Eagle Mountain legal battle settled after 15 years

A massive iron ore mining pit at Eagle Mountain in the remote desert just east of the Coachella Valley. (Jay Calderon, The Desert Sun)

Sammy Roth
The Desert Sun

A longstanding legal battle over land around the old Eagle Mountain iron mine has been settled in a deal that some activists hope could bring the mine one step closer to inclusion in Joshua Tree National Park.

The old mine has been the subject of fiery debate in recent years, with several groups fighting over its future. The owners have been trying to sell the land to another mining company, while a separate company has obtained federal approval to build a hydroelectric power plant at the site. Conservationists, meanwhile, want to see the area absorbed by Joshua Tree National Park, which surrounds it on three sides.

The legal settlements signed last month don’t directly address any of those possibilities. Rather, they require Kaiser Eagle Mountain, which owns the mine, to return to the federal government certain lands surrounding its property, which the company received as part of a land exchange 15 years ago.

Regulators say that Kaiser still has the right to mine those lands, and that the partial reversal of the land exchange is more of a technicality than anything. Bureau of Land Management spokeswoman Dana Wilson said the land’s return to federal control “doesn’t in any way relate” to the possibility of the area becoming part of the national park.

“If the park service is interested in the future in pursuing that, then we’d need to cross that bridge when we get to it,” she said.

Conservationists, though, see last month’s settlements as a major step toward the land being incorporated into Joshua Tree National Park. They’ve argued that the old mine — and the ghost town next to it — have conservation and historic value, and would allow park visitors to learn about the history of mining and steelmaking.

Donna Charpied, a local activist who brought one of the lawsuits to undo the land exchange, said Kaiser giving up its ownership of some of the land removes “a monumental stumbling block” to the national park proposal.

“We just knocked one of the heads off the hydra,” she said. “Time to get that land back to the park now. There’s no reason not to.”

It’s unclear what prompted Kaiser to agree to the settlement, after years of fighting Charpied and the National Parks Conservation Association in court. Kaiser Eagle Mountain Vice President Terry Cook said the company could have demanded it get back the lands it gave up 15 years ago, but that it decided to be “magnanimous” by letting the federal government keep them.

Those lands are important because of their conservation value. The Bureau of Land Management said in a statement that they include critical habitat for threatened and endangered species, including the desert tortoise, the flat-tailed horned lizard and the Yuma clapper rail.

“We thought long and hard about it, and we decided we’d let the (Bureau of Land Management) retain the lands, even though we were entitled to receive them back,” Cook said. “We’re trying to do the right thing by people.”

It’s possible that Kaiser had other motives for agreeing to the settlements as well. David Lamfrom, who works for the National Parks Conservation Association, speculated that the company might be trying to ease a potential sale to another mining company.

“Having a longstanding lawsuit over the raincloud of any prospective buyer just makes things so much more complicated,” he said.

It’s also unclear what the settlements mean for the hydroelectric power plant proposed by the Eagle Crest Energy Company. The Federal Energy Regulatory Commission granted a license for the plant earlier this year, but Kaiser has thus far refused to sell its land to Eagle Crest.

The possibility of a sale could be more remote now, since some of the land that Kaiser returned to the federal government could be needed for the hydroelectric plant. Cook, Lamfrom and Charpied all said they weren’t yet sure what the reversal of the land exchange means for Eagle Crest’s proposal.

Conservation groups and the National Park Service have vehemently opposed the hydroelectric project, saying the power plant would drain billions of gallons of groundwater from an aquifer adjacent to Joshua Tree National Park.

The Eagle Crest Energy Company first proposed the hydroelectric project two decades ago — a move that angered Kaiser executives, who at the time had endorsed a plan to build a massive garbage dump at Eagle Mountain. That plan, which fell through last year, would have involved Kaiser selling its land to the Sanitation Districts of Los Angeles County, which would have built the landfill.

In preparation for that sale, Kaiser executed a land swap with the federal Bureau of Land Management in 1999. That land exchange was the source of the legal controversy that was finally settled last month.

As part of the original land exchange, Kaiser gave the federal government land it owned alongside the Eagle Mountain railroad, which stretches from the eastern shore of the Salton Sea to the mine site. In exchange, the company received federal land surrounding the mine, which would have been used for the landfill project.

But conservation groups have long criticized the exchange, saying that it was carried out illegally and that federal land managers got the worse end of the deal. They’ve also argued that the exchange is no longer necessary now that the landfill plan has been scrapped.

Now, those groups have succeeded in reversing part of the land exchange. The reversal may or may not have practical implications — Kaiser could still mine the exchanged lands — but Lamfrom sees the end of the long-running legal battle as critical to Eagle Mountain’s future.

“This is a milestone that I think gets us back to a place where we can start having reasonable discussions about what the future of this landscape is,” he said.

Lamfrom’s organization supports studying Eagle Mountain for inclusion in the national park, saying that setting aside the area would connect important fragments of wilderness.

National park officials have agreed that preserving the area would be beneficial. Such a step would require action by Congress or President Barack Obama’s administration.

Industrialist Henry Kaiser founded the iron mine in the 1950s, on land that was carved out of the southeastern corner of the Joshua Tree National Monument — the predecessor to the national park. But the mine was shut down in the early 1980s as production of steel in the United States waned.

Federal and state regulators maintain that Kaiser never gave up its mining rights at Eagle Mountain, although local activists have contested that claim. Charpied and others have accused Kaiser of conspiring with state regulators to keep control of the site, which still has millions of tons of valuable iron ore.

Landowner says desert tortoise, federal government left him bankrupt

A Washington County landowner and developer had a vision for a residential development and upscale golf course on the benches above St. George and Washington. He's now bankrupt — a destiny he said was chartered by the desert land tortoise. (Ravell Call, Deseret News)

By Amy Joi O'Donoghue
Deseret News

ST. GEORGE — James Doyle had a dream in 1980 to create a beautiful residential development and golf course on the picturesque benches overlooking St George and the community of Washington.

Then along came the desert tortoise and a federal listing of the animal under the Endangered Species Act.

It's been more than 30 years, countless negotiations, a few successful land trades — but Doyle was left bankrupt and an old man, his vision unrealized.

"His dreams have been pretty well doused by being in these tragic set of circumstances," said Doyle's attorney, Timothy Anderson. "He went from a competent real estate developer to a guy who is just barely getting by. It is a very sad thing to have watched."

Doyle has filed a lawsuit against the U.S. Department of the Interior and Washington County, demanding compensation for financial and emotional losses brought on by a series of failed promises and bungled agreements by the government to adequately compensate him.

"Mr. Doyle anticipated that his land would get bought," Anderson said. "The Bureau of Land Management was tasked with facilitating these exchanges with the input and involvement of Washington County. But when you start dealing with the government, they say one thing and do another."

Back in 1980, Doyle began acquiring land to develop in Washington County, purchasing 2,440 acres and obtaining the leases and other rights to another 11,000 acres. By 1989, working with Washington County and St. George, he had obtained all the necessary permits, development plans, water rights and zoning changes for his development, according to the lawsuit.

"He was approaching shovel ready," Anderson said.

That same year, however, the U.S. Fish and Wildlife Service declared the Mohave desert tortoise as endangered, adding it to the list of species meriting federal protection.

Anderson's suit asserts the designation brought development to a standstill in Washington County, with political leaders under mounting pressure to come up with a habitat conservation plan that would meet with federal approval.

Ultimately, by 1996, the county submitted plan in which Doyle agreed to place virtually all of his land inside a tortoise reserve on the condition he receive compensation at fair market value, either in cash or land exchanges.

Over the years, there were four land exchanges, but Doyle still owns property within the reserve for which he hasn't been compensated.

"He only has 248 acres, and still the government holds the key to his land," Anderson said. "The magic of how you are going to ultimately get paid is under the control of the federal government and or the county. And about all you can do is go to them with hat in hand."

Because Doyle and others who owned land inside what would become the desert tortoise conservation area agreed to give up their land in exchange for compensation, Anderson said the county was once again free to pursue development because it could prove the tortoise was being protected.

Doyle, in the meantime, has kept vainly hoping that the government will work out a just deal for him, or that federal legislation to help him will pass in Congress.

Anderson said the much-celebrated Washington County Lands Bill that ultimately passed in 2009 was supposed to help Doyle, but at the last minute he was left out of it entirely.

