National Parks episode shows state better at managing public lands

OPINION

By John Swallow and Anthony Rampton
Salt Lake Tribune

The closure and re-opening of Utah’s national parks offer a dramatic demonstration of the need to have greater state and local control over programs and services.

The political deadlock has also proved few in Washington gave any serious thought about the devastating ripple effects it would have on the lives of ordinary citizens.

National parks, monuments and recreation areas in Utah were among the many victims of this shutdown. They were all closed, locked and shuttered on Oct. 1. But the real impact of these closures reach far beyond park boundaries.

Local economies, merchants and service providers who rely heavily upon the tourism and recreation associated with the parks immediately lost their lifeblood. Tourists and vacationers from all over the world were turned away, along with their desires to experience the beauty and grandeur of Utah’s scenic wonders. State, county and local governments were suddenly faced with the prospects of the loss of projected and necessary revenues

Local citizens and officials were understandably outraged and they searched for self-help remedies that could be taken to force the re-opening of the parks and associated federally operated facilities. Cooler heads prevailed. In contrast to criticisms leveled against Utah’s public lands initiatives, state and local officials responded with great responsibility. They proposed an interim solution that addressed the needs of the tourist and recreation industry, local economies, citizens of Utah and the parks’ lands.

Gov. Gary Herbert took the lead and proposed to the Department of Interior that Utah could fund the re-opening and operation of the parks on a temporary interim basis. To Interior Secretary Sally Jewell’s credit, she embraced the governor’s proposal. Together they directed their respective offices to immediately hammer out the details. Within a period of hours, the agreement was consummated and the re-opening of the parks was put into motion. The parks will now be open for two of the busiest weekends of the year. We are proud of the role the attorney general’s office played in this process.

We firmly believe the events of the last couple of weeks vividly demonstrate three important realities. First, in these days of federal austerity, we assume substantial risk by relying too heavily upon the federal government to fund and administer programs that directly affect us in our businesses and daily lives. Because of the extensive federal presence in the state, Utah is particularly vulnerable to political and financial fluctuations in Washington.

Second, responsibility for and implementation of government programs and operations, including those pertaining to the public lands, should be vested in the hands of those who feel the greatest impact and who have the greatest understanding of the situation on the ground. Those in Washington simply do not understand, nor do they appreciate, the effects their far-removed decisions have on rural Utah.

Third, if allowed greater jurisdiction, powers and governing responsibilities, state, county and local governments will respond prudently, even-handedly and in the best interest of the citizens of Utah and all Americans, including in the proper stewardship of our treasured lands.

Utah’s track record of government management and accountability is unmatched. The last few weeks show Utah can and should have an enhanced role in its citizens’ affairs and in the uses of its land. The long-term public health, safety and economic welfare of Utahns depend on it.

John Swallow is Utah attorney general. Anthony Rampton is an assistant attorney general.

The National Park Service's Behavior Has Been Shocking -- It Should Be Privatized

OPINION

by Paul Kengor
Forbes

The behavior of the National Park Service during President Obama’s shutdown campaign has been shocking. As has been widely reported, Park Service employees have been told to make life as uncomfortable as possible for people, and have flourished in that endeavor. They have acted unprofessionally as a partisan and ideological arm of the White House and its campaign.

If you’re not familiar with what I’m talking about, then just click Google GOOG +13.8% and start searching. There are unfortunate first-person accounts everywhere. Among the worst examples was a case innocently covered by a small Massachusetts newspaper that reported on a group of tourists traveling to Yellowstone National Park. The tourists, by no means a bunch of Tea Partiers, described the Park Service as “Gestapo”-like in its tactics.

That, of course, is an exaggeration. But the mere fact that a group of apolitical citizens would invoke such hyperbole to describe how they were treated really says something.

The Weekly Standard, a conservative source likewise not given to hyperbole, argues in an editorial that the Park Service’s conduct “might be the biggest scandal of the Obama administration.” That’s no small claim for an administration plagued by scandals ranging from Benghazi to the eye-opening overreach of the IRS, the NSA, and (among others) the HHS mandate. The Standard rattled off examples of abuses during the shutdown, highlighting the most egregious of them all, the shameless scene at the World War II Memorial:

“People first noticed what the NPS was up to when the World War II Memorial on the National Mall was “closed.” Just to be clear, the memorial is an open plaza. There is nothing to operate. Sometimes there might be a ranger standing around. But he’s not collecting tickets or opening gates. Putting up barricades and posting guards to “close” the World War II Memorial takes more resources and manpower than “keeping it open.”

No question. What happened at the World War II Memorial was pure political exploitation. For the propaganda artist, the image of elderly, heartbroken, wheelchair-bound vets voyaging thousands of miles to remember their fallen brothers, maybe for a final earthly time, only to be denied by cruel, intransigent Republicans, was apparently too lovely to pass up. What great political theater! The propaganda points for the White House and its lieutenants must have been irresistible.

Indeed, as the Standard noted, the barricading of the World War II Memorial was “just the start of the Park Service’s partisan assault on the citizenry.” It noted other historical sites that are privately owned and operated, where “the Park Service doesn’t actually do anything.” Nonetheless, the Park Service mustered the resources to deploy officers to forcibly remove volunteer workers and visitors. As the Standard put it, the Park Service “is now in the business of forcing parks they don’t administer to close…. It’s one thing for politicians to play shutdown theater. It’s another thing entirely for a civil bureaucracy entrusted with the privilege of caring for our national heritage to wage war against the citizenry on behalf of a political party. This is how deep the politicization of Barack Obama’s administration goes.”

This is Obama’s shutdown campaign, pure and simple—akin to the kind of crass political campaigns the American far left has engaged in for decades. This time, sadly, federal employees have been enlisted in the cause; the National Park Service is serving as an army of agents in the campaign. Not unlike the IRS, NPS agents are abusing their powers. They are being tasked as a political/ideological arm of the state. This is precisely not what civil servants are to be.

