Page 1

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT



FRANK BUONO,

Plaintiff-Appellee,

v.

No. 05-55852

DIRK KEMPTHORNE,* Secretary of

the Interior, in his official

D.C. No.

capacity; JONATHAN B. JARVIS,

CV-01-00216-RT

Regional Director, Pacific West

ORDER



Region, National Park Service,

AMENDING

Department of the Interior, in his

OPINION AND

official capacity; DENNIS SCHRAMM,

AMENDED

Superintendent, Mojave National

OPINION

Preserve, National Park Service,

Department of the Interior, in his

official capacity,

Defendants-Appellants. 

Appeal from the United States District Court

for the Central District of California

Robert J. Timlin, Senior Judge, Presiding

Argued and Submitted

April 9, 2007—Pasadena, California

Filed September 6, 2007

Amended May 14, 2008

*Dirk Kempthorne is substituted for his predecessor Gail Norton as

Secretary of the Department of the Interior. Dennis Schramm is substi-

tuted for his predecessor Mary Martin as the Superintendent of the Mojave

National Preserve. See Fed. R. App. P. 43(c)(2).

5493

Before: Betty B. Fletcher and M. Margaret McKeown,

Circuit Judges, and Ronald M. Whyte,** District Judge.

Opinion by Judge McKeown

**The Honorable Ronald M. Whyte, United States District Judge for

the Northern District of California, sitting by designation.

5494

BUONO v. KEMPTHORNE

COUNSEL

Sue Ellen Wooldridge, Kathryn E. Kovacs, United States

Department of Justice, Washington, D.C., for the defendants-

appellants.

5496

BUONO v. KEMPTHORNE

Peter J. Eliasberg, Mark D. Rosenbaum, ACLU Foundation of

Southern California, Los Angeles, California, for the plaintiff-

appellee.

Steven W. Fitschen, Colleen M. Holmes, The National Legal

Foundation, Virginia Beach, Virginia, for amicus curiae The

National Legal Foundation.

ORDER

The opinion filed September 6, 2007, slip op. 11793, and

appearing at 502 F.3d 1069, is amended as follows:

1. At slip op. 11816, footnote 13, delete “Although the

Seventh Circuit adopted a presumption that “a sale of real

property is an effective way for a public body to end its inap-

propriate endorsement of religion” in the absence of “unusual

circumstances,” Marshfield, 203 F.3d at 491, we decline to

adopt such presumption. The Supreme Court’s Establishment

Clause jurisprudence recognizes the need to conduct a fact-

specific inquiry in this area” and substitute: “The Seventh Cir-

cuit stated that “[a]bsent unusual circumstances, a sale of real

property is an effective way for a public body to end its inap-

propriate endorsement of religion. We are aware, however,

that adherence to a formalistic standard invites manipulation.

To avoid such manipulation, we look to the substance of the

transaction as well as its form to determine whether govern-

ment action endorsing religion has actually ceased.” Marsh-

field, 203 F.3d at 491. Read as a whole, the Seventh Circuit

position looks at the issue on a transaction-by-transaction

basis. We agree with this approach. However, to the extent

that Marshfield can be read to adopt a presumption of the

effectiveness of a land sale to end a constitutional violation,

we decline to adopt such a presumption. The Supreme Court’s

Establishment Clause jurisprudence recognizes the need to

conduct a fact-specific inquiry in this area.”

5497

BUONO v. KEMPTHORNE

With this amendment, the panel has voted to deny

Defendants-Appellants petition for panel rehearing. Judge

McKeown votes to deny the petition for rehearing en banc

and Judges B. Fletcher and Whyte so recommend.

The full court has been advised of Defendant-Appellant’s

petition for rehearing en banc, and a judge of this court

requested a vote on whether this case should be reheard en

banc; however, a majority of the active judges did not vote in

favor of en banc consideration. Fed. R. App. P. 35. Judge

Reinhardt was recused from considering the en banc issues in

this case and did not participate in the court’s decision.

The petition for panel rehearing and the petition for rehear-

ing en banc are denied. No further petitions for rehearing will

be entertained.

O’SCANNLAIN, Circuit Judge, dissenting from the denial of

rehearing en banc, joined by TALLMAN, BYBEE, CALLA-

HAN, and BEA, Circuit Judges:

The opinion in this case announces the rule that Congress

cannot cure a government agency’s Establishment Clause vio-

lation by ordering sale of the land upon which a religious

symbol previously was situated. Because such a novel rule

contravenes governing Supreme Court precedent, creates a

split with the Seventh Circuit on multiple issues, and invites

courts to encroach upon private citizens’ rights under both the

speech and religion clauses of the First Amendment, I respect-

fully dissent from our order rejecting rehearing en banc.

I

Seventy-four years ago, the Veterans of Foreign Wars

(“VFW”) erected atop Sunrise Rock in the Mojave National

5498

BUONO v. KEMPTHORNE

Preserve1 a memorial to veterans who died in World War I.

Buono v. Kempthorne, 502 F.3d 1069, 1072 (9th Cir. 2007)

(“Buono IV”). The memorial took the form of a cross, by

which stood a wooden sign stating, “The Cross, Erected in

Memory of the Dead of All Wars,” and “Erected 1934 by

Members of Veterans of Fore[ig]n Wars, Death Valley post

2884.” Id. The sign has since disappeared, and the cross has

been replaced several times, most recently in 1998. Id. Each

incarnation of the memorial was created and installed by pri-

vate citizens; there is no indication in the record that the citi-

zens ever received permission from the National Park Service

(“NPS”) to construct the memorial. Id.

In 2002, Frank Buono, a retired NPS employee, brought

suit against the Department of the Interior, seeking to enjoin

the continued presence of the cross on federal land. Buono v.

Norton, 212 F. Supp. 2d 1202, 1204 (C.D. Cal. 2002) (Buono

I). The district court determined that the presence of the cross

on federal land violated the Establishment Clause, and entered

an injunction ordering the government to remove the cross.

Id. at 1217.

During the pendency of the appeal from Buono I, Congress

enacted legislation ordering the Secretary of the Interior to

convey a one-acre parcel of land including Sunrise Rock to

the VFW in exchange for a parcel of privately-owned land of

equal value. Pub. L. No. 108-87, § 8121(a)-(f), 117 Stat.

1054, 1100 (2003) (“Section 8121”). The transfer was condi-

tioned on the VFW’s obligation to “maintain the conveyed

property as a memorial commemorating United States partici-

pation in World War I and honoring the American veterans of

that war.”2 § 8121(e). Under the terms of the statute, the gov-

1The Mojave National Preserve is a national park that encompasses

approximately 1.6 million acres of land in Southern California, approxi-

mately 90 percent of which is owned by the federal government. Buono

IV, 502 F.3d at 1072.

2In legislation previously enacted in 2002, Congress designated “[t]he

five-foot-tall white cross first erected by the [VFW] in 1934” a “national

5499

BUONO v. KEMPTHORNE

ernment retained a reversionary interest in the property “[i]f

the Secretary determines that the conveyed property is no lon-

ger being maintained as a war memorial.” Id. Critically, how-

ever, section 8121 did not mention the existence of a cross on

Sunrise Rock, nor did it require that the VFW retain the cross

as part of the memorial.

The agreement also provided that “the Secretary shall con-

tinue to carry out the responsibilities of the Secretary under”

Pub. L. No. 107-117 § 8137, 115 Stat. 2230 (2002).

§ 8121(a). Section 8137 required the Secretary to “use not

more than $10,000 of funds available for the administration

of the Mojave National Preserve to acquire a replica of the

original memorial plaque and cross placed at the national

World War I memorial.” Section 8137 does not confer any

other authority or obligation on the government.

Soon after the enactment of section 8121, but before the

land exchange had been carried out, we affirmed the district

court’s determination that the presence of the cross on federal

land violated the Establishment Clause. Buono v. Norton, 371

F.3d 543, 550 (9th Cir. 2004) (“Buono II”). However, we

expressly refused to consider “whether a transfer completed

under section 8121 would pass constitutional muster.” Id. at

546.

Following Buono II, the government completed the land

exchange. Buono then brought the present action, arguing that

section 8121 violated the district court’s injunction or, in the

alternative, that the land transfer itself violated the Establish-

ment Clause. See Buono v. Norton, 364 F. Supp. 2d 1175,

memorial commemorating United States participation in World War I and

honoring the American veterans of that war.” Pub. L. No. 107-117,

§ 8137, 115 Stat. 2230, 2278-79 (2002) (“Section 8137”); see also Pub. L.

No. 107-248, § 8065(b), 116 Stat. 1519, 1551 (2002) (barring the use of

federal funds “to dismantle national memorials commemorating United

States participation in World War I”).

5500

BUONO v. KEMPTHORNE

1177 (C.D. Cal. 2005) (“Buono III”). The district court held

that the government continued to violate the injunction fol-

lowing the land transfer, even though ownership of the cross

and the underlying land had been transferred to a private

party. See id. at 1182. Significantly, the district court there-

fore concluded that “it need not consider [Buono’s] other con-

tention that the land transfer itself is an independent violation

of the Establishment Clause.” Id. at 1182 n.8.