"It is a travesty," Anderson said. "As far as I know, this is not Russia or China, but for Mr. Doyle, it largely is."

The U.S. Department of the Interior does not comment on pending litigation, and efforts to reach Washington County were successful.

Riverside County to honor Mojave Cross advocates

Henry and Wanda Sandoz with the Mojave Cross in the background after the Nov. 11 installation ceremony. (David Olson/Staff photo)

by David Olson
Riverside Press-Enterprise

The Riverside County Board of Supervisors Tuesday is scheduled to honor those who helped save the World War I veterans memorial cross in the Mojave Desert east of Baker.

The cross was the subject of more than a decade of First Amendment court battles.

It sits on public land, the Mojave National Preserve, and a former National Park Service employee sued to have it removed, because he saw it as an unconstitutional government endorsement of Christianity. He received backing from the American Civil Liberties Union.

Supporters of the cross argued that it was erected 78 years ago by World War I veterans to honor their fallen colleagues, not to promote religion.

After two federal courts agreed with the ACLU, the U.S. Supreme Court in 2010 ruled that a land exchange, under which the land around the cross was converted into private property, passed constitutional muster.

The Veterans of Foreign Wars now owns the acre under and around the cross. A new cross was installed on the land on Nov. 11, Veterans Day. It’s the latest of several versions of the cross that have stood on the site.

Among those scheduled to be honored Tuesday are Henry and Wanda Sandoz, who had cared for the cross for 30 years and ceded five acres of their land to the national preserve as part of the land exchange.

American Legion District 21, who represents about 4,000 veterans in Riverside County and helped defend the cross, and retiring U.S. Rep. Jerry Lewis, R-Redlands, who first negotiated a land exchange, are also scheduled to be honored.

Supervisor John Benoit will lead the ceremony, Rees Lloyd, director of the California Legion’s Defense of Veterans Memorials Project, said in a news release.

Mojave Cross to return to desert home

National Park rangers to send back cross

Golden Gate National Recreation Area ranger Nijaune Winston stands by the Mojave Cross. The National Park district intends to return the cross to its original locale in the Mojave National Preserve. (Photo courtesy of Golden Gate National Recreation Area)

by Mark Noack
Half Moon Bay Review

National Park Service officials this week took custody of the Mojave Cross with plans to return it to its desert home, one week after the handmade monument was found mysteriously on the side of Skyline Boulevard.

Once found, the cross, a 6-foot steel-pipe structure, was delivered to the Half Moon Bay Sheriff’s substation. Then it was transported to an undisclosed location in the Golden Gate National Recreation Area. GGNRA officials say the cross is being treated as evidence until it is returned to the Mojave National Preserve. Those arrangements are still being made.

Meanwhile, on Sunday, Yucca Valley resident Henry Sandoz, the caretaker of the cross, installed a replacement at the same location as part of a Veterans Day ceremony. The event also marked a successful land trade as a workaround to the delicate church-state issues at play.

Originally erected in 1934 to honor World War I veterans, the Mojave Cross became the target of lawsuits, appeals and court rulings after its surrounding property became part of the National Park system. The cross became a legal pawn in a larger controversy. Civil-rights groups viewed its as a blatant religious display on public land while veterans’ associations defended it as a memorial.

The U.S. Supreme Court issued a 2010 ruling on the matter, but just days afterward the cross was stolen. It remained missing for two years until last week, when a television news crew discovered it lying on the side Highway 35. The cross was wrapped up and had a message asking whoever found it to return it. Sandoz and National Park officials later authenticated it was the same cross stolen in 2010.

Last week, the National Park Service announced it was transferring a small piece of the Mojave National Preserve to the California Veterans of Foreign Wars as a way to resolve the central conflict of the lawsuits.

The Mojave cross ruling: a blow to the 1st Amendment

The Supreme Court sends the message the government can treat a Christian symbol as a national emblem and display it on public property.

OPINION
Los Angeles Times

The Supreme Court on Wednesday sent a simple — and disturbing — message in a complicated ruling about an 8-foot cross in California's Mojave National Preserve. The message is that the government can treat the preeminent Christian symbol as a national emblem and display it on public property.

The decision didn't explicitly approve the display of the cross, the successor to one erected in 1934 by a veterans group to honor fallen World War I soldiers. Nor did it render a final judgment on whether Congress acted constitutionally in approving a deal in which the Interior Department would swap the public land on which the cross stands for a privately owned five-acre parcel elsewhere, on the condition that the new owners maintain it as a war memorial. The latter question will be reexamined by the lower court that issued an order against the transfer.

But these technicalities can't obscure the fact that a majority of the justices seem willing to accept Justice Anthony M. Kennedy's assertion in the court's main opinion that "a Latin cross is not merely a reaffirmation of Christian beliefs. It is a symbol often used to honor and respect those whose heroic acts, noble contributions and patient striving help secure an honored place in history for this nation and its people." At oral arguments in the case, Justice Antonin Scalia made the same point, prompting this devastating response from the lawyer for the former National Park Service employee who challenged the display: "I have been in Jewish cemeteries. There is never a cross on a tombstone for a Jew." Yet more than 3,500 Jewish American soldiers died in World War I.

Conceivably the Veterans of Foreign Wars, which would be responsible for the memorial after the land swap, could obtain congressional approval to add a Star of David or an Islamic crescent to the cross or, better yet, to erect a memorial containing no religious symbols. But they needn't consider such alternatives given Kennedy's conclusion that the cross is a generic tribute to war dead rather than a symbol that sends what dissenting Justice John Paul Stevens called a "starkly sectarian message."

It's distressing that the court seems inclined to uphold the government-sanctioned display of the cross in a national preserve (even if it actually stands on a tiny parcel of private land). More ominously, Wednesday's decision suggests that the court is moving toward what Kennedy in his opinion called a "policy of accommodation" of religious displays — even if the only display is the symbol of a single religion. The 1st Amendment deserves better.

Mojave Cross can stay on display in California

Supreme Court defends public religious symbol

By Valerie Richardson
Washington Times

An 8-foot cross honoring fallen soldiers in the remote Mojave National Preserve in California can stay where it is, because the Supreme Court said Wednesday that the Constitution nowhere requires the "eradication of all religious symbols in the public realm."

Justice Anthony M. Kennedy, writing the lead opinion in a 5-4 decision in which several justices wrote separate concurrences and dissents, compared the Mojave Cross to a hypothetical highway memorial marking the death of a state trooper to make the point that such displays "need not be taken as a statement of governmental support for sectarian beliefs."

"The Constitution does not oblige government to avoid any public acknowledgment of religion's role in society," Justice Kennedy said in his opinion. "Rather, it leaves room to accommodate divergent values within a constitutionally permissible framework."

Leading the dissenters was Justice John Paul Stevens, who called the war memorial "unprecedented" in its starkly religious tone.

"Congressional action, taken after due deliberation, that honors our fallen soldiers merits our highest respect," said Justice Stevens, who recently announced his plan to retire. "As far as I can tell, however, it is unprecedented in the nation's history to designate a bare, unadorned cross as the national war memorial for a particular group of veterans."

The justices didn't rule technically on the constitutional issue of whether the cross constitutes an establishment of religion. However, they declined to rule that the cross was a First Amendment violation, as asked, and the majority justices' language indicate a more benign view of religion expression on public lands.

Instead, the justices sent the case, Salazar v. Buono, back to a lower federal court and told the judge to look again at how the constitutional issues are affected by a congressional plan to transfer the federal land beneath the 8-foot cross to a veterans group. Lower federal courts had said the transfer was insufficient, a finding the justices implicitly rebuked.

Voting with Justice Kennedy in favor of keeping the cross was the court's conservative bloc, Chief Justice John G. Roberts Jr., and Justices Samuel A. Alito Jr., Antonin Scalia and Clarence Thomas. Opposed were Justices Stevens, Ruth Bader Ginsburg, Sonia Sotomayor and Steven G. Breyer.

The American Civil Liberties Union filed the lawsuit on behalf of Frank Buono, a former assistant superintendent at Mojave National Preserve, who said that the memorial offended him. The original cross was erected atop an outcropping known as Sunrise Rock in 1934 by World War I veterans.

