Buono v. Kempthorne

• Decision Date: 06 September 2007
• Docket Number: No. 05-55852.,05-55852.
• Citation: 502 F.3d 1069
• Parties: Frank BUONO, Plaintiff-Appellee, v. Dirk KEMPTHORNE,<SMALL><SUP>*</SUP></SMALL> Secretary of the Interior, in his official capacity; Jonathan B. Jarvis, Regional Director, Pacific West Region, National Park Service, Department of the Interior, in his official capacity; Dennis Schramm, Superintendent, Mojave National Preserve, National Park Service, Department of the Interior, in his official capacity, Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

502 F.3d 1069

Frank BUONO, Plaintiff-Appellee, v. Dirk KEMPTHORNE,^* Secretary of the Interior, in his official capacity; Jonathan B. Jarvis, Regional Director, Pacific West Region, National Park Service, Department of the Interior, in his official capacity; Dennis Schramm, Superintendent, Mojave National Preserve, National Park Service, Department of the Interior, in his official capacity, Defendants-Appellants.

No. 05-55852.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 9, 2007.

Filed September 6, 2007.

Sue Ellen Wooldridge, Kathryn E. Kovacs, United States Department of Justice, Washington, D.C., for the defendants-appellants.

Peter J. Eliasberg, Mark D. Rosenbaum, ACLU Foundation of Southern California, Los Angeles, CA, for the plaintiff-appellee.

Steven W. Fitschen, Colleen M. Holmes, The National Legal Foundation, Virginia Beach, VA, for amicus curiae The National Legal Foundation.

Appeal from the United States District Court for the Central District of California; Robert J. Timlin, Senior Judge, Presiding. D.C. No. CV-01-00216-RT.

Before: B. FLETCHER and M. MARGARET McKEOWN, Circuit Judges, and RONALD M. WHYTE,^** District Judge.

McKEOWN, Circuit Judge:

A Latin cross sits atop a prominent rock outcropping known as "Sunrise Rock" in the Mojave National Preserve ("Preserve"). Our court previously held that the presence of the cross in the Preserve — which consists of more than 90 percent federally-owned land, including the land where the cross is situated—violates the Establishment Clause of the United States Constitution. Buono v. Norton, 371 F.3d 543 (9th Cir.2004). We affirmed the district court's judgment permanently enjoining the government "from permitting the display of the Latin cross in the area of Sunrise Rock in the Mojave National Preserve."

During the pendency of the first appeal, Congress enacted a statute directing that the land on which the cross is situated be transferred to a private organization in exchange for a parcel of privately-owned land located elsewhere in the Preserve. See Pub.L. No. 108-87, R. 12.1, 12.4 § 8121(a)-(f), 117 Stat. 1100 (2003). That land exchange is already in progress and would leave a little donut hole of land with a cross in the midst of a vast federal preserve. The issue we address today is whether the land exchange violates the district court's permanent injunction. We conclude that it does, and affirm the district court's order permanently enjoining the government from effectuating the land exchange and ordering the government to comply with the original injunction.

BACKGROUND¹

I. THE MOJAVE NATIONAL PRESERVE

The Preserve encompasses approximately 1.6 million acres, or 2,500 square miles, of primarily federally-owned land in the Mojave Desert, located in Southeastern California. In 1994, the Bureau of Land Management ("BLM") transferred the land to the National Park Service ("NPS"); both the BLM and the NPS are federal agencies under the Department of the Interior ("DOI"). Within the Preserve, approximately 86,000 acres of land are privately owned and 43,000 acres belong to the State of California. Thus, slightly more than 90 percent of the land in the Preserve is federally owned. The Preserve is a "unit of the National Park System" and is given "statutory protection as a national preserve." 16 U.S.C. § 410aaa-41, 410aaa-42; id. § 1(c). The Preserve is under NPS jurisdiction and authority. Id. § 410aaa-46.

II. THE CROSS

The current incarnation of the cross atop Sunrise Rock is between five and eight feet tall and is constructed out of four-inch diameter metal pipes painted white. It is a Latin cross, meaning that it has two arms, one horizontal and one vertical, at right angles to one another. It is undisputed that "[t]he Latin cross is the preeminent symbol of Christianity. It is exclusively a Christian symbol, and not a symbol of any other religion." Buono I, 212 F.Supp.2d at 1205.

Historic records reflect that a wooden cross was built on that location as early as 1934 by the Veterans of Foreign Wars ("VFW") as a memorial to veterans who died in World War I. Photographs depict the wooden cross and signs near it stating: "The Cross, Erected in Memory of the Dead of All Wars," and "Erected 1934 by Members of Veterans of Foregin [sic] Wars, Death Valley post 2884." The wooden signs are no longer present, and the original wooden cross, which is no longer standing, has been replaced by private parties several times since 1934. The cross has been an intermittent gathering place for Easter religious services since as early as 1935, and regularly since 1984.