The Buono IV panel affirmed, holding that the pre-

divestment injunction remained enforceable because the gov-

ernment continued impermissibly to endorse religion despite

the transfer of Sunrise Rock. Buono IV, 502 F.3d at 1086. The

panel determined that such endorsement existed because: (1)

the government purportedly retained control and oversight

over Sunrise Rock, id. at 1082-83; (2) the government failed

to hold an open bidding process for the land, id. at 1084-85;

(3) the government purportedly had engaged in “long-

standing efforts to preserve and maintain the cross,” id. at

1085; and (4) the government continued to endorse religion

by permitting the cross at the site, id. at 1085-86.3

II

Buono IV squarely contradicts two Seventh Circuit opin-

ions holding that “[a]bsent unusual circumstances, a sale of

real property is an effective way for a public body to end its

inappropriate endorsement of religion.” Freedom from Reli-

gion Found., Inc. v. City of Marshfield, 203 F.3d 487, 491

(7th Cir. 2000) (upholding the sale of a portion of a municipal

park on which stood a statue of Jesus with arms extended);

3I note that the constitutionality of the transfer itself is not at issue in

this case. Because the district court solely concluded that state action per-

sisted and therefore expressly declined to consider whether “the land

transfer itself is an independent violation of the establishment clause,”

Buono III, 364 F. Supp. 2d at 1182 n.8, the Buono IV opinion presupposes

that the transfer is not independently violative.

5501

BUONO v. KEMPTHORNE

see also Mercier v. Fraternal Order of Eagles, 395 F.3d 693,

702-03 (7th Cir. 2005) (upholding the sale of a portion of a

municipal park with monument of Ten Commandments). The

Seventh Circuit properly applied the principle that once

publicly-owned land is transferred to a private party, govern-

ment action ceases, and the Establishment Clause violation

necessarily goes with it. Marshfield, 203 F.3d at 491

(“Because of the difference in the way we treat private speech

and public speech, the determination of whom we should

impute speech onto is critical.”).

The “unusual circumstances” exception noted by the Sev-

enth Circuit therefore merely incorporated well-established

Supreme Court precedent concerning when state action may

be imputed to private parties despite the transfer of once-

public land: a continuation of state action may be found

“when a set of unusual facts and circumstances demonstrate[ ]

that the government remain[s] intimately involved in exclu-

sively public functions that ha[ve] been delegated to private

organizations.” Id. at 492 (citing Evans v. Newton, 382 U.S.

296 (1966); Terry v. Adams, 345 U.S. 461 (1953); Marsh v.

Alabama, 326 U.S. 501 (1946)). That is, state action may be

imputed to private parties in the “extraordinary circum-

stance[ ]” that the “transfer [has not] eliminated the actual

involvement of the [government] in the daily maintenance and

care of the [property].” Flagg Bros., Inc. v. Brooks, 436 U.S.

149, 159 n.8 (1978) (discussing Evans, 382 U.S. at 301); see

Marshfield, 203 F.3d at 492.

Under such precedent, the only relevant issue is whether

there is continuing state action, absent which the govern-

ment’s intent or any atypical circumstances are of no conse-

quence. See Marshfield, 203 F.3d at 491; see also Capitol

Square Review & Advisory Bd. v. Pinette, 515 U.S. 753, 779

(1995) (O’Connor, J., concurring) (“[A]n Establishment

Clause violation must be moored in government action of

some sort.”); Bd. of Educ. v. Mergens, 496 U.S. 226, 250

(1990) (plurality opinion) (“[T]here is a crucial difference

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BUONO v. KEMPTHORNE

between government speech endorsing religion, which the

Establishment Clause forbids, and private speech endorsing

religion, which the Free Speech and Free Exercise Clauses

protect.”) (emphasis in original). Indeed, the court in Marsh-

field upheld the relevant land sale despite the appellants’ con-

tention that it was a “ ‘sweetheart deal’ . . . concocted to

circumvent the government action requirement,” precisely

because the sale extinguished state action. 203 F.3d at 491;

see also Mercier, 395 F.3d at 702 (rejecting the argument that

the transfer was unconstitutional because “[t]he City Council

knew that it was faced with a lawsuit seeking the removal of

the Monument”).

Nevertheless, the Buono IV opinion splits from the Seventh

Circuit’s rule and from binding Supreme Court precedent by

creating an “unusual circumstances” test that extends well

beyond the limited circumstances in which state action per-

sists. That is, Buono IV improperly faults the government for:

• (1) Having the purported authority to control

Sunrise Rock, despite the utter lack of evidence

that it would actually contribute to the mainte-

nance and care of the memorial;

• (2) Possessing the intent to preserve the Sunrise

Rock memorial, even though such consideration

is irrelevant absent state action; and

• (3) Failing to hold an open bidding process, even

though Marshfield and the Evans line of cases

demonstrate that state action ceases once Sunrise

Rock is privately owned.

What is altogether missing in this case is any evidence that

the government has maintained or will maintain or support the

Sunrise Rock cross after the land transfer.4 See Evans, 382

4As Marshfield plainly suggests, the reversionary clause in section 8121

does not constitute state action where the government has not “made any

effort to enforce [it].” 203 F.3d at 492-93.

5503

BUONO v. KEMPTHORNE

U.S. at 301 (relying on the fact that, following the govern-

ment’s resignation as trustee over the relevant land, “there has

been no change in municipal maintenance and concern over

[it],” such that “[w]hether these public characteristics will in

time be dissipated is wholly conjectural”); Marshfield, 203

F.3d at 493 (declining to conjecture on “the conduct of the

parties following the sale of [the] property”).

Accordingly, while the Buono IV opinion pays lip service

to the “unusual circumstances” exception mandated by the

Evans line of cases, it has bestowed upon judges the extraor-

dinary authority to enjoin private parties from displaying reli-

gious symbols on their own land based solely on the

government’s pre-divestment conduct, absent any showing

that the government would remain “intimately involved” in

the care and maintenance of privately-owned land.

Moreover, the deference owed to Congress forecloses us

from striking down legislation based upon a presumption that

the government will violate the Constitution in the future. See

Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Const.

Trades Council, 485 U.S. 568, 575 (1988) (“Congress, like

this Court, is bound by and swears an oath to uphold the Con-

stitution. The courts will therefore not lightly assume that

Congress intended to infringe constitutionally protected liber-

ties or usurp power constitutionally forbidden it.”); see also

Wash. State Grange v. Wash. State Republican Party, 128

S. Ct. 1184, 1190 (2008) (“In determining whether a law is

facially invalid, we must be careful not to go beyond the stat-

ute’s facial requirements and speculate about ‘hypothetical’ or

‘imaginary’ cases.”); INS v. St. Cyr, 533 U.S. 289, 200 n.12

(2001) (“[T]he elementary rule is that every reasonable con-

struction must be resorted to, in order to save a statute from

unconstitutionality.”) (internal quotation marks omitted). By

holding that the district court could invalidate section 8121

without a finding that the government would remain “inti-

mately involved” in the maintenance and care of the Sunrise

Rock memorial post-divestment, the Buono IV opinion flouts

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BUONO v. KEMPTHORNE

such “fundamental principle of judicial restraint.” Wash. State

Grange, 128 S. Ct. at 1191.

III

Buono IV also splits from the Seventh Circuit on a second,

equally important issue. After holding that the government

failed the Lynch endorsement test by inadequately distancing

itself from the Sunrise Rock memorial, the opinion upholds a

remedy compelling the VFW to sacrifice its private rights in

Sunrise Rock to cure the government’s constitutional viola-

tion. Buono IV, 502 F.3d at 1085-86; see also Buono II, 371

F.3d at 548-49 (discussing Lynch v. Donnelly, 465 U.S. 668

(1984)).

Yet the Seventh Circuit correctly held that a private party’s

rights may not be brushed aside to remedy the government’s

violative conduct; rather, the only proper remedy is to enjoin

the government’s improper conduct. See Marshfield, 203 F.3d

at 497 (“[E]ither the Fund, a private land owner, must be

estopped from exercising its right to free exercise and free-

dom of speech on its own property, or some way must be

found to differentiate between property owned by the Fund

and property owned by the City. The latter—not the former—

is the appropriate solution.”). Indeed, on remand in Marsh-

field, the district court required that the government erect a

fence around the statue; the statue, however, was permitted to

remain on the now-private property, precisely because of the

protection owed to the private landowner under the First

Amendment. See Freedom From Religion Found., Inc. v.

Marshfield, No. 98-C-270-S, 2000 WL 767376 (W.D. Wis.

May 9, 2000).

By holding that a private citizen’s rights may be infringed

simply because his land was publicly owned in the past, or

because it presently sits next to publicly-owned land, or

because a hypothetical viewer might mistakenly confuse it

with such land, the Buono IV opinion recklessly splits from

5505

BUONO v. KEMPTHORNE

the Seventh Circuit and announces a broad and unprecedented

rule that should not be allowed to stand.5

IV

Moreover, while the Buono IV opinion concludes that the

government will continue to endorse religion even after trans-

ferring Sunrise Rock to the VFW, the opinion fails even to

mention the government’s argument that the pre-divestment

injunction was mooted by the Supreme Court’s intervening

decisions in McCreary County v. ACLU, 545 U.S. 844 (2005),

and Van Orden v. Perry, 545 U.S. 677 (2005). Because the

central considerations in Van Orden are almost entirely on

point with the facts of Buono IV, such precedent forecloses

the continued enforcement of the injunction.

As was the case in Van Orden, the Sunrise Rock memorial

was constructed by a private, secular organization—indeed,

the memorial in this case was installed without government

permission—away from a captive audience, and both were

packaged with a “nonsectarian text” evincing a clearly secular

purpose. Van Orden, 545 U.S. at 701-02 (Breyer, J., concur-

ring). Moreover, just as Justice Breyer’s controlling concur-

rence in Van Orden found dispositive that the Ten

Commandments statue had existed for 40 years before the

underlying suit, the Sunrise Rock cross has existed for nearly

double that amount of time. See id. at 702 (“As far as I can

tell, 40 years passed in which the presence of this monument,

legally speaking, went unchallenged . . . [T]hose 40 years sug-

gest more strongly than can any set of formulaic tests that few

individuals, whatever their system of beliefs, are likely to

have understood the monument as amounting . . . to a govern-

5Indeed, such reasoning equally applies to the Buono IV opinion’s con-

clusion that the government retained authority to control Sunrise Rock.

