Buono v. Norton

• Decision Date: 07 June 2004
• Docket Number: No. 03-55032.,03-55032.
• Citation: 371 F.3d 543
• Parties: Frank BUONO; Allen Schwartz, Plaintiffs-Appellees, v. Gale NORTON, Secretary of the Interior, in her official capacity; Jonathan Jarvis, Regional Director, Pacific West Region of the Department of Interior, in his official capacity;<SMALL><SUP>*</SUP></SMALL> Mary Martin, Superintendent of the Mojave National Preserve, in her official capacity, Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

371 F.3d 543

Frank BUONO; Allen Schwartz, Plaintiffs-Appellees, v. Gale NORTON, Secretary of the Interior, in her official capacity; Jonathan Jarvis, Regional Director, Pacific West Region of the Department of Interior, in his official capacity;^* Mary Martin, Superintendent of the Mojave National Preserve, in her official capacity, Defendants-Appellants.

No. 03-55032.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted August 6, 2003.

Filed June 7, 2004.

Thomas L. Sansonetti, Assistant Attorney General, Jeffrey Bossert Clark, Deputy Assistant Attorney General, David C. Shilton, Charles R. Shockey, and Kathryn E. Kovacs, U.S. Department of Justice, Environment & Natural Resources Division, Appellate Section, Washington, DC, and Larry Bradfish, U.S. Department of the Interior, Oakland, CA, for the defendants-appellants.

Peter J. Eliasberg and Mark D. Rosenbaum, ACLU Foundation of Southern California, Los Angeles, CA, for the plaintiffs-appellees.

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

Before KOZINSKI and T.G. NELSON, Circuit Judges, and RESTANI, Judge.^**

KOZINSKI, Circuit Judge:

Plaintiffs claim that the presence of a Latin cross on federally-owned land in the Mojave National Preserve, which is managed by the National Park Service, violates the Establishment Clause. 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." Buono v. Norton, 212 F.Supp.2d 1202, 1205 (C.D.Cal.2002). The Latin cross "is the preeminent symbol of Christianity. It is exclusively a Christian symbol, and not a symbol of any other religion." Id.; see also Ellis v. City of La Mesa, 990 F.2d 1518, 1527 (9th Cir.1993). The cross at issue is constructed of four-inch-diameter metal pipe and painted white. It sits in an area of the Preserve known as Sunrise Rock, adjacent to Cima Road, a secondary road roughly eleven miles from the I-15 in San Bernardino County, California.

Plaintiffs sued the Secretary of the Interior, the Regional Director of the National Park Service and the Superintendent of the Preserve, seeking removal of the cross. The district court granted summary judgment for plaintiffs and enjoined defendants from allowing continued display of the cross. Defendants appeal. We review the grant of summary judgment de novo. Winterrowd v. Am. Gen. Annuity Ins. Co., 321 F.3d 933, 937 (9th Cir.2003).¹

1. Since we heard oral argument, Congress passed the Department of Defense Appropriations Act of 2004 (DDAA), Pub. L. No. 108-87, 117 Stat. 1054 (2003). Section 8121 of the DDAA requires the Secretary of the Interior to transfer the land on which the cross sits to the local Veterans of Foreign Wars Post in exchange for a privately-owned five-acre parcel elsewhere in the Preserve. Section 8121(a) further provides that, "[n]otwithstanding the conveyance of the property ..., the Secretary [of the Interior] shall continue to carry out the responsibilities of the Secretary under section 8137" of the Department of Defense and Emergency Supplemental Appropriations Act of 2002, Pub. L. No. 107-117, 115 Stat. 2230 (2002), which had designated the cross a war memorial. Section 8137(c) in turn directs the Secretary to "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 ... and to install the plaque in a suitable location on the grounds of the memorial." Finally, the DDAA provides that if the "property is no longer being maintained as a war memorial," the property shall revert to the United States. § 8121(c).

Defendants urge that, "[g]iven the impending mootness of this case, the Court should avoid deciding the constitutional issues raised here." Supplemental Mem. of Appellants at 4 (emphasis added). We are not convinced. This case is not yet moot and may not be for a significant time, as defendants concede that the land transfer could take as long as two years to complete.²