The current version of the cross was built by Henry Sandoz, a local resident, sometime in 1998. When NPS investigated the history of the cross, Sandoz explained that he drilled holes into Sunrise Rock to bolt the cross in place, making it difficult to remove. Sandoz did not receive a permit from NPS to construct the cross.

Following Buono I's injunction against display of the cross, the cross has been covered by a plywood box. When uncovered, the cross is visible from vehicles traveling on Cima Road, which passes through the Preserve, from a distance of approximately 100 yards away. No sign indicates that the cross was or is intended to act as a memorial for war veterans.

III. LITIGATION OVER THE CROSS AND THE CONGRESSIONAL RESPONSE

The current controversy surrounding the cross surfaced in 1999, when NPS received a request from an individual seeking to build a "stupa" (a dome-shaped Buddhist shrine) on a rock outcropping at a trailhead located near the cross. NPS denied that request, citing 36 C.F.R. § 2.62(a)² as prohibiting the installation of a memorial without authorization. A hand-written note on the denial letter warns that "[a]ny attempt to erect a stupa will be in violation of Federal Law and subject you to citation and/or arrest." The letter also indicates that "[c]urrently there is a cross on [a] rock outcrop located on National Park Service lands. . . . It is our intention to have the cross removed."

In 1999, NPS undertook a study of the history of the cross. NPS determined that neither the cross nor the property on which it is situated qualifies for inclusion in the National Register of Historic Places. Specifically, NPS recognized that the cross itself "has been replaced many times and the plaque that once accompanied it (even though it is not known if it is original) has been removed." Also, the property does not qualify as an historical site because, among other things, "the site is used for religious purposes as well as commemoration."

Following the announcement by NPS of its intention to remove the cross, the United States Congress passed a series of laws, described below, to preserve the Sunrise Rock cross. The first piece of legislation, enacted in December 2000, provided that no government funds could be used to remove the cross. See Pub.L. No. 106-554 § 133, 114 Stat. 2763A-230 (2000) (hereafter "§ 133").³

A. BUONO I

Frank Buono⁴ filed suit in March 2001 against the Secretary of the DOI, the Regional Director of NPS, and the Superintendent of the Preserve (collectively, "NPS" or "Defendants"). The district court concluded that the presence of the cross in the Preserve violates the Establishment Clause. See Buono I, 212 F.Supp.2d at 1215-17. In July 2002, the court entered a permanent injunction ordering that the "Defendants, their employees, agents, and those in active concert with Defendants, are hereby permanently restrained and enjoined from permitting display of the Latin cross in the area of Sunrise Rock in the Mojave National Preserve."⁵

B. DESIGNATION OF THE CROSS AS A NATIONAL MEMORIAL

In January 2002, while this matter was pending in district court, Congress passed a defense appropriations bill, which included a section designating the Sunrise Rock cross as a "national memorial." See Pub.L. No. 107-117 § 8137, 115 Stat. 2278-79 (2002), codified at 16 U.S.C. § 410aaa-56 (note) (hereafter " § 8137"). That section provides:

(a) DESIGNATION OF NATIONAL MEMORIAL. — The five-foot-tall white cross first erected by the Veterans of Foreign Wars of the United States in 1934 along Cima Road in San Bernardino County, California, and now located within the boundary of the Mojave National Preserve, as well as a limited amount of adjoining Preserve property to be designated by the Secretary of the Interior, is hereby designated as a national memorial commemorating United States participation in World War I and honoring the American veterans of that war.

(b) LEGAL DESCRIPTION.—The memorial cross referred to in subsection (a) is located at latitude 35.316 North and longitude 115.548 West. The exact acreage and legal description of the property to be included by the Secretary of the Interior in the national World War I memorial shall be determined by a survey prepared by the Secretary.

(c) REINSTALLATION OF MEMORIAL PLAQUE.—The Secretary of the Interior shall use not more than $10,000 of funds available for the administration of the Mojave National Preserve to acquire a replica of the original memorial plaque and cross placed at the national World War I memorial designated by subsection (a) and to install the plaque in a suitable location on the grounds of the memorial.

Id. (emphases added). The cross is designated the "White Cross World War I Memorial." 16 U.S.C. § 431 (note).

NPS is statutorily charged with "the supervision, management, and control of the several national parks and national monuments." 16 U.S.C. § 2. National "memorials" fall within the broader category of national "monuments." See 16 U.S.C. § 431 (note) (identifying recognized national monuments, including various categories of "national monuments" and "national memorials").

In October 2002, less than three months after the district court's injunction, in legislation aimed at the Sunrise Rock cross, Congress passed a defense appropriations bill that included a...