June 28, 2004

Park service works on exhibits

Desert Dispatch

A historic depot once that was bustling with train travelers more than a century ago could be filled with sounds of tourists learning about the desert before the year's end.

The National Park Service hopes to open the Kelso Depot as a visitor's center for the Mojave National Preserve later this year, park service spokeswoman Holly Bundock said last week.

The depot in the heart of the Mojave National Preserve underwent an extensive renovation effort starting in mid-2002. The park service is now working on the exhibits for the center, Bundock said.

When it opens, Kelso Depot will welcome tourists to the national parkland with various exhibits, information, literature, an educational area for children and a theater for park-related videos. Also, the Beanery, a diner in the depot, has been restored to its 1920s state, and will be open for business when the visitor's center is done.

In its heyday, the Kelso Depot was a stop for rail travelers on their way between Los Angeles and Salt Lake City. During the 19th century, it also offered a telegraph office and a community center for residents of the Kelso community.

The restoration cost about $4.5 million, much of which was secured by Rep. Jerry Lewis, R-Redlands.

In other Mojave National Preserve news, the National Park Service hasn't yet removed the cross that the 9th Circuit Court of Appeals declared unconstitutional earlier this month because it hasn't yet received the official written order from the court.

After receiving it, however, the park service will likely need to take down the cross to comply with the ruling -- unless the U.S. Justice Department seeks a stay while deciding whether to appeal the case. Making that decision could take months.

The U.S. Solicitor General's Office is doing research on the Mojave Cross case to determine whether to appeal it to the U.S. Supreme Court, Justice Department spokesman Blain Rethmeier said last week. The Solicitor General's Office handles the federal government's cases that go before the Supreme Court.

June 9, 2004

Cross in Mojave Desert Preserve Barred

9th Circuit Agrees 'War Memorial' Violates Separation of Church and State

Made of two metal pipes welded together and painted white, above, the cross in the Mojave National Preserve operated by the National Park Service has been covered by a tarpaulin, right, since the American Civil Liberties Union sued the federal government to have it removed. (Christine Wetzel -- Las Vegas Review-Journal Via AP)

By Kimberly Edds
Special to The Washington Post

LOS ANGELES -- A federal appeals court has upheld a lower court decision that a large white cross sitting on federal land in the Mojave desert violates the constitutional guarantee of separation of church and state and should be removed.

The American Civil Liberties Union sued the National Park Service in 2001 on behalf of a retired park employee. A federal judge sided with the ACLU and ordered the cross, in the Mojave National Preserve near the California-Nevada border, be taken down.

The Department of Justice appealed the lower court's decision to the U.S. Court of Appeals for the 9th Circuit. Rather than remove the cross, the Park Service threw a large tarp over the structure while the case was in court.

Monday's opinion did not specify whether the cross should be removed immediately or could remain covered if the case is appealed to the Supreme Court.

"The [9th Circuit] said this case is really quite simple. Using a sectarian religious symbol is not permissible on federal land," Peter Eliasberg, managing attorney for the ACLU of Southern California, said. "Sometimes you just have to hit them over the head three, four or five times."

A spokesman for the Justice Department said attorneys are reviewing the ruling to determine whether to appeal.

The Veterans of Foreign Wars erected a cross in 1934 in memory of those who fought and died in World War I. A plaque explaining the cross's purpose was placed at the foot of the structure, but the sign disappeared long ago.

After being nearly destroyed several times, the cross -- originally two pieces of wood nailed together and planted in the desert -- has been changed several times. The latest version is made of two metal pipes welded together and painted white.

Officially designated as a war memorial by Congress, the cross has also been the site of Easter sunrise services over the years. In 1999, the National Park Service denied a request to build a Buddhist religious symbol near the cross.

Eliasberg scoffed at the government's argument that the site is a war memorial. "That doesn't honor Muslim veterans, Jewish veterans, atheist veterans or agnostic veterans," Eliasberg said. "It's a preeminent symbol of a religion. If we want to have a war memorial on federal land, the government certainly knows how to do that without using a divisive sectarian religious symbol."

Rep. Jerry Lewis (R-Calif.) crafted a plan to keep the cross in place by transferring the patch of land where the cross sits to the VFW in exchange for five acres of privately owned land elsewhere in the preserve. The legislation was approved earlier this year, but the transfer has not been completed.

