Buono v. Kempthorne ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FRANK BUONO, 
Plaintiff-Appellee,
v.
DIRK KEMPTHORNE,* Secretary of No. 05-55852
the Interior, in his official D.C. No.
capacity; JONATHAN B. JARVIS, CV-01-00216-RT
Regional Director, Pacific West
Region, National Park Service,  ORDER
AMENDING
Department of the Interior, in his
OPINION AND
official capacity; DENNIS SCHRAMM,
AMENDED
Superintendent, Mojave National
OPINION
Preserve, National Park Service,
Department of the Interior, in his
official capacity,
Defendants-Appellants.

Appeal from the United States District Court
for the Central District of California
Robert J. Timlin, Senior Judge, Presiding
Argued and Submitted
April 9, 2007—Pasadena, California
Filed September 6, 2007
Amended May 14, 2008
*Dirk Kempthorne is substituted for his predecessor Gail Norton as
Secretary of the Department of the Interior. Dennis Schramm is substi-
tuted for his predecessor Mary Martin as the Superintendent of the Mojave
National Preserve. See Fed. R. App. P. 43(c)(2).
5493
5494 BUONO v. KEMPTHORNE
Before: Betty B. Fletcher and M. Margaret McKeown,
Circuit Judges, and Ronald M. Whyte,** District Judge.
Opinion by Judge McKeown
**The Honorable Ronald M. Whyte, United States District Judge for
the Northern District of California, sitting by designation.
5496 BUONO v. KEMPTHORNE
COUNSEL
Sue Ellen Wooldridge, Kathryn E. Kovacs, United States
Department of Justice, Washington, D.C., for the defendants-
appellants.
BUONO v. KEMPTHORNE 5497
Peter J. Eliasberg, Mark D. Rosenbaum, ACLU Foundation of
Southern California, Los Angeles, California, for the plaintiff-
appellee.
Steven W. Fitschen, Colleen M. Holmes, The National Legal
Foundation, Virginia Beach, Virginia, for amicus curiae The
National Legal Foundation.
ORDER
The opinion filed September 6, 2007, slip op. 11793, and
appearing at 502 F.3d 1069, is amended as follows:
1. At slip op. 11816, footnote 13, delete “Although the
Seventh Circuit adopted a presumption that “a sale of real
property is an effective way for a public body to end its inap-
propriate endorsement of religion” in the absence of “unusual
circumstances,” Marshfield, 203 F.3d at 491, we decline to
adopt such presumption. The Supreme Court’s Establishment
Clause jurisprudence recognizes the need to conduct a fact-
specific inquiry in this area” and substitute: “The Seventh Cir-
cuit stated that “[a]bsent unusual circumstances, a sale of real
property is an effective way for a public body to end its inap-
propriate endorsement of religion. We are aware, however,
that adherence to a formalistic standard invites manipulation.
To avoid such manipulation, we look to the substance of the
transaction as well as its form to determine whether govern-
ment action endorsing religion has actually ceased.” Marsh-
field, 203 F.3d at 491. Read as a whole, the Seventh Circuit
position looks at the issue on a transaction-by-transaction
basis. We agree with this approach. However, to the extent
that Marshfield can be read to adopt a presumption of the
effectiveness of a land sale to end a constitutional violation,
we decline to adopt such a presumption. The Supreme Court’s
Establishment Clause jurisprudence recognizes the need to
conduct a fact-specific inquiry in this area.”
5498 BUONO v. KEMPTHORNE
With this amendment, the panel has voted to deny
Defendants-Appellants petition for panel rehearing. Judge
McKeown votes to deny the petition for rehearing en banc
and Judges B. Fletcher and Whyte so recommend.
The full court has been advised of Defendant-Appellant’s
petition for rehearing en banc, and a judge of this court
requested a vote on whether this case should be reheard en
banc; however, a majority of the active judges did not vote in
favor of en banc consideration. Fed. R. App. P. 35. Judge
Reinhardt was recused from considering the en banc issues in
this case and did not participate in the court’s decision.
The petition for panel rehearing and the petition for rehear-
ing en banc are denied. No further petitions for rehearing will
be entertained.
O’SCANNLAIN, Circuit Judge, dissenting from the denial of
rehearing en banc, joined by TALLMAN, BYBEE, CALLA-
HAN, and BEA, Circuit Judges:
The opinion in this case announces the rule that Congress
cannot cure a government agency’s Establishment Clause vio-
lation by ordering sale of the land upon which a religious
symbol previously was situated. Because such a novel rule
contravenes governing Supreme Court precedent, creates a
split with the Seventh Circuit on multiple issues, and invites
courts to encroach upon private citizens’ rights under both the
speech and religion clauses of the First Amendment, I respect-
fully dissent from our order rejecting rehearing en banc.
I
Seventy-four years ago, the Veterans of Foreign Wars
(“VFW”) erected atop Sunrise Rock in the Mojave National
BUONO v. KEMPTHORNE 5499
Preserve1 a memorial to veterans who died in World War I.
Buono v. Kempthorne, 502 F.3d 1069, 1072 (9th Cir. 2007)
(“Buono IV”). The memorial took the form of a cross, by
which stood a wooden sign stating, “The Cross, Erected in
Memory of the Dead of All Wars,” and “Erected 1934 by
Members of Veterans of Fore[ig]n Wars, Death Valley post
2884.” Id. The sign has since disappeared, and the cross has
been replaced several times, most recently in 1998. Id. Each
incarnation of the memorial was created and installed by pri-
vate citizens; there is no indication in the record that the citi-
zens ever received permission from the National Park Service
(“NPS”) to construct the memorial. Id.In 2002, Frank Buono, a retired NPS employee, brought
suit against the Department of the Interior, seeking to enjoin
the continued presence of the cross on federal land. Buono v.
Norton, 212 F. Supp. 2d 1202, 1204 (C.D. Cal. 2002) (Buono
I). The district court determined that the presence of the cross
on federal land violated the Establishment Clause, and entered
an injunction ordering the government to remove the cross.
Id. at 1217.
During the pendency of the appeal from Buono I, Congress
enacted legislation ordering the Secretary of the Interior to
convey a one-acre parcel of land including Sunrise Rock to
the VFW in exchange for a parcel of privately-owned land of
equal value. Pub. L. No. 108-87, § 8121(a)-(f), 117 Stat.
1054, 1100 (2003) (“Section 8121”). The transfer was condi-
tioned on the VFW’s obligation to “maintain the conveyed
property as a memorial commemorating United States partici-
pation in World War I and honoring the American veterans of
that war.”2 § 8121(e). Under the terms of the statute, the gov-
1
The Mojave National Preserve is a national park that encompasses
approximately 1.6 million acres of land in Southern California, approxi-
mately 90 percent of which is owned by the federal government. Buono
IV, 502 F.3d at 1072.
2
In legislation previously enacted in 2002, Congress designated “[t]he
five-foot-tall white cross first erected by the [VFW] in 1934” a “national
5500 BUONO v. KEMPTHORNE
ernment retained a reversionary interest in the property “[i]f
the Secretary determines that the conveyed property is no lon-
ger being maintained as a war memorial.” Id. Critically, how-
ever, section 8121 did not mention the existence of a cross on
Sunrise Rock, nor did it require that the VFW retain the cross
as part of the memorial.
The agreement also provided that “the Secretary shall con-
tinue to carry out the responsibilities of the Secretary under”
Pub. L. No. 107-117 § 8137, 115 Stat. 2230 (2002).
§ 8121(a). Section 8137 required 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.” Section 8137 does not confer any
other authority or obligation on the government.
Soon after the enactment of section 8121, but before the
land exchange had been carried out, we affirmed the district
court’s determination that the presence of the cross on federal
land violated the Establishment Clause. Buono v. Norton, 371
F.3d 543, 550 (9th Cir. 2004) (“Buono II”). However, we
expressly refused to consider “whether a transfer completed
under section 8121 would pass constitutional muster.” Id. at
546.
Following Buono II, the government completed the land
exchange. Buono then brought the present action, arguing that
section 8121 violated the district court’s injunction or, in the
alternative, that the land transfer itself violated the Establish-
ment Clause. See Buono v. Norton, 364 F. Supp. 2d 1175,
memorial commemorating United States participation in World War I and
honoring the American veterans of that war.” Pub. L. No. 107-117,
§ 8137, 115 Stat. 2230, 2278-79 (2002) (“Section 8137”); see also Pub. L.
No. 107-248, § 8065(b), 116 Stat. 1519, 1551 (2002) (barring the use of
federal funds “to dismantle national memorials commemorating United
States participation in World War I”).
BUONO v. KEMPTHORNE 5501
1177 (C.D. Cal. 2005) (“Buono III”). The district court held
that the government continued to violate the injunction fol-
lowing the land transfer, even though ownership of the cross
and the underlying land had been transferred to a private
party. See id. at 1182. Significantly, the district court there-
fore concluded that “it need not consider [Buono’s] other con-
tention that the land transfer itself is an independent violation
of the Establishment Clause.” Id. at 1182 n.8.