The appropriate remedy would be to enjoin such alleged government con-

trol, rather than to require the removal of the memorial despite the VFW’s

private ownership of it.

5506

BUONO v. KEMPTHORNE

ment effort to favor a particular religious sect, primarily to

promote religion . . . .”); compare McCreary, 545 U.S. at 851

(Ten Commandments statues were put in place by govern-

ment officials in 1999).

While the cross at Sunrise Rock takes the form of an ordi-

narily religious symbol, it serves the secular purpose of

memorializing fallen soldiers.6 Of course, the monument in

Van Orden was also an ordinarily religious symbol, but that

fact alone was insufficient to constitute a violation of the

Establishment Clause. See Van Orden, 545 U.S. at 703 (con-

cluding that the monument “serv[ed] a mixed but primarily

nonreligious purpose”). Additionally, while the statue in Van

Orden was placed in a “large park” with other monuments,

the lack of any challenge to the Sunrise Rock memorial for

seven decades surely demonstrates that the public understands

and accepts its secular commemorative purpose. See id. at

701-02; Card v. City of Everett, 520 F.3d 1009, 1021 (9th Cir.

2008) (noting that public complaints “did not surface until the

monument had been in place for over thirty years”).7

By altogether ignoring the dispositive considerations in

Van Orden, the Buono IV opinion vitiates the Supreme

Court’s caution against applying the endorsement test in a

6Indeed, there are many monuments on public land that use the cross to

commemorate the sacrifice of fallen soldiers, particularly those in World

War I. To name some examples: the Argonne Cross Memorial and the

Canadian Cross of Sacrifice in Arlington National Cemetery; the French

Cross Monument in the Cypress Hill National Cemetery; the Peace Cross

in Bladensburg, Maryland; the Unknown Soldiers Monument in Prescott

National Cemetery; and the Wall of Honor at the Pennsylvania Military

Museum. These monuments surely honor soldiers of all creeds, and no

reasonable viewer would conclude that they exclude or discount the sacri-

fice of non-Christians.

7Van Orden certainly may not be construed as narrowly requiring such

a clustering of monuments; Justice Breyer’s concurrence explicitly cited

other factors in determining that its presence on state land did not violate

the Establishment Clause. See Van Orden, 545 U.S. at 701-02.

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BUONO v. KEMPTHORNE

manner that has “radical implications for our public policy.”

Pinette, 515 U.S. at 768 (1995) (plurality opinion); see also

Corp. of the Presiding Bishop of the Church of Jesus Christ

of Latter-Day Saints v. Amos, 483 U.S. 327, 334 (1987)

(“There is ample room under the Establishment Clause for

benevolent neutrality which will permit religious exercise to

exist without sponsorship and without interference.”) (internal

quotation marks omitted).

V

In addition to discussing the foregoing inter-circuit and pre-

cedential conflicts, I must voice my strong disagreement with

the merits of the Buono IV opinion.

A

First, Buono IV concludes that “the various statutes”

involved in this case, “when read as a package, evince contin-

uing government control.” Buono IV, 502 F.3d at 1082. How-

ever, while the NPS Director, under the supervision of the

Secretary of the Interior, is responsible for overall manage-

ment and supervision of the Mojave National Preserve,

including “the supervision, management, and control of

national monuments,” 16 U.S.C. § 2, such authority applies

only to federal land, see 16 U.S.C. § 431 (authority to declare

national monuments expressly limited to objects “situated

upon the lands owned or controlled by the Government of the

United States”); see also 16 U.S.C. § 1 (“The service thus

established shall promote and regulate the use of the Federal

areas known as national parks, monuments, and reservations

hereinafter specified . . . .”) (emphasis added). Additionally,

while § 431 provides that the Secretary of the Interior may

accept relinquishment of privately-owned property to provide

“the proper care and management” of monuments, it does not

authorize government officials forcibly to take private prop-

erty to provide such care or to enter private land.

5508

BUONO v. KEMPTHORNE

Section 8121(a), likewise, provides little support for the

opinion’s conclusion, as it merely requires the Secretary of

the Interior to carry out the duties set forth in section 8137.

Section 8137 very clearly delineates the limited obligations

owed by the Secretary, namely that the Secretary “acquire a

replica of the original memorial plaque and cross placed at the

national World War I memorial,” and “install the plaque in a

suitable location on the grounds of the memorial.” Simply

put, if Congress wanted to retain the broad oversight sug-

gested by the Buono IV opinion, it would have said as much,

particularly if it was so firmly committed to ensuring that the

Sunrise Rock memorial will retain its present form.8 Indeed,

it is telling that the district court came to precisely the same

conclusion. See Buono III, 364 F. Supp. 2d at 1180 (finding

that section 8121 “[gave] the Secretary access to the subject

property in the form of an easement or license for a particular

purpose,” namely, to make a replica of the statue and install

a replica of the plaque). I fail to see how such trivial, fleeting

duties constitute “intimate involvement” sufficient to strike

down section 8121.

B

Second, Buono IV faults the government for failing to hold

a hearing before transferring the land to the VFW, determin-

ing that such conduct constituted the improper “exclusion of

other purchasers.” 502 F.3d at 1084-85. The opinion cites 16

U.S.C. § 460l-22 in support, but that statute is wholly irrele-

vant, as it solely concerns land transfers initiated by the Sec-

retary of Interior, whereas the land exchange in question here

was directly authorized by Congress. See Id. Contrary to the

8Likewise, as noted, the reversionary clause in section 8121 cannot con-

stitute state action absent an attempt by the government to exercise it. See

Marshfield, 203 F.3d at 491-93 (holding that a covenant requiring that the

transferred land be used as a public park “will not affect the validity of the

transfer” because “[t]he plaintiffs do not contend that the City has made

any effort to enforce this restrictive covenant”).

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BUONO v. KEMPTHORNE

suggestion in Buono IV, under § 460l-22(b), the Secretary is

required to hold an open bidding process only “[u]pon request

of a State or a political subdivision thereof, or of a party in

interest, prior to such exchange.” There is no indication in the

record that any such party requested a hearing in this case.

Thus, even if Congress is somehow bound by subordinate

administrative rules, the transfer of Sunrise Rock was per-

fectly appropriate under the plain language of § 460l-22(b).9

In any event, the Buono IV opinion comes to the perplexing

conclusion that Congress’s failure to comply with “agency

procedures” binding solely the Secretary of Interior demon-

strates that Congress acted inappropriately in its failing to

hold an open bidding process. Buono IV, 502 F.3d at 1085. I

am unaware of any precedent suggesting that congressional

action is in any way suspect where it fails to adhere to an

agency’s procedural rules. I also am unaware of any precedent

disparaging a land transfer for having been enacted in an

appropriations bill, nor does the Buono IV opinion cite to any

caselaw in support of such consideration. 502 F.3d at 1084.10

9Even assuming that 16 U.S.C. § 460l-22 is relevant to its decision,

Buono IV errs in discussing § 460l-22(a). As the district court found and

the parties expressly conceded on appeal, the land exchange in this case

would have been governed solely by § 460l-22(b) had it been authorized

by the Secretary of the Interior rather than mandated by Congress. See

Buono III, 364 F. Supp. 2d at 1181.

10Moreover, here again the opinion shrugs off the conflicting holdings

in Marshfield and Mercier, which “upheld the sale of property to a private

party without an open market bidding process.” Buono IV, 502 F.3d at

1084-85; see also Marshfield, 203 F.3d at 492-93; Mercier, 395 F.3d at

702-03. Indeed, as in those cases, the Sunrise Rock memorial was trans-

ferred to the most “logical purchaser,” namely the organization that con-

structed the memorial in the first place. Buono IV, 502 F.3d at 1084-85.

The panel fails to provide any reason for diverging from the Seventh Cir-

cuit’s holdings, short of discussing the purported conflict with “normal

agency procedures.”

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BUONO v. KEMPTHORNE

C

Third, the opinion points to “the government’s long-

standing efforts to preserve and maintain the cross atop Sun-

rise Rock” as supporting the conclusion “that the govern-

ment’s purpose in this case is to evade the injunction and keep

the cross in place.” Buono IV, 502 F.3d at 1085. Whether the

government sought to evade the injunction in the past is col-

lateral to the issue before us; the only relevant issue is

whether the transfer rendered the injunction moot by divest-

ment of Sunrise Rock to a private party. See Paulson v. City

of San Diego, 475 F.3d 1047, 1048 (9th Cir. 2007) (holding

that an injunction prohibiting, under the California Constitu-

tion, the continued existence of a cross on municipal property

was rendered moot when the municipality transferred the land

to the federal government, which is not bound by state law);

cf. Staley v. Harris County, 485 F.3d 305, 308-09 (5th Cir.

2007) (en banc) (holding that an injunction ordering the

removal of a religious monument was mooted by the munici-

pality’s decision to temporarily remove the statue). Of course,

the government may moot an injunction by curing the viola-

tion that spurred it; Paulson, as well as common sense, com-

pel no less. Accordingly, Buono IV faults the government for

engaging in conduct that was perfectly permissible. I fail to

see why the government’s past, unsuccessful efforts to cure

the Establishment Clause violation should foreclose it from

pursuing further legitimate efforts.