Even if the transfer were already completed, defendants have not carried their burden of showing that "(1) subsequent events [have] made it absolutely clear that the allegedly wrongful behavior [cannot] reasonably be expected to recur, and (2) interim relief or events have completely and irrevocably eradicated the effects of the alleged violation." Norman-Bloodsaw v. Lawrence Berkeley Lab., 135 F.3d 1260 1274 (9th Cir.1998) (internal quotation marks and citations omitted; alterations in original). "`Mere voluntary cessation of allegedly illegal conduct does not moot a case.'" Id. (quoting United States v. Concentrated Phosphate Exp. Ass'n, 393 U.S. 199, 203, 89 S.Ct. 361, 21 L.Ed.2d 344 (1968)); see also City of Mesquite v. Aladdin's Castle, Inc., 455 U.S. 283, 288-89, 102 S.Ct. 1070, 71 L.Ed.2d 152 (1982). As discussed, section 8121(c) of the DDAA provides that the land may revert to the federal government. Further, not only is there nothing in section 8121 that prevents the land from being otherwise returned to the government, federal law contemplates just such a transfer. See 16 U.S.C. § 431("When such [national monuments] are situated upon a tract ... held in private ownership, the tract, or so much thereof as may be necessary for the proper care and management of the object, may be relinquished to the Government, and the Secretary of the Interior is authorized to accept the relinquishment of such tracts in behalf of the Government of the United States."); see also id. § 410aaa-56 (authorizing the Secretary to "acquire all lands and interest in lands within the boundary of the[Mojave] preserve by donation, purchase, or exchange").

Finally, we note that the presence of a religious symbol on once-public land that has been transferred into private hands may still violate the Establishment Clause. See Freedom from Religion Found., Inc. v. City of Marshfield, 203 F.3d 487, 496 (7th Cir.2000) (as amended on denial of rehearing and rehearing en banc). We express no view as to whether a transfer completed under section 8121 would pass constitutional muster, but leave this question for another day. See Separation of Church & State Comm. v. City of Eugene (SCSC), 93 F.3d 617, 620 n. 5 (9th Cir.1996) (per curiam).

2. Defendants claim that plaintiffs Frank Buono and Allen Schwartz lack standing. To have standing, a plaintiff "must have suffered an injury in fact" that is "fairly traceable" to the challenged conduct, and "it must be likely that the injury would be redressed by a favorable decision." Desert Outdoor Adver. v. City of Moreno Valley, 103 F.3d 814, 818 (9th Cir.1996); see also Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000). The district court concluded that plaintiffs have standing; we review de novo. Porter v. Jones, 319 F.3d 483, 489(9th Cir.2003).

The district court found that Buono is a retired employee of the Park Service who previously served as Assistant Superintendent of the Preserve. He "now lives in Oregon" but "regularly visits the Preserve." Buono, 212 F.Supp.2d at 1207. He "visit[s] the Preserve two to four times a year on average." Id. At the time of summary judgment, "Buono ... intend[ed] to sell his home in Oregon, to relocate to Southern California or Arizona, and to make more frequent trips to the Preserve." Id. The district court further found that:

Buono is deeply offended by the cross display on public land in an area that is not open to others to put up whatever symbols they choose. A practicing Roman Catholic, Buono does not find a cross itself objectionable, but stated that the presence of the cross is objectionable to him as a religious symbol because it rests on federal land.

Id.

Defendants argue that Buono has not suffered injury-in-fact. They assert that the offense he experiences in seeing the cross is "ideological, not religious, in nature and, hence, is not cognizable under the Establishment Clause." Appellants' Opening Br. at 12. This distinction is meaningful, they suggest, because "[u]nconstitutional establishments of religion cause harm by sending `a message to nonadherents that they are outsiders, not full members of the political community.'" Id. (quoting Capitol Square Review & Advisory Bd. v. Pinette, 515 U.S. 753, 773, 115 S.Ct. 2440, 132 L.Ed.2d 650 (1995) (O'Connor, J., concurring)). They add that Buono did not allege that the presence of the cross at Sunrise Rock made him feel like an outsider. Defendants rely on Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982), as the source for the purported distinction between ideologically and religiously-based offense. But Valley Forge does not support this distinction; instead, it reminds the federal courts that only concrete, personalized injury — not an abstract, generalized grievance — suffices to confer standing.

At issue in Valley Forge was a transfer of federal property in Pennsylvania from the government to Valley Forge Christian College, for which the college made no payment. Id. at 467-68, 102 S.Ct. 752. Plaintiffs "reside[d] in Maryland and Virginia; their organizational headquarters [we]re located in Washington, D.C. They learned of the transfer through a news release." Id. at 487, 102 S.Ct. 752 (footnote omitted). The Court concluded that, under these facts, plaintiffs had not "alleged an injury of any kind, economic or otherwise, sufficient to confer standing." Id. at 486, 102 S.Ct. 752. Rather, theirs was merely a generalized grievance. See id. at 482-86, 102 S.Ct. 752.

Valley Forge nowhere suggests that plaintiffs lacked standing because their offense at the property transfer was grounded in ideological,...