The Buono IV panel affirmed, holding that the pre-
divestment injunction remained enforceable because the gov-
ernment continued impermissibly to endorse religion despite
the transfer of Sunrise Rock. Buono IV, 502 F.3d at 1086. The
panel determined that such endorsement existed because: (1)
the government purportedly retained control and oversight
over Sunrise Rock, id. at 1082-83; (2) the government failed
to hold an open bidding process for the land, id. at 1084-85;
(3) the government purportedly had engaged in “long-
standing efforts to preserve and maintain the cross,” id. at
1085; and (4) the government continued to endorse religion
by permitting the cross at the site, id. at 1085-86.3
II
Buono IV squarely contradicts two Seventh Circuit opin-
ions holding that “[a]bsent unusual circumstances, a sale of
real property is an effective way for a public body to end its
inappropriate endorsement of religion.” Freedom from Reli-
gion Found., Inc. v. City of Marshfield, 203 F.3d 487, 491
(7th Cir. 2000) (upholding the sale of a portion of a municipal
park on which stood a statue of Jesus with arms extended);
3
I note that the constitutionality of the transfer itself is not at issue in
this case. Because the district court solely concluded that state action per-
sisted and therefore expressly declined to consider whether “the land
transfer itself is an independent violation of the establishment clause,”
Buono III, 364 F. Supp. 2d at 1182 n.8, the Buono IV opinion presupposes
that the transfer is not independently violative.
5502 BUONO v. KEMPTHORNE
see also Mercier v. Fraternal Order of Eagles, 395 F.3d 693,
702-03 (7th Cir. 2005) (upholding the sale of a portion of a
municipal park with monument of Ten Commandments). The
Seventh Circuit properly applied the principle that once
publicly-owned land is transferred to a private party, govern-
ment action ceases, and the Establishment Clause violation
necessarily goes with it. Marshfield, 203 F.3d at 491(“Because of the difference in the way we treat private speech
and public speech, the determination of whom we should
impute speech onto is critical.”).
The “unusual circumstances” exception noted by the Sev-
enth Circuit therefore merely incorporated well-established
Supreme Court precedent concerning when state action may
be imputed to private parties despite the transfer of once-
public land: a continuation of state action may be found
“when a set of unusual facts and circumstances demonstrate[ ]
that the government remain[s] intimately involved in exclu-
sively public functions that ha[ve] been delegated to private
organizations.” Id. at 492 (citing Evans v. Newton, 382 U.S.
296 (1966); Terry v. Adams, 345 U.S. 461 (1953); Marsh v.
Alabama, 326 U.S. 501 (1946)). That is, state action may be
imputed to private parties in the “extraordinary circum-
stance[ ]” that the “transfer [has not] eliminated the actual
involvement of the [government] in the daily maintenance and
care of the [property].” Flagg Bros., Inc. v. Brooks, 436 U.S.
149, 159 n.8 (1978) (discussing Evans, 382 U.S. at 301); see
Marshfield, 203 F.3d at 492.
Under such precedent, the only relevant issue is whether
there is continuing state action, absent which the govern-
ment’s intent or any atypical circumstances are of no conse-
quence. See Marshfield, 203 F.3d at 491; see also Capitol
Square Review & Advisory Bd. v. Pinette, 515 U.S. 753, 779
(1995) (O’Connor, J., concurring) (“[A]n Establishment
Clause violation must be moored in government action of
some sort.”); Bd. of Educ. v. Mergens, 496 U.S. 226, 250
(1990) (plurality opinion) (“[T]here is a crucial difference
BUONO v. KEMPTHORNE 5503
between government speech endorsing religion, which the
Establishment Clause forbids, and private speech endorsing
religion, which the Free Speech and Free Exercise Clauses
protect.”) (emphasis in original). Indeed, the court in Marsh-
field upheld the relevant land sale despite the appellants’ con-
tention that it was a “ ‘sweetheart deal’ . . . concocted to
circumvent the government action requirement,” precisely
because the sale extinguished state action. 203 F.3d at 491;
see also Mercier, 395 F.3d at 702 (rejecting the argument that
the transfer was unconstitutional because “[t]he City Council
knew that it was faced with a lawsuit seeking the removal of
the Monument”).
Nevertheless, the Buono IV opinion splits from the Seventh
Circuit’s rule and from binding Supreme Court precedent by
creating an “unusual circumstances” test that extends well
beyond the limited circumstances in which state action per-
sists. That is, Buono IV improperly faults the government for:
• (1) Having the purported authority to control
Sunrise Rock, despite the utter lack of evidence
that it would actually contribute to the mainte-
nance and care of the memorial;
• (2) Possessing the intent to preserve the Sunrise
Rock memorial, even though such consideration
is irrelevant absent state action; and
• (3) Failing to hold an open bidding process, even
though Marshfield and the Evans line of cases
demonstrate that state action ceases once Sunrise
Rock is privately owned.
What is altogether missing in this case is any evidence that
the government has maintained or will maintain or support the
Sunrise Rock cross after the land transfer.4 See Evans, 382
4
As Marshfield plainly suggests, the reversionary clause in section 8121
does not constitute state action where the government has not “made any
effort to enforce [it].” 203 F.3d at 492-93.
5504 BUONO v. KEMPTHORNE
U.S. at 301 (relying on the fact that, following the govern-
ment’s resignation as trustee over the relevant land, “there has
been no change in municipal maintenance and concern over
[it],” such that “[w]hether these public characteristics will in
time be dissipated is wholly conjectural”); Marshfield, 203
F.3d at 493 (declining to conjecture on “the conduct of the
parties following the sale of [the] property”).
Accordingly, while the Buono IV opinion pays lip service
to the “unusual circumstances” exception mandated by the
Evans line of cases, it has bestowed upon judges the extraor-
dinary authority to enjoin private parties from displaying reli-
gious symbols on their own land based solely on the
government’s pre-divestment conduct, absent any showing
that the government would remain “intimately involved” in
the care and maintenance of privately-owned land.
Moreover, the deference owed to Congress forecloses us
from striking down legislation based upon a presumption that
the government will violate the Constitution in the future. See
Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Const.
Trades Council, 485 U.S. 568, 575 (1988) (“Congress, like
this Court, is bound by and swears an oath to uphold the Con-
stitution. The courts will therefore not lightly assume that
Congress intended to infringe constitutionally protected liber-
ties or usurp power constitutionally forbidden it.”); see also
Wash. State Grange v. Wash. State Republican Party, 128
S. Ct. 1184, 1190 (2008) (“In determining whether a law is
facially invalid, we must be careful not to go beyond the stat-
ute’s facial requirements and speculate about ‘hypothetical’ or
‘imaginary’ cases.”); INS v. St. Cyr, 533 U.S. 289, 200 n.12
(2001) (“[T]he elementary rule is that every reasonable con-
struction must be resorted to, in order to save a statute from
unconstitutionality.”) (internal quotation marks omitted). By
holding that the district court could invalidate section 8121
without a finding that the government would remain “inti-
mately involved” in the maintenance and care of the Sunrise
Rock memorial post-divestment, the Buono IV opinion flouts
BUONO v. KEMPTHORNE 5505
such “fundamental principle of judicial restraint.” Wash. State
Grange, 128 S. Ct. at 1191.
III
Buono IV also splits from the Seventh Circuit on a second,
equally important issue. After holding that the government
failed the Lynch endorsement test by inadequately distancing
itself from the Sunrise Rock memorial, the opinion upholds a
remedy compelling the VFW to sacrifice its private rights in
Sunrise Rock to cure the government’s constitutional viola-
tion. Buono IV, 502 F.3d at 1085-86; see also Buono II, 371
F.3d at 548-49 (discussing Lynch v. Donnelly, 465 U.S. 668(1984)).
Yet the Seventh Circuit correctly held that a private party’s
rights may not be brushed aside to remedy the government’s
violative conduct; rather, the only proper remedy is to enjoin
the government’s improper conduct. See Marshfield, 203 F.3d
at 497 (“[E]ither the Fund, a private land owner, must be
estopped from exercising its right to free exercise and free-
dom of speech on its own property, or some way must be
found to differentiate between property owned by the Fund
and property owned by the City. The latter—not the former—
is the appropriate solution.”). Indeed, on remand in Marsh-
field, the district court required that the government erect a
fence around the statue; the statue, however, was permitted to
remain on the now-private property, precisely because of the
protection owed to the private landowner under the First
Amendment. See Freedom From Religion Found., Inc. v.
Marshfield, No. 98-C-270-S, 2000 WL 767376 (W.D. Wis.
May 9, 2000).
By holding that a private citizen’s rights may be infringed
simply because his land was publicly owned in the past, or
because it presently sits next to publicly-owned land, or
because a hypothetical viewer might mistakenly confuse it
with such land, the Buono IV opinion recklessly splits from
5506 BUONO v. KEMPTHORNE
the Seventh Circuit and announces a broad and unprecedented
rule that should not be allowed to stand.5
IV
Moreover, while the Buono IV opinion concludes that the
government will continue to endorse religion even after trans-
ferring Sunrise Rock to the VFW, the opinion fails even to
mention the government’s argument that the pre-divestment
injunction was mooted by the Supreme Court’s intervening
decisions in McCreary County v. ACLU, 545 U.S. 844 (2005),
and Van Orden v. Perry, 545 U.S. 677 (2005). Because the
central considerations in Van Orden are almost entirely on
point with the facts of Buono IV, such precedent forecloses
the continued enforcement of the injunction.
