Administration Argues Park Service Lacks Authority on Private Land within System
Press Release from
Public Employees for Environmental Responsibility (PEER)
In its latest effort to stop court-ordered removal of an-eight foot cross from the middle of the Mojave National Preserve, the U.S. Justice Department is arguing that the National Park Service has no "authority to manage private land" within the park system, according to court filings released today by Public Employees for Environmental Responsibility (PEER). If upheld, Justice's position would strip the Park Service of the power to manage an estimated five million acres - about the size of New Jersey - of non-federal lands embedded within the 84 million-acre National Park System.
The legal fight over removal of the Mojave Cross has spanned the tenure of Bush administration. To many, it is the quintessential example of the Bush Justice Department going to extremes to defend display of Christian symbols on federal lands. The case has had many twists and turns, but the courts consistently ruled that the Cross violated First Amendment guarantees against government establishment of religion.
In 2003, the Bush administration supported a scheme to exchange the one federal acre with the Mojave Cross into private hands, within the boundaries of the Mojave National Preserve, California. In September 2007, a unanimous three-judge panel of the U.S. Court of Appeals for the Ninth Circuit Court upheld a district court ruling that the land exchange was "a sham" and a transparent "attempt by the government to evade the permanent injunction enjoining the display of the Latin cross" on federal land.
In response, the Justice Department petitioned the Ninth Circuit for a rehearing on November 20, 2007, arguing, among other things, that the National Park Service lacks authority over lands within national parks that are not federally owned. The petition contends that the Organic Act of 1916 limits Park Service oversight to federal lands and does "not purport to give the Park Service" authority over private lands.
The 84 million-acre national park system contains at least 5 million acres of lands that are not federally owned, including private in-holdings, state and native corporation lands. If the Park Service were to lose management control of these lands it would significantly fragment the national park system.
"Ironically, the Justice Department is representing the Park Service by taking a legal stance that undermines its client's mission," stated PEER Board member Frank Buono, the former deputy superintendent of Mojave National Preserve who brought the suit to remove the Mojave Cross. "In its zeal to protect the Cross, and the constitutional questions that taint it, the Bush administration would cast aside decades of laws and precedents giving the Interior Secretary and National Park Service a degree of control over non-federal lands that lie within the boundaries of the national park system." Buono is represented in the case by the American Civil Liberties Union of Southern California.
The Mojave Cross is one of several instances in which the Bush administration has pushed Christian displays and creationist interpretations in national park facilities. This effort, which PEER has called "Faith-Based Parks," appears limited to supporting fundamentalist Christians. For example, a request from another party to install a Buddhist stupa at the site of the Mojave Cross was rejected.