A federal court ruled in Mr. Buono's favor and ordered the removal of the cross, but Rep. Jerry Lewis, California Republican, inserted language into a defense appropriations bill declaring the cross site a national memorial.

Barstow Veterans of Foreign Wars, thus placing the cross on private land.

The ACLU argued that the land transfer was a calculated effort to circumvent the court ruling, and the 9th U.S. Circuit Court of Appeals agreed, saying the land transfer "would leave a little donut hole of land with a cross in the midst of a vast federal preserve."

But the lower court "did not acknowledge the statute's significance," Justice Kennedy said in his opinion.

"In belittling the government's efforts as an attempt to 'evade' the injunction, the District Court had things backwards," said Justice Kennedy. "Congress's prerogative to balance opposing interests and its institutional competence to do so provide one of the principal reasons for deference to its policy determinations."

The case was sent back to the lower court.

Peter Eliasberg, managing attorney for the ACLU of Southern California, said the organization would continue to argue that the land transfer failed to address concerns over the separation of church and state.

"Although we're disappointed by today's decision, we're encouraged that the case is not over," Mr. Eliasberg said. "The cross is unquestionably a sectarian symbol, and it is wrong for the government to make such a deliberate effort to maintain it as a national memorial."

The Mojave Cross is now encased in a plywood box, hidden from view while litigation is ongoing. The original wooden cross has been replaced several times, and the current version is constructed of white metal.

"Congress has repeatedly voted overwhelmingly to protect the Mojave Cross as a memorial to veterans and those who have died to defend our nation, never intending it to be preserved as a religious symbol," said Mr. Lewis, whose district includes the desert area where the cross is located.

"I am gratified that the Supreme Court has upheld the right and authority of Congress to seek these solutions in memory of our veterans," he said.

The decision came as a victory for religious-freedom groups fighting efforts to eliminate religious symbols and references from the public square.

"A passive monument acknowledging our nation's religious heritage cannot be interpreted as an establishment of religion," said Joseph Infranco, senior counsel of the Alliance Defense Fund, which filed a friend-of-the-court brief defending the cross. "To make that accusation, one must harbor both a hostility to the nation's history and a deep misunderstanding of the First Amendment."

Eric Rassbach, national litigation director of the Becket Fund for Religious Liberty, which also filed a brief in the case, applauded the ruling as "simple common sense."

"The First Amendment guarantees the right to speak and believe freely; it does not give busybodies the right to cut down religious symbols they don't like," Mr. Rassbach said.

At the same time, the ruling leaves unanswered several questions, such as what legal standard should be applied to religious displays on public property, according to the Becket Fund.

The cross supporters had feared that an unfavorable ruling would have jeopardized the nation's hundreds of cross-bearing roadside memorials, as well as other war memorials.

At least two other cross cases are in federal courts. One concerns a 29-foot cross at a war memorial on Mount Soledad near San Diego and the other the 12-foot roadside crosses that Utah uses to memorialize highway patrol troopers killed in the line of duty.

Court backs Mojave cross deal; case sent back to 9th Circuit

Joe Nelson, Staff Writer
Redlands Daily Facts

A divided U.S. Supreme Court on Wednesday ruled that a lower court erred when it invalidated a land transfer that prompted the veiling of a 76-year-old Latin cross in the Mojave National Preserve honoring fallen soldiers.
In a 5-4 ruling, with the court's conservatives in the majority, justices remanded the case back to the 9th Circuit Court of Appeals in San Francisco to reconsider its decision.

The Supreme Court majority voiced strong support for allowing the nearly 6-foot-tall cross, which has stood in various forms in the Mojave National Preserve for more than 70 years, to stay.

"The goal of avoiding governmental endorsement does not require eradication of all religious symbols in the public realm," Justice Anthony M. Kennedy wrote in his opinion.

The cross, crafted from metal pipe, was erected by members of the Veterans of Foreign Wars in 1934 to honor American soldiers who died during World War I. It sits in an area called Sunrise Rock, about 11 miles south of the 15 Freeway, east side of Cima Road.

"A Latin cross is not merely a reaffirmation of Christian beliefs. It is a symbol often used to honor and respect those whose heroic acts, noble contributions and patient striving help secure an honored place in history for this nation and its people," Kennedy wrote. "Here, one Latin cross in the desert evokes far more than religion. It evokes thousands of small crosses in foreign fields marking the graves of Americans who fell in battles, battles whose tragedies are compounded if the fallen are forgotten."

In dissent, Justice John Paul Stevens agreed that soldiers who died in battle deserve a memorial to their service. But the government "cannot lawfully do so by continued endorsement of a starkly sectarian message."

In 2001, the American Civil Liberties Union sued the National Park Service on behalf of retired Mojave National Preserve Assistant Superintendent Frank Buono, who argued the presence of a sectarian religious symbol on public property was not admissable, said ACLU attorney Peter Eliasberg.

Buono argued that the government had showed favoritism to one religion and cited the Park Service's denial of an application to erect a Buddhist symbol near the memorial.

About a decade ago, the land on which the cross sits was incorporated into the Mojave National Preserve by executive order from President Bill Clinton.

In 2004, Congress authorized the transfer of the one acre of land under the cross back to the VFW, a private organization, in exchange for five acres of other land.

The ACLU argued the land transfer was unconstitutional.

"Although we're disappointed by today's decision, we're encouraged that the case is not over," Eliasberg said in a statement Wednesday.

He said the ACLU will continue to argue that the cross, as it currently stands, does not remedy the government's unconstitutional endorsement of one particular religion.

Joseph Infranco, senior legal counsel for the Alliance Defense Fund, said the Supreme Court's decision sends a strong message to the 9th Circuit court.

"If they do not straighten this out and get it right and allow the land transfer to stand, I'd be surprised if the Supreme Court does not overturn them again and slap their hand a little harder," Infranco said.

The cross has been veiled by plywood for the last several years as the case has wound its way through the courts. It will remain veiled until the 9th Circuit court makes its decision, maybe longer, Infranco said.

San Bernardino County Supervisor Brad Mitzelfelt, a former Marine whose district spans much of the High Desert, applauded the Supreme Court's decision.

"This is great news for the memory of fallen soldiers and for all who treasure this historical landmark in the Mojave Desert," Mitzelfelt said.

Rep. Jerry Lewis, R-Redlands, also praised the high court's ruling.

"Congress has repeatedly voted overwhelmingly to protect the Mojave cross as a memorial to veterans and those who have died to defend our nation, never intending it to be preserved as a religious symbol," Lewis said in a statement Wednesday. "I am gratified that the Supreme Court has upheld the right and authority of Congress to seek these solutions in memory of our veterans."

Mojave cross case: a signal on religious symbols

By MARK SHERMAN | Associated Press Writer
San Luis Obispo Tribune

The Supreme Court's conservative majority signaled a greater willingness to allow religious symbols on public land Wednesday, a stance that could have important implications for future church-state disputes.

By a 5-4 vote, the court refused to order the removal of a congressionally endorsed war memorial cross from its longtime home atop a remote rocky outcropping in California's Mojave Desert.

The court directed a federal judge to look again at Congress' plan to transfer the patch of U.S. land beneath the 7-foot-tall cross made of metal pipe to private ownership.

Federal courts had rejected the land transfer as insufficient to eliminate constitutional concern about a religious symbol on public land - in this case in the Mojave National Preserve.

While the holding Wednesday was narrow, the language of the justices in the majority, and particularly the opinion of Anthony Kennedy, suggested a more permissive view of religious symbols on public land in future cases.

Federal courts currently are weighing at least two other cross cases, a 29-foot cross and war memorial on Mt. Soledad in San Diego and Utah's use of 12-foot-high crosses on roadside memorials honoring fallen highway patrol troopers.

"The Constitution does not oblige government to avoid any public acknowledgment of religion's role in society," wrote Kennedy, who usually is in the court's center on church-state issues.

Speaking of the Christian cross in particular, Kennedy said it is wrong to view it merely as a religious symbol. "Here one Latin cross in the desert evokes far more than religion. It evokes thousands of small crosses in foreign fields marking the graves of Americans who fell in battles, battles whose tragedies are compounded if the fallen are forgotten," he said.

In dissent, Justice John Paul Stevens agreed that soldiers who died in battle deserve a memorial to their service. But the government "cannot lawfully do so by continued endorsement of a starkly sectarian message," Stevens said.