As was the case in Van Orden, the Sunrise Rock memorial
was constructed by a private, secular organization—indeed,
the memorial in this case was installed without government
permission—away from a captive audience, and both were
packaged with a “nonsectarian text” evincing a clearly secular
purpose. Van Orden, 545 U.S. at 701-02 (Breyer, J., concur-
ring). Moreover, just as Justice Breyer’s controlling concur-
rence in Van Orden found dispositive that the Ten
Commandments statue had existed for 40 years before the
underlying suit, the Sunrise Rock cross has existed for nearly
double that amount of time. See id. at 702 (“As far as I can
tell, 40 years passed in which the presence of this monument,
legally speaking, went unchallenged . . . [T]hose 40 years sug-
gest more strongly than can any set of formulaic tests that few
individuals, whatever their system of beliefs, are likely to
have understood the monument as amounting . . . to a govern-
5
Indeed, such reasoning equally applies to the Buono IV opinion’s con-
clusion that the government retained authority to control Sunrise Rock.
The appropriate remedy would be to enjoin such alleged government con-
trol, rather than to require the removal of the memorial despite the VFW’s
private ownership of it.
BUONO v. KEMPTHORNE 5507
ment effort to favor a particular religious sect, primarily to
promote religion . . . .”); compare McCreary, 545 U.S. at 851(Ten Commandments statues were put in place by govern-
ment officials in 1999).
While the cross at Sunrise Rock takes the form of an ordi-
narily religious symbol, it serves the secular purpose of
memorializing fallen soldiers.6 Of course, the monument in
Van Orden was also an ordinarily religious symbol, but that
fact alone was insufficient to constitute a violation of the
Establishment Clause. See Van Orden, 545 U.S. at 703 (con-
cluding that the monument “serv[ed] a mixed but primarily
nonreligious purpose”). Additionally, while the statue in Van
Orden was placed in a “large park” with other monuments,
the lack of any challenge to the Sunrise Rock memorial for
seven decades surely demonstrates that the public understands
and accepts its secular commemorative purpose. See id. at
701-02; Card v. City of Everett, 520 F.3d 1009, 1021 (9th Cir.
2008) (noting that public complaints “did not surface until the
monument had been in place for over thirty years”).7
By altogether ignoring the dispositive considerations in
Van Orden, the Buono IV opinion vitiates the Supreme
Court’s caution against applying the endorsement test in a
6
Indeed, there are many monuments on public land that use the cross to
commemorate the sacrifice of fallen soldiers, particularly those in World
War I. To name some examples: the Argonne Cross Memorial and the
Canadian Cross of Sacrifice in Arlington National Cemetery; the French
Cross Monument in the Cypress Hill National Cemetery; the Peace Cross
in Bladensburg, Maryland; the Unknown Soldiers Monument in Prescott
National Cemetery; and the Wall of Honor at the Pennsylvania Military
Museum. These monuments surely honor soldiers of all creeds, and no
reasonable viewer would conclude that they exclude or discount the sacri-
fice of non-Christians.
7
Van Orden certainly may not be construed as narrowly requiring such
a clustering of monuments; Justice Breyer’s concurrence explicitly cited
other factors in determining that its presence on state land did not violate
the Establishment Clause. See Van Orden, 545 U.S. at 701-02.
5508 BUONO v. KEMPTHORNE
manner that has “radical implications for our public policy.”
Pinette, 515 U.S. at 768 (1995) (plurality opinion); see also
Corp. of the Presiding Bishop of the Church of Jesus Christ
of Latter-Day Saints v. Amos, 483 U.S. 327, 334 (1987)
(“There is ample room under the Establishment Clause for
benevolent neutrality which will permit religious exercise to
exist without sponsorship and without interference.”) (internal
quotation marks omitted).
V
In addition to discussing the foregoing inter-circuit and pre-
cedential conflicts, I must voice my strong disagreement with
the merits of the Buono IV opinion.
A
First, Buono IV concludes that “the various statutes”
involved in this case, “when read as a package, evince contin-
uing government control.” Buono IV, 502 F.3d at 1082. How-
ever, while the NPS Director, under the supervision of the
Secretary of the Interior, is responsible for overall manage-
ment and supervision of the Mojave National Preserve,
including “the supervision, management, and control of
national monuments,” 16 U.S.C. § 2, such authority applies
only to federal land, see 16 U.S.C. § 431 (authority to declare
national monuments expressly limited to objects “situated
upon the lands owned or controlled by the Government of the
United States”); see also 16 U.S.C. § 1 (“The service thus
established shall promote and regulate the use of the Federal
areas known as national parks, monuments, and reservations
hereinafter specified . . . .”) (emphasis added). Additionally,
while § 431 provides that the Secretary of the Interior may
accept relinquishment of privately-owned property to provide
“the proper care and management” of monuments, it does not
authorize government officials forcibly to take private prop-
erty to provide such care or to enter private land.
BUONO v. KEMPTHORNE 5509
Section 8121(a), likewise, provides little support for the
opinion’s conclusion, as it merely requires the Secretary of
the Interior to carry out the duties set forth in section 8137.
Section 8137 very clearly delineates the limited obligations
owed by the Secretary, namely that the Secretary “acquire a
replica of the original memorial plaque and cross placed at the
national World War I memorial,” and “install the plaque in a
suitable location on the grounds of the memorial.” Simply
put, if Congress wanted to retain the broad oversight sug-
gested by the Buono IV opinion, it would have said as much,
particularly if it was so firmly committed to ensuring that the
Sunrise Rock memorial will retain its present form.8 Indeed,
it is telling that the district court came to precisely the same
conclusion. See Buono III, 364 F. Supp. 2d at 1180 (finding
that section 8121 “[gave] the Secretary access to the subject
property in the form of an easement or license for a particular
purpose,” namely, to make a replica of the statue and install
a replica of the plaque). I fail to see how such trivial, fleeting
duties constitute “intimate involvement” sufficient to strike
down section 8121.
B
Second, Buono IV faults the government for failing to hold
a hearing before transferring the land to the VFW, determin-
ing that such conduct constituted the improper “exclusion of
other purchasers.” 502 F.3d at 1084-85. The opinion cites 16
U.S.C. § 460l-22 in support, but that statute is wholly irrele-
vant, as it solely concerns land transfers initiated by the Sec-
retary of Interior, whereas the land exchange in question here
was directly authorized by Congress. See Id. Contrary to the
8
Likewise, as noted, the reversionary clause in section 8121 cannot con-
stitute state action absent an attempt by the government to exercise it. See
Marshfield, 203 F.3d at 491-93 (holding that a covenant requiring that the
transferred land be used as a public park “will not affect the validity of the
transfer” because “[t]he plaintiffs do not contend that the City has made
any effort to enforce this restrictive covenant”).
5510 BUONO v. KEMPTHORNE
suggestion in Buono IV, under § 460l-22(b), the Secretary is
required to hold an open bidding process only “[u]pon request
of a State or a political subdivision thereof, or of a party in
interest, prior to such exchange.” There is no indication in the
record that any such party requested a hearing in this case.
Thus, even if Congress is somehow bound by subordinate
administrative rules, the transfer of Sunrise Rock was per-
fectly appropriate under the plain language of § 460l-22(b).9
In any event, the Buono IV opinion comes to the perplexing
conclusion that Congress’s failure to comply with “agency
procedures” binding solely the Secretary of Interior demon-
strates that Congress acted inappropriately in its failing to
hold an open bidding process. Buono IV, 502 F.3d at 1085. I
am unaware of any precedent suggesting that congressional
action is in any way suspect where it fails to adhere to an
agency’s procedural rules. I also am unaware of any precedent
disparaging a land transfer for having been enacted in an
appropriations bill, nor does the Buono IV opinion cite to any
caselaw in support of such consideration. 502 F.3d at 1084.10
9
Even assuming that 16 U.S.C. § 460l-22 is relevant to its decision,
Buono IV errs in discussing § 460l-22(a). As the district court found and
the parties expressly conceded on appeal, the land exchange in this case
would have been governed solely by § 460l-22(b) had it been authorized
by the Secretary of the Interior rather than mandated by Congress. See
Buono III, 364 F. Supp. 2d at 1181.
10
Moreover, here again the opinion shrugs off the conflicting holdings
in Marshfield and Mercier, which “upheld the sale of property to a private
party without an open market bidding process.” Buono IV, 502 F.3d at
1084-85; see also Marshfield, 203 F.3d at 492-93; Mercier, 395 F.3d at
702-03. Indeed, as in those cases, the Sunrise Rock memorial was trans-
ferred to the most “logical purchaser,” namely the organization that con-
structed the memorial in the first place. Buono IV, 502 F.3d at 1084-85.
The panel fails to provide any reason for diverging from the Seventh Cir-
cuit’s holdings, short of discussing the purported conflict with “normal
agency procedures.”