As a personal sidenote, the National Park Service falls under the Department of Interior, once run by my late friend Bill Clark, whose biography I wrote. A rancher and cowboy, Clark left Reagan’s National Security Council to run the Department of Interior in 1984. He had great respect for the department, its mission, and its employees. Clark died in August. We talked constantly. He was depressed at the country’s direction under Obama. If he had seen his former Interior employees enlisted and behaving like this, he would have been despondent. I’m thankful this happened after his death.

And so, my reaction to this egregious behavior by the National Park Service is one word: privatize. Privatize. Privatize. Privatize.

I’m not talking about privatizing the parks themselves, a suggestion others have raised. In the 1990s, I specialized in privatization, writing reports for state and local think-tanks, particularly the excellent Allegheny Institute for Public Policy. I quickly learned one of the most crucial things about privatization that most people don’t understand: much privatization involves not ownership but operation. It’s often wiser to privatize not ownership but operation. (Roads are an example. Let the government own the roads, but their maintenance should be contracted.) That’s particularly true when government employees operating a service become unionized, entrenched, bloated, and over-extended. And that’s precisely what we should now consider with the National Park Service. We should privatize not the parks but the service that operates, manages, administers them.

The beauty of privatizing management rather than ownership is that ownership is permanent but management is not. This means that if one management group doesn’t perform up to expectations, a new one can be hired. The hiring process should always be regularly competitively contracted. This “competitive bidding” process keeps the current management group on its toes and accountable. If it performs badly, it can be fired and replaced—unlike the current group of government employees running the National Park Service, which is a protected class with a monopoly on its service.

Let’s privatize the National Park Service.

This thought will anger NPS employees. Well, for that, they can thank White House schemers for overplaying their heavy hand and unwittingly shedding ominous light on the abusive possibilities of this agency. That’s not a sentiment that the president and allies intended to foster when they began agitating and orchestrating their shutdown campaign. Rather than convincing us of the alleged evils of congressional Republicans, they’ve unveiled the roguish tendencies of some federal employees who blindly follow orders. Let’s respond by taking power away from those employees, so this cannot happen again. Easily maneuvered into providing propaganda for a president or party, these NPS workers have proven themselves unworthy of the mission entrusted to them. They are the embodiment of the dangers of unaccountable, big government.

Let’s respond by privatizing the National Park Service.

Dr. Paul Kengor is executive director of The Center for Vision & Values at Grove City College.

Park Service Paramilitaries

The government has King John’s idea of public lands.

OPINION

By Mark Steyn
National Review Online

If a government shuts down in the forest and nobody hears it, that’s the sound of liberty dying. The so-called shutdown is, as noted last week, mostly baloney: Eighty-three percent of the supposedly defunded government is carrying on as usual, impervious to whatever restraints the people’s representatives might wish to impose, and the 800,000 soi-disant “non-essential” workers have been assured that, as soon as the government is once again lawfully funded, they will be paid in full for all the days they’ve had at home.

But the one place where a full-scale shutdown is being enforced is in America’s alleged “National Park Service,” a term of art that covers everything from canyons and glaciers to war memorials and historic taverns. The NPS has spent the last two weeks behaving as the paramilitary wing of the DNC, expending more resources in trying to close down open-air, unfenced areas than it would normally do in keeping them open. It began with the war memorials on the National Mall — that’s to say, stone monuments on pieces of grass under blue sky. It’s the equivalent of my New Hampshire town government shutting down and deciding therefore to ring the Civil War statue on the village common with yellow police tape and barricades.

Still, the NPS could at least argue that these monuments were within their jurisdiction — although they shouldn’t be. Not content with that, the NPS shock troops then moved on to insisting that privately run sites such as the Claude Moore Colonial Farm and privately owned sites such as Mount Vernon were also required to shut. When the Pisgah Inn on the Blue Ridge Parkway declined to comply with the government’s order to close (an entirely illegal order, by the way), the “shut down” Park Service sent armed agents and vehicles to blockade the hotel’s driveway.

Even then, the problem with a lot of America’s scenic wonders is that, although they sit on National Park Service land, they’re visible from some distance. So, in South Dakota, having closed Mount Rushmore the NPS storm troopers additionally attempted to close the view of Mount Rushmore — that’s to say a stretch of the highway, where the shoulder widens and you can pull over and admire the stony visages of America’s presidents. Maybe it’s time to blow up Washington, Jefferson & Co. and replace them with a giant, granite sign rising into the heavens bearing the chiseled inscription “DON’T EVEN THINK OF PARKING DOWN THERE.”

But perhaps the most extraordinary story to emerge from the NPS is that of the tour group of foreign seniors whose bus was trapped in Yellowstone Park on the day the shutdown began. They were pulled over photographing a herd of bison when an armed ranger informed them, with the insouciant ad-hoc unilateral lawmaking to which the armed bureaucrat is distressingly prone, that taking photographs counts as illegal “recreation.” “Sir, you are recreating,” the ranger informed the tour guide. And we can’t have that, can we? They were ordered back to the Old Faithful Inn, next to the geyser of the same name, but forbidden to leave said inn to look at said geyser. Armed rangers were posted at the doors, and, just in case one of the wily Japanese or Aussies managed to outwit his captors by escaping through one of the inn’s air ducts and down to the geyser, a fleet of NPS SUVs showed up every hour and a half throughout the day, ten minutes before Old Faithful was due to blow, to surround the geyser and additionally ensure that any of America’s foreign visitors trying to photograph the impressive natural phenomenon from a second-floor hotel window would still wind up with a picture full of government officials. The following morning the bus made the two-and-a-half-hour journey to the park boundary but was prevented from using any of the bathrooms en route, including at a private dude ranch whose owner was threatened with the loss of his license if he allowed any tourist to use the facilities.

At the same time as the National Park Service was holding legal foreign visitors under house arrest, it was also allowing illegal immigrants to hold a rally on the supposedly closed National Mall. At this bipartisan amnesty bash, the Democrat House minority leader Nancy Pelosi said she wanted to “thank the president for enabling us to gather here” and Republican congressman Mario Diaz-Balart also expressed his gratitude to the administration for “allowing us to be here.”