In any event, given our opinion in Buono II, it is easy to

understand why the government would conclude that carrying

out the land transfer was an appropriate response: we based

our holding that the Sunrise Rock cross violated the Establish-

ment Clause on its having been situated on “publicly-owned

land,” and we expressly refused to address the constitutional-

ity of a land transfer under section 8121. Buono II, 371 F.3d

at 548-49. Accordingly, the government reasonably concluded

that we condoned the land transfer, notwithstanding a subse-

quent decision on the constitutionality of section 8121; to

5511

BUONO v. KEMPTHORNE

fault the government for carrying out section 8121 is nothing

short of a judicial “bait-and-switch.” If anything, transferring

the land was the obvious next step in attempting to cure the

violation while ensuring the continued presence of a 74-year-

old war memorial. See Mercier, 395 F.3d at 705 (“The City

is able to extricate itself completely from the implied endorse-

ment of the purpose and content of the religious symbol, yet

the Monument can remain in the location it has occupied for

many years.”).

VI

The Buono IV opinion contravenes binding Supreme Court

precedent, creates a split from the Seventh Circuit on multiple

issues, invests judges with the dangerous and unprecedented

authority to infringe upon fundamental private rights, and

rests on patently flawed reasoning. I sympathize with my col-

leagues’ frustration that a court can lose control of its injunc-

tion by the enjoined party’s unanticipated abdication of

ownership, thus mooting the case. But such risk is inherent in

our trade, and for good reason.

I therefore respectfully dissent from our unfortunate deci-

sion not to rehear this case en banc.

OPINION

McKEOWN, Circuit Judge:

A Latin cross sits atop a prominent rock outcropping

known as “Sunrise Rock” in the Mojave National Preserve

(“Preserve”). Our court previously held that the presence of

the cross in the Preserve—which consists of more than 90

percent federally-owned land, including the land where the

cross is situated—violates the Establishment Clause of the

United States Constitution. Buono v. Norton, 371 F.3d 543

5512

BUONO v. KEMPTHORNE

(9th Cir. 2004). We affirmed the district court’s judgment per-

manently enjoining the government “from permitting the dis-

play of the Latin cross in the area of Sunrise Rock in the

Mojave National Preserve.”

During the pendency of the first appeal, Congress enacted

a statute directing that the land on which the cross is situated

be transferred to a private organization in exchange for a par-

cel of privately-owned land located elsewhere in the Preserve.

See Pub.L. No. 108-87, R. 12.1, 12.4 § 8121(a)-(f), 117 Stat.

1100 (2003). That land exchange is already in progress and

would leave a little donut hole of land with a cross in the

midst of a vast federal preserve. The issue we address today

is whether the land exchange violates the district court’s per-

manent injunction. We conclude that it does, and affirm the

district court’s order permanently enjoining the government

from effectuating the land exchange and ordering the govern-

ment to comply with the original injunction.

BACKGROUND1

I. THE MOJAVE NATIONAL PRESERVE

The Preserve encompasses approximately 1.6 million acres,

or 2,500 square miles, of primarily federally-owned land in

the Mojave Desert, located in Southeastern California. In

1994, the Bureau of Land Management (“BLM”) transferred

the land to the National Park Service (“NPS”); both the BLM

and the NPS are federal agencies under the Department of the

Interior (“DOI”). Within the Preserve, approximately 86,000

acres of land are privately owned and 43,000 acres belong to

the State of California. Thus, slightly more than 90 percent of

the land in the Preserve is federally owned. The Preserve is

1Further background detail is found in the district court’s order and our

prior opinion on the merits of the Establishment Clause challenge. See

generally Buono v. Norton, 212 F. Supp. 2d 1202 (C.D. Cal. 2002)

(“Buono I”); Buono, 371 F.3d 543 (9th Cir. 2004) (“Buono II”).

5513

BUONO v. KEMPTHORNE

a “unit of the National Park System” and is given “statutory

protection as a national preserve.” 16 U.S.C. § 410aaa-41,

410aaa-42; id. § 1(c). The Preserve is under NPS jurisdiction

and authority. Id. § 410aaa-46.

II. THE CROSS

The current incarnation of the cross atop Sunrise Rock is

between five and eight feet tall and is constructed out of four-

inch diameter metal pipes painted white. It is a Latin cross,

meaning that it has two arms, one horizontal and one vertical,

at right angles to one another. It is undisputed that “[t]he Latin

cross is the preeminent symbol of Christianity. It is exclu-

sively a Christian symbol, and not a symbol of any other reli-

gion.” Buono I, 212 F. Supp. 2d at 1205.

Historic records reflect that a wooden cross was built on

that location as early as 1934 by the Veterans of Foreign Wars

(“VFW”) as a memorial to veterans who died in World War

I. Photographs depict the wooden cross and signs near it stat-

ing: “The Cross, Erected in Memory of the Dead of All

Wars,” and “Erected 1934 by Members of Veterans of

Foregin [sic] Wars, Death Valley post 2884.” The wooden

signs are no longer present, and the original wooden cross,

which is no longer standing, has been replaced by private par-

ties several times since 1934. The cross has been an intermit-

tent gathering place for Easter religious services since as early

as 1935, and regularly since 1984.

The current version of the cross was built by Henry San-

doz, a local resident, sometime in 1998. When NPS investi-

gated the history of the cross, Sandoz explained that he drilled

holes into Sunrise Rock to bolt the cross in place, making it

difficult to remove. Sandoz did not receive a permit from NPS

to construct the cross.

Following Buono I’s injunction against display of the cross,

the cross has been covered by a plywood box. When uncov-

5514

BUONO v. KEMPTHORNE

ered, the cross is visible from vehicles traveling on Cima

Road, which passes through the Preserve, from a distance of

approximately 100 yards away. No sign indicates that the

cross was or is intended to act as a memorial for war veterans.

III. LITIGATION OVER THE CROSS AND THE CONGRESSIONAL

RESPONSE

The current controversy surrounding the cross surfaced in

1999, when NPS received a request from an individual seek-

ing to build a “stupa” (a dome-shaped Buddhist shrine) on a

rock outcropping at a trailhead located near the cross. NPS

denied that request, citing 36 C.F.R. § 2.62(a)2 as prohibiting

the installation of a memorial without authorization. A hand-

written note on the denial letter warns that “[a]ny attempt to

erect a stupa will be in violation of Federal Law and subject

you to citation and/or arrest.” The letter also indicates that

“[c]urrently there is a cross on [a] rock outcrop located on

National Park Service lands. . . . It is our intention to have the

cross removed.”

In 1999, NPS undertook a study of the history of the cross.

NPS determined that neither the cross nor the property on

which it is situated qualifies for inclusion in the National Reg-

ister of Historic Places. Specifically, NPS recognized that the

cross itself “has been replaced many times and the plaque that

once accompanied it (even though it is not known if it is origi-

nal) has been removed.” Also, the property does not qualify

as an historical site because, among other things, “the site is

used for religious purposes as well as commemoration.”

Following the announcement by NPS of its intention to

remove the cross, the United States Congress passed a series

2The regulation provides that: “The installation of a monument, memo-

rial, tablet, structure, or other commemorative installation in a park area

without the authorization of the Director is prohibited.” 36 C.F.R.

§ 2.62(a).

5515

BUONO v. KEMPTHORNE

of laws, described below, to preserve the Sunrise Rock cross.

The first piece of legislation, enacted in December 2000, pro-

vided that no government funds could be used to remove the

cross. See Pub. L. No. 106-554 § 133, 114 Stat. 2763A-230

(2000) (hereafter “§ 133”).3

A. Buono I

Frank Buono4 filed suit in March 2001 against the Secre-

tary of the DOI, the Regional Director of NPS, and the Super-

intendent of the Preserve (collectively, “NPS” or

“Defendants”). The district court concluded that the presence

of the cross in the Preserve violates the Establishment Clause.

See Buono I, 212 F. Supp. 2d at 1215-17. In July 2002, the

court entered a permanent injunction ordering that the “De-

fendants, their employees, agents, and those in active concert

with Defendants, are hereby permanently restrained and

enjoined from permitting display of the Latin cross in the area

of Sunrise Rock in the Mojave National Preserve.”5

3“None of the funds in this or any other Act may be used by the Secre-

tary of the Interior to remove the five-foot-tall white cross located within

the boundary of the Mojave National Preserve in southern California first

erected in 1934 by the Veterans of Foreign Wars along Cima Road

approximately 11 miles south of Interstate 15.” § 113 (emphasis added).

4Buono is a retired NPS employee who worked for the agency from

1972 to 1997. From September 1994 to December 1995, Buono worked

as the Assistant Superintendent of the Preserve.

5We granted the government’s motion to stay the injunction pending

appeal, insofar as the injunction required NPS to immediately remove or

dismantle the cross. The stay did not apply to any “alternative methods”

for complying with, or additional obligations imposed by, the district

court’s order. See Buono II, 371 F.3d at 545 n.1 (discussing stay orders).

During the appeal, NPS covered the cross, first with a large tarpaulin and

later with a plywood box, which the government asserts will remain in

place pending resolution of this action.

5516

BUONO v. KEMPTHORNE

B. DESIGNATION OF THE CROSS AS A NATIONAL MEMORIAL

In January 2002, while this matter was pending in district

court, Congress passed a defense appropriations bill, which

included a section designating the Sunrise Rock cross as a

“national memorial.” See Pub.L. No. 107-117 § 8137, 115

Stat. 2278-79 (2002), codified at 16 U.S.C. § 410aaa-56

(note) (hereafter “§ 8137”). That section provides:

(a) DESIGNATION OF NATIONAL MEMORIAL.