BUONO v. KEMPTHORNE 5511
C
Third, the opinion points to “the government’s long-
standing efforts to preserve and maintain the cross atop Sun-
rise Rock” as supporting the conclusion “that the govern-
ment’s purpose in this case is to evade the injunction and keep
the cross in place.” Buono IV, 502 F.3d at 1085. Whether the
government sought to evade the injunction in the past is col-
lateral to the issue before us; the only relevant issue is
whether the transfer rendered the injunction moot by divest-
ment of Sunrise Rock to a private party. See Paulson v. City
of San Diego, 475 F.3d 1047, 1048 (9th Cir. 2007) (holding
that an injunction prohibiting, under the California Constitu-
tion, the continued existence of a cross on municipal property
was rendered moot when the municipality transferred the land
to the federal government, which is not bound by state law);
cf. Staley v. Harris County, 485 F.3d 305, 308-09 (5th Cir.
2007) (en banc) (holding that an injunction ordering the
removal of a religious monument was mooted by the munici-
pality’s decision to temporarily remove the statue). Of course,
the government may moot an injunction by curing the viola-
tion that spurred it; Paulson, as well as common sense, com-
pel no less. Accordingly, Buono IV faults the government for
engaging in conduct that was perfectly permissible. I fail to
see why the government’s past, unsuccessful efforts to cure
the Establishment Clause violation should foreclose it from
pursuing further legitimate efforts.
In any event, given our opinion in Buono II, it is easy to
understand why the government would conclude that carrying
out the land transfer was an appropriate response: we based
our holding that the Sunrise Rock cross violated the Establish-
ment Clause on its having been situated on “publicly-owned
land,” and we expressly refused to address the constitutional-
ity of a land transfer under section 8121. Buono II, 371 F.3d
at 548-49. Accordingly, the government reasonably concluded
that we condoned the land transfer, notwithstanding a subse-
quent decision on the constitutionality of section 8121; to
5512 BUONO v. KEMPTHORNE
fault the government for carrying out section 8121 is nothing
short of a judicial “bait-and-switch.” If anything, transferring
the land was the obvious next step in attempting to cure the
violation while ensuring the continued presence of a 74-year-
old war memorial. See Mercier, 395 F.3d at 705 (“The City
is able to extricate itself completely from the implied endorse-
ment of the purpose and content of the religious symbol, yet
the Monument can remain in the location it has occupied for
many years.”).
VI
The Buono IV opinion contravenes binding Supreme Court
precedent, creates a split from the Seventh Circuit on multiple
issues, invests judges with the dangerous and unprecedented
authority to infringe upon fundamental private rights, and
rests on patently flawed reasoning. I sympathize with my col-
leagues’ frustration that a court can lose control of its injunc-
tion by the enjoined party’s unanticipated abdication of
ownership, thus mooting the case. But such risk is inherent in
our trade, and for good reason.
I therefore respectfully dissent from our unfortunate deci-
sion not to rehear this case en banc.
OPINION
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 543BUONO v. KEMPTHORNE 5513
(9th Cir. 2004). We affirmed the district court’s judgment per-
manently enjoining the government “from permitting the dis-
play 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 par-
cel 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 per-
manent 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 govern-
ment 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
1
Further background detail is found in the district court’s order and our
prior opinion on the merits of the Establishment Clause challenge. See
generally Buono v. Norton, 212 F. Supp. 2d 1202 (C.D. Cal. 2002)
(“Buono I”); Buono, 371 F.3d 543 (9th Cir. 2004) (“Buono II”).
5514 BUONO v. KEMPTHORNE
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 exclu-
sively a Christian symbol, and not a symbol of any other reli-
gion.” 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 stat-
ing: “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 par-
ties several times since 1934. The cross has been an intermit-
tent 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 San-
doz, a local resident, sometime in 1998. When NPS investi-
gated 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 uncov-
BUONO v. KEMPTHORNE 5515
ered, 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 seek-
ing 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 Reg-
ister 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 origi-
nal) 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
2
The regulation provides that: “The installation of a monument, memo-
rial, tablet, structure, or other commemorative installation in a park area
without the authorization of the Director is prohibited.” 36 C.F.R.
§ 2.62(a).
5516 BUONO v. KEMPTHORNE
of laws, described below, to preserve the Sunrise Rock cross.
The first piece of legislation, enacted in December 2000, pro-
vided 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 Secre-
tary of the DOI, the Regional Director of NPS, and the Super-
intendent 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 “De-
fendants, 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
3
“None of the funds in this or any other Act may be used by the Secre-
tary of the Interior to remove the five-foot-tall white cross located within
the boundary of the Mojave National Preserve in southern California first
erected in 1934 by the Veterans of Foreign Wars along Cima Road
approximately 11 miles south of Interstate 15.” § 113 (emphasis added).
4
Buono is a retired NPS employee who worked for the agency from
1972 to 1997. From September 1994 to December 1995, Buono worked
as the Assistant Superintendent of the Preserve.
5
We granted the government’s motion to stay the injunction pending
appeal, insofar as the injunction required NPS to immediately remove or
dismantle the cross. The stay did not apply to any “alternative methods”
for complying with, or additional obligations imposed by, the district
court’s order. See Buono II, 371 F.3d at 545 n.1 (discussing stay orders).
During the appeal, NPS covered the cross, first with a large tarpaulin and
later with a plywood box, which the government asserts will remain in
place pending resolution of this action.
BUONO v. KEMPTHORNE 5517
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 desig-
nated by the Secretary of the Interior, is hereby des-
ignated as a national memorial commemorating
United States participation in World War I and hon-
oring 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 memo-
rial designated by subsection (a) and to install the
plaque in a suitable location on the grounds of the
memorial.
5518 BUONO v. KEMPTHORNE
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, manage-
ment, 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 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 provision barring the use of federal funds “to dis-
mantle national memorials commemorating United States par-
ticipation in World War I.” Pub. L. No. 107-248 § 8065(b),
116 Stat.1551 (2002) (hereafter “§ 8065”).
C. BUONO II AND PASSAGE OF § 8121
The government appealed the district court’s order and
injunction. In September 2003, one month after oral argument
before a panel of our court but before a decision issued, Con-
gress enacted another defense appropriations bill that included
a land exchange agreement regarding the Sunrise Rock cross.
See Pub. L. No. 108-87 § 8121(a)-(f), 117 Stat. 1100 (2003),
codified at 16 U.S.C. § 410aaa-56 (note), (hereafter
“§ 8121”). The statute provides:
(a) EXCHANGE REQUIRED.— In exchange for
the private property described in subsection (b), the
Secretary of the Interior shall convey to the Veterans
Home of California— Barstow, Veterans of Foreign
Wars Post #385E (in this section referred to as the
“recipient”), all right, title, and interest of the United
States in and to a parcel of real property consisting
of approximately one acre in the Mojave National
BUONO v. KEMPTHORNE 5519
Preserve and designated (by section 8137 of the
Department of Defense Appropriations Act, 2002
(Public Law 107-117; 115 Stat. 2278)) as a national
memorial commemorating United States participa-
tion in World War I and honoring the American vet-
erans of that war. Notwithstanding the conveyance
of the property under this subsection, the Secretary
shall continue to carry out the responsibilities of the
Secretary under such section 8137.
(b) CONSIDERATION.—As consideration for the
property to be conveyed by the Secretary under sub-
section (a), Mr. and Mrs. Henry Sandoz of Mountain
Pass, California, have agreed to convey to the Secre-
tary a parcel of real property consisting of approxi-
mately five acres, identified as parcel APN 569-051-
44, and located in the west 1/2 of the northeast 1/4
of the northwest 1/4 of the northwest 1/4 of section
11, township 14 north, range 15 east, San Bernardino
base and meridian.
§ 8121(a)-(b) (emphases added). The government retains a
reversionary interest in the property as follows:
(e) REVERSIONARY CLAUSE. — The convey-
ance under subsection (a) shall be subject to the con-
dition that the recipient maintain the conveyed
property as a memorial commemorating United
States participation in World War I and honoring the
American veterans of that war. If 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.
§ 8121(e) (emphasis added). The cross-reference in § 8121(a)
to § 8137 pertains to use of federal funds to acquire a replica
cross and plaque. See § 8197(c). The land transfer was under-
5520 BUONO v. KEMPTHORNE
way when the district court enjoined its enforcement, as
described below.
In June 2004, in affirming the district court’s permanent
injunction, we held that the presence of the cross in the Pre-
serve violates the Establishment Clause, agreeing with the
district court that this case is “squarely controlled” by Separa-
tion of Church and State Committee v. City of Eugene, 93
F.3d 617 (9th Cir. 1996) (“SCSC”). Buono II, 371 F.3d at 548.
In SCSC, we reasoned that the presence of a cross on city
land, even where it bore a plaque dedicating the cross as a war
memorial to veterans, 93 F.3d at 618, violated the Establish-
ment Clause because “the presence of the cross may reason-
ably be perceived as governmental endorsement of
Christianity.” Id. at 620.
The government’s several attempts to distinguish SCSC
were not persuasive. For example, we held that it was “of no
moment” that the cross in SCSC was significantly taller,
located in an urban area, or illuminated during certain holi-
days:
Though not illuminated, the cross here is bolted to a
rock outcropping rising fifteen to twenty feet above
grade and is visible to vehicles on the adjacent road
from a hundred yards away. Even if the shorter
height of the Sunrise Rock cross means that it is visi-
ble to fewer people than was the SCSC cross, this
makes it no less likely that the Sunrise Rock cross
will project a message of government endorsement.