Is this for real? It’s not King Barack’s land; it’s supposed to be the people’s land, and his most groveling and unworthy subjects shouldn’t require a dispensation by His Benign Majesty to set foot on it. It is disturbing how easily large numbers of Americans lapse into a neo-monarchical prostration that few subjects of actual monarchies would be comfortable with these days. But then in actual monarchies the king takes a more generous view of “public lands.” Two years after Magna Carta, in 1217, King Henry III signed the Charter of the Forest, which despite various amendments and replacement statutes remained in force in Britain for some three-quarters of a millennium, until the early Seventies. If Magna Carta is a landmark in its concept of individual rights, the Forest Charter played an equivalent role in advancing the concept of the commons, the public space. Repealing various restrictions by his predecessors, Henry III opened the royal forests to the freemen of England, granted extensive grazing and hunting rights, and eliminated the somewhat severe penalty of death for taking the king’s venison. The NPS have not yet fried anyone for taking King Barack’s deer, but it is somewhat sobering to reflect that an English peasant enjoyed more freedom on the sovereign’s land in the 13th century than a freeborn American does on “the people’s land” in the 21st century.

And we’re talking about a lot more acreage: Forty percent of the state of California is supposedly federal land, and thus officially closed to the people of the state. The geyser stasi of the National Park Service have in effect repealed the Charter of the Forest. President Obama and his enforcers have the same concept of the royal forest that King John did. The government does not own this land; the Park Service are merely the janitorial staff of “we the people” (to revive an obsolescent concept). No harm will befall the rocks and rivers by posting a sign at the entrance saying “No park ranger on duty during government shutdown. Proceed beyond this point at your own risk.” And, at the urban monuments, you don’t even need that: It is disturbing that minor state officials even presume to have the right to prevent the citizenry walking past the Vietnam Wall.

I wonder what those Japanese and Australian tourists prevented from photographing bison or admiring a geyser make of U.S. claims to be “the land of the free.” When a government shutdown falls in the forest, Americans should listen very carefully. The government is telling you something profound and important about how it understands the power relationship between them and you.

The National Park Service should be out of the business of urban landmarks, and the vast majority of our “national” parks should be returned to the states. After the usurpation of the people’s sovereignty this month, the next president might usefully propose a new Charter of the Forest.

— Mark Steyn, a National Review columnist, is the author of After America: Get Ready for Armageddon.

A Mojave Desert cross brings a lot of things to bear

The head of the Mojave National Preserve had little reason to think that an exchange over a memorial built in 1934 would spur a 13-year saga full of litigation, vandalism, political theater and theft.

A new cross in the wings
Henry Sandoz hefts a new cross that he made out of 5-inch-diameter pipe. With friends and supporters, he hopes to paint and raise it atop Sunrise Rock by Veterans Day. (Thomas Curwen / Los Angeles Times / September 21, 2012)

By Thomas Curwen
Los Angeles Times

Long before the promise to the dying man, the Buddhist stupa and the Supreme Court decision, there was the land. Once it belonged to no one, then it belonged to everyone, and that's when the trouble with the cross began.

Mary Martin, superintendent of the Mojave National Preserve, read her mail in the morning, and on a spring day in 1999 she picked up a letter signed by Sherpa San Harold Horpa. It sounded like a joke.

Horpa began by describing "a tasteful cross that stands on a small hill." The hill, known as Sunrise Rock, was in the preserve off Cima Road, six miles south of Interstate 15.

Horpa had a special request: He wanted to place another religious symbol on the site.

"I proposed to install a stupa equal in size, color, material and taste to the cross," he wrote.

Martin had to look up what a stupa was — a Buddhist shrine — and that afternoon she composed her reply: "Any attempt to erect a stupa will be in violation of federal law and subject you to citation and or arrest."

Martin was aware of that cross, which was erected in 1934, and she suspected that one day she would have to remove it. But at this point it was a low priority. The preserve was in its fifth year, and she and her colleagues were busy buying property from ranchers, preserving the habitat of the desert tortoise, and converting the old Union Pacific station in Kelso into a visitor center.

She never heard from Horpa again. Nor did she have any reason to suspect that this exchange would begin the 13-year saga that would see the cross on Sunrise Rock become an object of litigation, vandalism, political theater and theft.

Buono and the stupa

Herman Hoops thought writing a letter would be a good way to test the park service's attitude toward the cross. When going up against the government, he recently explained, the last thing you want to present are the facts; they can fight you on the facts.

So he came up with the idea of the stupa.

His friend Frank Buono had been visiting him that spring at his home in Jensen, Utah, just outside Dinosaur National Monument. Buono had first brought up the cross in a conversation about the Mojave National Preserve. Both men — retired park service employees with more than 20 years each — felt that a religious symbol on federal land was wrong.

With the sun setting on the river canyon of Dinosaur, Hoops sat down at his computer, and they began composing. They made the argument for the stupa, "complete with prayer wheels and flags," and Hoops came up with the pseudonym.

When he opened Martin's reply, Hoops wanted to continue with the pretense, but Buono told his friend to hold off. He had contacted the American Civil Liberties Union, which had agreed to investigate the cross to see if there might be a case.

Buono loved the California desert, but the Mojave was special. He had been an assistant superintendent at the preserve for 11 months before budget cuts in 1995 forced him to Joshua Tree National Park.

The year before — as Congress debated the legislation that would create the preserve — he served on a committee to explore the logistics of managing the land. Walking through the halls of the Department of the Interior on his way to a reception after the signing ceremony for the Mojave in October 1994, he says, was the highlight of his career.

"It was like the Vatican for me," he said. "I hold the park agency to the highest of standards — as any citizen should."

When Buono first saw the cross in 1995, he wasn't sure if it was on federal land. The Mojave was a checkerboard of grazing allotments and private holdings, and after retiring, he read the old maps and confirmed his suspicions.

The Sandozes

Martin received the first letter from the ACLU in October 1999, urging that the cross be removed because it was a violation of the 1st Amendment. Ten months later a second letter arrived, this time setting a deadline of 60 days.

