Buono v. Norton
| Decision Date | 24 July 2002 |
| Docket Number | No. EDCV01216RTSGLX.,EDCV01216RTSGLX. |
| Citation | 212 F.Supp.2d 1202 |
| Court | U.S. District Court — Central District of California |
| Parties | Frank BUONO & Allen Schwartz, Plaintiffs, v. Gale NORTON, John Reynolds, & Mary Martin, Defendants. |
Mark D. Rosenbaum, Peter J. Eliasberg, ACLU Foundation of Southern Cal., Los Angeles, CA, for plaintiffs.
Charles R. Shockey, AUSA Office of Atty. Gen., Environmental & Natural Resources Div., Sacramento, CA, for defendants.
ORDER 1) GRANTING PLAINTIFFS FRANK BUONO'S AND ALLEN SCHWARTZ'S MOTION FOR SUMMARY JUDGMENT; AND 2) DENYING DEFENDANTS GALE NORTON'S, JOHN REYNOLDS', AND MARY MARTIN'S MOTION FOR SUMMARY JUDGMENT
The court, Judge Robert J. Timlin, has read and considered Plaintiffs Frank Buono ("Buono") and Allen Schwartz ("Schwartz") (collectively, "Plaintiffs")'s Motion for summary judgment pursuant to Federal Rules of Civil Procedure, Rule 56 ("Rule 56"); Defendants Gail Norton ("Norton"), John Reynolds ("Reynolds"), and Mary Martin ("Martin") (collectively, "the government"1)'s opposition; and Plaintiffs' reply. The court also has read and considered the government's Motion for summary judgment pursuant to Rule 56; Plaintiffs' opposition; and the government's reply. Based on such consideration, the court concludes as follows:
I.
Buono filed a Complaint for injunctive and declaratory relief on March 22, 2001, alleging that the government violated his rights under the Establishment Clause of the First Amendment to the United States Constitution. On October 26, 2001, a First Amended Complaint ("FAC") was filed, adding Schwartz as a co-Plaintiff. Both Plaintiffs and the government now move the court for summary judgment.2
II.
1. Paragraph 9 — overruled.
1. Page 60, lines 10-12; page 61, lines 1-11, 15-20; page 66, lines 14-24, 17-20; page 80, lines 9-19; page 100, lines 8-23; page 101, lines 7-9; page 134, line 21 through page 135, line 1; page 173, lines 12-21 — overruled.
2. Page 164, lines 21-25 — sustained on the basis of relevance.3
3. Page 91, lines 1-9; page 92, lines 2-7, 8-17; page 93, lines 8-18; page 94, line 24 through page 96, line 3 — sustained on the basis of relevance.
The following are uncontroverted material facts supported by admissible evidence.
A latin cross sits on federal land in the Preserve.
The Preserve is located in the Mojave Desert in southeastern California, between the cities of Barstow, California, and Las Vegas, Nevada. The Preserve lies almost entirely between Interstate 15 ("I-15") to the north and Interstate 40 to the south, starting approximately 60 miles east of Barstow and extending toward the California-Nevada boundary and U.S. Route 95.
The cross is located on federal land within the Preserve known as Sunrise Rock, approximately 11 miles south of Interstate 15.
Before Congress designated the area as a national preserve, the United States Bureau of Land Management ("BLM"), the NPS's sister agency within the United States Department of Interior ("DOI"), had managed much of the federal desert land, including the area surrounding Sunrise Rock.
The Preserve is now operated by the NPS, a division of the DOI and a federal agency.
The Preserve encompasses approximately 1.6 million acres, or 2500 square miles, of primarily federally owned land in the Mojave Desert. The BLM, another federal agency, transferred the land to the NPS in 1994 as a result of the California Desert Protection Act.
Following the creation of the Preserve in 1994, Marvin Jensen ("Jensen") was appointed as the Preserve's first Superintendent. Buono at that time worked for the NPS and was assigned to the Preserve from January 22, 1995, to December 10, 1995, serving as an Assistant Superintendent for Ecosystem Management. Martin, the Deputy Superintendent, succeeded Jensen as Superintendent in 1995. In 1995, Buono left the Preserve and took a similar position with the NPS at the Joshua Tree National Park. Buono retired from public service in 1997, although he remains active and interested in NPS activities.
Approximately 86,600 acres of private land remain within the Preserve's boundaries. Another 43,000 acres belong to the State of California.
