Buono v. Kempthorne , 502 F.3d 1069 ( 2007 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FRANK BUONO, 
Plaintiff-Appellee,
v.
DIRK KEMPTHORNE,* Secretary of
the Interior, in his official
capacity; JONATHAN B. JARVIS, No. 05-55852
Regional Director, Pacific West
Region, National Park Service,  D.C. No.
CV-01-00216-RT
Department of the Interior, in his
OPINION
official capacity; DENNIS SCHRAMM,
Superintendent, Mojave National
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
Before: Betty B. Fletcher and M. Margaret McKeown,
Circuit Judges, and Ronald M. Whyte,** District Judge.
*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).
**The Honorable Ronald M. Whyte, United States District Judge for
the Northern District of California, sitting by designation.
11793
11794 BUONO v. KEMPTHORNE
Opinion by Judge McKeown
11796 BUONO v. KEMPTHORNE
COUNSEL
Sue Ellen Wooldridge, Kathryn E. Kovacs, United States
Department of Justice, Washington, D.C., for the defendants-
appellants.
Peter J. Eliasberg, Mark D. Rosenbaum, ACLU Foundation of
Southern California, Los Angeles, California, for the plaintiff-
appellee.
BUONO v. KEMPTHORNE 11797
Steven W. Fitschen, Colleen M. Holmes, The National Legal
Foundation, Virginia Beach, Virginia, for amicus curiae The
National Legal Foundation.
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 543(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
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”).
11798 BUONO v. KEMPTHORNE
I. THE MOJAVE NATIONAL PRESERVE
The Preserve encompasses approximately 1.6 million acres,
or 2,500 square miles, of primarily federally-owned land in
the Mojave Desert, located in Southeastern California. In
1994, the Bureau of Land Management (“BLM”) transferred
the land to the National Park Service (“NPS”); both the BLM
and the NPS are federal agencies under the Department of the
Interior (“DOI”). Within the Preserve, approximately 86,000
acres of land are privately owned and 43,000 acres belong to
the State of California. Thus, slightly more than 90 percent of
the land in the Preserve is federally owned. The Preserve is
a “unit of the National Park System” and is given “statutory
protection as a national preserve.” 16 U.S.C. § 410aaa-41,
410aaa-42; id. § 1(c). The Preserve is under NPS jurisdiction
and authority. Id. § 410aaa-46.
II. THE CROSS
The current incarnation of the cross atop Sunrise Rock is
between five and eight feet tall and is constructed out of four-
inch diameter metal pipes painted white. It is a Latin cross,
meaning that it has two arms, one horizontal and one vertical,
at right angles to one another. It is undisputed that “[t]he Latin
cross is the preeminent symbol of Christianity. It is 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-
BUONO v. KEMPTHORNE 11799
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-
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.”
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).
11800 BUONO v. KEMPTHORNE
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
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
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.
BUONO v. KEMPTHORNE 11801
enjoined from permitting display of the Latin cross in the area
of Sunrise Rock in the Mojave National Preserve.”5
B. DESIGNATION OF THE CROSS AS A NATIONAL MEMORIAL
In January 2002, while this matter was pending in district
court, Congress passed a defense appropriations bill, which
included a section designating the Sunrise Rock cross as a
“national memorial.” See Pub.L. No. 107-117 § 8137, 115
Stat. 2278-79 (2002), codified at 16 U.S.C. § 410aaa-56
(note) (hereafter “§ 8137”). That section provides:
(a) DESIGNATION OF NATIONAL MEMORIAL.
—The five-foot-tall white cross first erected by the
Veterans of Foreign Wars of the United States in
1934 along Cima Road in San Bernardino County,
California, and now located within the boundary of
the Mojave National Preserve, as well as a limited
amount of adjoining Preserve property to be 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
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.
11802 BUONO v. KEMPTHORNE
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.
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
BUONO v. KEMPTHORNE 11803
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
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-
11804 BUONO v. KEMPTHORNE
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-
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-
BUONO v. KEMPTHORNE 11805
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
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-
11806 BUONO v. KEMPTHORNE
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
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.
BUONO v. KEMPTHORNE 11807
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.