—The five-foot-tall white cross first erected by the

Veterans of Foreign Wars of the United States in

1934 along Cima Road in San Bernardino County,

California, and now located within the boundary of

the Mojave National Preserve, as well as a limited

amount of adjoining Preserve property to be desig-

nated by the Secretary of the Interior, is hereby des-

ignated as a national memorial commemorating

United States participation in World War I and hon-

oring the American veterans of that war.

(b) LEGAL DESCRIPTION.—The memorial cross

referred to in subsection (a) is located at latitude

35.316 North and longitude 115.548 West. The exact

acreage and legal description of the property to be

included by the Secretary of the Interior in the

national World War I memorial shall be determined

by a survey prepared by the Secretary.

(c) REINSTALLATION

OF

MEMORIAL

PLAQUE.—The Secretary of the Interior shall use

not more than $10,000 of funds available for the

administration of the Mojave National Preserve to

acquire a replica of the original memorial plaque

and cross placed at the national World War I memo-

rial designated by subsection (a) and to install the

plaque in a suitable location on the grounds of the

memorial.

5517

BUONO v. KEMPTHORNE

Id. (emphases added). The cross is designated the “White

Cross World War I Memorial.” 16 U.S.C. § 431 (note).

NPS is statutorily charged with “the supervision, manage-

ment, and control of the several national parks and national

monuments.” 16 U.S.C. § 2. National “memorials” fall within

the broader category of national “monuments.” See U.S.C.

§ 431 (note) (identifying recognized national monuments,

including various categories of “national monuments” and

“national memorials”).

In October 2002, less than three months after the district

court’s injunction, in legislation aimed at the Sunrise Rock

cross, Congress passed a defense appropriations bill that

included a provision barring the use of federal funds “to dis-

mantle national memorials commemorating United States par-

ticipation in World War I.” Pub. L. No. 107-248 § 8065(b),

116 Stat.1551 (2002) (hereafter “§ 8065”).

C. BUONO II AND PASSAGE OF § 8121

The government appealed the district court’s order and

injunction. In September 2003, one month after oral argument

before a panel of our court but before a decision issued, Con-

gress enacted another defense appropriations bill that included

a land exchange agreement regarding the Sunrise Rock cross.

See Pub. L. No. 108-87 § 8121(a)-(f), 117 Stat. 1100 (2003),

codified at 16 U.S.C. § 410aaa-56 (note), (hereafter

“§ 8121”). The statute provides:

(a) EXCHANGE REQUIRED.— In exchange for

the private property described in subsection (b), the

Secretary of the Interior shall convey to the Veterans

Home of California— Barstow, Veterans of Foreign

Wars Post #385E (in this section referred to as the

“recipient”), all right, title, and interest of the United

States in and to a parcel of real property consisting

of approximately one acre in the Mojave National

5518

BUONO v. KEMPTHORNE

Preserve and designated (by section 8137 of the

Department of Defense Appropriations Act, 2002

(Public Law 107-117; 115 Stat. 2278)) as a national

memorial commemorating United States participa-

tion in World War I and honoring the American vet-

erans of that war. Notwithstanding the conveyance

of the property under this subsection, the Secretary

shall continue to carry out the responsibilities of the

Secretary under such section 8137.

(b) CONSIDERATION.—As consideration for the

property to be conveyed by the Secretary under sub-

section (a), Mr. and Mrs. Henry Sandoz of Mountain

Pass, California, have agreed to convey to the Secre-

tary a parcel of real property consisting of approxi-

mately five acres, identified as parcel APN 569-051-

44, and located in the west 1/2 of the northeast 1/4

of the northwest 1/4 of the northwest 1/4 of section

11, township 14 north, range 15 east, San Bernardino

base and meridian.

§ 8121(a)-(b) (emphases added). The government retains a

reversionary interest in the property as follows:

(e) REVERSIONARY CLAUSE. — The convey-

ance under subsection (a) shall be subject to the con-

dition that the recipient maintain the conveyed

property as a memorial commemorating United

States participation in World War I and honoring the

American veterans of that war. If the Secretary

determines that the conveyed property is no longer

being maintained as a war memorial, the property

shall revert to the ownership of the United States.

§ 8121(e) (emphasis added). The cross-reference in § 8121(a)

to § 8137 pertains to use of federal funds to acquire a replica

cross and plaque. See § 8197(c). The land transfer was under-

5519

BUONO v. KEMPTHORNE

way when the district court enjoined its enforcement, as

described below.

In June 2004, in affirming the district court’s permanent

injunction, we held that the presence of the cross in the Pre-

serve violates the Establishment Clause, agreeing with the

district court that this case is “squarely controlled” by Separa-

tion of Church and State Committee v. City of Eugene, 93

F.3d 617 (9th Cir. 1996) (“SCSC”). Buono II, 371 F.3d at 548.

In SCSC, we reasoned that the presence of a cross on city

land, even where it bore a plaque dedicating the cross as a war

memorial to veterans, 93 F.3d at 618, violated the Establish-

ment Clause because “the presence of the cross may reason-

ably be perceived as governmental endorsement of

Christianity.” Id. at 620.

The government’s several attempts to distinguish SCSC

were not persuasive. For example, we held that it was “of no

moment” that the cross in SCSC was significantly taller,

located in an urban area, or illuminated during certain holi-

days:

Though not illuminated, the cross here is bolted to a

rock outcropping rising fifteen to twenty feet above

grade and is visible to vehicles on the adjacent road

from a hundred yards away. Even if the shorter

height of the Sunrise Rock cross means that it is visi-

ble to fewer people than was the SCSC cross, this

makes it no less likely that the Sunrise Rock cross

will project a message of government endorsement.

. . . Nor does the remote location of Sunrise Rock

make a difference. That the Sunrise Rock cross is not

near a government building is insignificant — nei-

ther was the SCSC cross. What is significant is that

the Sunrise Rock cross, like the SCSC cross, sits on

public park land. National parklands and preserves

embody the notion of government ownership as

much as urban parkland, and the remote location of

5520

BUONO v. KEMPTHORNE

Sunrise Rock does nothing to detract from that

notion.

Buono II, 371 F.3d at 549-50 (emphasis added).

We also held that a reasonable observer, even without

knowing whether Sunrise Rock is federally owned, would

believe—or at least suspect—that the cross rests on public

land because of the vast size of the Preserve, more than 90

percent of which is federally owned. Id. at 550 (citing reason-

able observer test set forth in Capitol Square Review & Advi-

sory Bd. v. Pinette, 515 U.S. 753, 780-81 (1995) (O’Connor,

J., concurring)). A reasonably informed observer aware of the

history of the Sunrise Rock cross would know not only that

the cross was erected by private individuals (which the gov-

ernment argued favored its view), but also that Congress has

taken various measures to preserve the cross, i.e., designating

it a war memorial, prohibiting use of federal funds to remove

it, and denying similar access for a Buddhist shrine. Id.

Acknowledging the passage of § 8121 while the appeal was

pending, we addressed the government’s challenge that

§ 8121 rendered the appeal moot or would soon do so. We

rejected the government’s mootness challenge for two rea-

sons: First, we held that the case was not moot because the

land transfer had not yet taken effect. Id. at 545. Second,

because “[m]ere voluntary cessation of allegedly illegal con-

duct does not moot a case,” we held that even if the land trans-

fer had taken effect, the government still had not carried its

heavy burden to show mootness. Id. at 546. Even if the land

were transferred under § 8121(a), it may revert to the govern-

ment under § 8121(e), or as provided in other statutes. In par-

ticular, we noted that 16 U.S.C. § 431 authorizes

relinquishment of lands containing “national monuments” to

the federal government, and 16 U.S.C. § 410aaa-56 autho-

rizes the Department of the Interior to “acquire all lands and

interest in lands within the boundary of the [Mojave] preserve

5521

BUONO v. KEMPTHORNE

by donation, purchase, or exchange.” Id. at 546 (discussing

§ 8121, 16 U.S.C. §§ 431, 410aaa-56).

D. BUONO III

Despite the injunction against display of the cross in the

Preserve, the government began moving forward with the

mechanics of the land exchange under § 8121. Buono then

moved to enforce the district court’s prior injunction, or mod-

ify it to prohibit the land exchange as a violation of the Estab-

lishment Clause. In April 2005, the district court granted

Buono’s motion to enforce the injunction, and denied as moot

the request to amend the permanent injunction. See Buono v.

Norton, 364 F. Supp. 2d 1175, 1177, 1182 & n.8 (C.D. Cal.

2005) (“Buono III”). According to the district court, “the

transfer of the Preserve land containing the Latin Cross which

as [a] sectarian war memorial carries an inherently religious

message and creates an appearance of honoring only those

servicemen of that particular religion is an attempt by the gov-

ernment to evade the permanent injunction enjoining the dis-

play of the Latin Cross atop Sunrise Rock.” Id. at 1182

(citation and quotation marks omitted). The district court

deemed the exchange “invalid” and permanently enjoined the

government “from implementing the provisions of Section

8121 of Public Law 108-87” and ordered the government “to

comply forthwith with the judgment and permanent injunction

entered by th[e] court on July 24, 2002.” Id. It is that decision

that the government now appeals.

STANDARD OF REVIEW

We review for abuse of discretion the district court’s order

enforcing its prior injunction. Paulson v. City of San Diego,

294 F.3d 1124, 1128 (9th Cir. 2002). A district court abuses

its discretion in this regard if “it bases its decision on an erro-

neous legal standard or on clearly erroneous findings of fact.”

