USA v. State of California et al

Filing 28

ORDER signed by Senior Judge William B. Shubb on 11/1/2018 GRANTING 20 Motion for Summary Judgment and DENYING 24 Cross-Motion for Summary Judgment.The court DECLARES that SB 50 is unconstitutional because it violates the doctrine of intergovernmental immunity, and PERMANENTLY ENJOINS defendants from enforcing SB 50. CASE CLOSED. (Donati, J)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 ----oo0oo---- 11 12 UNITED STATES OF AMERICA, 15 16 17 2:18-cv-721-WBS-DB Plaintiff, 13 14 No. v. MEMORANDUM AND ORDER RE: CROSS-MOTIONS FOR SUMMARY JUDGMENT STATE OF CALIFORNIA; and CALIFORNIA STATE LANDS COMMISSION, an agency of the State of California, Defendants. 18 19 20 ----oo0oo---Plaintiff United States of America initiated this 21 action against defendants State of California and California 22 State Lands Commission (“Lands Commission”). 23 2017 California law regulating the recording of conveyances of 24 federal public lands in California (“SB 50”) is invalid because 25 it violates the United States Constitution’s Supremacy Clause. 26 Specifically, plaintiff argues both that the law runs afoul of 27 the doctrine of intergovernmental immunity and that it is 28 preempted by federal law. It argues that a Defendants maintain that SB 50 is a 1 1 proper exercise of the state’s right to regulate conveyances of 2 land within its borders. 3 Currently before this court are plaintiff’s and 4 defendants’ cross-motions for summary judgment. 5 & 24.) 6 I. (Docket Nos. 20 Factual and Procedural Background 7 California’s SB 50 states that it is the policy of the 8 State of California to “discourage conveyances that transfer 9 ownership of federal public lands in California from the federal 10 government.” 11 Governor Edmund G. Brown Jr. signed SB 50 on October 6, 2017. 12 (McVeigh Decl. Ex. 1 (Docket No. 20-2).) 13 effect on January 1, 2018. 14 Cal. Pub. Res. Code § 8560(b)(1). California’s The law went into (Id.) A central mechanism through which SB 50 seeks to 15 discourage conveyances of federal land is the requirement that, 16 in order to record a deed or other documents related to the 17 conveyance of federal land with a California county recorder, a 18 grantee of federal lands must present a certificate of compliance 19 from the Lands Commission. 20 penalty of up to $5000 to be levied against any person who 21 knowingly presents for filing with a county recorder a document 22 related to the conveyance of federal land unaccompanied by a 23 Lands Commission certificate of compliance. 24 6223(a). 25 SB 50 also provides for a civil Cal. Gov’t Code § SB 50 defines “conveyance” broadly to encompass “any 26 method, including sale, donation, or exchange, by which all or a 27 portion of the right, title, and interest of the United States in 28 and to federal lands located in California is transferred to 2 1 another entity.” 2 not, however, apply uniformly to all conveyances of federal 3 lands. 4 Lands Commission is required to waive its right of refusal and 5 automatically issue a certificate of compliance. 6 Code §§ 8560(b)(2)(D)(ii) & (f). 7 Cal. Pub. Res. Code § 8560(a)(2). It does There are six categories of conveyances for which the Cal. Pub. Res. Four of these categories were included in Section 8 8560(f) of SB 50, as originally enacted. They are: conveyances 9 of federal public lands which the Lands Commission deems to be 10 “routine;” conveyances of federal public lands pursuant to a 11 conservation plan; the renewal of a lease that was in existence 12 as of January 1, 2017; and the “conveyance of federal public 13 lands to a federally recognized Native American tribe or lands 14 taken into or out of trust for a Native American tribe or 15 individual Native American.” 16 Id. § 8560(f)(3). In June 2018, following the plaintiff’s initiation of 17 this action, California amended SB 50 with Senate Bill 854. 18 amendment established two new categories of conveyances for which 19 the Lands Commission must automatically issue certificates of 20 compliance. 21 the State of California. 