The cross is mounted on the top of a prominent rock outcropping on the north side of Cima Road, a narrow blacktop secondary road that passes through the Preserve.
The cross is visible to vehicles traveling on the road from a distance of approximately 100 yards.
A latin cross has two arms, one horizontal and one vertical, at right angles to each other, with the horizontal arm being shorter than the vertical arm.
The latin cross is the preeminent symbol of Christianity. It is exclusively a Christian symbol, and not a symbol of any other religion.
The cross is between five and eight feet tall, and it is bolted into the rock.
The cross is constructed out of four inch diameter metal pipes that are painted white.
The cross was erected in 1934, 60 years before Congress created the Preserve, by the Veterans of Foreign Wars as a memorial to veterans who died in World War I. Photos show the presence of wooden signs near the cross stating, "The Cross, Erected in Memory of the Dead of All Wars," and "Erected 1934 by Members Veterans of Foregin [sic] Wars, Death Valley Post 2884." The wooden signs are no longer present, and the original cross, which is no longer standing, has been replaced several times by private parties since 1934.
There is currently no plaque at the cross indicating that it was intended to act as a memorial for soldiers.
The cross has been a gathering place for Easter Sunrise services since as early as 1935. Visitors to the Preserve also use the site to camp.
The NPS has not opened up the area of Sunrise Rock to individuals to erect other free-standing permanent displays, religious or otherwise, and there are no other free-standing displays, religious or otherwise, in the area.
The controversy surrounding the cross surfaced in 1999, when the NPS received a letter from an individual who identified himself as "Sherpa San Harold Horpa" of Jensen, Utah. The person who sent the letter under the alias "Sherpa San Harold Horpa" is also known to Buono as Herman R. Hoops ("Hoops"), a retired NPS employee and long-time acquaintance of Buono. Hoops requested permission from the NPS to erect a "stupa" (a dome-shaped Buddhist shrine) on a rock outcrop at a trail head located near the cross.
In a May 27, 1999, letter, the NPS informed Hoops that agency regulations codified at 36 C.F.R. § 2.62(a) would prohibit Hoops from installing a religious symbol, such as a stupa. The NPS noted that it intended to remove the cross located at that site.
On October 6, 1999, the American Civil Liberties Union ("ACLU") sent the NPS a letter expressing concern about the cross and threatened legal action if the NPS did not remove the cross.
After receiving the ACLU's October 6, 1999, letter, Martin directed the NPS staff to study the history of the cross. On January 31, 2000, the NPS completed an evaluation of the cross for commemorative significance, and concluded that the cross did not qualify for inclusion in the National Register of Historic Places.
The NPS was informed during contacts with local citizens that immediately removing the cross could lead to significant public opposition. The NPS had encountered considerable public opposition to earlier decisions to remove privately-owned items interfering with its management of the Preserve.
On August 3, 2000, the ACLU wrote to NPS Director Robert Stanton and asserted that the cross on federal land violated the United States Constitution and that the ACLU would sue the NPS within 60 days unless the NPS removed the cross. The ACLU letter stated: "If we do go forward with a lawsuit, a court not only would order the government to remove the cross, but it also likely would assess damages against those responsible government officials who knew about the cross and yet did nothing about it [in] the face of the clear constitutional commands that make its presence on government property illegal."
Martin distributed a memorandum to her staff on October 6, 2000, informing it of her decision to remove the cross, citing her concern over the threatened private damage claim. After receiving the ACLU letters, the NPS located the private individuals believed to be responsible for maintaining the cross. Martin met with them and discussed the possibility of their voluntarily removing the cross. The individuals expressed their unwillingness to remove the cross and their determination to replace the cross if it were taken down.
On October 20, 2000, Reynolds wrote to inform the ACLU that the NPS intended to remove the cross.
San Bernardino County Supervisor Kathy A. Davis wrote to Congressman Jerry Lewis ("Lewis") (R-CA) on November 2, 2000, protesting the removal of the "veteran's memorial." In response to an inquiry from Lewis, Reynolds informed Lewis of the NPS's decision to remove the cross. NPS did not immediately remove the cross.
On December 15, 2000, the United States Congress passed an appropriations bill, the Consolidated Appropriations Act, a provision of which provided that none of the appropriated federal government's funds may be used to remove the cross. Then-President Clinton signed the law on December 21, 2000. The NPS did not act to remove the cross due to the legislative spending ban.
In December 2001 Congress passed PL 107-117, the Department of Defense and ...
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