The cross has stood on Sunrise Rock in the 1.6 million-acre Mojave preserve since 1934, put there by the Veterans of Foreign Wars as a memorial to World War I dead. It has been covered with plywood for the past several years following the court rulings.

Justice Samuel Alito, part of Wednesday's majority, noted the remoteness of the location. "At least until this litigation, it is likely that the cross was seen by more rattlesnakes than humans," Alito said, although he also pointed out that Easter services have long been held there.

The controversy began when a retired National Park Service employee, Frank Buono, filed a lawsuit complaining about the cross on public land. Federal courts sided with Buono and ordered the cross' removal.

In 2003, Congress stepped in and transferred the land where the cross stands to private hands to address the court rulings. But the courts said the land transfer was, in effect, an unacceptable end run around the constitutional problem.

In Wednesday's case, six justices wrote separate opinions and none spoke for a majority of the court.

But supporters of the cross memorials were pleased with Kennedy's language, especially because Alito and Justices Antonin Scalia and Clarence Thomas would have gone further. Chief Justice John Roberts signed onto Kennedy's opinion.

"We know this is just the beginning. Until that box comes off that veterans' memorial, the veterans consider that a disgrace," said Kelly Shackelford, chief counsel at the conservative Liberty Legal Institute in Plano, Texas. He wrote a brief for several veterans' groups.

"We hope that some of the statements of Justice Kennedy go to the bigger issue, attacks on any veterans memorial that has any sort of religious imagery," Shackelford said.

The Rev. Barry W. Lynn, executive director of Americans United for Separation of Church and State, called the court's reasoning "bogus."

"It's alarming that the high court continues to undermine the separation of church and state. Nothing good can come from this trend," Lynn said. "The court majority seems to think the cross is not always a Christian symbol. I think all Americans know better than that."

Muslim and Jewish war veteran groups complained in court papers that they view the Mojave cross as a religious symbol that excludes them. The Jewish War Veterans called the cross "a powerful Christian symbol" and "not a symbol of any other religion."

Stevens largely agreed. He called the Mojave cross a "dramatically inadequate and inappropriate tribute." Justices Ruth Bader Ginsburg and Sonia Sotomayor joined his opinion, while Justice Stephen Breyer also dissented.

High court supports Mojave cross in Calif.

By MARK SHERMAN
The Associated Press

WASHINGTON -- The Supreme Court said Wednesday that a lower court went too far in ordering the removal of a war memorial cross from its longtime home atop a remote outcropping on federal land in California.

Signaling support for keeping the cross, the justices ordered the federal court in California to look again at Congress' plan to transfer a patch of federal land beneath the cross into private hands.

The lower court had barred the land transfer as insufficient to eliminate concern about a religious symbol on public land in this case, the Mojave National Preserve.

The 5-4 ruling, with the court's conservatives in the majority, could have important implications for future church-state disputes.

The VFW erected the large cross in the federal preserve more than 75 years ago.

The cross 7 feet tall, made of 3-inch metal pipe filled with concrete to deter vandals has been covered with plywood for the past several years as the case made its way through court.

"Here one Latin cross in the desert evokes far more than religion. It evokes thousands of small crosses in foreign fields marking the graves of Americans who fell in battles, battles whose tragedies are compounded if the fallen are forgotten," Justice Anthony Kennedy wrote.

In dissent, Justice John Paul Stevens agreed that soldiers who died in battle deserve a memorial to their service. But the government "cannot lawfully do so by continued endorsement of a starkly sectarian message," Stevens said.

Six justices wrote separate opinions and none spoke for a majority of the court. The holding itself was narrow, ordering lower courts to look again at the transfer of land from the government to private control.

Lower federal courts previously ruled that the cross' location on public land violated the Constitution and that the land transfer was, in effect, an end run around the constitutional problem.

Kennedy, who usually is in the court's center on church-state issues, suggested there may have been no problem in the first place.

"The goal of avoiding governmental endorsement does not require eradication of all religious symbols in the public realm," Kennedy said.

Justices Samuel Alito, Antonin Scalia and Clarence Thomas would have gone further than Kennedy and Chief Justice John Roberts, who joined Kennedy's opinion.

Alito said he would allow the land transfer, barred until now, to take effect. Scalia and Thomas said they would not even have allowed the former National Park Service employee who complained about the cross to bring his objection to the transfer into court.

Roberts took a decidedly commonsense approach to the matter. At the argument in October, a lawyer argued there probably would be no objection if the government took down the cross, sold the land to the VFW, and gave the VFW the cross to immediately erect again.

"I do not see how it can make a difference for the government to skip that empty ritual and do what Congress told it to do sell the land with the cross on it," Roberts said.

Justices Stephen Breyer, Ruth Bader Ginsburg and Sonia Sotomayor also dissented.

Supreme Court Sends 'Mojave Cross' Case Back For More Work

By Mark Memmott
NPR

A lower court was wrong to invalidate a plan that would keep the "Mojave cross" on top of a rock formation in what is now the Mojave National Preserve, the U.S. Supreme Court ruled in a 5-4 decision announced this morning.

The court did not directly address the issue that had brought the case national attention: Whether the cross, because it is on federal land, violates the Constitution's ban on government establishment of religion.

Instead, the opinion (written by Justice Anthony Kennedy) focuses on the question of whether lower courts were right in rejecting a plan to transfer control of the land around the cross from the government to the Veterans of Foreign Wars, which placed the cross on the rock in 1934.

"A court may order an injunction only after taking into account all the circumstances bearing on the need for prospective relief," the opinion reads. "Here, the District Court did not engage in the appropriate inquiry. The land-transfer statute was a substantial change in circumstances bearing on the propriety of the requested relief. By dismissing as illicit the motives of Congress in passing it, the District Court took insufficient account of the context in which the statute was enacted and the reasons for its passage."

The case now goes back to the lower courts.

Supreme Court Sends Cross Case Back

by Jeremy Weber
Christianity Today

The Supreme Court ruled 5-4 Wednesday that the much-debated war memorial cross in Mojave National Preserve may remain because Congress' attempted transfer of the plot of land to private hands would resolve any constitutional concerns.

Unsurprisingly, the Court did not directly address the bigger Establishment Clause question of religious symbols on public land, instead ordering a lower court to reassess its challenge to the land transfer solution.

Update: Carl Esbeck tells CT that today's Supreme Court ruling on the Mojave cross is more newsworthy to evangelical church-state watchers than most media have portrayed.

Esbeck, professor of law at the University of Missouri, explains that Justice Anthony Kennedy sent the case back to the district court for additional fact-finding on whether Congress’ purpose in ordering the land swap was religious or secular, i.e. an evasion of the trial court's injunction or an accommodation to those wanting to preserve a war memorial. But Esbeck believes that Kennedy actually says quite a lot about how he thinks a court majority—and hence the Establishment Clause—should handle this kind of religious symbol on government property case.

“It would be a shame for evangelicals to think nothing has changed,” said Esbeck. “The way this will be spun is ‘everything was murky and unclear before, and everything is still murky and unclear.’ That is a way of covering up the loss, because the ACLU victory below was reversed. Are things crystal clear? No. But the ball has moved towards religious symbols on government property not violating the Establishment Clause, and now we know where [Chief Justice John] Roberts and [Justice Samuel] Alito—who are new to the Court—stand.”

“Press releases from the usual crowd probably overstate the scope of the opinion,” said Esbeck. “But it would be wrong to just say this case was not a loss for the ACLU. Kennedy has language that says of course the Roman cross is a Christian cross, but symbols can have multiple meanings, and it is clear in this case that the 70-year-old cross has taken on the message of a war memorial. This language will help the briefs of ACLJ, ADF, etc. And Roberts and Alito signed on to this language in Kennedy’s opinion. Further, Kennedy has never been so forthright on these Establishment issues.”

Esbeck says debate will now shift to whether the congressional purpose in swapping land was religious or not. The case could potentially go all the way back up to the Ninth Circuit and maybe the Supreme Court again, though this process will take years.

The ruling may improve of the odds of religious symbols remaining in public spaces, but Esbeck sees the justifications cited as a mixed blessing.

“I’m not a big fan of religious symbols on government property,” said Esbeck. “I believe there is a detriment because it dilutes the real purpose of the symbol. They’ve taken a symbol of the church and turned it into civil religion. This can be bad for evangelicals because when people look at a nativity scene or a Roman cross, we want people to think of the God of the Bible. If these too become simply civil religion to Americans, it makes the task of evangelism harder for Christians.”