22 23 24 25 26 27 28 That The first is conveyances of federal public lands to Id. § 8560(f)(5). The second is: The conveyance of any federal public lands not managed by the federal National Forest Service, the federal Bureau of Reclamation, the federal Bureau of Land Management, the United States Fish and Wildlife Service, or the federal National Park Service unless the land conveyed satisfies any of the following: a. Is part of a national monument or national marine sanctuary. b. Contains national conservation lands. c. Is land placed in the National Register of Historic Places. 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 d. Is designated for preservation or conservation uses. Id. § 8560(f)(4). Conveyances of federal land that fall into any of the six above categories are automatically entitled to a certificate of conveyance from the Lands Commission. No timeframe is prescribed by statute within which the Lands Commission must complete these automatic certificate issuances. (Docket No. 20).) (Pl.’s Mot. for Summ. J. at 21 Lands Commission staff have never refused to issue a certificate of compliance when requested to do so. (Lucchesi Decl. ¶ 12 (Docket No. 24-3).) Certificates of compliance are not automatically issued for conveyances of federal land that fall outside the categories enumerated above. Prospective purchasers in these conveyances may only secure a certificate of compliance from the Lands Commission if the commission is first provided with a right of first refusal or the right to arrange for the transfer of the federal public land to another entity (“refusal rights”). Additionally, under SB 50, conveyances of federal public land subject to this requirement are “void ab initio” unless the Lands Commission was provided with these refusal rights. Cal. Pub. Res. Code § 8560(b)(2)(A). SB 50 requires the Lands Commission to evaluate its right of first refusal at a public hearing. Id. § 8560(b)(2)(C). These meetings occur approximately every other month. Decl. ¶ 4.) (Lucchesi To date, the Commission has declined to exercise its putative right of first refusal to purchase any federal public lands or arrange for their transfer to a third party. 28 4 (Id. ¶ 1 10.) 2 II. Legal Standard 3 Summary judgment is proper “if the movant shows that 4 there is no genuine dispute as to any material fact and the 5 movant is entitled to judgment as a matter of law.” 6 P. 56(a). 7 of the suit, and a genuine issue is one that could permit a 8 reasonable jury to enter a verdict in the non-moving party’s 9 favor. Fed. R. Civ. A material fact is one that could affect the outcome Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 10 (1986). 11 III. Analysis 12 13 A. Supremacy Clause The Supremacy Clause of the United States Constitution 14 governs conflicts between state and federal laws. 15 that the “Constitution, and the Laws of the United States which 16 shall be made in Pursuance thereof . . . shall be the supreme Law 17 of the Land; and the Judges in every State shall be bound 18 thereby[.]” 19 interpreted the Supremacy Clause as meaning that, “the states 20 have no power, by taxation or otherwise, to retard, impede, 21 burden, or in any manner control, the operations of the 22 constitutional laws enacted by congress to carry into execution 23 the powers vested in the general government.” 24 Maryland, 17 U.S. 316, 317 (1819). 25 U.S. Const. Art. VI, cl. 2. It provides The Supreme Court has McCulloch v. This principle is known as the doctrine of 26 intergovernmental immunity. Under this doctrine, a state law is 27 invalid if it “regulates the United States directly or 28 discriminates against the Federal Government or those with whom 5 1 it deals.” 2 (1990). 3 North Dakota v. United States, 495 U.S. 423, 435 Under the Supremacy Clause, state laws are also invalid 4 if they are preempted by federal law. “There are two types of 5 implied preemption: field preemption and conflict preemption.” 6 Whistler Invs., Inc. v. Depository Trust & Clearing Corp., 539 7 F.3d 1159, 1164 (9th Cir. 2008). 8 when Congress “‘so thoroughly occupies a legislative field’ that 9 it effectively leaves no room for states to regulate conduct in Field preemption is implied 10 that field.” 11 U.S. 504, 516 (1992)). 12 compliance with both federal and state law is impossible or when 13 state law frustrates Congress’s purpose in enacting a given 14 federal statute. 