By then Martin had researched the cross and had learned about the promise that Henry and Wanda Sandoz made to a sick friend who had maintained it over the years. The Sandozes had agreed they would be its caretaker.

When their friend died in 1984, the cross had been missing for a couple of years, and Henry built a new one. This cross was vandalized, and he finally decided to replace it.

In violation of park regulations, he and Wanda gathered with family and friends at Sunrise Rock on Palm Sunday in 1998. They bolted a cross, made of 5-inch-diameter pipe, to the granite and filled it with concrete. Afterward, they crowded beneath it barbecuing hot dogs.

Because the cross — raised to commemorate veterans of World War I — wasn't the original, Martin felt she had to take it down. But she didn't want to make a decision that would be unpopular among Mojave residents who resented the changes that the park service had brought to their lives.

Martin needed an ally and found one in Rep. Jerry Lewis (R-Redlands). Throughout 2000, Lewis had stayed apprised of the ACLU's complaint. The group's accusation, he wrote, was "ridiculous," and as a member of the House Appropriations Committee, he would take legislative action, if necessary, to save the cross.

By late fall, Martin had exhausted her options, which included a personal appeal to the Sandozes to take the cross down. She drafted a letter for the park service's regional director to send to the congressman. "Absent legislative intervention," it read, Martin would have no choice but to remove the cross.

Two weeks later the congressional budget passed with language introduced by Lewis preventing the use of federal funds to remove the cross. Three months later, the ACLU filed its lawsuit; Buono was a plaintiff.

When a judge in Riverside ruled that the cross couldn't be displayed, it was wrapped in a tarp that was fastened, Houdini-style, at the base by chain and a padlock. After being shredded by vandals, the tarp was replaced by a plywood box.

"It looked like a big Popsicle," said Dennis Schramm, who replaced Martin as superintendent of the preserve in 2005.

Artists painted landscapes that prominently featured the cross. Videos were shot in its shadow. A website was created, and the Sandozes were cast as crusaders.

In the end, the ACLU won. A federal district judge in Riverside ruled that the cross' presence on federal land conveyed an endorsement of religion. His opinion was upheld by the 9th Circuit U.S. Court of Appeals.

The only way the cross could remain was if Sunrise Rock were privately owned. A compromise was arranged: a land swap between the Sandozes and the park service. The California office of the Veterans of Foreign Wars would take ownership of the property around the cross.

But a district court ruled against the compromise. The U.S. Supreme Court eventually took the case and determined that the ruling was flawed. The district court reconsidered and in April approved the transfer. By then the ACLU and Buono had stopped their fight.

Not long after the Supreme Court's decision in 2010, the cross was stolen and was never recovered.

Martin and Buono today

Martin, 61, is retired today and looks back with disappointment on the long turn of events.

"If Buono felt so strong about the cross, if he would have called and discussed it, I am sure we could have reached a solution without litigation," she said. "When I first met with the Sandozes, they were receptive to various solutions, but as the conflict continued, all sides seemed to become more entrenched in their positions."

Buono, 65, works part time for the park service teaching policy and law and is gratified that the courts ruled in his favor, the land swap notwithstanding. He similarly wishes the matter of the cross could have been resolved without going to court and is critical of the park service.

"The agency culture of the NPS is so risk-averse that it borders on paralysis, in particular when confronted with a wildly unpopular decision," he said.

Closed off
Henry Sandoz, 73, examines the cordon that the National Park Service has placed around Sunrise Rock. Sandoz and his wife, Wanda, plan to erect a new cross on the site. (Los Angeles Times / September 21, 2012)

Last July, the Sandozes — Henry, 73, and Wanda, 68 — and a few supporters met park service officials at Sunrise Rock to work out the final arrangements.

With temperatures close to 120 degrees, they walked the perimeter of the property. The park service has allocated $28,121 to pay for a cable to section off the property, signs to designate it as private property and a plaque to identify the cross as a war memorial.

The park service hopes to hand the 1-acre parcel over to the VFW by the first week in November, and the Sandozes plan to commemorate the site by Veterans Day.

Henry Sandoz has a new cross ready. Partly covered by plywood and an old washtub, it lies on the concrete floor of a barn — three pieces of pipe, cut by an acetylene torch, welded together and, as yet, unpainted.

Mojave Cross Saga

Basin pair fighting to keep shrine to veterans unshrouded

By JIMMY BIGGERSTAFF
Hi-Desert Star


A veterans’ memorial in the shape of a cross stands covered by a wooden box in the Mojave National Preserve. An appellate court ruling Thursday sustained an earlier decision by the U.S. District Court which turned down a plan promoted by Congressman Jerry Lewis proposing a land swap to preserve the cross, unshrouded.

YUCCA MESA — When Henry and Wanda Sandoz make a commitment, they take it seriously.

The Yucca Mesa couple has honored a dying man’s request since 1984, battling the elements, vandals, government bureaucracy and the American Civil Liberties Union.

At issue is a cross made of iron pipe painted white and stuck in a pile of granite boulders pretty much near the middle of nowhere in the Mojave National Preserve. The cross replaced an earlier wooden one erected at the remote spot in 1934 by the Death Valley Chapter of the Veterans of Foreign Wars.

A long-gone sign near the road once read “The Cross. Erected in memory of the dead of all wars.” The current cross is about 7 feet tall and maybe 5 feet across.

World War I veteran Riley Bembry lived nearby, although “nearby” is relative in those parts — his desert cabin was a few miles distant. Henry and Wanda Sandoz also were residents of the area, where he was a maintenance supervisor in the mines and she drove a school bus.

Whether Bembry adopted the Sandozes or they adopted him isn’t entirely clear, nor is it too relevant, as far as that goes. What matters is that Riley took on a grandfather role with Henry and Wanda; the relationship was symbiotic. He was a weekly fixture at dinner and attended family events like birthdays and holiday observances.

“Riley was always a gentleman,” Wanda recalled, a twinkle in her eye at the recollection of their benevolent friend. “He was soft-spoken, a handsome man, always very clean.”

