Buono v. Norton

• Decision Date: 08 April 2005
• Docket Number: No. EDCV 01-216RTSGLX.,EDCV 01-216RTSGLX.
• Citation: 364 F.Supp.2d 1175
• Parties: Frank BUONO, Plaintiff, v. Gale NORTON, Jonathan Jarvis, and Mary Martin, Defendants.
• Court: U.S. District Court — Central District of California

364 F.Supp.2d 1175

Frank BUONO, Plaintiff, v. Gale NORTON, Jonathan Jarvis, and Mary Martin, Defendants.

No. EDCV 01-216RTSGLX.

United States District Court, C.D. California, Eastern Division.

April 8, 2005.

Peter J. Eliasberg, Catherine D. Whiting, Mark D. Rosenbaum, ACLU Foundation of So. California, Los Angeles, CA, for Plaintiffs.

Thomas L. Sansonetti, Assistant Attorney General, Environmental & Natural Resources Division, Larry J. Bradfish, Attorney, Office of the Solicitor, U.S. Department of the Interior, Oakland Field Office, Oakland, Charles R. Shockey, Attorney, U.S. Department of Justice, Environment & Natural Resources Division, General Litigation Section, Sacramento, CA, for Respondent.

ORDER 1) GRANTING PLAINTIFF'S MOTION TO ENFORCE PERMANENT INJUNCTION, 2) DENYING PLAINTIFF'S MOTION TO MODIFY THE INJUNCTION AS MOOT, AND 3) PERMANENTLY ENJOINING DEFENDANTS' IMPLEMENTATION OF THE PROVISIONS OF SECTION 8121 OF PUBLIC LAW 108-87

TIMLIN, District Judge.

The court, Judge Robert J. Timlin, has read and considered plaintiff Frank Buono ("Plaintiff")'s motion to enforce or, in the alternative, modify the permanent injunction ("motion"), defendants Gale Norton, Secretary of the Interior, Jonathan Jarvis, Regional Director of the Pacific West Region of the Department of Interior, and Mary Martin, Superintendent of the Mojave Desert Preserve (collectively, "Defendants")' response,¹ and Plaintiff's reply.² Based on such consideration, the court concludes as follows:

I.

BACKGROUND

On July 24, 2002, this court held that a Latin cross situated upon a prominent rock on federal land in the Mojave National Preserve ("the Preserve"), which the government³ had designated as a national monument for World War I veterans during this litigation, violated the Establishment Clause of the First Amendment. Buono v. Norton, 212 F.Supp.2d 1202, 1217 (C.D.Cal.2002). The court entered a judgment that "Defendants, their employees, agents, and those in active concert with Defendants, are hereby permanently restrained and enjoined from permitting the display of the Latin cross in the area of Sunrise Rock in the Mojave National Preserve."

Defendants appealed to the Ninth Circuit Court of Appeals ("Ninth Circuit"), which stayed this court's order "permanently enjoining display of the cross to the extent that the order required the immediate removal or dismantling of the cross" but "did not stay alternative methods of compliance with" the order. Buono v. Norton, 371 F.3d 543, 545 n. 1 (9th Cir.2004). During the pendency of appeal, the Department of Interior covered the cross first with a tarpaulin secured by a lock and later with a large plywood box. The Ninth Circuit affirmed this court's judgment on June 7, 2004. Id. at 550. The cross remains covered by the box.

Prior to the Ninth Circuit's decision, Congress passed, and the President signed, the Department of Defense Appropriations Act of 2004 ("DDAA"), Pub.L. No. 108-87, 117 Stat. 1054 (2003). Section 8121 of the DDAA ("Section 8121") "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." Buono, 371 F.3d at 545. The Ninth Circuit held that Section 8121 did not moot the appeal, but left "for another day" the question "whether a transfer completed under Section 8121 would pass constitutional muster." Id.

For this court, that day is today. Plaintiff has brought a motion requesting that the court "either hold that the transfer violates the current injunction, or modify that injunction to prohibit the land transfer because it violates the Establishment Clause."

II.