. . . Nor does the remote location of Sunrise Rock
make a difference. That the Sunrise Rock cross is not
near a government building is insignificant — nei-
ther was the SCSC cross. What is significant is that
the Sunrise Rock cross, like the SCSC cross, sits on
public park land. National parklands and preserves
embody the notion of government ownership as
much as urban parkland, and the remote location of
BUONO v. KEMPTHORNE 5521
Sunrise Rock does nothing to detract from that
notion.
Buono II, 371 F.3d at 549-50 (emphasis added).
We also held that a reasonable observer, even without
knowing whether Sunrise Rock is federally owned, would
believe—or at least suspect—that the cross rests on public
land because of the vast size of the Preserve, more than 90
percent of which is federally owned. Id. at 550 (citing reason-
able observer test set forth in Capitol Square Review & Advi-
sory Bd. v. Pinette, 515 U.S. 753, 780-81 (1995) (O’Connor,
J., concurring)). A reasonably informed observer aware of the
history of the Sunrise Rock cross would know not only that
the cross was erected by private individuals (which the gov-
ernment argued favored its view), but also that Congress has
taken various measures to preserve the cross, i.e., designating
it a war memorial, prohibiting use of federal funds to remove
it, and denying similar access for a Buddhist shrine. Id.Acknowledging the passage of § 8121 while the appeal was
pending, we addressed the government’s challenge that
§ 8121 rendered the appeal moot or would soon do so. We
rejected the government’s mootness challenge for two rea-
sons: First, we held that the case was not moot because the
land transfer had not yet taken effect. Id. at 545. Second,
because “[m]ere voluntary cessation of allegedly illegal con-
duct does not moot a case,” we held that even if the land trans-
fer had taken effect, the government still had not carried its
heavy burden to show mootness. Id. at 546. Even if the land
were transferred under § 8121(a), it may revert to the govern-
ment under § 8121(e), or as provided in other statutes. In par-
ticular, we noted that 16 U.S.C. § 431 authorizes
relinquishment of lands containing “national monuments” to
the federal government, and 16 U.S.C. § 410aaa-56 autho-
rizes the Department of the Interior to “acquire all lands and
interest in lands within the boundary of the [Mojave] preserve
5522 BUONO v. KEMPTHORNE
by donation, purchase, or exchange.” Id. at 546 (discussing
§ 8121, 16 U.S.C. §§ 431, 410aaa-56).
D. BUONO III
Despite the injunction against display of the cross in the
Preserve, the government began moving forward with the
mechanics of the land exchange under § 8121. Buono then
moved to enforce the district court’s prior injunction, or mod-
ify it to prohibit the land exchange as a violation of the Estab-
lishment Clause. In April 2005, the district court granted
Buono’s motion to enforce the injunction, and denied as moot
the request to amend the permanent injunction. See Buono v.
Norton, 364 F. Supp. 2d 1175, 1177, 1182 & n.8 (C.D. Cal.
2005) (“Buono III”). According to the district court, “the
transfer of the Preserve land containing the Latin Cross which
as [a] sectarian war memorial carries an inherently religious
message and creates an appearance of honoring only those
servicemen of that particular religion is an attempt by the gov-
ernment to evade the permanent injunction enjoining the dis-
play of the Latin Cross atop Sunrise Rock.” Id. at 1182(citation and quotation marks omitted). The district court
deemed the exchange “invalid” and permanently enjoined the
government “from implementing the provisions of Section
8121 of Public Law 108-87” and ordered the government “to
comply forthwith with the judgment and permanent injunction
entered by th[e] court on July 24, 2002.” Id. It is that decision
that the government now appeals.
STANDARD OF REVIEW
We review for abuse of discretion the district court’s order
enforcing its prior injunction. Paulson v. City of San Diego,
294 F.3d 1124, 1128 (9th Cir. 2002). A district court abuses
its discretion in this regard if “it bases its decision on an erro-
neous legal standard or on clearly erroneous findings of fact.”
Id.BUONO v. KEMPTHORNE 5523
ANALYSIS
In the district court, Buono advanced two alternative argu-
ments challenging the land exchange under § 8121. First,
Buono argued that the land exchange is an attempt to evade
the permanent injunction. Alternatively, he argued that the
land exchange itself violates the Establishment Clause
because it is an improper governmental endorsement of reli-
gion. The district court’s holding is grounded only on the first
basis, i.e., that the land exchange is a sham transaction with
the purpose of permitting continued display of the cross in
violation of the permanent injunction. On appeal, the govern-
ment contends that § 8121 was a bona fide attempt by Con-
gress to comply with the injunction. The government also
argues that because it was not given the opportunity to fully
effectuate the transfer, there are unknown facts that render
this controversy “unripe” for judicial review.
Turning first to the government’s ripeness challenge, we
conclude that this controversy is ripe for review. As to the
second question, the district court did not abuse its discretion
in enforcing the injunction. We agree that the exchange effec-
tuated by § 8121 violates the injunction, which prohibits the
display of the Latin cross because it runs afoul of the Estab-
lishment Clause.
I. RIPENESS
Ripeness is a justiciability requirement that seeks to avoid
premature litigation of disputes. Thomas v. Union Carbide
Agr. Products Co., 473 U.S. 568, 579-81 (1985) (“[R]ipeness
is peculiarly a question of timing.”) (citations omitted). The
ripeness doctrine “is drawn both from Article III limitations
on judicial power and from prudential reasons for refusing to
exercise jurisdiction.” Reno v. Catholic Soc. Servs., Inc., 509
U.S. 43, 57 n.18 (1993); accord Thomas v. Anchorage Equal
Rights Comm’n, 220 F.3d 1134, 1138-42 (9th Cir. 2000) (en
banc) (discussing constitutional and prudential components of
5524 BUONO v. KEMPTHORNE
ripeness). The ripeness question we address is whether it is
premature to consider a violation of the injunction before
completion of the land exchange.
A. CONSTITUTIONAL COMPONENT OF RIPENESS
The constitutional component of ripeness—that there be an
Article III “case or controversy”—requires a concrete impact
upon the parties arising from the dispute. Union Carbide, 473
U.S. at 579. This analysis is similar to the injury-in-fact
inquiry under the standing doctrine. See Anchorage Equal
Rights Comm’n, 220 F.3d at 1138-39.
The government argues that before litigation proceeds, it
should be given an opportunity to try to execute the land
exchange in compliance with the prior injunction and the gov-
ernment’s constitutional obligations. Buono responds that the
“concrete” injury ripe for review is that the land transaction’s
very structure evidences its lack of a secular purpose and its
effect continues the government’s improper endorsement of
religion that we already held exists.
This case can best be described as an ongoing controversy
about the cross, the specifics of which shift with successive
congressional enactments. The controversy is neither prema-
ture nor will it go away on its own. Given the specifics of
§ 8121, it is no answer to say that the land exchange is not
complete. It is, as the district court notes, “already in prog-
ress,” and the government intends to complete it. Buono III,
364 F. Supp. 2d at 1178. Buono’s challenge to the present
terms of the exchange is not a “hypothetical request[ ] for an
advisory opinion.” Anchorage Equal Rights Comm’n, 220
F.3d at 1141.
[1] The Supreme Court has held that pre-enforcement
review of a statute is appropriate where the governmental pur-
pose in enacting the statute evidences an improper endorse-
ment of religion in violation of the Establishment Clause. See
BUONO v. KEMPTHORNE 5525
Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 313-14
(2000). It is no legal leap to conclude that pre-enforcement
review is similarly appropriate where the purpose of a statute
is to evade an injunction intended to end an ongoing Estab-
lishment Clause violation.
In Santa Fe, the Supreme Court considered the ripeness of
a facial challenge to a school district’s policy purportedly
allowing school prayer. Id. The policy permitted students (a)
to vote on whether there should be a student-delivered invoca-
tion given at the start of high school football games, and (b)
to later vote to select the one student who would deliver the
invocation at all games throughout the year. Id. at 297-98.
The school district argued that it was premature to review the
policy because there “can be no certainty that any of the state-
ments or invocations will be religious.” Id. at 313. Rejecting
that challenge, the Court concluded that while forcing a stu-
dent “to participate in religious worship” was a serious consti-
tutional injury, so too was the “mere passage by [the school
district] of a policy that has the purpose and perception of
government establishment of religion. . . . [and] the imple-
mentation of a governmental electoral process that subjects
the issue of prayer to a majoritarian vote.” Id. at 313-14 (rec-
ognizing that “the Constitution also requires that we keep in
mind ‘the myriad, subtle ways in which Establishment Clause
values can be eroded.’ ”) (quoting Lynch v. Donnelly, 465
U.S. 668, 694 (1984) (O’Connor, J., concurring)). Thus, the
mere enactment of the policy, particularly in light of the
school district’s conduct, was a sufficient constitutional injury
to warrant pre-enforcement review, and ultimately an injunc-
tion against implementation of the policy. Id. at 316.6 Impor-
6
Our cases have similarly held that passage of a statute and putting it
into effect (even if the effect is not complete) gives rise to a dispute ripe
for judicial review. In Saint Elizabeth Community Hospital v. NLRB, 708
F.2d 1436 (9th Cir. 1983), a church-run hospital challenged the National
Labor Relations Board’s jurisdiction over it as a violation of the Establish-
ment Clause. Id. at 1440. Congress had amended the National Labor Rela-
5526 BUONO v. KEMPTHORNE
tantly, in analyzing ripeness, the Court looked to the history
of the school district’s conduct in enacting the policy and the
true purpose of the policy. Id. at 314-15.