15 (Conflict preemption analysis looks to “whether a party’s 16 compliance with both federal and state requirements is impossible 17 or whether, in light of the federal statute’s purpose and 18 intended effects, state law poses an obstacle to the 19 accomplishment of Congress’s objectives.”). 20 Id. (quoting Cipollone v. Liggett Group, Inc., 505 1. See Whistler Invs., Inc., 539 F.3d at 1164 Intergovernmental Immunity 21 22 Conflict preemption occurs when a. Direct Regulation of the Federal Government Defendants’ argument that SB 50 does not directly 23 regulate the United States’ operations or property rests on a 24 purported distinction between the conveyance of a given piece of 25 real property and the recordation of a document related to that 26 conveyance. 27 not the former. 28 account, SB 50 is merely an expansion of existing California law SB 50, defendants argue, regulates the latter but (Defs.’ Cross-Mot. for Summ. J. at 9.) 6 In this 1 governing all aspects of the title recording process. 2 Gov’t Code §§ 27201 et seq.; Id. §§ 27279 et seq.; Id. §§ 27320 3 et seq.; Id. §§ 27360 et seq. 4 Cf. Cal. This argument is colorable with respect to those 5 conveyances for which the Commission must automatically issue 6 certificates of compliance. 7 certificates will be issued in these cases (Lucchesi Decl. ¶ 12.) 8 Given this, the regulation as it pertains to these conveyances is 9 not categorically dissimilar from the preexisting requirements There is certainty that the 10 for title recordation under the California Government Code. 11 Thus, with respect to conveyances automatically entitled to 12 certificates of compliance, SB 50 is not an unconstitutional 13 “direct regulation” of the federal government. 14 Defendants’ argument that SB 50’s title recordation 15 requirements do not constitute a direct regulation of the United 16 States’ operations or property fails, however, with respect to 17 those conveyances which are not automatically entitled to a 18 certificate of compliance from the Lands Commission. 19 conveyances, the issuance of a certificate of compliance is 20 conditioned on the extension of refusal rights to the Lands 21 Commission. 22 For these Importantly, the question before the court is not 23 whether defendants have, or will ever, in fact, directly regulate 24 the United States via SB 50’s refusal rights. 25 whether the law, as written, seeks to directly regulate the 26 United States. 27 this reason, it is of no moment that the Lands Commission has yet 28 to use the power delegated to it by SB 50 in a manner that Rather, it is The court’s analysis is legal, not factual. 7 For 1 directly regulates the United States. 2 of Arcata, 629 F.3d 986 (9th Cir. 2010)(holding that two cities’ 3 promise that they would only enforce ordinances banning federal 4 agents or employees from engaging in military recruitment to the 5 extent the ordinances were consistent with federal law was 6 irrelevant to the analysis of whether the ordinance violated the 7 doctrine of intergovernmental immunity). 8 9 See United States v. City Defendants argue that their track record of implementing SB 50 in a manner that does not directly regulate 10 the United States is relevant because, on its face, the law 11 regulates purchasers of federal land, not the government itself. 12 (Defs.’ Reply Br. in Supp. of Cross-Mot. for Summ. J. at 3 13 (Docket No. 26).) 14 certificate of compliance from the Lands Commission before 15 recording a conveyance and it is the purchasers who must, in 16 certain circumstances, offer the Lands Commission refusal rights 17 in order to get a certificate of compliance. 18 for Summ. J at 9.) 19 that “nothing prevents the legislature from structuring a right 20 of refusal so that it primarily regulates the purchasers, rather 21 than the United States.” 22 It is the purchasers who must secure a (Defs.’ Cross-Mot. In support of this claim, defendants argue (Id.) Defendants are correct that a right of refusal may be 23 imposed by statute. It does not follow, however, that the 24 legislature can structure a statutory right of refusal such that 25 it can be exercised against a party that lacks an interest in the 26 property at issue. 