Court Says Cross Can Remain

Mojave Desert Icon Is Deemed More Veterans' Memorial Than Religious Symbol

By JESS BRAVIN
Wall Street Journal



The cross, originally put up by World War I veterans, has stood for generations in the Mojave preserve. (Associated Press)



WASHINGTON—The Supreme Court blessed congressional efforts to maintain a cross that has stood for generations in California's Mojave National Preserve, reversing lower courts that found the symbol an unconstitutional endorsement of Christianity.

"The goal of avoiding governmental endorsement does not require eradication of all religious symbols in the public realm," Justice Anthony Kennedy wrote for the plurality. World War I veterans first erected the cross as a memorial to fallen comrades, he wrote, and more than religion alone, "it evokes thousands of small crosses in foreign fields marking the graves of Americans who fell in battles, battles whose tragedies are compounded if the fallen are forgotten."

The justices split 5-4 along their right-left divide. But they splintered in their reasoning, with conservatives delivering four different opinions and liberals issuing two dissents.

"The nation should memorialize the service of those who fought and died in World War I," Justice John Paul Stevens, the court's only wartime veteran, wrote in dissent. "But it cannot do so lawfully by continued endorsement of a starkly sectarian message."

The cross—estimated at five to seven feet tall—stands on Sunrise Rock in a remote patch of desert. Veterans, some of whom had moved to the region for health reasons, first erected a cross at the site in 1934 and it was often used for Easter services. The current version was assembled from painted metal pipes in 1998 by Henry Sandoz of Yucca Valley, Calif.

In 2000, a retired park-service employee, Frank Buono, complained that the cross's presence violated the First Amendment ban on a government "establishment of religion." Several years of litigation and legislation followed, with Congress taking several steps to protect the cross, including a ban on using federal funds to remove the symbol and a 2002 declaration that it was a "national memorial" dedicated to World War I veterans.

After lower courts found the cross in violation of the Establishment Clause, Congress attempted to end the matter by transferring the property on which it sits to the Veterans of Foreign Wars, in exchange for other property in the region owned by Mr. Sandoz. Lower courts found the land swap itself unconstitutional.

Justice Kennedy, writing for himself and Chief Justice John Roberts, found that lower courts had been too quick to dismiss the land transfer. "Placement of the cross on government-owned land was not an attempt to set the imprimatur of the state on a particular creed," he wrote, but rather "intended simply to honor our nation's fallen soldiers."

Over the decades, "the cross and the cause it commemorated had become entwined in the public consciousness," he wrote. The lower courts were directed to reconsider their decision and weigh alternatives to removing the cross, such as placing signs to indicate the VFW's ownership of the land.

Justices Antonin Scalia, Clarence Thomas and Samuel Alito wrote or joined separate opinions stating their own reasons.

Although the decision could be read to endorse land transfers in similar situations, Justice Kennedy said the court intentionally avoided making any "sweeping pronouncements" on the line between church and state. Due to the "highly fact-specific nature" of the case, it is "unsuited for announcing categorical rules," he wrote.

Justice Stevens's dissent argued that Congress wasn't taking action to memorialize veterans, but rather using their memory to justify maintenance of a religious symbol. He noted that the Mojave cross little resembles the prominent and nonsectarian markers erected for those who served in World War II, Korea or Vietnam.

Justices Ruth Bader Ginsburg and Sonia Sotomayor joined Justice Stevens's dissent. Justice Stephen Breyer dissented separately.

Supreme Court Sides With Interior on Mojave Desert Cross

By GABRIEL NELSON
New York Times

The Supreme Court ruled today that Congress and the Interior Department acted properly when they used a land transfer to solve a dispute over a cross on display in the federal Mojave National Preserve.

The case, Salazar v. Buono, stemmed from a 2001 lawsuit challenging a cross erected in 1934 by the Veterans of Foreign Wars. Frank Buono, an Oregon resident who had served as an assistant superintendent in the park and was a regular visitor, claimed the memorial to World War I veterans was unconstitutional because it gave the impression that the government was advancing a particular religion.

By a 5-4 margin, the Supreme Court ruled today that lower federal courts were wrong to dismiss as "evasion" the federal government's effort to transfer the land underneath the religious symbol. Justice Anthony Kennedy wrote the opinion (pdf) for the majority, arguing that the 9th U.S. Circuit Court of Appeals had failed to consider the profound "dilemma" posed by the case.

The Interior Department could not leave the cross in place without violating the ruling that the display was unconstitutional, Kennedy wrote, "but it could not remove the cross without conveying disrespect for those the cross was seen as honoring. Deeming neither alternative satisfactory, Congress enacted the land-transfer statute."

"The statute should not have been dismissed as an evasion, for it brought about a change of law and a congressional statement of policy applicable to the case," Kennedy added.

Congress had authorized a land swap with the Veterans of Foreign Wars, trading 1 acre of land around the cross in exchange for 5 privately owned acres elsewhere in the preserve. Previously overseen by the Bureau of Land Management, the site of the cross came under control of the National Park Service when the 1.6-million-acre Mojave National Preserve was created in 1994.

The white wooden cross, roughly 5 feet tall, stands atop Sunrise Rock in California's San Bernardino County. It has been covered with a large plywood box since a lower court ruled it unconstitutional.

Justice John Paul Stevens dissented today, arguing that the land transfer could itself be considered a promotion of religion. If the land had been privately owned to begin with, he wrote, there would be no question that the statue is permissible under control of the veterans.

"But the Government does own this land, and the transfer statute requires the executive branch to take an affirmative act -- transfer to private ownership -- designed to keep the cross in place," Stevens wrote, joined by Justices Sonia Sotomayor and Stephen Breyer.

In a brief on behalf of Interior Secretary Ken Salazar, Solicitor General Elena Kagan said there was no reason to conclude that the continued presence of the cross would imply government sponsorship. The transfer handed over control to the Veterans of Foreign Wars and required the installation of a plaque dissociating the statue from the federal government, she wrote.

"Congress already has taken steps to end any continuing endorsement," she wrote. "By ordering the Park Service to install a plaque stating that the cross was erected by the VFW to commemorate fallen service members, Congress has required 'a clearly visible' statement of the memorial's secular origin and purpose."

U.S. Supreme Court supports Mojave cross

USA TODAY
Desert Sun

A deeply divided Supreme Court revived congressional efforts Wednesday to permit a wooden cross erected in the Mojave National Preserve 70 years ago to remain on the park grounds.

By a 5-4 vote, the justices reversed a lower court decision that had invalidated a federal law designed to let the cross remain, in the face of a challenge that it constituted a government endorsement of religion.

The decision does not reinstate the law, but returns the case to the lower court and strengthens the government’s hand to allow crosses and other religious symbols on public grounds.

“Although certainly a Christian symbol, the cross was not emplaced on Sunrise Rock to promote a Christian message,” Justice Anthony Kennedy wrote of the cross that was put up in 1934 by the Veterans of Foreign Wars to commemorate U.S. soldiers who died in World War I. “Rather, those who erected the cross intended simply to honor our nation’s fallen soldiers.”

Kennedy was joined in the vote - requiring a new hearing and enhancing federal arguments to keep the cross - by the four more conservative justices. Yet they splintered on their legal reasoning, and only Chief Justice John Roberts signed Kennedy’s opinion in full.

Rep. Jerry Lewis, a Redlands Republican whose district includes the site of the memorial, praised the court's decision.

"This is a dramatic victory for those who believe it is vital to preserve the memory of those who gave their lives to ensure the survival of our nation and the freedoms we enjoy," he said in a news release.

Lewis said Congress has voted multiple times to protect the cross and lawmakers did not intend for it to be considered a religious symbol.

“I am gratified that the Supreme Court has upheld the right and authority of Congress to seek these solutions in memory of our veterans," he said.

Dissenting in the case were the Supreme Court’s four liberal justices. “I certainly agree that the nation should memorialize the service of those who fought and died in World War I,” Justice John Paul Stevens, who served in World War II, wrote in his dissent, “but it cannot lawfully do so by continued endorsement of a starkly sectarian message.”