[2] The analogy to Santa Fe is apt. Here, both the district
court and this court have concluded that a grave constitutional
injury already exists. The permitting display of the Sunrise
Rock cross in the Preserve is an impermissible governmental
endorsement of religion. See Buono II, 371 F.3d at 548-50. As
discussed further below, the constitutional injury will persist
after—and as a result of—the land exchange effectuated
under § 8121. This is so because (among other things) § 8121
and other applicable statutes7 permit the government’s signifi-
cant ongoing control of and involvement with the cross and
the property on which it is situated. See Santa Fe, 530 U.S.
at 314-15 (concluding that the text of the school district’s pol-
icy alone reveals the extent of school involvement in the elec-
tion of the student speaker and the content of the message to
be delivered). And, the government’s repeated actions in pre-
serving the cross (and forestalling enforcement of the injunc-
tion) further evidence its goal of keeping the cross in place,
see §§ 133, 8137, 8056(b), 8121, just as the school district in
Santa Fe acted with the purpose of maintaining a school pol-
icy permitting prayer at school events. Santa Fe, 503 U.S. at
314-15.8
tions Act expressly conferring jurisdiction over nonprofit hospitals without
excepting those run by religious institutions. We concluded that the ques-
tion of NLRB’s jurisdiction was ripe for review. Id. In Assiniboine &
Sioux Tribes of Fort Peck Indian Reservation v. Board of Oil & Gas Con-
servation of the State of Montana, 792 F.2d 782 (9th Cir. 1986), we held
that the claim of Indian tribes challenging the validity of a cooperative
agreement regarding agency jurisdiction to advise the tribes about oil and
gas rights was sufficiently ripe where the final cooperative agreement had
been placed into operation by the agreeing agencies. Id. at 788-89.
7
See § 8137(a)-(c), 16 U.S.C. §§ 431, 410aaa-56.
8
The various governmental actions are discussed in further detail infra
§ II.A.3.
BUONO v. KEMPTHORNE 5527
[3] Buono has alleged a sufficient constitutional injury to
overcome any argument that his challenge to § 8121 is unripe.
See Santa Fe, 530 U.S. at 314-15. The challenge in this case
presents a concrete injury, rather than an “imaginary” or
“speculative” one.9
B. PRUDENTIAL COMPONENT OF RIPENESS
[4] Even where a concrete case or controversy is present,
we consider whether, because of prudential concerns, we
should decline to exercise jurisdiction. See Union Carbide,
473 U.S. at 581; Anchorage Equal Rights Comm’n, 220 F.3d
at 1141. We evaluate two interrelated factors: (a) the hardship
that the party seeking relief will suffer from withholding judi-
cial action, and (b) the fitness of the issues in the record for
judicial review. Abbott Labs. v. Gardner, 387 U.S. 136, 148-
49 (1967), overruled on other grounds by Califano v. Sand-
ers, 430 U.S. 99 (1977).
[5] This case easily satisfies both prudential components.
As to the harm,“[o]ne does not have to await the consumma-
tion of threatened injury to obtain preventive relief. If the
injury is certainly impending, that is enough.” Union Carbide,
9
The government can hardly rely, as a predicate for a ripeness chal-
lenge, on its attempt to temporarily comply with the permanent injunction
by covering the cross with a wooden box. If that were the final compliance
mechanism, the district court could determine whether it is sufficient. Sig-
nificantly, however, the government is proceeding with the land exchange.
See Parents Involved in Community Schools v. Seattle School Dist. No. 1,
127 S.Ct. 2738, 2751 (2007) (holding that school district’s voluntary ces-
sation of use of racial tiebreaker pending outcome of litigation did not
negate Article III standing of plaintiff group members challenging policy,
as the school continued to vigorously defend the policy in court); Friends
of Earth, Inc. v. Laidlaw Envt’l Svcs. (TOC), Inc., 528 U.S. 167, 189
(2000) (holding that voluntary cessation of wrongful conduct, either by
defendant’s achievement of substantial compliance with its permit require-
ments or its shutdown of offending facility, did not moot controversy over
defendant’s compliance with Clean Water Act because the offending con-
duct had not permanently ceased).
5528 BUONO v. KEMPTHORNE
473 U.S. at 581 (internal quotations and citations omitted).10
The hardship resulting from the continuation of an Establish-
ment Clause violation enjoined by the court is sufficient.
A claim is “fit for decision if the issues raised are primarily
legal, do not require further factual development, and the
challenged action is final.” Exxon Corp. v. Heinze, 32 F.3d
1399, 1404 (9th Cir. 1994) (citations omitted). These require-
ments are satisfied here.
The key issue is primarily a question of law, i.e., whether
the land exchange under § 8121 violates the district court’s
order permanently enjoining the government from permitting
display of the cross in the Preserve. See, e.g., Santa Fe, 530
U.S. at 314 (permitting facial challenge to school district’s
policy prior to enforcement of the policy based largely on the
Court’s ability to construe the constitutionality of the policy’s
purpose as a legal matter); Union Carbide, 473 U.S. at 581(granting pre-enforcement review of constitutionality of
administrative scheme requiring registrants to participate in
binding arbitration of disputes with limited judicial review
because party’s challenge raised solely legal issues).
Next, we assess the state of the factual record, an inquiry
that overlaps with (and in this case collapses into) the third
component, the finality of the decision. Friedman Bros. Inv.
Co. v. Lewis, 676 F.2d 1317, 1319 (9th Cir. 1982). The gov-
ernment argues that the record is incomplete because certain
factual scenarios, as yet unknown, could occur at some time
in the future. The government illustrates its claim by positing
two potential scenarios that may occur rendering decision on
10
Unlike in Anchorage Equal Right Comm’n, where the plaintiffs sought
review of a housing law “in a vacuum and in the absence of any particular
victims of discrimination,” 220 F.3d at 1142, in this case there is a con-
crete victim—Buono—and the statutes are not being analyzed in a vac-
uum. See, e.g., Buono III, 364 F. Supp. 2d at 1181-82 (discussing history
of government’s preservation efforts regarding the cross).
BUONO v. KEMPTHORNE 5529
this appeal premature. Upon examination, neither proposed
scenario persuades us that we should delay decision in this
matter.
First, the government argues that once the land exchange is
complete the VFW might at some point in the future remove
the cross, but continue to maintain the property as a “war
memorial” as provided under § 8121. Thus, according to the
government, the court should not decide whether the injunc-
tion is violated unless and until the land exchange is complete
and the VFW has an opportunity to decide whether to main-
tain or remove the cross.
Under the government’s construction, the dispute would
never be ripe because, even if the transfer occurred, the gov-
ernment or the VFW could always argue that removal of the
cross could occur at some point in the future. Such games-
manship is not sanctioned by our prudential ripeness doctrine.
The government’s view is also at odds with two statutes
related to the Sunrise Rock cross, which, when read together,
demonstrate that the VFW cannot remove the cross without
forfeiting the property to the government. Section 8137(a)
designates “the five-foot-tall white cross” . . . as a “national
memorial.” § 8137(a) (emphasis added); see also § 8137(b)
(referring to “[t]he memorial cross”); 16 U.S.C. § 431 (note)
(listing “national memorial” titled “White Cross World War
I Memorial”). In other words, the cross itself is the memorial.
Section 8121(e) conditions transfer of the land on the VFW’s
agreement to “maintain the conveyed property as a memorial
commemorating United States participation in World War I
and honoring the American veterans of that war.” § 8121(e).
Section 8121(e) further provides that if “the conveyed prop-
erty is no longer being maintained as a war memorial, the
property shall revert to the ownership of the United States.”
Id. (emphasis added). Under these two statutes, the VFW’s
removal of the cross from Sunrise Rock would trigger the
reversionary clause of § 8121(e) and the land would revert to
5530 BUONO v. KEMPTHORNE
the United States. Nothing permits the VFW to destroy a
national memorial, remove the cross, and erect a substitute
memorial. The entire scheme is directed to preservation of the
cross.
To suggest that we do not yet know enough facts to decide
this dispute ignores the practical reality of these statutory
mandates. In Santa Fe, the Court rejected the school district’s
similarly implausible explanations for its conduct, based on
the history and context of the school district’s actions:
The District, nevertheless, asks us to pretend that we
do not recognize what every Santa Fe High School
student understands clearly — that this policy is
about prayer. The District further asks us to accept
what is obviously untrue: that these messages are
necessary to “solemnize” a football game and that
this single-student, year-long position is essential to
the protection of student speech. We refuse to turn a
blind eye to the context in which this policy arose,
and that context quells any doubt that this policy was
implemented with the purpose of endorsing school
prayer.
Santa Fe, 530 U.S. at 315 (emphasis added).