As the old desert rat’s health turned south, he asked the couple to look after the memorial commemorating those who died in the war to end all wars, and those who died in wars after that.

For decades local cattlemen, miners and military veterans gathered at the location for dancing and socializing. A box car on the site, since removed, provided shelter and storage. A Sandoz granddaughter was dedicated to the church there.

The Sandozes attend Easter sunrise services at the site each year, which averages 30 to 50 people, sometimes as many as 80, depending on the weather. “Sometimes when it’s real cold we don’t have a whole lot,” Wanda said.

The cross was periodically vandalized. Sandoz put up sturdier monuments, beginning in the late ’70s. “They’d keep knockin’ it down, I’d keep putting it back up,” Henry said in a low, resolute voice, slowly shaking his head.

For the last several years the cross has been covered by a wooden box. A cross has been painted on the box; that painted cross has been painted over, and then the painted cross reappears on the box and is painted over again.

Why a cross? Why not an obelisk or some other, non-religious shape or symbol? “Because that’s what the vets chose,” Wanda replied, insistently. “That’s the whole point of it.”

For their part, Henry and Wanda are non-denominational.

“We’re just Christians,” Wanda explained. They’re good examples of the religion’s precepts of giving, caring and doing unto others.

Henry owns a five-acre parcel near the monument, “about eight miles as the crow flies,” that he has offered to swap for the one-acre rock pile upon which the cross is erected.

If the government would agree to the exchange, Sandoz would turn the site over to a veterans’ group like the Veterans of Foreign Wars. The offer is still on the table, he said, but so far no one has taken them up on the proposal.

If Bembry were to comment from the afterlife about the controversy swirling around the monument, Wanda speculated, “He would probably say he just can’t believe the country has come to this sad state of affairs, where they’d want to remove a memorial placed there to honor veterans.”

The fate of the veterans’ memorial will be decided by attorneys and politicians. Between attackers and defenders under government employ, the cost to taxpayers will surely ring up well into the thousands.

Henry and Wanda don’t much seem the types to get caught up in the political and religious fervor the cross has caused. They have been in contact with Congressman Jerry Lewis’ office. Wanda said the representative “is behind us 100 percent.”

It is melodramatic but accurate to describe Riley’s request to have Henry and Wanda look after the cross shortly before he died in 1984 as his dying wish.

Henry took his adopted grandfather’s final request to heart. He looks after the cross for Riley and for all veterans.

“I promised him,” Henry said plainly. “That’s important to me.”

Court forbids Mojave park's cross display

Andrew Edwards, Staff Writer
San Bernardino Sun

MOJAVE NATIONAL PRESERVE - A cross that stands above the desert as a memorial for Americans who died in World War I represents an unconstitutional federal endorsement of Christianity, according to a legal opinion handed down by the federal 9th Circuit Court of Appeals.

The cross stands atop Sunrise Rock on Cima Road inside the Mojave National Preserve. The preserve is public land, part of the National Park System. Upholding a 2005 court decision, Judge M. Margaret McKeown wrote that the cross would not be allowed even if the government traded Sunrise Rock for other land with a private party, thus removing the cross from public land.

The court published its opinion Thursday.

Rep. Jerry Lewis, R-Redlands, supported a land trade in a 2002 piece of legislation that would have transferred Sunrise Rock to a Barstow chapter of the Veterans of Foreign Wars in exchange for a 5-acre patch of land.

Lewis could not be reached for comment Friday.

Mojave National Preserve superintendent Dennis Schramm said park officials have not yet determined the full impact of the court's opinion.

"I haven't heard anything from anyone yet," he said. "I'm still under a court order to keep it covered."

The cross could be viewed from Cima Road earlier this summer. The original monument, a wooden cross, was placed at Sunrise Rock in 1934, according to court documents. That cross has since been replaced by a metal edifice that was bolted into the rock in 1998.

Sunrise Rock has frequently been a site for Easter Sunday services.

Thursday's ruling stems from a 2001 lawsuit filed by Frank Buono, a former assistant superintendent at the Preserve who was represented by the American Civil Liberties Union.

Court papers from an earlier stage in the case noted that Buono was "deeply offended by the display of a Latin Cross on government-owned property."

Federal attorneys representing National Parks Service officials defended the cross's presence in the Preserve. Department of Justice spokesman Andrew Ames said that as of Friday, no decision had been made on whether to appeal the case.

Court Says Get Rid of Cross

CitizenLink News Center
Colorado Springs, CO

The 9th U.S. Circuit Court of Appeals has disallowed a planned public-private land swap that would have preserved a Christian cross in the middle of the vast Mojave National Preserve, ruling it violates the Constitution’s establishment clause prohibiting government endorsement of religion.

After the 9th Circuit found the cross unconstitutional in 2004, Congress passed a law to transfer the parcel to private ownership. The 8-foot white cross, erected in 1934 to honor World War I veterans, has been covered with plywood during the legal dispute.

Bruce Hausknecht, judicial analyst for Focus on the Family Action, said the ruling shows how muddled establishment-clause law has become. He cited the Mt. Soledad war memorial cross in San Diego, in which the city transferred the property to the federal government.

“In the Mt. Soledad case, the government ends up with a cross, and that's OK, but in the Mojave National Preserve case, the government tries to give away a cross, and that's not OK,” Hausknecht said.

“My hope is that this case gets appealed to the Supreme Court, which now has a majority of justices on the bench whose understanding of the First Amendment leaves hope that we can finally get some decisions that will straighten out decades of the court's floundering on this subject.”

Court upholds ruling against Redlands congressman's proposal to preserve cross

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.

A war on memory

By Michael Medved
Yahoo! News – USA

What shocking visual image inspires so much fear, disgust and outrage that even in this era of unfettered free expression, federal courts feel compelled to take drastic steps to cover it up?

Judges will rarely use their power to hide public sculptures depicting sadistic brutality, or to obscure billboards peddling sex and nudity, but in the California desert they've ordered the concealment of a simple white cross that has honored the nation's war dead for more than 70 years.