The case began in 2001 when Frank Buono, a retired park service worker, sued the federal government, objecting to the Park Service’s allowing the cross but no other religious symbols at the California site. Park officials had rejected a request for a Buddhist shrine near the cross.

The cross structure at the Sunrise Rock outcropping has been replaced several times since 1934, and the current cross, erected in 1998, is about five feet tall and made of white-painted pipe.

Lower federal courts ruled that the cross at the national preserve violated the required constitutional separation of church and state under the Establishment Clause of the First Amendment. A judge ordered the cross taken down, and the government appealed. The cross has since been covered with a plywood box.

The question before the justices Wednesday was not the validity of the lower court decisions finding a constitutional violation, but rather whether Congress’ law attempting to save the cross was permissible.

Congress designated the cross a national memorial and, in 2004, passed a law calling for the transfer of the property on which the cross at Sunrise Rock sits. Congress ordered the land given to the VFW in exchange for a parcel elsewhere in the preserve.

The U.S. Court of Appeals for the 9th Circuit rejected the effect of the 2004 law, saying it ran “afoul” of a district court judge’s order forbidding display of the cross.

Kennedy said the lower court judge was wrong to concentrate on the religious aspects of the cross.

“A Latin Cross is not merely a reaffirmation of Christian beliefs,” he wrote. “It is a symbol often used to honor and respect those whose heroic acts, noble contributions, and patient striving help secure an honored place in history for this nation and its people.”

Kennedy said a district court judge was wrong to then dismiss Congress’ motives in the 2004 law “as illicit” and should have more fully considered the context in which the land-transfer statute was passed before concluding that observers would think the cross an endorsement of religion.

“The goal of avoiding governmental endorsement does not require eradication of all religious symbols in the public realm,” Kennedy wrote. “A cross by the side of a public highway marking, for instance, the place where a state trooper perished need not be taken as a statement of governmental support for sectarian beliefs. The Constitution does not oblige government to avoid any public acknowledgement of religion’s role in society.”

Joining Kennedy in reviving the government’s case in Salazar v. Buono, along with Roberts, were Justices Antonin Scalia, Clarence Thomas and Samuel Alito.

Dissenting along with Stevens were Justices Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor.

Full text of Supreme Court decision, concurring and dissenting opinions in Salazar v. Buono

The Old Secular Cross?

High Court to Consider Issue of Church-State Separation

Henry and Wanda Sandoz are the unofficial caretakers of the Mojave cross, which is covered in a plywood box, near Cima, Calif. (Robert Barnes - The Washington Post)

By Robert Barnes
Washington Post

MOJAVE NATIONAL PRESERVE, Calif. -- It would be easy to miss among the yucca and Joshua trees of this vast place -- a small plywood box, set back from a gentle curve in a lonesome desert road. It looks like nothing so much as a miniature billboard without a message.

But inside the box is a 6 1/2 -foot white cross, built to honor the war dead of World War I. And because its perch on a prominent outcropping of rock is on federal land, it has been judged to be an unconstitutional display of government favoritism of one religion over another.

Whether the Mojave cross is ever unveiled again -- or taken down for good -- is up to the Supreme Court led by Chief Justice John G. Roberts Jr. Next week, it will get its first major chance to divine the meaning of the First Amendment command that "Congress shall make no law respecting an establishment of religion."

If the court reaches the constitutional issues at hand, all sides agree it could provide clarity to the court's blurry rules on church-and-state separations. It could also carry important implications for the fate of war memorials around the country that feature religious imagery -- the Argonne Cross in Arlington National Cemetery, for instance, or the Memorial Peace Cross in Bladensburg.

The Mojave cross's protectors, which include veterans groups and the federal government, say the symbol is a historic, secular tribute; its original plaque from the 1930s said it was erected to honor "the dead of all wars." They argue that Congress has taken the steps to distance itself from any appearance of endorsing a religious display.

But the American Civil Liberties Union, Jewish and Muslim veterans, and others say government actions have only deepened the problem. In an effort to avoid the lower courts' rulings that it must come down, Congress has designated the site the country's only official national memorial to the dead of World War I, elevating it to an exclusive group of national treasures that includes the Washington Monument and Mount Rushmore.

Congress's actions ensures that "the cross necessarily will reflect continued government association with the preeminent symbol of Christianity," the ACLU said.

It seems an improbable importance for this piece of desert land, where temperatures regularly hit three digits, an hour can go by without a passing car and somewhere nearby is likely to be a Mojave Green, the desert's own highly lethal variety of rattlesnake.

"It's just a little cross in the middle of nowhere," said Wanda Sandoz, who with her husband Henry is the cross's unofficial caretaker. Henry built the cross that currently occupies the spot -- there have been three -- and the Sandozes say they are fulfilling a WWI veteran's dying request to look after things.

Hiram Sasser, a lawyer with the Liberty Legal Institute, which represents the Veterans of Foreign Wars and assists the Sandozes, agreed.

"I always say you have to risk life and limb to be offended by this cross," he said.

It is unlikely the veterans who erected the cross knew or cared that Sunrise Rock was on federal land. World War I vets had flocked to the desert, either for mining opportunities or because doctors had suggested the climate for those with "shell shock" or respiratory problems from the war.

The men started VFW chapters throughout the region, and apparently were drawn to this particular granite outcropping because some looked at the rock's shadings and conjured up the silhouette of a WWI doughboy. The original cross had a plaque, complete with a misspelling:

"The Cross, Erected in Memory of the Dead of All Wars, erected in 1934 by Members Veterans of Foregin [sic] Wars, Death of Valley Post 2884."

That cross is gone, replaced first by a wooden one, and then by one Henry Sandoz erected in 1998, which he copied from studying old photographs.

Despite what supporters say was its secular birth, the cross for years has been the scene of Easter sunrise services, and the challenges began in 1999, when the U.S. Park Service denied an application from a Buddhist to build a shrine nearby. Frank Buono, an assistant superintendent, informed his boss that the presence of the cross violated the Constitution's establishment clause.

Buono is Catholic, but he said he was offended by the religious display on federal land. "The cross is important to me because it is the indispensable symbol of the death and resurrection of Jesus Christ," Buono said in an interview. "But it isn't right that the symbol of my religion, or any religion, be permanently affixed to federal land."

Park officials agreed to take down the cross, but before they could act, Congress and the courts got involved. Congress forbade the Park Service from using any funds to remove the display. A district judge agreed with Buono that he had standing to bring his complaint and that the cross violated constitutional standards. The U.S. Court of Appeals for the 9th Circuit affirmed the decision.

Then Congress declared the site a national memorial, and proposed to cure any constitutional problems by transferring one acre on which the cross stands to the VFW in exchange for five acres owned elsewhere in the preserve by the Sandozes.

But Buono and the ACLU went to court again, and the courts agreed that such a plan would not resolve the constitutionality question. The deal "would leave a little donut hole of land with a cross in the midst of a vast federal preserve," the appeals court said.

While the fighting has gone on, the cross has remained in place. But to comply with the court's ruling, it was covered first by a tarpaulin bag and now by the plywood box.

The Supreme Court has had trouble coming up with an easily followed guideline on religious displays on government land. Instead, it has opted to issue opinions based on the specifics of a case. Thus, the court in 2005 ruled 5 to 4 that a large, granite Ten Commandments monument on the grounds of the Texas capitol, in place for decades and surrounded by other historical markers, could remain. The same day, the court ruled by the same margin that recently installed framed copies of the Ten Commandments in two Kentucky courthouses were unconstitutional.

But changes on the court could make it more difficult for those challenging religious monuments. Justice Sandra Day O'Connor voted to find both displays of the Ten Commandments unconstitutional, but she has been replaced by Justice Samuel A. Alito Jr., who seems more sympathetic to the other view.

"I can't see many votes for removing the cross," said Charles Haynes, an expert on the establishment clause at the First Amendment Center. Justices could short-circuit the constitutional issues by deciding the lower courts were wrong in granting Buono standing to challenge the cross.

President Obama's new solicitor general, Elena Kagan, inherited the case from the Bush administration and intends to argue it herself. She told the court in her brief that Buono no longer lives near the preserve and his objection to the cross -- that it was on federal land -- is remedied by the land swap.

Buono's lawyer, Peter Eliasberg of the Southern California chapter of the ACLU, said Congress's efforts to avoid taking down the cross make it even clearer that it the cross is endorsed by the government. He rejected arguments that the image of the cross was a historical, rather than religious, symbol of sacrifice.