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
11808 BUONO v. KEMPTHORNE
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
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
BUONO v. KEMPTHORNE 11809
terms of the exchange is not a “hypothetical request[ ] for an
advisory opinion.” Anchorage Equal Rights Comm’n, 220
F.3d at 1141.
The Supreme Court has held that pre-enforcement review
of a statute is appropriate where the governmental purpose in
enacting the statute evidences an improper endorsement of
religion in violation of the Establishment Clause. See 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 Establishment
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-
11810 BUONO v. KEMPTHORNE
tion against implementation of the policy. Id. at 316.6 Impor-
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.
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
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-
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.
BUONO v. KEMPTHORNE 11811
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
Buono has alleged a sufficient constitutional injury to over-
come any argument that his challenge to § 8121 is unripe. See
Santa Fe, 530 U.S. at 314-15. The challenge in this case pre-
sents a concrete injury, rather than an “imaginary” or “specu-
lative” one.9
B. PRUDENTIAL COMPONENT OF RIPENESS
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 judicial
action, and (b) the fitness of the issues in the record for judi-
cial review. Abbott Labs. v. Gardner, 387 U.S. 136, 148-49
(1967), overruled on other grounds by Califano v. Sanders,
430 U.S. 99 (1977).
8
The various governmental actions are discussed in further detail infra
§ II.A.3.
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).
11812 BUONO v. KEMPTHORNE
This case easily satisfies both prudential components. As to
the harm,“[o]ne does not have to await the consummation of
threatened injury to obtain preventive relief. If the injury is
certainly impending, that is enough.” Union Carbide, 473
U.S. at 581 (internal quotations and citations omitted).10 The
hardship resulting from the continuation of an Establishment
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-
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 11813
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
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
11814 BUONO v. KEMPTHORNE
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
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.
BUONO v. KEMPTHORNE 11815
Although the rule surely does not apply in this context, com-
mon sense should.
Even though the transfer itself is not complete, the certainty
of the governmental action taking place is sufficiently ripe to
allow review. See, e.g., Friedman, 676 F.2d at 1318-19 (con-
cluding 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 commenced). 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-
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).
11816 BUONO v. KEMPTHORNE
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).
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
Although the Seventh Circuit adopted a presumption that “a sale of
real property is an effective way for a public body to end its inappropriate
endorsement of religion” in the absence of “unusual circumstances,” Mar-
shfield, 203 F.3d at 491, we decline to adopt such presumption. The
Supreme Court’s Establishment Clause jurisprudence recognizes the need
BUONO v. KEMPTHORNE 11817
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
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.
to conduct a fact-specific inquiry in this area. Compare McCreary County
v. American Civil Liberties Union of Kentucky, 545 U.S. 844, 884-85
(2005) (holding unconstitutional postings of Ten Commandments at
county courthouses on the basis that counties’ purpose in erecting displays
demonstrated impermissible governmental endorsement of religion), with
Van Orden v. Perry, 545 U.S. 677, 700 (2005) (upholding “passive monu-
ment” 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 jurisprudence). Moreover, the “public function” cases dis-
cussed in Marshfield suggest that constitutional violations are not pre-
sumptively 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 formal public control over election primary “immaterial”
to analysis of constitutional violation).
11818 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
In addition, § 8121(a) expressly reserves NPS’s manage-
ment 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 11819
(“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).
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.
11820 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.
Based on the government’s ongoing supervisory, mainte-
nance 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 11821
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.
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 dispositive,
both acts demonstrate the government’s unusual involvement
in this transaction. These facts, coupled with the govern-
ment’s selection of beneficiaries of the land exchange who
11822 BUONO v. KEMPTHORNE
have a significant interest and personal investment in preserv-
ing the cross that has been ordered removed, provide addi-
tional evidence that the government is seeking to circumvent
the injunction in this case. We see no basis to upset the dis-
trict court’s conclusion that the VFW was a straw purchaser.
Id. at 1181.
3. HISTORY OF THE GOVERNMENT’S PRESERVATION
EFFORTS
Finally, the government’s long-standing efforts to preserve
and maintain the cross atop Sunrise Rock lead us to the unde-
niable 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, Congress
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 11823
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
11824 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.
In sum, the government has not shown the district court’s
factual findings to be clearly erroneous. Nor has the govern-
ment 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 proceeding
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.