The government also argues that DOI might never exercise
the reversionary clause, even if the cross is removed. Again,
this argument fails as § 8121(e) itself provides that the prop-
erty “shall revert” if the property is no longer maintained as
a “war memorial,” i.e., the cross under § 8137. Countenanc-
ing this argument would also render the claim perpetually
unripe, bringing to mind the Rule Against Perpetuities.
Although the rule surely does not apply in this context, com-
mon sense should.
[6] Even though the transfer itself is not complete, the cer-
tainty of the governmental action taking place is sufficiently
BUONO v. KEMPTHORNE 5531
ripe to allow review. See, e.g., Friedman, 676 F.2d at 1318-19(concluding that challenge to agency’s action as violating
National Environmental Policy Act was ripe where agency
had granted funds for project and exempted it from certain of
NEPA’s requirements, despite that formal action to acquire
the subject property by condemnation had not yet com-
menced). Thus, none of the prudential ripeness concerns
weigh against our rendering a decision.11
II. VIOLATION OF THE PERMANENT INJUNCTION
We next address whether the district court abused its dis-
cretion in concluding that “transfer of the Preserve land con-
taining the Latin Cross, which ‘as [a] sectarian war memorial
carries an inherently religious message and creates an appear-
ance of honoring only those servicemen of that particular reli-
gion’ . . . is an attempt by the government to evade the
permanent injunction enjoining the display of the Latin Cross
atop Sunset Rock.” Buono III, 364 F. Supp. 2d at 1182 (cita-
tion omitted).
11
The government raises, for the first time on appeal, a second challenge
under the guise of “ripeness.” It argues that the district court exceeded its
power by issuing a second injunction in the face the government’s effort
to comply with the original injunction. This is not a true ripeness consider-
ation, but a challenge to the propriety of the district court’s exercise of its
equitable power to enforce its prior injunction. Because this issue is not
one of justiciability or jurisdiction, the government waived the argument
by failing to challenge the scope of the district court’s action before that
court. See, e.g., Ritchie v. United States, 451 F.3d 1019, 1026 & n.12 (9th
Cir. 2006) (concluding that failure to raise an issue before district court
resulted in waiver on appeal, particularly where the issue involved district
court’s broad discretion and district court “might have been able to
address the problem” if raised). Even assuming no waiver, the district
court acted within its broad equitable powers to enforce its prior injunc-
tion. See, e.g., Ellis v. City of La Mesa, 990 F.2d 1518, 1530-31 (9th Cir.
1993) (per curiam) (noting, in dispute over religious symbols on public
land, that in light of changed circumstances of ownership of land (or a
planned change in ownership), district court has broad equitable powers
“to modify, fashion or enforce appropriate equitable relief” in assessing
compliance with its prior injunction).
5532 BUONO v. KEMPTHORNE
A. GOVERNMENT ACTION
In Buono II, we noted that “the presence of a religious sym-
bol on once-public land that has been transferred into private
hands may still violate the Establishment Clause.” Buono II,
371 F.3d at 546 (citing Freedom from Religion Found., Inc.
v. City of Marshfield, 203 F.3d 487, 496 (7th Cir. 2000)).12
But we left for another day the question of “whether a transfer
completed under section 8121 would pass constitutional mus-
ter.” Id. In considering that question, we examine both the
form and substance of the transaction to determine whether
the government action endorsing religion has actually ceased.
See Marshfield, 203 F.3d at 491.13
12
In Marshfield, it was undisputed that a white, marble, fifteen-foot
statue of Jesus Christ situated on city park land violated the Establishment
Clause. Id. at 489. To remedy the violation, the city sold the statue and a
small parcel of land (0.15 acres) beneath the statue to a private organiza-
tion that agreed to maintain the land and the statue, including paying for
the electrical service used to light the statue. Id. at 490. After concluding
that the sale properly ended the government action with respect to the
statue and the property, the court determined that the statue’s presence still
violated the Establishment Clause. Id. at 495. Based on the historic associ-
ation of the land with the public park, the dedication of the land to use as
a public park through a restrictive covenant, and the physical location and
visual perception of the now-private property within the public park, the
court concluded that a reasonable observer would perceive that the statue
was on city park property and that it “constitute[d] a City endorsement of
religion.” Id. at 495-96.
13
The Seventh Circuit stated that “[a]bsent unusual circumstances, a sale
of real property is an effective way for a public body to end its inappropri-
ate endorsement of religion. We are aware, however, that adherence to a
formalistic standard invites manipulation. To avoid such manipulation, we
look to the substance of the transaction as well as its form to determine
whether government action endorsing religion has actually ceased.” Mar-
shfield, 203 F.3d at 491. Read as a whole, the Seventh Circuit position
looks at the issue on a transaction-by-transaction basis. We agree with this
approach. However, to the extent that Marshfield can be read to adopt a
presumption of the effectiveness of a land sale to end a constitutional vio-
lation, we decline to adopt such a presumption. The Supreme Court’s
Establishment Clause jurisprudence recognizes the need to conduct a fact-
BUONO v. KEMPTHORNE 5533
As did the district court, based on the circumstances of this
case, we consider three aspects of the land exchange under
§ 8121: (1) the government’s continuing oversight and rights
in the site containing the cross after the proposed land
exchange; (2) the method for effectuating the land exchange;
and (3) the history of the government’s efforts to preserve the
cross.
1. CONTINUING GOVERNMENT OVERSIGHT AND CONTROL
OVER THE CROSS AND PRESERVE PROPERTY
[7] Although Congress sought to transfer the property to
the VFW, a private entity, the various statutes, when read as
a package, evince continuing government control. The follow-
ing summary highlights that control:
• NPS retains overall management and supervision
of the Preserve.
• NPS is responsible for “the supervision, manage-
ment, and control” of national memorials.
specific inquiry in this area. Compare McCreary County v. American Civil
Liberties Union of Kentucky, 545 U.S. 844, 884-85 (2005) (holding uncon-
stitutional postings of Ten Commandments at county courthouses on the
basis that counties’ purpose in erecting displays demonstrated impermissi-
ble governmental endorsement of religion), with Van Orden v. Perry, 545
U.S. 677, 700 (2005) (upholding “passive monument” inscribed with Ten
Commandments on Texas State Capitol grounds based on analysis of
monument’s and nation’s history) (Rehnquist, C.J.) (plurality opinion).
See also Van Orden, 545 U.S. at 685 nn. 4 & 5 (citing cases under the
Establishment Clause over the preceding 25 years of Supreme Court juris-
prudence). Moreover, the “public function” cases discussed in Marshfield
suggest that constitutional violations are not presumptively cured when
control is transferred from public to private hands. Evans v. Newton, 382
U.S. 296, 301 (1966) (“[W]here the tradition of municipal control had
become firmly established, we cannot take judicial notice that the mere
substitution of trustees instantly transferred this park from the public to the
private sector.”); Terry v. Adams, 345 U.S. 461, 469 (1953) (lack of for-
mal public control over election primary “immaterial” to analysis of con-
stitutional violation).
5534 BUONO v. KEMPTHORNE
• The “five-foot-tall white cross” in the Mojave
National Preserve is designated as a “national
memorial.”
• The transfer of land to the VFW is conditioned
on the VFW’s maintenance of the conveyed
property as a memorial to World War I veterans.
• The Secretary must carry out its duties under
§ 8137, which provides $10,000 for NPS to
acquire and install replicas of the original cross
and plaque.
• The property “shall revert” to government owner-
ship if “it is no longer being maintained as a war
memorial.”
The government retains various rights of control over the
cross and the property. NPS is granted statutory powers of
“supervision, management, and control” of national memori-
als. See 16 U.S.C. §§ 2, 431. Thus, NPS’s general supervisory
and managerial responsibilities with respect to the cross
remain, despite a land transfer. See, e.g., 16 U.S.C. § 1 (pro-
viding that the newly created NPS is responsible for regulat-
ing and promoting “national parks, monuments, and
reservations . . . by such means and measures as conform to
the fundamental purpose” of conservation); 16 U.S.C. § 3(“The Secretary of the Interior shall make and publish such
rules and regulations as he may deem necessary or proper for
the use and management of the parks, monuments, and reser-
vations under the jurisdiction of [NPS].”).14
[8] In addition, § 8121(a) expressly reserves NPS’s man-
agement responsibilities under § 8137. See § 8121(a)
14
The government does not dispute that the Preserve is under NPS’s
jurisdiction as a unit of the national park system. See 16 U.S.C. §§ 1(c),
410aaa-41, 410aaa-42, 410aaa-46.
BUONO v. KEMPTHORNE 5535
(“Notwithstanding the conveyance of the property under this
subsection, the Secretary shall continue to carry out the
responsibilities of the Secretary under such section 8137.”).
Section 8137 not only designates the cross a national memo-
rial, but provides for $10,000 in funds for NPS to acquire and
install replicas of the original plaque and cross located at the
site. See § 8137(a)-(c). The district court found that these pro-
visions gave the government an easement or license over the
subject property for this particular purpose. Buono III, 364 F.