Id.

5522

BUONO v. KEMPTHORNE

ANALYSIS

In the district court, Buono advanced two alternative argu-

ments challenging the land exchange under § 8121. First,

Buono argued that the land exchange is an attempt to evade

the permanent injunction. Alternatively, he argued that the

land exchange itself violates the Establishment Clause

because it is an improper governmental endorsement of reli-

gion. The district court’s holding is grounded only on the first

basis, i.e., that the land exchange is a sham transaction with

the purpose of permitting continued display of the cross in

violation of the permanent injunction. On appeal, the govern-

ment contends that § 8121 was a bona fide attempt by Con-

gress to comply with the injunction. The government also

argues that because it was not given the opportunity to fully

effectuate the transfer, there are unknown facts that render

this controversy “unripe” for judicial review.

Turning first to the government’s ripeness challenge, we

conclude that this controversy is ripe for review. As to the

second question, the district court did not abuse its discretion

in enforcing the injunction. We agree that the exchange effec-

tuated by § 8121 violates the injunction, which prohibits the

display of the Latin cross because it runs afoul of the Estab-

lishment Clause.

I. RIPENESS

Ripeness is a justiciability requirement that seeks to avoid

premature litigation of disputes. Thomas v. Union Carbide

Agr. Products Co., 473 U.S. 568, 579-81 (1985) (“[R]ipeness

is peculiarly a question of timing.”) (citations omitted). The

ripeness doctrine “is drawn both from Article III limitations

on judicial power and from prudential reasons for refusing to

exercise jurisdiction.” Reno v. Catholic Soc. Servs., Inc., 509

U.S. 43, 57 n.18 (1993); accord Thomas v. Anchorage Equal

Rights Comm’n, 220 F.3d 1134, 1138-42 (9th Cir. 2000) (en

banc) (discussing constitutional and prudential components of

5523

BUONO v. KEMPTHORNE

ripeness). The ripeness question we address is whether it is

premature to consider a violation of the injunction before

completion of the land exchange.

A. CONSTITUTIONAL COMPONENT OF RIPENESS

The constitutional component of ripeness—that there be an

Article III “case or controversy”—requires a concrete impact

upon the parties arising from the dispute. Union Carbide, 473

U.S. at 579. This analysis is similar to the injury-in-fact

inquiry under the standing doctrine. See Anchorage Equal

Rights Comm’n, 220 F.3d at 1138-39.

The government argues that before litigation proceeds, it

should be given an opportunity to try to execute the land

exchange in compliance with the prior injunction and the gov-

ernment’s constitutional obligations. Buono responds that the

“concrete” injury ripe for review is that the land transaction’s

very structure evidences its lack of a secular purpose and its

effect continues the government’s improper endorsement of

religion that we already held exists.

This case can best be described as an ongoing controversy

about the cross, the specifics of which shift with successive

congressional enactments. The controversy is neither prema-

ture nor will it go away on its own. Given the specifics of

§ 8121, it is no answer to say that the land exchange is not

complete. It is, as the district court notes, “already in prog-

ress,” and the government intends to complete it. Buono III,

364 F. Supp. 2d at 1178. Buono’s challenge to the present

terms of the exchange is not a “hypothetical request[ ] for an

advisory opinion.” Anchorage Equal Rights Comm’n, 220

F.3d at 1141.

[1] The Supreme Court has held that pre-enforcement

review of a statute is appropriate where the governmental pur-

pose in enacting the statute evidences an improper endorse-

ment of religion in violation of the Establishment Clause. See

5524

BUONO v. KEMPTHORNE

Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 313-14

(2000). It is no legal leap to conclude that pre-enforcement

review is similarly appropriate where the purpose of a statute

is to evade an injunction intended to end an ongoing Estab-

lishment Clause violation.

In Santa Fe, the Supreme Court considered the ripeness of

a facial challenge to a school district’s policy purportedly

allowing school prayer. Id. The policy permitted students (a)

to vote on whether there should be a student-delivered invoca-

tion given at the start of high school football games, and (b)

to later vote to select the one student who would deliver the

invocation at all games throughout the year. Id. at 297-98.

The school district argued that it was premature to review the

policy because there “can be no certainty that any of the state-

ments or invocations will be religious.” Id. at 313. Rejecting

that challenge, the Court concluded that while forcing a stu-

dent “to participate in religious worship” was a serious consti-

tutional injury, so too was the “mere passage by [the school

district] of a policy that has the purpose and perception of

government establishment of religion. . . . [and] the imple-

mentation of a governmental electoral process that subjects

the issue of prayer to a majoritarian vote.” Id. at 313-14 (rec-

ognizing that “the Constitution also requires that we keep in

mind ‘the myriad, subtle ways in which Establishment Clause

values can be eroded.’ ”) (quoting Lynch v. Donnelly, 465

U.S. 668, 694 (1984) (O’Connor, J., concurring)). Thus, the

mere enactment of the policy, particularly in light of the

school district’s conduct, was a sufficient constitutional injury

to warrant pre-enforcement review, and ultimately an injunc-

tion against implementation of the policy. Id. at 316.6 Impor-

6Our cases have similarly held that passage of a statute and putting it

into effect (even if the effect is not complete) gives rise to a dispute ripe

for judicial review. In Saint Elizabeth Community Hospital v. NLRB, 708

F.2d 1436 (9th Cir. 1983), a church-run hospital challenged the National

Labor Relations Board’s jurisdiction over it as a violation of the Establish-

ment Clause. Id. at 1440. Congress had amended the National Labor Rela-

5525

BUONO v. KEMPTHORNE

tantly, in analyzing ripeness, the Court looked to the history

of the school district’s conduct in enacting the policy and the

true purpose of the policy. Id. at 314-15.

[2] The analogy to Santa Fe is apt. Here, both the district

court and this court have concluded that a grave constitutional

injury already exists. The permitting display of the Sunrise

Rock cross in the Preserve is an impermissible governmental

endorsement of religion. See Buono II, 371 F.3d at 548-50. As

discussed further below, the constitutional injury will persist

after—and as a result of—the land exchange effectuated

under § 8121. This is so because (among other things) § 8121

and other applicable statutes7 permit the government’s signifi-

cant ongoing control of and involvement with the cross and

the property on which it is situated. See Santa Fe, 530 U.S.

at 314-15 (concluding that the text of the school district’s pol-

icy alone reveals the extent of school involvement in the elec-

tion of the student speaker and the content of the message to

be delivered). And, the government’s repeated actions in pre-

serving the cross (and forestalling enforcement of the injunc-

tion) further evidence its goal of keeping the cross in place,

see §§ 133, 8137, 8056(b), 8121, just as the school district in

Santa Fe acted with the purpose of maintaining a school pol-

icy permitting prayer at school events. Santa Fe, 503 U.S. at

314-15.8

tions Act expressly conferring jurisdiction over nonprofit hospitals without

excepting those run by religious institutions. We concluded that the ques-

tion of NLRB’s jurisdiction was ripe for review. Id. In Assiniboine &

Sioux Tribes of Fort Peck Indian Reservation v. Board of Oil & Gas Con-

servation of the State of Montana, 792 F.2d 782 (9th Cir. 1986), we held

that the claim of Indian tribes challenging the validity of a cooperative

agreement regarding agency jurisdiction to advise the tribes about oil and

gas rights was sufficiently ripe where the final cooperative agreement had

been placed into operation by the agreeing agencies. Id. at 788-89.

7See § 8137(a)-(c), 16 U.S.C. §§ 431, 410aaa-56.

8The various governmental actions are discussed in further detail infra

§ II.A.3.

5526

BUONO v. KEMPTHORNE

[3] Buono has alleged a sufficient constitutional injury to

overcome any argument that his challenge to § 8121 is unripe.

See Santa Fe, 530 U.S. at 314-15. The challenge in this case

presents a concrete injury, rather than an “imaginary” or

“speculative” one.9

B. PRUDENTIAL COMPONENT OF RIPENESS

[4] Even where a concrete case or controversy is present,

we consider whether, because of prudential concerns, we

should decline to exercise jurisdiction. See Union Carbide,

473 U.S. at 581; Anchorage Equal Rights Comm’n, 220 F.3d

at 1141. We evaluate two interrelated factors: (a) the hardship

that the party seeking relief will suffer from withholding judi-

cial action, and (b) the fitness of the issues in the record for

judicial review. Abbott Labs. v. Gardner, 387 U.S. 136, 148-

49 (1967), overruled on other grounds by Califano v. Sand-

ers, 430 U.S. 99 (1977).

[5] This case easily satisfies both prudential components.

As to the harm,“[o]ne does not have to await the consumma-

tion of threatened injury to obtain preventive relief. If the

injury is certainly impending, that is enough.” Union Carbide,

9The government can hardly rely, as a predicate for a ripeness chal-

lenge, on its attempt to temporarily comply with the permanent injunction

by covering the cross with a wooden box. If that were the final compliance

mechanism, the district court could determine whether it is sufficient. Sig-

nificantly, however, the government is proceeding with the land exchange.

See Parents Involved in Community Schools v. Seattle School Dist. No. 1,

127 S.Ct. 2738, 2751 (2007) (holding that school district’s voluntary ces-

sation of use of racial tiebreaker pending outcome of litigation did not

negate Article III standing of plaintiff group members challenging policy,

as the school continued to vigorously defend the policy in court); Friends

of Earth, Inc. v. Laidlaw Envt’l Svcs. (TOC), Inc., 528 U.S. 167, 189

(2000) (holding that voluntary cessation of wrongful conduct, either by

defendant’s achievement of substantial compliance with its permit require-

ments or its shutdown of offending facility, did not moot controversy over

defendant’s compliance with Clean Water Act because the offending con-

duct had not permanently ceased).