27 clarify how a purchaser of federal public lands could grant the 28 Lands Commission a right of first refusal to buy or arrange for Nowhere in their briefing do defendants 8 1 2 the transfer of land owned by the federal government. Even if it were possible for the legislature to craft 3 such a right of first refusal, there is no evidence that the 4 California legislature has done so in this case. 5 of the statute lends no credence to this reading, and the Lands 6 Commission’s own interpretations of SB 50 have placed the onus on 7 plaintiff, not on purchasers, to provide the refusal rights. 8 example, in a February 12, 2018 letter to the Bureau of Land 9 Management regarding the conveyance of a parcel of land in Santa The plain text For 10 Barbara County, the Lands Commission wrote that “[t]o comply with 11 state law and validly transfer the parcel, BLM must provide the 12 Commission with the right of first refusal or right to arrange 13 for the transfer of the parcel to another entity.” (McVeigh Decl. 14 Ex. 9 (Docket No. 20-2).) 15 recognized what it now asks this court to deny: rights of first 16 refusal, even those created by statute, are exercised against the 17 owner of the real property at issue. 18 In this letter, the Lands Commission SB 50 may not expressly name the federal government as 19 its intended object of regulation, but that does not mean the law 20 does not directly regulate the United States. 21 regulation is most immediately evident in section 8560(b)(2)(A), 22 which declares “void ab initio” certain conveyances of federal 23 land if the Lands Commission is not first offered refusal rights 24 to that land. 25 impose direct and intrusive, though perhaps less proximate, 26 regulations on the federal government. 27 This direct The law’s title recordation requirements also Title recordation is a significant and almost 28 9 1 inextricable component of the process of land conveyance.1 As a 2 result, conditioning purchasers’ ability to record a title to 3 recently acquired federal public lands on whether the government 4 provided the Lands Commission with refusal rights in those lands 5 trespasses on the federal government’s ability to convey land to 6 whomever it wants. 7 the conveyance of federal land to review by the Lands Commission; 8 its refusal rights requirement and declaration that certain 9 conveyances of federal land are “void ab initio” unless that The law subjects federal determinations about 10 requirement has been complied with appropriate for California the 11 power to “directly obstruct the activities of the 12 Federal Government.” 13 North Dakota, 495 U.S. at 437–38. For these reasons, the court agrees with plaintiff that 14 SB 50 unconstitutionally directly regulates the federal 15 government with respect to the federal public lands managed by 16 the federal National Forest Service, the federal Bureau of 17 Reclamation, the federal Bureau of Land Management, the United 18 States Fish and Wildlife Service, and the federal National Park 19 Service, as well as with respect to those federal lands that meet 20 the conditions enumerated in Section 8560(f)(4)(A)-(D). 21 Accordingly, these portions of SB 50 unconstitutionally violate 22 the doctrine of intergovernmental immunity. 23 b. Discrimination against the United States and those with whom it deals 24 25 26 27 In California, nearly all grantees of real property record the deed instrument in the county in which the property is located. (Haase Decl. ¶ 23 (Docket No. 20-7).) Moreover, title recordation is often required by financial institutions and insurance companies considering providing financing or insurance coverage to a land owner with respect to a given property. Id. 1 28 10 1 Even if a regulation does not directly regulate the 2 United States, it may still violate the doctrine of 3 intergovernmental immunity if it discriminates against the United 4 States or those with whom it deals. 5 are those that are not imposed on “similarly situated 6 constituents of the State” and which have no “basis unrelated to 7 the object’s status as a Government contractor or supplier.” 8 North Dakota v. United States, 495 U.S. 423, 438 (1990). 9 Importantly, even regulations that discriminate against those Discriminatory regulations 10 with whom the government deals may nonetheless survive if, “the 11 inconsistency is directly related to and justified by significant 12 differences between the two classes.” Davis v. Mich. Dep’t of 13 Treasury, 489 U.S. 803, 804 (1989)(citation and quotation marks 14 omitted). 