"When the government chooses a cross to recognize the veterans of World War I, which included 250,000 Jews, which included my grandfather, that is an important message and an inappropriate message for the government to send," Eliasberg said.

Wanda Sandoz, meanwhile, is surprised by the legal battle over the monument. "I suppose I can see the point, if I was Jewish or Buddhist," she said recently, as she walked around Sunrise Rock. "But the thing is, we didn't choose the cross -- the veterans did. I guess if they had picked a Star of David, that's what we'd be taking care of today."

The court will hear arguments in Buono v. Salazar on Oct. 7.

Constitutional Clash Over Defunct Land Exchange

Major Religious Establishment Case Rooted in Moot Mojave Cross Deal

Press Release
Public Employees for Environmental Responsibility (PEER)

WASHINGTON - In a potentially far-reaching Establishment Clause case, the U.S. Supreme Court will examine a congressionally-mandated one-acre land exchange to an entity that no longer exists in order to maintain a large cross in the middle of a national park. The case, Buono v Salazar, illustrates that abusive federal land exchange practices may yield even worse constitutional law, according to Public Employees for Environmental Responsibility (PEER) and the Western Lands Project.

The nearly eight-year case involves attempts by the Bush administration to prevent court-ordered removal of an-eight foot cross from the Mojave National Preserve. In 2003, after losing an appeal of a court-ordered removal of the cross, the Bush administration supported a rider by Rep. Jerry Lewis (R-CA), tacked onto the Defense appropriations bill, to trade the one federal acre with the Mojave Cross into private hands. The private party named by the rider is the Barstow chapter of the "Veterans of Foreign Wars, Post #385E". But that VFW Post's charter was revoked in May 2007 and declared "defunct" by the organization.

Nonetheless, the Bush Justice Department persisted in bringing the issue to the U.S. Supreme Court, which accepted the case for its fall docket. The Justice Department is seeking to reverse U.S. Court of Appeals for the Ninth Circuit Court rulings 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.

"This land exchange is both bad policy and bad law," stated Chris Krupp, staff attorney for the Western Lands Project, which monitors federal land trades and other public land practices. "We would hope the Obama administration takes a step back to see whether the public interest is served by pursuing this case."

The Mojave Cross is but one of a series of instances in which the Bush administration supported displays of Christian symbols (such as bronze plaques of Bible verses) or materials (for example, a creationist book claiming that the Grand Canyon was the product of Noah's Flood 6,000 years ago) inside national parks.

"Not another penny of taxpayer money should be spent pursuing former Attorney General John Ashcroft's fundamentalist agenda," said PEER Executive Jeff Ruch, whose organization calls these Bush-backed religious efforts "Faith-Based Parks". "The underlying land exchange is a nullity and should not be the basis for this Supreme Court tipping the scales on separation of church and state."

Since a federal district court first ordered the removal of the Mojave Cross back in 2002, the cross has been covered by a shroud. In the ensuing years, the removal has been upheld in an unbroken string of decisions and appeals.

Public Employees for Environmental Responsibility (PEER) is a national alliance of local state and federal resource professionals. PEER's environmental work is solely directed by the needs of its members. As a consequence, we have the distinct honor of serving resource professionals who daily cast profiles in courage in cubicles across the country.

Senate poised to move quickly on Omnibus

Procedural maneuver designed to nullify House vote

By Noelle Straub and Eric Bontrager
Environment & Energy Daily

The Senate today will vote on six amendments to the public lands, water and natural resources omnibus bill and may vote on the final version as soon as tonight.

Majority Leader Harry Reid (D-Nev.) yesterday reached an agreement to allow Sen. Tom Coburn (R-Okla.) votes on the amendments in return for dropping his objections to the bill. The deal allows for 60 minutes of debate on each of Coburn's amendments and requires 60 votes for final passage. The Senate first passed the omnibus bill in January, 74-21, and a cloture vote Monday was approved, 73-21.

During floor debate yesterday, Minority Whip Jon Kyl (R-Ariz.) described Coburn's amendments as largely minor, noncontroversial measures intended as assurances against unintended consequences of the omnibus. He encouraged Republicans to vote for them, saying they "simply improve the bill."

"Why would we want to preserve the right to use eminent domain if we don't have any intention to use it?" - Jon Kyl (R-AZ)

He noted one of the Coburn amendments would prohibit the use of eminent domain to acquire any of the millions of acres that would be protected under the omnibus. Supporters of the package have repeatedly refuted Coburn's claims that eminent domain would be used for any of the lands in the omnibus. "If it is true ... that none of this land needs to be acquired by eminent domain, there is no harm in including the language" of the amendment, Kyl said. "Why would we want to preserve the right to use eminent domain if we don't have any intention to use it?"

Sen. Mike Crapo (R-Idaho), who has a measure in the omnibus that would designate more than 517,000 acres as wilderness in the Owyhee-Bruneau Canyonlands of southwestern Idaho, said he understood the concerns of Coburn and some other members have but does not share their fears that the package represent "a haphazard attempt to extend the reach of the federal government."

"This is a well thought through management approach," Crapo said. "I don't believe there is a single piece of legislation in this bill that does not have the support of the senator of the state those lands are in."

Crapo said he hopes the Senate will move "expeditiously" on the amendments so that it can pass the omnibus and send it over the House.

Two of Coburn's amendments would strike all provisions that could restrict renewable energy development on public lands and sections that Coburn deems frivolous, such as the $3.5 million to celebrate the 450th Anniversary of St. Augustine, Fla., in 2015. Noting the National Park Service's $9 billion maintenance backlog, one amendment would bar new construction until all current park sites are certified as fully operational, ensuring full access by the public, and posing no health or safety threat.

Other amendments would require an annual report detailing the total size and cost of federal property, prohibit the use of eminent domain for any provision authorized in the bill, and clarify the bill to protect park visitors and scientists from criminal penalties for taking stones that may contain fossils.

Last week, the House fell two votes shy of passing the bill under suspension of the rules, a maneuver that shields legislation from amendment or a motion to recommit but requires a two-thirds majority for passage. Senate leaders then devised a strategy to use a bill that had already passed the House -- H.R. 146, a proposal to protect Revolutionary War battlefields -- and strip its contents, replacing it with the omnibus lands bill. Because H.R. 146 has already passed the House, the House Rules Committee can approve a closed rule that would block a motion to recommit, eliminating the GOP's best procedural chance to stymie the bill.

House Natural Resources Chairman Nick Rahall (D-W.Va.) yesterday said he had not seen Coburn's amendments but doubted that any would jeopardize the omnibus's final passage in the House. He noted that because the House already passed H.R. 146, all it would need is a simple majority vote to concur with the Senate amendment.

Even if the Senate passes the omnibus this week, Rahall said the House would likely not take it up until next week.

Because the omnibus may only require a simple majority, Natural Resources Committee ranking member Doc Hastings (R-Wash.) admitted that the bill is all but assured to pass. While pleased that the Reid-Coburn agreement will allow some amendments on the Senate side, he reiterated that House Republicans have never had the same opportunity.

The omnibus would designate more than 2 million acres of wilderness in nine states and would establish three new national park units, a new national monument, three new national conservation areas, more than 1,000 miles of national wild and scenic rivers and four new national trails. It would enlarge the boundaries of more than a dozen existing national park units and establish 10 new national heritage areas.

It would also authorize numerous land exchanges and conveyances to help local Western communities address water resource and supply issues and includes provisions to improve land management.

The revised omnibus bill will also include language from Rep. Jason Altmire (D-Pa.) meant to ensure that the omnibus would not close off lands that are already open to hunting and fishing.

House panel OKs Matheson land swap

Deal would help cut down 'checkerboard pattern'
of property


By Suzanne Struglinski
Deseret News


WASHINGTON — A House panel has approved a 40,000-acre land exchange between the Utah school trust land administration and the Bureau of Land Management.

Wednesday, the House Natural Resources Committee approved the Utah Recreational Land Exchange Act of 2007, introduced by Rep. Jim Matheson, D-Utah, that calls for the exchange near the Colorado River in Uintah and Grand counties to help reduce the "checkerboard pattern" of state trust lands and federal land.