ANALYSIS

A. Defendants' Requests for Delay

Defendants request that this court delay ruling on Plaintiff's motion until the Supreme Court provides additional guidance in two pending cases involving displays of the Ten Commandments on public property. See Van Orden v. Perry, 351 F.3d 173 (5th Cir.2003), cert granted, ___ U.S. ___, 125 S.Ct. 346, 160 L.Ed.2d 220 (2004) (No. 03-1500); ACLU v. McCreary County, 354 F.3d 438 (6th Cir.2003), cert. granted, ___ U.S. ___, 125 S.Ct. 310, 160 L.Ed.2d 221 (2004) (No. 03-1693). These cases are inapposite to the instant motion because the issue here is not whether the display of the Latin cross on federal land violates the Establishment Clause. Both this court and the Ninth Circuit answered that question in the affirmative. Buono, 212 F.Supp.2d at 1217; Buono, 371 F.3d at 550. Rather, the issue is whether the land transfer directed by Section 8121 violates the permanent injunction or is itself an unconstitutional violation of the First Amendment Establishment Clause. Moreover, as Plaintiff points out, if this court were to delay ruling on Plaintiff's motion each time the Supreme Court grants certiorari on an Establishment Clause case, this motion will never be finally resolved.

Defendants also request that this court postpone ruling on this motion for the "additional six months to two years" that it will take them to complete the land transfer. Section 8121, which was passed on September 30, 2003, expressly requires the Secretary of the Interior to undertake the land transfer. There is no doubt that the land transfer will go forward and, according to the government, it is already in progress. The court has examined Section 8121 and concludes that it provides sufficient information from which to determine whether the land transfer is a bona fide attempt to cure Defendants' violation of the Establishment Clause by maintaining the Latin cross on Preserve land or an improper attempt to evade the permanent injunction. As a consequence, the court does not need to delay its decision to allow for the administrative tasks necessary for the completion of a potentially invalid land transfer.

B. Validity of Land Transfer

Plaintiff contends that the land transfer directed by Section 8121 is a sham by Defendants to preserve the Latin cross in the Preserve. Defendants contend that the transfer of the land on which the cross stands to private ownership will remedy the Establishment Clause violation.

The Seventh Circuit Court of Appeals ("Seventh Circuit") has held that, "[a]bsent unusual circumstances," the sale of public property containing an unconstitutional religious display "is an effective way for a public body to end its inappropriate endorsement of religion." Freedom from Religion Found., Inc. v. City of Marshfield, Wisconsin, 203 F.3d 487, 491, 492 (7th Cir.2000) (holding that the sale of 0.15 acres of city park land containing a statute of Jesus Christ to a private organization "validly extinguished any government endorsement of religion" because there were not unusual circumstances);⁴ see also Mercier v. Fraternal Order of Eagles, 395 F.3d 693, 702-04 (7th Cir.2005) (holding that the sale of 440 square feet of a city park containing a Ten Commandments monument to a private organization was valid because there were no unusual circumstances). Since "adherence to a formalistic standard invites manipulation," a court must "look to the substance of the transaction as well as its form to determine whether government action endorsing religion has actually ceased." Freedom from Religion Found., Inc., 203 F.3d at 491.

Unusual circumstances that will invalidate a sale include (1) "a sale to a straw purchaser" leaving the public entity "with continuing power to exercise the duties of ownership," (2) a sale that does not comply with applicable law governing the sale of land by a public entity, or (3) "a sale well below fair market value resulting in a gift to a religious organization." Mercier, 395 F.3d at 702; see also Freedom from Religion Found., Inc., 203 F.3d at 492. All of these unusual circumstances need not exist to invalidate a sale and a court may also consider the existence of other unusual circumstances in this analysis. See Mercier, 395 F.3d at 702, 703-04.

The court finds this analytical framework helpful and will apply it to the proposed Section 8121 mandated land transfer in the instant case. The pertinent question is whether the transfer of the acre of federal land on Sunrise Rock in the Preserve containing the Latin cross to the Veterans of Foreign War ("VFW") in exchange for other private land in the Preserve presumably owned by Mr. and Mrs. Henry Sandoz is characterized by any unusual circumstances. In particular, the court will examine the circumstances surrounding the government's retaining certain property rights over the site containing the cross ("subject property") after the proposed transfer, the method for effectuating the land transfer, and the history of the government's efforts to prevent the removal of the Latin cross.⁵

1. Continuing Property Rights in the Subject Property

It is clear from Section 8121 and its various subdivisions that, despite the transfer, the government will retain important property rights in the subject property and will continue to exercise substantial control over the property. Section 8121(e) legislates a reversionary clause in the property exchange transaction, providing that the transfer will be "subject to the condition that the recipient maintain the conveyed property as a" World War I memorial and that "[i]f the Secretary determines that the conveyed property is no longer being maintained as a war memorial, the property shall revert to the ownership of the United States." In effect, the government has tightly restricted the VFW's use of the subject property for one purpose and, more importantly, has reserved the right to reassert ownership and repossess the subject property any time the Secretary of the Interior makes the discretionary determination that the VFW is not adequately maintaining the Latin cross as a World War I memorial. Such a reversionary clause defeats Defendants' contention that the government has given up control over the subject property. See ...