15 The statutory language of SB 50 makes clear that it 16 applies only to purchasers and grantees of federal public lands: 17 only those trying to record documents related to conveyances of 18 federal public lands must present a certificate of compliance 19 from the Lands Commission, and only they are subject to monetary 20 penalties if they fail to do so. 21 In United States v. California, 314 F. Supp. 3d 1077 (E.D. Cal. 22 2018)(Mendez J.), Judge Mendez considered the constitutionality 23 of a California law that, among other things, imposed civil 24 penalties on California employers that allowed federal 25 immigration enforcement officials into nonpublic areas of their 26 places of business. 27 impermissibly discriminatory. 28 attempt to meddle with federal government activities indirectly See Cal. Gov’t Code § 6223(a). Judge Mendez found the penalties They were, he ruled, a “clear 11 1 by singling out for regulation those who deal with the 2 government.” 3 Id. at 1096 (quotations and citation omitted). Requesting a Lands Commission certificate of compliance 4 to which one is automatically entitled may be a relatively minor 5 inconvenience. 6 monetary penalty for attempting to record a document without a 7 Lands Commission certificate of compliance -- a burden born 8 exclusively by those who deal with the federal government. 9 aspects of SB 50 apply to all conveyances of federal public lands 10 in California except those acquired by a federal agency through a 11 foreclosure proceeding. 12 8560(a)(3), with id. at § 8561. 13 in United States v. California, 314 F. Supp. 3d 1077, these 14 recording requirements impermissibly discriminate against those 15 who deal with the federal government by singling them out for 16 discriminatory, if not particularly burdensome, regulation. 17 It is, however -- like SB 50’s threat of a $5,000 These Compare Cal. Pub. Res. Code § Like the monetary fine at issue Defendants advance no argument that these aspects of SB 18 50 are constitutional. 19 as it applies to the categories of conveyances listed in § 20 8560(f), violates the doctrine of intergovernmental immunity by 21 discriminating against the land purchasers who deal with the 22 United States. 23 Accordingly, the court holds that SB 50, Under SB 50, purchasers of federal lands to which 24 California asserts refusal rights face an even greater burden 25 than grantees in conveyances encompassed by § 8560(f). 26 California may exercise a right of first refusal over the real 27 property these purchasers seek to acquire, they face a level of 28 uncertainty and potential delay that all others are spared from. 12 Because 1 Defendants claim that the lands subject to SB 50’s 2 right of first refusal are of an especially sensitive nature and 3 that they are therefore “not similarly situated to properties 4 that might be sold by non-federal parties in California.” 5 (Defs.’ Cross-Mot. for Summ. J. at 13.) 6 first refusal is related to and justified by this significant 7 difference, defendants argue, it is constitutional. 8 14.) 9 Because SB 50’s right of (Id. at 13- This argument assumes that some categories of federal 10 land, e.g. those designated for conservation use or managed by 11 the National Park Service, are categorically different from all 12 other real property in California. 13 defendants implicitly argue that if a given piece of real 14 property is part of a national monument or is managed by the 15 Bureau of Land Management, its sensitivity and uniqueness are 16 intrinsically greater than those of all other real property in 17 California. 18 defendants’ arguments about the constitutionality of SB 50’s 19 right of refusal requirement. 20 In other words, the The court rejects this supposition and, with it, Defendants may be correct that much of the real 21 property encompassed by SB 50’s refusal rights is qualitatively 22 different from a typical residential or commercial real estate 23 transaction. 