"This bill is the result of consensus among a broad, diverse group of stakeholders — public and private, urban and rural, industry, conservation, sportsmen and education," Matheson said in a statement. "The result is a proposal that is fair to the taxpayer, beneficial to Utah schoolchildren, mindful of hunting and other public access opportunities and a better configuration for land managers to protect habitat, watershed and recreational values."

The bill still must pass the full House and Senate before going to the president for his signature. Sens. Bob Bennett and Orrin Hatch, both R-Utah, have the same bill in the Senate. The bill passed the House in the previous Congress, but the Senate did not vote on it.

Through the bill, BLM would receive state school trust lands in Grand and San Juan counties. The land includes portions of Westwater Canyon, the Kokopelli and Slickrock trails, multiple wilderness study areas and proposed wilderness areas and some of the largest natural rock arches in the country, according to Matheson's office. In exchange, the trust would get BLM land in Uintah County that has oil and natural gas potential, with proceeds from any eventual development directed to Utah schools.

The Utah Wilderness Coalition supported the bill's approval, calling it an example of how diverse stakeholders can work together.

"Many of the public lands to be acquired by the Bureau of Land Management (BLM) in this exchange qualify as wilderness and we believe this legislation advances protection for these proposed wilderness landscapes by bringing them into common public ownership," the coalition said in a statement. "At the same time, the state of Utah and its schoolchildren will benefit by receiving lands more appropriate for development and the ensuing revenues that development would provide."

The trust lands were set aside at statehood to support education. They were intended to offset the significant federal ownership of land in Utah. But the scattered nature of the lands has made productive use difficult and in recent years efforts have been made to trade tracts for areas with more earning potential. Proceeds from sales or use go into a permanent fund, with interest and earnings earmarked for education.

Don’t trash Joshua Tree National Park

by Seth Shteir
High Country News







Which word doesn’t belong with “national park?” Wildflowers, wildlife, hiking, night sky, garbage dump? No doubt you answered “garbage dump,” yet the biggest landfill in the United States may be developed right next to California’s Joshua Tree National Park.

Fortunately, a lawsuit filed by the National Parks Conservation Association and others is trying to halt this misguided proposal. The lawsuit, currently under appeal in the federal Circuit Court of Appeals in Pasadena, argues that the landfill fails to serve the public interest, that a land exchange making the dump possible was improper, and the environmental impact statement flawed.

"Who would have thought that a federal agency that is supposed to be looking out for the best interests of U.S. citizens would have allowed this ridiculous proposal to come this far?” says Ron Sundergill, Pacific Region director of the National Parks Conservation Association.

The dump would receive 20,000 tons of trash each day from all over southern California, and over its 117-year lifetime, 700 billion pounds of trash would accumulate, towering 1,500 feet high over the rock-studded desert. What’s harder to believe is that the landfill would be surrounded on three sides by Joshua Tree National Park.

It doesn’t take a rocket scientist to realize that a dump this size would destabilize the fragile desert ecosystem. Losers almost certainly would be desert bighorn and the endangered desert tortoise; winners would be predatory ravens benefiting from the new free food. Noise and light pollution from the trucks and machinery would definitely impair the naturalness of the park, and although some will argue that the nation needs more landfills, it’s hard to make the case that this particular project is in the best interest of the public.

The way the deal came about is also questionable. The BLM’s land transfer with Kaiser Ventures was improper because it disregarded the Federal Lands Management Policy Act. The act states that land transfers cannot significantly conflict with management on adjacent federal lands. Yet by trading land to create the nation’s biggest dump, the BLM undermined the Park Service’s management of sensitive lands within Joshua Tree National Park.

It’s not just the ecological ramifications of this battleship-sized landfill that should have people worried. A National Parks Conservation Association report showed that in 2001, the 1.3 million visitors to Joshua tree contributed $46.3 million to the local economy and supported 1,115 jobs. Desert tortoises and bighorn sheep wouldn’t be the only species harmed by the Eagle Mountain Landfill.

The national parks nonprofit and other individuals also say that the land exchange between the BLM and Kaiser Ventures was flawed. When the public land necessary for the exchange was appraised, the BLM identified its value in vague terms -- “holding for speculative investment and future capital appreciation” -- instead of acknowledging that its acquisition by Kaiser Ventures would likely mean it would become a major landfill. This resulted in an undervalued appraisal and taxpayers getting a raw deal. Ultimately, the swap of 3,481 acres of public land brought in a mere $20,100. Kaiser’s non-contiguous parcels that were transferred to the BLM also added little value to public lands. The parcels lie along the Eagle Mountain Rail Line, the very rail line that would haul trash to the landfill.

Although the National Park Service has accepted the environmental impact statement for the Eagle Mountain Landfill, some federal agency representatives say they remain concerned about the impact of the dump. It is the National Parks Conservation Association and other park-lovers who have taken on the job of challenging the EIS because of its narrowly defined statement of purpose. The EIS is, in fact, a facsimile of Kaiser Venture’s business plan, and the effect of its narrow purpose statement led to limited alternatives. For example, there is no mention anywhere in the EIS of investigating other landfill sites on BLM land or increasing the size and use of existing landfills.

Allowing the nation’s largest landfill next to a national park is a little like building a roller coaster next door to an elementary school. It’s simply a poor idea. Let’s hope that the court understands that a national park visited by millions of people each year can’t be neighbors to a noisy, spreading landfill. The tragedy, though, is that a court must make this decision.

Seth Shteir is a contributor to Writers on the Range, a service of High Country News (hcn.org). He is vice president of the San Fernando Valley Audubon Society in southern California.

Last Stand for the Mojave Cross?

Supreme Court Only Option to Stay Removal of Giant Cross after 9th Circuit Ruling

Press Release
Public Employees for Environmental Responsibility (PEER)

WASHINGTON, DC - May 23 - The seven-year battle to force the National Park Service to remove a giant cross from the middle of the Mojave National Preserve is nearing an end, according to Public Employees for Environmental Responsibility (PEER). The U.S. Court of Appeals for the Ninth Circuit has rejected yet a fourth attempt by the Bush administration’s Justice Department to keep displaying the cross against claims that doing so violates First Amendment prohibitions against government endorsement of religion. The cross must now come down unless the Justice Department appeals to the U.S. Supreme Court.

The latest in an unbroken string of adverse rulings came on May 14, 2008 when the Ninth Circuit turned back a Justice Department petition to reconsider (rehear en banc) its September 2007 decision striking down a congressionally mandated land exchange to save the cross as a “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 its latest ruling, the appeal court reached an “undeniable conclusion that the government’s purpose in this case is to evade the injunction to keep the cross in place…”

This decision found improper an act of Congress that mandated an exchange that would convey one acre of federal land inside the Preserve containing the “the Mojave Cross National Memorial” into private hands. This exchange provision was added by Congressman Jerry Lewis (R-CA) to the 2003 Defense Appropriations Act. The Ninth Circuit ruled that the purpose of the land exchange was to preserve the cross, the presence of which on national park land violates the First Amendment:

“…carving out a tiny parcel of property in the midst of this vast Preserve – like a donut hole with the cross atop of it – will do nothing to minimize the impermissible government endorsement.”

In 1998, the current eight-foot metal cross was bolted onto rocks on a rise in the Preserve. In 1999, prompted by a demand from the ACLU of Southern California, former NPS Superintendent Mary Martin met with the private person responsible for the cross and asked if he would remove it. He refused and defiantly vowed to put the cross back if removed. Taking “no” for an answer, Ms. Martin acquiesced. At the same time Ms. Martin denied a request from another party to install a Buddhist stupa (domed shrine) at the cross site, threatening the individual with citation or arrest if he attempted to place a stupa on park land. For the District and Circuit Courts, there was no question of unconstitutional conduct, in part, because the NPS restricted the site to symbols of only one religion.

“The Bush administration and its congressional allies have tried every contortion to safeguard this undeniably Christian symbol and, in so doing, tarnish our constitution,” stated PEER Board member Frank Buono, the former deputy superintendent of Mojave National Preserve who brought the suit, noting that the legal arguments marshaled by the government could have undermined Park Service authority over private lands inside parks. “It is time for the Justice Department to stop this inane crusade.”

The Mojave Cross is one of several instances in which the Bush administration has pushed Christian displays and creationist interpretations in national park facilities – an effort PEER calls “Faith-Based Parks.”