Supp. 2d at 1180. Such an easement or license reflects ongo-
ing control over the property requiring compliance with con-
stitutional requirements on that land. See, e.g., First Unitarian
Church of Salt Lake v. Salt Lake, 308 F.3d 1114, 1122 (10th
Cir. 2002) (holding that where the government sells land to a
private religious organization but maintains a pedestrian ease-
ment on the land, the First Amendment speech clause applies
even though the private party holds title to the land).
[9] The district court also focused on the significance of the
government’s retention of a reversionary interest in the prop-
erty under § 8121(e). See Hampton v. City of Jacksonville,
304 F.2d 320, 322-23 (5th Cir. 1962) (holding that the inclu-
sion of a reversionary clause in deeds to segregated golf
courses conveyed by the city to private parties was sufficient
state action to bring the golf courses within the Fourteenth
Amendment because the reversionary clauses allowed the city
to exercise “complete present control” over the golf courses);
Eaton v. Grubbs, 329 F.2d 710, 714 (4th Cir. 1964) (holding
that a reverter clause in a deed of trust allowed the city to
effectively exercise control of the facility to ensure that it was
always used “as a hospital,” and that such ongoing city con-
trol over use of property constituted sufficient state action to
subject the hospital to the Fourteenth Amendment’s prohibi-
tions against racial discrimination). As in Hampton and
Eaton, the reversionary clause in § 8121(e) results in ongoing
government control over the subject property, even after the
transfer.
5536 BUONO v. KEMPTHORNE
Although the government argues that reversionary interests
are run-of-the mill clauses in contracts with the government,
the commonality of such clauses does not diminish their
power or effect. The fact remains that the government has an
automatic reversionary interest in the property if it determines
that the property is no longer being used as a “war memorial,”
which, at this juncture, is the cross itself. See § 8137. See also
Buono II, 371 F.3d at 546 (noting the importance of the gov-
ernment’s reversionary interest, and various other mecha-
nisms by which the government can acquire public lands, in
concluding that the dispute had not been rendered moot by
passage of § 8121).
As it did with respect to ripeness, the government argues
that the court must await exercise of the reversionary interest
before determining whether it is a real factor in government
control over the property. We reiterate the import of the rever-
sionary interest; it shows the government’s ongoing control
over the property and that the parties will conduct themselves
in the shadow of that control. The courts in Hampton and
Eaton found dispositive the ongoing control resulting from
the reversionary interest; their analysis is persuasive here.
[10] Based on the government’s ongoing supervisory,
maintenance and oversight responsibilities with respect to the
cross and the property, coupled with the reversionary interest,
the district court found that the government retains important
property rights in, and “will continue to exercise substantial
control over,” the property on which Sunrise Rock is located,
even after the land exchange. Id. at 1179. The government has
failed to show that this determination is either clearly errone-
ous or an abuse of discretion.
2. METHOD FOR EFFECTUATING THE LAND EXCHANGE
Next, we examine the method of sale by which § 8121
transfers the property to a private buyer outside the normal
NPS procedures for transfer of parklands. The Secretary of
BUONO v. KEMPTHORNE 5537
DOI is authorized to exchange federal land for non-federal
land under its jurisdiction. See 16 U.S.C. § 460l-22(b); see
also § 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”). In
this case, however, the decision to exchange the land was
made by Congress and authorized by a provision buried in an
appropriations bill. The government did not hold a hearing
before enacting such exchange. E.g., id. § 460l-22(b) (provid-
ing that upon request, “prior to such exchange the Secretary
. . . shall hold a public hearing in the area where the lands to
be exchanged are located”). Nor did the government open bid-
ding to the general public. E.g., id. § 460l-22(a). Rather,
§ 8121 directs that the land be transferred to the VFW, the
organization that originally installed a cross on Sunrise Rock
some years ago and desires the continued presence of the cur-
rent cross in the Preserve. The private land being exchanged
for the federal property is owned by the Sandozes, who con-
structed the present cross and who have actively sought to
keep the cross on Sunrise Rock. Buono III, 364 F. Supp. 2d
at 1180.
The government argues that, of all parties, the VFW is the
“logical purchaser” because it originally erected the cross at
the site more than seventy years ago. The government cites
Marshfield and another Seventh Circuit case, Mercier v. Fra-
ternal Order of Eagles, 395 F.3d 693 (7th Cir. 2005). In both
cases, the respective courts upheld the sale of property to a
private party without an open market bidding process for the
land. Marshfield, 203 F.3d at 489-90; Mercier, 395 F.3d at
694-95, 702-03.
[11] Although neither the exclusion of other purchasers,
nor the fact that Congress acted outside the scope of normal
agency procedures for disposing of federal park land is dispo-
sitive, both acts demonstrate the government’s unusual
involvement in this transaction. These facts, coupled with the
government’s selection of beneficiaries of the land exchange
5538 BUONO v. KEMPTHORNE
who have a significant interest and personal investment in
preserving the cross that has been ordered removed, provide
additional evidence that the government is seeking to circum-
vent the injunction in this case. We see no basis to upset the
district court’s conclusion that the VFW was a straw pur-
chaser. Id. at 1181.
3. HISTORY OF THE GOVERNMENT’S PRESERVATION
EFFORTS
[12] Finally, the government’s long-standing efforts to pre-
serve and maintain the cross atop Sunrise Rock lead us to the
undeniable conclusion that the government’s purpose in this
case is to evade the injunction and keep the cross in place. In
brief, when litigation was first threatened against NPS, Con-
gress banned the use of government funds to remove the cross
(§ 133), the first step in forestalling inevitable enforcement of
a federal injunction. After litigation commenced, Congress
designated the cross and adjoining Preserve property as a
national memorial commemorating World War I (§ 8137).
Congress also appropriated up to $10,000 for NPS to acquire
replicas of the original cross and plaque at the site (id.), once
more trying to bolster the presence of the cross. Once the dis-
trict court enjoined display of the cross in Buono I, Congress
again prohibited the use of federal funds to remove any World
War I memorials (which, obviously, includes the cross)
(§ 8056(b)); and, while the appeal was pending in Buono II,
Congress enacted § 8121, directing the transfer of the subject
property to a private organization, but maintaining effective
government control over the memorial and the use of that
property.
The government does not contest these legislative
responses to various stages of the litigation in this case, or
their purpose aimed at preserving the cross. Rather, the gov-
ernment attempts to diminish their importance. For example,
the government argues that § 8137(c), which earmarks funds
for the replica plaque and cross, was passed before the district
BUONO v. KEMPTHORNE 5539
court’s injunction and that after the injunction, DOI has taken
no action to acquire the replicas. While this may be true,
when Congress enacted § 8121, it specifically incorporated
the Secretary’s duty to carry out the responsibilities set out in
§ 8137; Congress did not repeal the funding provisions, or
any other provision permitting ongoing government control.
The funding provisions offer historical evidence of the gov-
ernmental responses aimed at preserving the cross, as well as
ongoing legislative authorizations. In that context, it does not
matter whether DOI has exercised its powers to obtain such
replicas; the important fact is that Congress directed that it do
so, further showing its intent to preserve and maintain the
cross.
We agree with the district court that the government
engaged in “herculean efforts” to preserve the cross atop Sun-
rise Rock. Buono III, 364 F. Supp. 2d at 1182. We also agree
that “the proposed transfer of the subject property can only be
viewed as an attempt to keep the Latin Cross atop Sunrise
Rock without actually curing the continuing Establishment
Clause violation.” Id.B. CONTINUING GOVERNMENTAL ENDORSEMENT OF
RELIGION
Our inquiry into a purported cure of an Establishment
Clause violation must also analyze whether the improper gov-
ernmental endorsement of religion has ceased. See, e.g., Mar-
shfield, 203 F.3d at 493-96. Because of the procedural posture
of this case, we have necessarily already considered that ques-
tion. We previously held that the presence of the cross in the
Preserve violates the Establishment Clause. See Buono II, 371
F.3d at 548-50. We also concluded that a reasonable observer
aware of the history of the cross would know of the govern-
ment’s attempts to preserve it and the denial of access to other
religious symbols. Id. at 550. Even a less informed reasonable
observer would perceive governmental endorsement of the
message, given that “[n]ational parklands and preserves
5540 BUONO v. KEMPTHORNE
embody the notion of government ownership,” that the Sun-
rise Rock area is used as a public campground, and finally,
because of “the ratio of publicly-owned to privately-owned
land in the Preserve.” Id. Nothing in the present posture of the
case alters those earlier conclusions. Under the statutory dic-
tates and terms that presently stand, carving out a tiny parcel
of property in the midst of this vast Preserve—like a donut
hole with the cross atop it—will do nothing to minimize the
impermissible governmental endorsement. Nor does the pro-
posed land exchange under § 8121 end the improper govern-
ment action. Such a transfer cannot be validly executed
without running afoul of the injunction.
[13] In sum, the government has not shown the district
court’s factual findings to be clearly erroneous. Nor has the
government shown that the district court applied erroneous
legal standards. Finally, the district court’s decision does not
reflect any clear error of judgment. The district court did not
abuse its discretion in enjoining the government from pro-
ceeding with the land exchange under 16 U.S.C. § 8121 and
ordering the government to otherwise comply with its prior
injunction that it not permit the display of the Sunrise Rock
cross in the Preserve.
AFFIRMED.