In 1934, the Veterans of Foreign Wars erected a monument on a barren hilltop known as "Sunrise Rock" in the Mojave National Preserve to commemorate "the dead of all wars." More than a half-century later, the American Civil Liberties Union of Southern California challenged the memorial, claiming that it violated the Establishment Clause of the First Amendment because the cross (recognized by the government as a war memorial) stood on public land. The 9th Circuit Court of Appeals ordered the dismantling of the monument, but Congress took action in 2004 to authorize the transfer of the ground surrounding the cross to private parties.

A federal district judge invalidated that transaction, even as officials responsible for the desert refuge took steps to hide the cross while the legal wrangling continued. Government agents covered the offending crossbeam with boards, making it look like a crude screen, or a shallow box, perched incongruously on a stick in the middle of the California desert.

An easy, favorite target

The absurd status of this ongoing struggle shouldn't obscure its serious and alarming undercurrents - including a common attitude among militant "separationists" that treats Christian symbols with more hostility and less tolerance than those of any other religious tradition.

Imagine that the U.S. Holocaust Memorial Museum decided for some reason to erect a large Star of David on top of its stark building in Washington. Would the ACLU object to the raising of this religious (and, yes, national) symbol on a structure that has been built, after all, on federal land? In the unlikely event that anyone stood up to oppose such symbolism, reasonable people would respond that the Jewish star represented an appropriate commemoration to the millions of predominantly Jewish victims honored by the museum.

By that logic, a cross (whether in the Mojave Desert or in another controversial war memorial on the top of Mount Soledad near San Diego) represents a similarly suitable tribute to fallen warriors who have died for the United States - because the overwhelming majority of those soldiers considered themselves Christians. To this day, more than 85% of Americans describe themselves as Christians, and many recent studies (including the excellent Imperial Grunts by Robert D. Kaplan) report that devout Christian believers are, if anything, overrepresented in our volunteer Army.

The government recently authorized a Wiccan symbol (a five-pointed star, or pentacle) to appear on the military cemetery gravestone of a GI who died in Afghanistan - despite objections by some Christian activists that Wicca (a proudly pagan tradition that incorporates elements of druidical nature worship) carries unwholesome associations with witchcraft and Satanism. The armed forces rightly gave the family of the fallen soldier the right to choose its own symbolism in tribute to him, even if that symbol appeared on public property. After all, the military already allows grave site recognition of Buddhism, Hinduism, Islam, Mormonism and even atheism (represented by a stylized diagram of an atom).

In the same sense that no one should feel offended by honoring the war dead with symbols of their faiths, so, too, even the most radical secularists ought to accept the war memorial cross as the right way to honor the overwhelmingly Christian identification of those who have died defending our country.

The intolerant reaction to crosses on various hillsides and mountaintops has nothing to do with a fear that non-Christians (like me) might feel unconstitutionally compelled to worship the emblem of the nation's majority religion. In truth, we remain blessedly free to view that symbol with indifference, respect, curiosity, devotion, bemusement or even contempt - in the same way that our Christian neighbors can look on displays of Hanukkah menorahs that have begun turning up on public property every December.

A display of the cross (especially a cross that has been there for decades, such as the one in the desert) doesn't amount to "establishment of religion" or the imposition of theocracy, but it does function as a reminder of the fervent Christianity that has played such a potent, even predominant, role in shaping and sustaining this country. My Jewish kids aren't intimidated or threatened by such reminders, but they would be damaged by enforced ignorance of the Christian ideals and idealists behind crucial historical movements - from the pilgrims to the civil rights marchers, from the establishment of our most prestigious universities (nearly all of which began as Christian seminaries) to the battles to free slaves and resist international communism.

Reflecting a Christian past

Of course non-Christians - including atheists, agnostics and members of minority faiths - have also played heroic roles in every era of the American past. But with the current freewheeling diversity in our religious marketplace of ideas - where missionaries for Scientology jostle the enthusiastic advocates of the Kabbalah Center - we're in little danger of viewing our culture's present or future in monochromatic or intolerant terms.

We do face formidable efforts, however, to erase and distort the nation's Christian past. In this sense, it's almost appropriate that secular activists focus on the crosses used in various war memorials: the very designation "memorial" derives from the word "memory," and the effort to obliterate these monuments in various locations amounts to more than a program to redecorate the landscape. The campaign against religious symbols represents a war on memory itself - and an intolerant effort to eradicate all prominent reminders of the faith-based heritage of this civilization.

Nationally syndicated radio talk host Michael Medved is the author of Right Turns. He is also a member of USA TODAY's board of contributors.

9th Circuit to decide 'Mojave Desert Cross' fate

OneNewsNow.com
Ed Thomas

The National Legal Foundation and its attorneys are awaiting a decision from the 9th U.S. Circuit Court of Appeals following Monday's hearing on a case challenging the right of a World War I memorial cross to remain on public land in the middle of the Mojave Desert.

In the case of Buono v. Kempthorne, the National Legal Foundation (NLF) is fighting the American Civil Liberties Union (ACLU) in an effort to save the Mojave Desert Cross. The large, white memorial cross has been located on Sunrise Rock in the Mojave National Preserve near the California-Nevada border since 1934, when it was given and erected by the Veterans of Foreign Wars.

Attorney Joe Infranco is with Alliance Defense Fund (ADF), which argued an amicus brief for NLF at Monday's hearing. He says one of the last acts of Bill Clinton's presidency was his executive order authorizing the establishment of the land the cross stood on as a federal preserve.

"The ink was barely dry, and a local ACLU affiliate was filing a lawsuit," Infranco notes. The lawsuit challenging the monument's constitutionality alleged that its placement on federal land in the Mojave Desert violated the First Amendment's guarantee of separation of church and state and that the memorial cross should therefore be removed.

Supporters of the Mojave Desert Cross hoped to reach a settlement of the suit with the Department of Defense's transfer of the memorial land to private ownership in 2004. However, the ACLU claimed before the 9th Circuit that the property transfer was invalid -- a point ADF helped dispute in this week's appeals court hearing.

