In 1934, prospector John "Riley" Bembry erected a wooden cross off Cima Road in the Mojave National Preserve to honor World War I veterans. In the mid-90s, a pipe cross was erected. 2001 / The Press-Enterprise
By RICHARD K. DE ATLEY
The Press-Enterprise
A U.S. appellate court on Thursday upheld a federal judge's 2005 ruling that a proposed land swap to preserve a cross in a remote area of the 1.6 million-acre Mojave National Preserve violates the separation of church and state.
"Carving out a tiny parcel of property in the midst of this vast Preserve -- like a donut (sic) hole with the cross atop it -- will do nothing to minimize the impermissible government endorsement," the opinion from the U.S. 9th Circuit Court of Appeals said.
The court sustained a ruling by Senior U.S. District Judge Robert J. Timlin, who had turned down a plan promoted by U.S. Rep. Jerry Lewis, R-Redlands.
Lewis's plan would have given the land where the cross sits to a nonprofit group in exchange for private land within the preserve.
The case was started by the American Civil Liberties Union in 2001 on behalf of a retired National Park Service employee, who objected to the cross being on federal land.
Under Timlin's orders, a tarp or plywood box has covered the cross for several years.
An estimated 40 to 50 people gather at the cross every Easter for sunrise services despite the box, organizers have said.
Attempts to preserve it have now been rejected twice in district court and twice by the 9th Circuit.
The cross, described as a 5- to 8-foot-tall structure made of 4-inch-diameter metal pipes painted white, sits on Sunrise Rock, northeast of the desert town of Baker and about 15 miles off the Cima Road exit of Interstate 15.
WWI Memorial
There has been a cross at the spot since 1934, when prospector John "Riley" Bembry put a wooden one there to honor World War I veterans. It was often vandalized.
Henry Sandoz, of Yucca Valley, erected the one made of pipes in the mid-1990s. President Clinton signed the bill authorizing the Mojave National Preserve in 1994, which includes the land where the cross sits.
Sandoz and his wife, Wanda, had agreed to give the government 20 acres of land they own within the preserve in exchange for the Sunrise Rock locale.
Lewis on Thursday called for the Justice Department to consider an appeal to the U.S. Supreme Court.
"It is a terrible shame that the 9th Circuit has determined that it is not possible to honor our veterans if the shape of the memorial happens to be a cross," said Lewis in a statement.
The congressman also said the decision could "have serious consequences for the thousands of monuments to veterans at our historic battlefields across the nation."
Limited Ruling
A law professor who observes the 9th Circuit's decisions called Lewis' suggestion "inflammatory," saying Thursday's ruling appeared to be narrowly decided.
"I don't think the court is making broad pronouncements beyond the facts of this scenario," said Carl Tobias of the University of Richmond. "It is very much limited and fact-specific to Sunrise Rock."
The Justice Department can seek to have the case reconsidered by a larger panel of 9th Circuit judges, or send the case to the U.S. Supreme Court. Government attorneys did not return a phone call Thursday seeking comment.
"From a common-sense perspective, the government has to look at the fact that they are now batting zero-for-four," said ACLU attorney Peter Eliasberg. A war memorial with a cross eliminates honoring non-Christian veterans, he said.
"This is the only case I know of where the government has designated something a national memorial on one hand but is trying to sell it on the other hand," Eliasberg said. As a national memorial, the cross has the same status as Mount Rushmore, he noted.
Wanda Sandoz, speaking by phone from her Yucca Valley home, said she was disappointed with the latest ruling.
"If we have options, we will try to take them," she said. "I think every veteran in this country should be so upset and sad over this state of affairs."
She said her husband was too upset to come to the phone. "We care about it that much," she said.