5527

BUONO v. KEMPTHORNE

473 U.S. at 581 (internal quotations and citations omitted).10

The hardship resulting from the continuation of an Establish-

ment Clause violation enjoined by the court is sufficient.

A claim is “fit for decision if the issues raised are primarily

legal, do not require further factual development, and the

challenged action is final.” Exxon Corp. v. Heinze, 32 F.3d

1399, 1404 (9th Cir. 1994) (citations omitted). These require-

ments are satisfied here.

The key issue is primarily a question of law, i.e., whether

the land exchange under § 8121 violates the district court’s

order permanently enjoining the government from permitting

display of the cross in the Preserve. See, e.g., Santa Fe, 530

U.S. at 314 (permitting facial challenge to school district’s

policy prior to enforcement of the policy based largely on the

Court’s ability to construe the constitutionality of the policy’s

purpose as a legal matter); Union Carbide, 473 U.S. at 581

(granting pre-enforcement review of constitutionality of

administrative scheme requiring registrants to participate in

binding arbitration of disputes with limited judicial review

because party’s challenge raised solely legal issues).

Next, we assess the state of the factual record, an inquiry

that overlaps with (and in this case collapses into) the third

component, the finality of the decision. Friedman Bros. Inv.

Co. v. Lewis, 676 F.2d 1317, 1319 (9th Cir. 1982). The gov-

ernment argues that the record is incomplete because certain

factual scenarios, as yet unknown, could occur at some time

in the future. The government illustrates its claim by positing

two potential scenarios that may occur rendering decision on

10Unlike in Anchorage Equal Right Comm’n, where the plaintiffs sought

review of a housing law “in a vacuum and in the absence of any particular

victims of discrimination,” 220 F.3d at 1142, in this case there is a con-

crete victim—Buono—and the statutes are not being analyzed in a vac-

uum. See, e.g., Buono III, 364 F. Supp. 2d at 1181-82 (discussing history

of government’s preservation efforts regarding the cross).

5528

BUONO v. KEMPTHORNE

this appeal premature. Upon examination, neither proposed

scenario persuades us that we should delay decision in this

matter.

First, the government argues that once the land exchange is

complete the VFW might at some point in the future remove

the cross, but continue to maintain the property as a “war

memorial” as provided under § 8121. Thus, according to the

government, the court should not decide whether the injunc-

tion is violated unless and until the land exchange is complete

and the VFW has an opportunity to decide whether to main-

tain or remove the cross.

Under the government’s construction, the dispute would

never be ripe because, even if the transfer occurred, the gov-

ernment or the VFW could always argue that removal of the

cross could occur at some point in the future. Such games-

manship is not sanctioned by our prudential ripeness doctrine.

The government’s view is also at odds with two statutes

related to the Sunrise Rock cross, which, when read together,

demonstrate that the VFW cannot remove the cross without

forfeiting the property to the government. Section 8137(a)

designates “the five-foot-tall white cross” . . . as a “national

memorial.” § 8137(a) (emphasis added); see also § 8137(b)

(referring to “[t]he memorial cross”); 16 U.S.C. § 431 (note)

(listing “national memorial” titled “White Cross World War

I Memorial”). In other words, the cross itself is the memorial.

Section 8121(e) conditions transfer of the land on the VFW’s

agreement to “maintain the conveyed property as a memorial

commemorating United States participation in World War I

and honoring the American veterans of that war.” § 8121(e).

Section 8121(e) further provides that if “the conveyed prop-

erty is no longer being maintained as a war memorial, the

property shall revert to the ownership of the United States.”

Id. (emphasis added). Under these two statutes, the VFW’s

removal of the cross from Sunrise Rock would trigger the

reversionary clause of § 8121(e) and the land would revert to

5529

BUONO v. KEMPTHORNE

the United States. Nothing permits the VFW to destroy a

national memorial, remove the cross, and erect a substitute

memorial. The entire scheme is directed to preservation of the

cross.

To suggest that we do not yet know enough facts to decide

this dispute ignores the practical reality of these statutory

mandates. In Santa Fe, the Court rejected the school district’s

similarly implausible explanations for its conduct, based on

the history and context of the school district’s actions:

The District, nevertheless, asks us to pretend that we

do not recognize what every Santa Fe High School

student understands clearly — that this policy is

about prayer. The District further asks us to accept

what is obviously untrue: that these messages are

necessary to “solemnize” a football game and that

this single-student, year-long position is essential to

the protection of student speech. We refuse to turn a

blind eye to the context in which this policy arose,

and that context quells any doubt that this policy was

implemented with the purpose of endorsing school

prayer.

Santa Fe, 530 U.S. at 315 (emphasis added).

The government also argues that DOI might never exercise

the reversionary clause, even if the cross is removed. Again,

this argument fails as § 8121(e) itself provides that the prop-

erty “shall revert” if the property is no longer maintained as

a “war memorial,” i.e., the cross under § 8137. Countenanc-

ing this argument would also render the claim perpetually

unripe, bringing to mind the Rule Against Perpetuities.

Although the rule surely does not apply in this context, com-

mon sense should.

[6] Even though the transfer itself is not complete, the cer-

tainty of the governmental action taking place is sufficiently

5530

BUONO v. KEMPTHORNE

ripe to allow review. See, e.g., Friedman, 676 F.2d at 1318-19

(concluding that challenge to agency’s action as violating

National Environmental Policy Act was ripe where agency

had granted funds for project and exempted it from certain of

NEPA’s requirements, despite that formal action to acquire

the subject property by condemnation had not yet com-

menced). Thus, none of the prudential ripeness concerns

weigh against our rendering a decision.11

II. VIOLATION OF THE PERMANENT INJUNCTION

We next address whether the district court abused its dis-

cretion in concluding that “transfer of the Preserve land con-

taining the Latin Cross, which ‘as [a] sectarian war memorial

carries an inherently religious message and creates an appear-

ance of honoring only those servicemen of that particular reli-

gion’ . . . is an attempt by the government to evade the

permanent injunction enjoining the display of the Latin Cross

atop Sunset Rock.” Buono III, 364 F. Supp. 2d at 1182 (cita-

tion omitted).

11The government raises, for the first time on appeal, a second challenge

under the guise of “ripeness.” It argues that the district court exceeded its

power by issuing a second injunction in the face the government’s effort

to comply with the original injunction. This is not a true ripeness consider-

ation, but a challenge to the propriety of the district court’s exercise of its

equitable power to enforce its prior injunction. Because this issue is not

one of justiciability or jurisdiction, the government waived the argument

by failing to challenge the scope of the district court’s action before that

court. See, e.g., Ritchie v. United States, 451 F.3d 1019, 1026 & n.12 (9th

Cir. 2006) (concluding that failure to raise an issue before district court

resulted in waiver on appeal, particularly where the issue involved district

court’s broad discretion and district court “might have been able to

address the problem” if raised). Even assuming no waiver, the district

court acted within its broad equitable powers to enforce its prior injunc-

tion. See, e.g., Ellis v. City of La Mesa, 990 F.2d 1518, 1530-31 (9th Cir.

1993) (per curiam) (noting, in dispute over religious symbols on public

land, that in light of changed circumstances of ownership of land (or a

planned change in ownership), district court has broad equitable powers

“to modify, fashion or enforce appropriate equitable relief” in assessing

compliance with its prior injunction).

5531

BUONO v. KEMPTHORNE

A. GOVERNMENT ACTION

In Buono II, we noted that “the presence of a religious sym-

bol on once-public land that has been transferred into private

hands may still violate the Establishment Clause.” Buono II,

371 F.3d at 546 (citing Freedom from Religion Found., Inc.

v. City of Marshfield, 203 F.3d 487, 496 (7th Cir. 2000)).12

But we left for another day the question of “whether a transfer

completed under section 8121 would pass constitutional mus-

ter.” Id. In considering that question, we examine both the

form and substance of the transaction to determine whether

the government action endorsing religion has actually ceased.

See Marshfield, 203 F.3d at 491.13

12In Marshfield, it was undisputed that a white, marble, fifteen-foot

statue of Jesus Christ situated on city park land violated the Establishment

Clause. Id. at 489. To remedy the violation, the city sold the statue and a

small parcel of land (0.15 acres) beneath the statue to a private organiza-

tion that agreed to maintain the land and the statue, including paying for

the electrical service used to light the statue. Id. at 490. After concluding

that the sale properly ended the government action with respect to the

statue and the property, the court determined that the statue’s presence still

violated the Establishment Clause. Id. at 495. Based on the historic associ-

ation of the land with the public park, the dedication of the land to use as

a public park through a restrictive covenant, and the physical location and

visual perception of the now-private property within the public park, the

court concluded that a reasonable observer would perceive that the statue

was on city park property and that it “constitute[d] a City endorsement of

religion.” Id. at 495-96.

13The Seventh Circuit stated that “[a]bsent unusual circumstances, a sale

of real property is an effective way for a public body to end its inappropri-

ate endorsement of religion. We are aware, however, that adherence to a

formalistic standard invites manipulation. To avoid such manipulation, we

look to the substance of the transaction as well as its form to determine

whether government action endorsing religion has actually ceased.” Mar-

shfield, 203 F.3d at 491. Read as a whole, the Seventh Circuit position

looks at the issue on a transaction-by-transaction basis. We agree with this

approach. However, to the extent that Marshfield can be read to adopt a

presumption of the effectiveness of a land sale to end a constitutional vio-

lation, we decline to adopt such a presumption. The Supreme Court’s

Establishment Clause jurisprudence recognizes the need to conduct a fact-

5532

BUONO v. KEMPTHORNE

As did the district court, based on the circumstances of this

case, we consider three aspects of the land exchange under

§ 8121: (1) the government’s continuing oversight and rights

in the site containing the cross after the proposed land

exchange; (2) the method for effectuating the land exchange;

and (3) the history of the government’s efforts to preserve the

cross.