Such transfers already have legal precedent in several federal court cases, the ADF attorney notes. He says a number of federal appellate courts have already held that government property may be transferred to private ownership to prevent challenges based on the Establishment Clause, which, he notes "is that part of the First Amendment that is cited as the basis for the so-called separation of church and state." Although the jurisdictional circumstances were different, ADF recently helped defend a similar land transfer to save San Diego's Mount Soledad Cross in California.

Based on the precedents cited in the amicus brief, Infranco says ADF and the other cross supporters in Buono v. Kempthorne are hoping their argument that the transfer of the WWI memorial cross to private ownership was legal will prevail.

Surreal Mojave Cross video

Bush signs bill transferring Mount Soledad cross to federal control

By Dana Wilkie
COPLEY NEWS SERVICE

White House photo
President Bush prepares to sign the bill transferring the Mount Soledad cross to federal control Monday. Behind Bush were, from left, Bill Kellogg; Phil Thalheimer; San Diego Congressmen Brian Bilbray, Darrell Issa and Duncan Hunter; and Chuck LiMandri.

WASHINGTON – President Bush on Monday signed into law a plan to transfer San Diego's Mount Soledad cross to federal control in an effort to avoid its court-ordered removal.

In an Oval office ceremony, the Republican president signed a bill by three San Diego-area congressmen that immediately transfers the memorial land to the U.S. Defense Department in an effort to avoid a court-ordered removal of the cross that has towered over La Jolla on-and-off for nearly a century.

He was flanked by cross supporters from San Diego and the bill's chief architect, GOP Rep. Duncan Hunter of El Cajon.

“The president was pleased to sign this important piece of legislation into law,” said spokesman Peter Watkins:

“Today is a great day for America's veterans and the San Diego community,” said Hunter, whose bill passed the House last month with a 349-74 vote and passed the Senate unanimously two weeks later.

“The president's endorsement of this legislation validates years of tireless work and sends a clear message that America appreciates and respects its military men and women.”

James McElroy, the attorney for an atheist who first sued to remove the cross 17 years ago, said he petitioned the federal district court in San Diego last Thursday to void Congress' transfer.

“It's unfortunate that this is what our politicians do instead of respecting our constitution and the fact that we've had 17 years of decisions that have all come out the same way,” said McElroy, whose client won a ruling from a federal judge to remove the 29-foot cross by Aug. 1, an order the U.S. Supreme Court has put on hold.

The bill's final approval may mark a new era in the long-running parochial battle over the cross. Not only will the cross' future likely rest on interpretations of the federal Constitution instead of California's, it could become a national cause for supporters and opponents of religious symbols on public property.

“The president and Congress have no business intervening in this way in an ongoing legal proceeding,” said the Rev. Barry Lynn, executive director of Americans United for Separation of Church and State. “Today's action is an unwarranted, heavy-handed maneuver that undercuts the separation of church and state and the integrity of the judicial system.”

About 35 people were milling around the cross and memorial as the legislation was being signed.

Sue Bourne, 53, a Catholic school teacher's aide from San Diego was visiting the cross with her mother Betty. She said it was wonderful that the president had signed the bill and that she was tired of the ongoing fight.

“We vote for things to become law and then we have people that fight it,” she said. “If they don't want to look at the cross then don't come up here.”

She said she hopes the legislation would put an end to the fighting.

“How can they go against the president?” she said, shaking her head.

Kurt Olney, 57, a landscape contractor from La Jolla, came to the cross to take some pictures. His father, a World War II veteran, is on one of the plaques on the memorial and he is a Vietnam veteran himself. He said he thinks now that the tide has turned on the fight to keep the cross and that the memorial wouldn't be the same without it.

“What are they going to do, take the crosses off Arlington?” he asked

Catherine Williams, 54, a housewife from San Diego, said she came to the cross Monday specifically to be there when the president signed the law.

“I never knew how much the cross meant to me until the fight came and we almost lost it,” she said. “I'm proud to be in a city that puts up such a hard fight to keep it. And I'll be one of them.”

The first Soledad cross was built in 1913 and was featured in Easter sunrise services. The one built there in 1954 and dedicated as a veterans' memorial replaced another that had fallen in a windstorm.

Those fighting to remove the cross say it's a Christian religious symbol and should not sit on city land atop a prominent hill. They note that even historical maps refer to the monument as the “Mount Soledad Easter Cross.”

Bush clearly sided with those who believe the cross is part of a long-standing and culturally significant tribute to the war dead honored at the Mt. Soledad Veterans Memorial, and that it does not amount to a government preference for one religion over others.

Hunter's legislation aims to preserve the cross by vesting title to the memorial in the federal government and having it administered by the Secretary of Defense. The Department of Defense would manage the monument and the Mount Soledad Memorial Association would maintain it.

“As a native of San Diego for some 51 years now, I share the happiness of so many other people in the city that we're that much closer to being able to permanently preserve this great icon,” said Charles LiMandri, an attorney advising a group of cross supporters.

LiMandri was among those who attended the signing ceremony at the White House. Also there were Phil Thalheimer, chairman of the private group San Diegans for the Mount Soledad National War Memorial and William Kellogg, president of the Mount Soledad Memorial Association.

Mayor Jerry Sanders, who has fought to keep the cross atop 800-foot high Mount Soledad, could not make the ceremony, a spokesman said. He was planning to speak at the cross Monday afternoon.

“Today's action allows our Federal government to take the lead in preserving the integrity of the memorial against all those that would alter this key part of San Diego's history,” Sanders said in an early version of the remarks he planned to deliver at the cross.

“I believe the President has substantially improved the chances that the desires of a vast majority of San Diego voters – all those that voted to preserve the integrity of the memorial – will finally be fulfilled.”

Charlie Berwanger, attorney for the Mount Soledad Memorial Association, said the memorial's land would be transferred to the Defense Department immediately upon Bush's signature.

But he said federal attorneys must still file a notice of condemnation proceedings in federal court in San Diego. He said it remains unresolved what amount of compensation the federal government will offer the city and the association for the land.