Because the land transfer would put the cross on private, not public, land, the government argued that the issue of separation of church and state is moot, and urged the court not to rule in the case.

But Circuit Court Judge Alex Kozinski, who wrote Monday's opinion, said the transfer could take years to complete and provisions in the legislation could allow the land to be transferred back to the government, putting the cross back on public land.

"This case is not yet moot and may not be for a significant time, as defendants conceded that the land transfer could take as long as two years to complete," Kozinski said in a 14-page opinion.

A spokesman for Lewis said the lawmaker would support an appeal to the Supreme Court, but he hopes the land transfer would make that unnecessary.

The ACLU has also challenged the constitutionality of the land swap.

June 8, 2004

Appeals Court Backs Ruling That Desert Cross Is Unconstitutional

Earlier panel had said symbol in the Mojave Preserve violated the 1st Amendment.

Henry Sandoz, shown with his wife, Wanda, in 2000, has been taking care of the Mojave Desert cross since 1983. A federal appeals court has upheld a lower court ruling that the symbol violates the establishment cause of the U.S. Constitution. (Gina Ferazzi / LAT)

By Eric Malnic, Staff Writer
Los Angeles Times

A federal appeals court on Monday upheld a lower court ruling that a large white cross in the middle of the Mojave National Preserve violates the U.S. Constitution.

The 9th Circuit Court of Appeals in Pasadena "took a look at this issue and concluded that the case couldn't be clearer; a religious symbol on government property violates the Constitution," said Peter Eliasberg, managing attorney for the ACLU of Southern California. "At every level, the courts have rightly agreed with this principle."

In July 2002, responding to a suit by the American Civil Liberties Union to have the cross removed, a U.S. District Court in Los Angeles held that the presence of the 5-foot-tall Mojave Desert cross on federal land near the Nevada border was unconstitutional. The establishment clause of the 1st Amendment requires the separation of church and state.

The painted metal cross stands on a rocky slope called Sunrise Rock, about 11 miles south of Interstate 15. The cross was erected by the Veterans of Foreign Wars in 1934 to honor veterans of World War I.

The lower court's ruling in the ACLU's favor was appealed by a group that included Secretary of the Interior Gale Norton, Jonathan Jarvis, director of the Interior Department's Pacific West Region, and Mary Martin, superintendent of the national preserve.

In the months that followed, Congress enacted legislation, sponsored by Rep. Jerry Lewis (R-Redlands), requiring the Department of the Interior to transfer the land on which the cross sits to a local Veterans of Foreign Wars post in exchange for a privately owned 5-acre parcel elsewhere in the preserve.

The appellants then argued that because of the impending transfer of the property to private ownership, the constitutional issues were moot and the appellate court should not render a decision on them.

But Appellate Judge Alex Kozinski, who wrote Monday's opinion, disagreed.

"This case is not yet moot and may not be for a significant time, as defendants conceded that the land transfer could take as long as two years to complete," Kozinski wrote.

He also noted that the legislation authorizing the swap contains provisions under which the land could be returned to federal ownership.

Still unanswered, he said, is the question whether the presence of a religious symbol on formerly public land transferred to private ownership still violates the Constitution.

Religious symbols are not unknown on national parkland.

The Chapel of Transfiguration was allowed to remain at Grand Tetons National Park in Wyoming after it was found to be a structure of historical significance.

A National Park Service study determined that the Mojave cross, which began life as two wooden planks and is now made of metal pipe, has changed over the years and lacks historical significance.

Last week, Los Angeles County supervisors decided to remove the tiny gold cross from the county seal rather than defend it against a threatened ACLU lawsuit. Advised by county lawyers that the cross on the seal might not withstand a court challenge, supervisors followed the lead of the city of Redlands, which agreed to remove a cross from its logo after the ACLU threatened legal action.

June 1, 2004

County Speaks Out on RS-2477 Road Issues

Emery County Progress

As a result of a lawsuit filed by USA-All against Emery County, officials, some who have been involved in the roads dispute for nearly 25 years, were on hand to present an explanation of the county's stance to the citizens of Emery County.

Patrick Gubbins, from the Bureau of Land Management, was first to address the crowd. He covered the development of the route designation plan put out by the BLM. " I will say one thing, working in the public sector for 28 years and having worked with numerous county officials, it has been a pleasure working with Emery County. They are a very progressive county."