24 proven, however, is that there are categorical differences 25 between the lands SB 50 subjects to a right of refusal and all 26 other lands within California, including those of special 27 historical, cultural, or natural value not owned by the federal 28 government. What they do not argue, and what they have not Defendants come closest to making this argument with 13 1 the claim that federal lands are dissimilarly situated from all 2 other lands in California because they are “preserved for the 3 public’s benefit, while privately held lands are not.” 4 Reply Brief in Supp. Of Cross-Mot. for Summ. J at 6.) 5 quality of federal public lands, however, is so directly linked 6 to their federal status that it cannot serve as the basis for 7 non-discriminatory differentiation. (Defs.’ This 8 Defendants’ argument also fails because they have not 9 shown that SB 50’s right of refusal requirement is “related to” 10 any distinguishing characteristics of the regulated lands as a 11 class. 12 characteristics associated with “sensitive” or “unique” lands and 13 then subject some federal lands to a right of first refusal 14 because they meet the relevant statutory definition of 15 “uniqueness.” 16 sensitive or unique lands preserved for the benefit of the public 17 by any public or private entity, e.g., a trust or foundation. 18 Rather, SB 50 uncritically uses federal administrative and 19 institutional categories to target the federal government and 20 those with whom it deals for regulation. 21 50’s right of first refusal requirement violates the Supremacy 22 Clause by discriminating against purchasers of land who deal with 23 the federal government. The law does not, for example, enumerate a set of The law does not even apply broadly to all For this reason, SB 24 2. Preemption 25 Plaintiff also argues that SB 50 is unconstitutional 26 because it is preempted by federal law. 27 argues that SB 50 both intrudes into a field reserved exclusively 28 to Congress, i.e. the disposal of federal property, and directly 14 Specifically, plaintiff 1 conflicts with federal laws authorizing the disposal of federal 2 lands. 3 cite the Property Clause of the U.S. Constitution2 and the Act 4 for the Admission of the State of California (“Admission Act”), 5 ch. 50 9 Stat. 452 (1850). 6 in its circumscription of California’s ability to legislate in 7 the field of federal lands disposal. 8 of California is admitted to the Union: 9 Both plaintiff’s field and conflict preemption arguments The latter is particularly explicit It provides that the state upon the express condition that the people of said state, through their legislature or otherwise, shall never interfere with the primary disposal of the public lands within its limits, and shall pass no law and do no act whereby the title of the United States to, and right to dispose of, the same shall be impaired or questioned. 10 11 12 13 14 9 Stat. at 452. 15 presumption against preemption, given the express language of the 16 Property Clause reserving for Congress the power to dispose of 17 federal lands and the Admission Act’s explicit prohibition on 18 California interfering with Congress’s ability to dispose of 19 federal lands, both of plaintiff’s preemption arguments appear 20 compelling. 21 unconstitutionally violates the doctrine of intergovernmental 22 immunity, it need not reach the question of whether federal law 23 preempts SB 50. 24 B. 25 26 27 28 Regardless of whether or not there is a However, because the court finds that SB 50 Remedy 1. Injunctive Relief The Property Clause of the Constitution states that, “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.” U.S. Cons. Art IV § 3, cl. 2. 15 2 1 Plaintiff’s claim that SB 50 unconstitutionally 2 regulates the United States is more than just speculation. The 3 record before this court makes clear that SB 50, as implemented 4 by defendant SLC, both directly regulates the United States by 5 obstructing its operations, and discriminates against the United 6 States and those with whom it deals. 7 or imminent, not ‘conjectural’ or ‘hypothetical.’” Lujan v. Defs. 8 of Wildlife, 504 U.S. 555, 560 (1992)(citing Whitmore v. 9 Arkansas, 495 U.S. 149, 155 (1990)). These injuries are “actual 10 While some of plaintiff’s arguments about SB 50’s 11 unconstitutional direct regulation of the United States are 12 largely speculative,3 others speak to immediate and ongoing 13 constitutional injuries suffered by plaintiff because of SB 50. 