is delegated the authority to allow or disallow federal land dispositions.  The law’s principal provisions are found in Public Resources Code Section 8560.

More specifically, the new law decrees that federal land conveyances are void if not previously approved by the State Lands Commission; it requires the Lands Commission to work with other state agencies to prevent “future unauthorized conveyances of federal public lands, or any change in federal public land designation”; and it provides severe civil penalties for persons, like citizens taking conveyances from the United States pursuant to contracts, who do not first offer the lands to the State.

The law would seem a spectacular, audacious usurpation of federal power over federal lands.  It would seem so – but it is so blaringly unconstitutional that even a middling middle-school civics student would find it laughable.  The State’s stick missed the federal eye, but it will cause great mischief and expense for others, until the Courts invalidate it for good.

The United States Constitution gives full power over federal property to Congress.  That power is found in the “property clause” of the Constitution, Article IV, Section 3, Clause 2.  That clause reads, “The Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States . . . .”  As if anticipating the 2017 California Legislature, and the approving quill of Governor Brown, the framers of the Constitution added Article VI, Section 2:  “The Constitution, and the laws of the United States . . . shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any state to the contrary notwithstanding.”

No search for original intent is necessary here.  No need exists to seek the immanent meaning of the words “shall be.” “Supreme” does not imply an exception for California.  Much case law could be stitched to embroider the point, and an antimacassar draped over it, but all that too would be unnecessary.

The Legislature, though, implanted in the new law teeth a shark would covet – teeth fearsome for persons who cannot afford to fight the State.  New Government Code Section 6223 provides a penalty of as much as $5,000 for a person who “knowingly present[s] for recording or filing” a deed or other instrument not in compliance with the new law.  Who does not know why she is standing in line at the Recorder’s office, holding a check made payable to the county and a deed to be recorded?  And so, one supposes, anyone who presents a document for recording does it “knowingly,” notwithstanding total ignorance of this nakedly unconstitutional law.

New Section 27338 of the Government Code forbids the recordation of a deed or instrument of transfer that does not comply with Section 8560.  And it orders the “federal agency wishing to convey federal public lands” to ensure that the instrument complies with the new California law.  (Of course, the federal government wouldn’t be seeking the recordation; the transferee would.)  All this would be risible grist for a legal comedian’s mill, but the very real penalties, and the costs of having to mount the legal challenge against the State, are daunting.  All persons who have land deals pending with the Federal Government are at risk, at the very least, of skittish federal lawyers wondering what their liability could be, for merely carrying out their obligations under federal law, which is to say the supreme law.

John Briscoe
Briscoe Ivester & Bazel LLP
155 Sansome Street, 7th Floor
San Francisco, CA 94104
Telephone: (415) 402-2700
Fax: (415) 398-5630

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