Gubbins went on to explain that when he took over the Price Field Office, there were two separate resource areas. One was the Price resource center and the other was the San Rafael resource center. There were two separate management plans, so it was undertaken to combine the plans as the offices were combined into the Price Field Office. It was Gubbins' goal to develop a route designation plan within five years. Eleven years later, the plan was implemented in the spring of 2003.

During the process of development, the BLM took more than 12,000 comments from the public into consideration for development of the resource management plan. With 1,200 miles of trails in approximately one million acres of land, the process was lengthy. In the plan, 688 miles of roads are designated for motorized use. Gubbins stated that the plan does not settle the RS-2477 situation and that the BLM will honor the outcome of the RS-2477 decisions.

Sheriff Lamar Guymon was next. He said that the county has wanted an officer on the San Rafael for many years, but because of the lack of funding, putting a deputy out there has not been possible. In the past few years, offers of funding have come about, but the funds have not materialized.

The BLM came forward with the proposition and funding for an officer and as a result, an officer was assigned to patrol the San Rafael. No place in the contract does it allow the officer to enforce federal statutes, only state and county laws and ordinances. The deputy's main duty is to educate the users and hand out information and maps. To date, the officer has handed out more than 500 packets of tourist information and educated those visitors to the area. Very few citations have been written, and those were, as the contract states, only for state and county law violations.

Sheriff Guymon also stated that having an officer present on the Swell has been very beneficial to all concerned, the county as well as the BLM. By patrolling on a daily basis, the officer can note any damage to land or signs, and notify the proper entity. The deputy keeps all parties informed about conditions and happenings on the Swell.

Mark Ward, from the Utah State Attorney General's Office, department of public lands and natural resources, was next. Ward is the supervisor of the team of attorneys involved in the RS-2477 project. He also represents counties on public lands issues. "From our perspective, Emery County has done an outstanding job in the RS-2477 project," Ward said.

Ward went on to say that most of the process is extremely confidential with the anticipation of litigation. "Emery County has been very thorough in everything connected with these issues. It has been a massive undertaking to collect the data necessary to assert rights to these roads. Emery County has not lagged and they have done everything the attorney general's office has asked of them," said Ward.

RS-2477 is a vested claim by virtue of a federal mining statute. That vestiture occurred upon the completion of roads, no one ever thought to record when the roads came into being. In 1976, Congress enacted the Federal Lands Policy Management Act and FLPMA effectively repealed the effectiveness of RS-2477. The claims that are being asserted under RS-2477 now have to be documented as being constructed prior to Oct. 21, 1976.

The RMP is not a formal tool to settle the road claims and is only a part of the transportation plan. These contested roads may or may not be RS-2477 roads, but the county will continue to assert its rights and insert the RS-2477 roads into the plan. Emery County has reserved those rights in the management plan.

Ray Petersen, Emery County Public Lands Director, explained to the group that his goal was to demonstrate the consistency of the county in this situation and its relationship with the BLM. With the signed memorandum of understanding, Emery County maintains cooperating agency status.

Petersen read portions of the letters written by the county and his predecessor, Val Payne, concerning the roads and trails in the Swell. Emery County representatives have attended every meeting held on these road issues and they continue to assert their position that they will not give up roads. "Emery County has, and will continue to pursue their rights, they do not intend to let them fall by the wayside," said Petersen. "Emery County has spent more that $100,000 documenting their ownership of the roads. Margaret McMullin has countless letters, personal histories, video taped histories, photographs, and she has also spent thousands of hours collecting the documentation to substantiate Emery County's claim to these roads," said Petersen.

Dennis Worwood expressed to the audience the necessity to work with the attorney general's office and go through the process as their strategy indicates. "I have been involved with public road issues for 25 years. I am the only surviving member of the original public lands council, and this is my last six months," said Worwood.

"Some of the assertions of the law suit are just not true. The county cannot ignore what their attorney says to do, they cannot be vigilantes in this road war. Other counties have removed barricades and taken down signs, and also graded roads. Although Emery County is not doing those things, they are not standing idly by and doing nothing. Emery County's attorney has advised them to stay the course of the strategy.

"This road war is being fought on three fronts, the legislative, the judicial and the executive branches. The San Rafael Swell is the poster child for the Utah Wilderness Coalition who wants to designate 49.5 percent of Emery County as wilderness. Emery County is very active and involved in this fight. Emery County cannot ignore the advice of the attorney general's office and do what USA-All wants," added Worwood.