“If we strike a deal with the (Defense Department) that we can manage and operate the property and do fundraising up there and have events, my client may not be too terribly concerned about compensation,” Berwanger said.

Many believe that with the cross in federal hands, the U.S. Constitution, not California's, will now become the yardstick by which its constitutionality is measured.

Cross supporters say the courts have been more willing to allow religious symbols on public land on federal constitutional grounds, particularly if the symbol has historic or cultural significance. Cross foes note that a pair of 5-4 rulings by the U.S. Supreme Court in separate cases involving the Ten Commandments established fuzzy guidelines.

The court found that a display inside a Kentucky courthouse was unconstitutional, but that a six-foot granite monument outside the Texas Capitol was legal.

Senate votes to put Mount Soledad cross in federal hands

By Dana Wilkie
COPLEY NEWS SERVICE

WASHINGTON – With a speed and decisiveness that surprised some, the Senate on Tuesday approved a plan to transfer the land beneath the Mount Soledad war memorial to federal control in an effort to avoid a court-ordered removal of the cross that stands there.

The Senate's unanimous vote sent the cross-transfer plan to President Bush for his expected signature. It creates what some consider an entirely new dynamic in the 17-year effort to save the cross, but which others say is a hopeless attempt to preserve a symbol on city land that courts have said unconstitutionally favors one religion over others.

“Obviously we're delighted,” said Charles LiMandri, an attorney advising a group of Soledad cross supporters. “I think even the more liberal side of the Democratic party has to recognize that there is widespread, grassroots support for preserving veterans memorials in general, and the Soledad cross in particular.”

James McElroy, the attorney representing atheist Philip Paulson – who first sued to remove the cross on the grounds it amounts to an unconstitutional preference of the Christian religion over others – said the bill is “still unconstitutional.”

“I guess the Senate has a short memory,” he said. “You've got a local issue here. What business does the federal government have getting involved?”

The legislation would preserve the 29-foot-tall cross on Mount Soledad by vesting title to the memorial in the federal government and having the Secretary of Defense administer it. The Department of Defense would manage the monument. The Mount Soledad Memorial Association, a private group that built the current cross in 1954 to honor Korean War veterans, would continue to maintain the site.

“Today's vote represents a significant step forward,” said El Cajon Rep. Duncan Hunter, the Republican who joined his two GOP colleagues from San Diego to write the cross-transfer legislation, which passed the House late last month. “The action taken by both the House and Senate reaffirm the overwhelming desire of the San Diego community to keep the memorial exactly where it has proudly stood for over 50 years.”

San Diego Mayor Jerry Sanders, who has fought to keep the cross atop 800-foot-high Mount Soledad, said through spokesman Fred Sainz that he was grateful for “the resonance” with which the Senate spoke on the issue.

“I think that the Senate was able to put political correctness aside for a moment and understand this truly is a war memorial,” Sainz said. “The fact there that a cross is part of it is an issue that senators of all religious faiths were able to come to terms with and accept.”

In July the U.S. Supreme Court temporarily blocked a lower court order forcing the city to remove the cross by yesterday (Aug.1) on grounds it violated the state constitution's ban on government support of religion.

The deadline was set by U.S. District Court Judge Gordon Thompson Jr., who first ordered the cross removed in 1991. It would have imposed a $5,000-a-day fine for failing to comply.

Senate approval came less than two weeks after the House voted 349-74 on July 19 to seize the land and give it to the Defense Department. After some brief wrangling among senators over who would carry the Hunter legislation through the upper chamber, the bill was placed on a so-called “consent calendar,” which indicated it had little opposition. “It's a hot potato, and I suspect the Senate would just as soon pass it and get it to the president and let the courts deal with it,” said Charlie Berwanger, attorney for the Mount Soledad Memorial Association, which has fought to keep the cross where it is.

McElroy said he didn't expect California Sens. Dianne Feinstein and Barbara Boxer, both Democrats, to embrace the measure as they did.

“I didn't expect them to go with this fad,” McElroy said. “But this has become good fodder for politicians in an election year.”

Feinstein and Boxer tend to be staunch church-state separation advocates. But both also support a plan to spend federal money to preserve California missions that hold church services because, the senators argue, the missions have historical significance.

“The Mount Soledad cross has been a great source of hope and inspiration for decades, and it has important historical significance to veterans and San Diegans alike,” Feinstein said.

Boxer said, “I believe this monument to be a memorial to our veterans, and therefore should be allowed to stay. The Hunter bill was drafted in a way that is consistent with the latest court action.”

Republican Gov. Arnold Schwarzenegger also supported the Senate action, saying that “allowing this landmark to be destroyed would send the wrong message to our nation's veterans.” Should the Mount Soledad cross end up in federal hands, its future likely will rest on interpretations of the federal Constitution, not California's. Cross supporters say the courts have been more willing to allow religious symbols on public land on federal constitutional grounds, particularly if the symbol has historic or cultural significance.

Last year, a pair of 5-4 rulings by the U.S. Supreme Court in separate cases involving the Ten Commandments established fuzzy guidelines: The court found that a display inside a Kentucky courthouse was unconstitutional, but that a 6-foot granite monument outside the Texas Capitol was all right.

“The time may be ripe for the court to revisit the issue,” said LiMandri. “They'll take this case because the law needs clarity.”

Cross foes note that the courts have ordered the removal of other crosses based on federal constitutional grounds. Five years ago, the American Civil Liberties Union successfully sued to remove a 5-foot-tall cross of metal tubing in the Mojave National Preserve, although the removal is on appeal.

“I don't think the Supreme Court is going to rewrite the Constitution or the last 50 years of precedent,” McElroy said. “This is not like the Ten Commandments cases. The Latin cross is a powerful symbol of religion.”

For now, congressional action does not interfere with various lawsuits being pursued in state and federal courts.

In state court, cross supporters are appealing a decision by a Superior Court judge that invalidated Proposition A, a measure approved last fall by 76 percent of San Diego voters that would have donated the cross to the federal government, but which the judge said violated the state Constitution.

In federal court, the city is appealing Thompson's order to remove the cross or be fined. That case is to be heard in October.

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.