14 Even where the United States has not conveyed or attempted to 15 convey title to its lands, that property is still impermissibly 16 regulated by SB 50’s assignment of refusal rights in it to the 17 SLC. 18 land by clouding the United States’ marketable title. 19 24-25.) 20 Code voids “ab initio” some conveyances of federal lands unless 21 the SLC was provided with refusal rights in those lands. 22 that the federal government has never provided the SLC with 23 refusal rights, all conveyances of federal lands subject to SB 24 50’s refusal rights requirement are arguably void ab initio under Moreover, SB 50 directly regulates the disposal of federal (Id. at Section 8560(b)(2)(A) of the California Public Resources Given 25 26 27 28 For example, plaintiff notes that “[i]f Congress were to authorize agencies to dispose of rights of first refusal, there would be apparently competing rights—thus impairing the federal agency’s ability to carry out authorized activities.” (Pl.’s Mot. for Summ. J. at 24.) 16 3 1 SB 50. 2 conveyances is of no moment here since the statute expressly 3 conditions a conveyance’s validity on the provision of refusal 4 rights to the SLC, not on the issuance of a compliance 5 certificate by the SLC. 6 That the SLC issued certificates of compliance for these As implemented to date, SB 50 has also actually 7 discriminated against the United States and those with whom it 8 deals. 9 California real estate transaction has ever received a letter For example, other than the plaintiff, no seller in a 10 like the one the SLC sent the Department of the Interior, 11 explaining that under SB 50 in order to “validly transfer [a 5.9 12 acre parcel of lands in Santa Barbara county], BLM must provide 13 the [SLC] with the right of first refusal or right to arrange for 14 the transfer of the parcel to another entity.” 15 Ex. 9.) 16 deal with the hassle of requesting a certificate of compliance 17 from the SLC or the threat of a $5,000 fine if they attempt to 18 record a deed to their land without an accompanying certificate 19 of compliance from the SLC. 20 (McVeigh Decl. Similarly, only grantees of federal land have had to Though the defendant SLC has never exercised its 21 putative refusal rights, plaintiff has already been injured 22 through the enforcement of SB 50: the statute’s direct regulation 23 of federal lands and their disposal, and its discrimination 24 against the federal government and its grantees are ongoing. 25 These unconstitutional harms to plaintiff are likely to persist 26 as long as SB 50 is in force. 27 concludes that declaratory and injunctive relief are the 28 appropriate remedies. For these reasons, the court 17 1 2. Severability 2 Section 8560(g) of the California Public Resources Code 3 states that “[i]f any provision of this section or its 4 application is held invalid, that invalidity shall not affect 5 other provisions or applications that can be given effect without 6 the invalid provision or application.” 7 such a clause, there is a presumption in favor of severability. 8 Santa Barbara Sch. Dist. v. Superior Court, 13 Cal. 3d 315, 331 9 (1975). Given the presence of That presumption can be overcome, however, if the 10 invalid provision is grammatically, functionally, and 11 volitionally inseparable from the remainder of the statute. 12 Redevelopment Ass’n. v. Matosantos, 53 Cal. 4th 231, 271 (2011). 13 Here, Section 8560(b)(2)(A) of the Public Resources Code and 14 Sections 223 and 27338 of the Government Code may be 15 grammatically separable from the remainder of the law, but 16 functionally and volitionally they are not. 17 favor of severability is overcome and the court declines to sever 18 any part of SB 50. 19 Cal. The presumption in IT IS THEREFORE ORDERED that plaintiff’s motion for 20 summary judgment (Docket No. 20) be, and the hereby same is, 21 GRANTED. 22 No. 24) be, and the hereby same is, DENIED. 23 Defendants’ cross-motion for summary judgment (Docket The court DECLARES that SB 50 is unconstitutional 24 because it violates the doctrine of intergovernmental immunity, 25 and PERMANENTLY ENJOINS defendants from enforcing SB 50. 26 Dated: November 1, 2018 27 28 18

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