1. CONTINUING GOVERNMENT OVERSIGHT AND CONTROL

OVER THE CROSS AND PRESERVE PROPERTY

[7] Although Congress sought to transfer the property to

the VFW, a private entity, the various statutes, when read as

a package, evince continuing government control. The follow-

ing summary highlights that control:

• NPS retains overall management and supervision

of the Preserve.

• NPS is responsible for “the supervision, manage-

ment, and control” of national memorials.

specific inquiry in this area. Compare McCreary County v. American Civil

Liberties Union of Kentucky, 545 U.S. 844, 884-85 (2005) (holding uncon-

stitutional postings of Ten Commandments at county courthouses on the

basis that counties’ purpose in erecting displays demonstrated impermissi-

ble governmental endorsement of religion), with Van Orden v. Perry, 545

U.S. 677, 700 (2005) (upholding “passive monument” inscribed with Ten

Commandments on Texas State Capitol grounds based on analysis of

monument’s and nation’s history) (Rehnquist, C.J.) (plurality opinion).

See also Van Orden, 545 U.S. at 685 nn. 4 & 5 (citing cases under the

Establishment Clause over the preceding 25 years of Supreme Court juris-

prudence). Moreover, the “public function” cases discussed in Marshfield

suggest that constitutional violations are not presumptively cured when

control is transferred from public to private hands. Evans v. Newton, 382

U.S. 296, 301 (1966) (“[W]here the tradition of municipal control had

become firmly established, we cannot take judicial notice that the mere

substitution of trustees instantly transferred this park from the public to the

private sector.”); Terry v. Adams, 345 U.S. 461, 469 (1953) (lack of for-

mal public control over election primary “immaterial” to analysis of con-

stitutional violation).

5533

BUONO v. KEMPTHORNE

• The “five-foot-tall white cross” in the Mojave

National Preserve is designated as a “national

memorial.”

• The transfer of land to the VFW is conditioned

on the VFW’s maintenance of the conveyed

property as a memorial to World War I veterans.

• The Secretary must carry out its duties under

§ 8137, which provides $10,000 for NPS to

acquire and install replicas of the original cross

and plaque.

• The property “shall revert” to government owner-

ship if “it is no longer being maintained as a war

memorial.”

The government retains various rights of control over the

cross and the property. NPS is granted statutory powers of

“supervision, management, and control” of national memori-

als. See 16 U.S.C. §§ 2, 431. Thus, NPS’s general supervisory

and managerial responsibilities with respect to the cross

remain, despite a land transfer. See, e.g., 16 U.S.C. § 1 (pro-

viding that the newly created NPS is responsible for regulat-

ing and promoting “national parks, monuments, and

reservations . . . by such means and measures as conform to

the fundamental purpose” of conservation); 16 U.S.C. § 3

(“The Secretary of the Interior shall make and publish such

rules and regulations as he may deem necessary or proper for

the use and management of the parks, monuments, and reser-

vations under the jurisdiction of [NPS].”).14

[8] In addition, § 8121(a) expressly reserves NPS’s man-

agement responsibilities under § 8137. See § 8121(a)

14The government does not dispute that the Preserve is under NPS’s

jurisdiction as a unit of the national park system. See 16 U.S.C. §§ 1(c),

410aaa-41, 410aaa-42, 410aaa-46.

5534

BUONO v. KEMPTHORNE

(“Notwithstanding the conveyance of the property under this

subsection, the Secretary shall continue to carry out the

responsibilities of the Secretary under such section 8137.”).

Section 8137 not only designates the cross a national memo-

rial, but provides for $10,000 in funds for NPS to acquire and

install replicas of the original plaque and cross located at the

site. See § 8137(a)-(c). The district court found that these pro-

visions gave the government an easement or license over the

subject property for this particular purpose. Buono III, 364 F.

Supp. 2d at 1180. Such an easement or license reflects ongo-

ing control over the property requiring compliance with con-

stitutional requirements on that land. See, e.g., First Unitarian

Church of Salt Lake v. Salt Lake, 308 F.3d 1114, 1122 (10th

Cir. 2002) (holding that where the government sells land to a

private religious organization but maintains a pedestrian ease-

ment on the land, the First Amendment speech clause applies

even though the private party holds title to the land).

[9] The district court also focused on the significance of the

government’s retention of a reversionary interest in the prop-

erty under § 8121(e). See Hampton v. City of Jacksonville,

304 F.2d 320, 322-23 (5th Cir. 1962) (holding that the inclu-

sion of a reversionary clause in deeds to segregated golf

courses conveyed by the city to private parties was sufficient

state action to bring the golf courses within the Fourteenth

Amendment because the reversionary clauses allowed the city

to exercise “complete present control” over the golf courses);

Eaton v. Grubbs, 329 F.2d 710, 714 (4th Cir. 1964) (holding

that a reverter clause in a deed of trust allowed the city to

effectively exercise control of the facility to ensure that it was

always used “as a hospital,” and that such ongoing city con-

trol over use of property constituted sufficient state action to

subject the hospital to the Fourteenth Amendment’s prohibi-

tions against racial discrimination). As in Hampton and

Eaton, the reversionary clause in § 8121(e) results in ongoing

government control over the subject property, even after the

transfer.

5535

BUONO v. KEMPTHORNE

Although the government argues that reversionary interests

are run-of-the mill clauses in contracts with the government,

the commonality of such clauses does not diminish their

power or effect. The fact remains that the government has an

automatic reversionary interest in the property if it determines

that the property is no longer being used as a “war memorial,”

which, at this juncture, is the cross itself. See § 8137. See also

Buono II, 371 F.3d at 546 (noting the importance of the gov-

ernment’s reversionary interest, and various other mecha-

nisms by which the government can acquire public lands, in

concluding that the dispute had not been rendered moot by

passage of § 8121).

As it did with respect to ripeness, the government argues

that the court must await exercise of the reversionary interest

before determining whether it is a real factor in government

control over the property. We reiterate the import of the rever-

sionary interest; it shows the government’s ongoing control

over the property and that the parties will conduct themselves

in the shadow of that control. The courts in Hampton and

Eaton found dispositive the ongoing control resulting from

the reversionary interest; their analysis is persuasive here.

[10] Based on the government’s ongoing supervisory,

maintenance and oversight responsibilities with respect to the

cross and the property, coupled with the reversionary interest,

the district court found that the government retains important

property rights in, and “will continue to exercise substantial

control over,” the property on which Sunrise Rock is located,

even after the land exchange. Id. at 1179. The government has

failed to show that this determination is either clearly errone-

ous or an abuse of discretion.

2. METHOD FOR EFFECTUATING THE LAND EXCHANGE

Next, we examine the method of sale by which § 8121

transfers the property to a private buyer outside the normal

NPS procedures for transfer of parklands. The Secretary of

5536

BUONO v. KEMPTHORNE

DOI is authorized to exchange federal land for non-federal

land under its jurisdiction. See 16 U.S.C. § 460l-22(b); see

also § 410aaa 56 (authorizing the Secretary to “acquire all

lands and interest in lands within the boundary of the

[Mojave] preserve by donation, purchase, or exchange”). In

this case, however, the decision to exchange the land was

made by Congress and authorized by a provision buried in an

appropriations bill. The government did not hold a hearing

before enacting such exchange. E.g., id. § 460l-22(b) (provid-

ing that upon request, “prior to such exchange the Secretary

. . . shall hold a public hearing in the area where the lands to

be exchanged are located”). Nor did the government open bid-

ding to the general public. E.g., id. § 460l-22(a). Rather,

§ 8121 directs that the land be transferred to the VFW, the

organization that originally installed a cross on Sunrise Rock

some years ago and desires the continued presence of the cur-

rent cross in the Preserve. The private land being exchanged

for the federal property is owned by the Sandozes, who con-

structed the present cross and who have actively sought to

keep the cross on Sunrise Rock. Buono III, 364 F. Supp. 2d

at 1180.

The government argues that, of all parties, the VFW is the

“logical purchaser” because it originally erected the cross at

the site more than seventy years ago. The government cites

Marshfield and another Seventh Circuit case, Mercier v. Fra-

ternal Order of Eagles, 395 F.3d 693 (7th Cir. 2005). In both

cases, the respective courts upheld the sale of property to a

private party without an open market bidding process for the

land. Marshfield, 203 F.3d at 489-90; Mercier, 395 F.3d at

694-95, 702-03.

[11] Although neither the exclusion of other purchasers,

nor the fact that Congress acted outside the scope of normal

agency procedures for disposing of federal park land is dispo-

sitive, both acts demonstrate the government’s unusual

involvement in this transaction. These facts, coupled with the

government’s selection of beneficiaries of the land exchange

5537

BUONO v. KEMPTHORNE

who have a significant interest and personal investment in

preserving the cross that has been ordered removed, provide

additional evidence that the government is seeking to circum-

vent the injunction in this case. We see no basis to upset the

district court’s conclusion that the VFW was a straw pur-

chaser. Id. at 1181.

3. HISTORY OF THE

GOVERNMENT’S

PRESERVATION

EFFORTS

[12] Finally, the government’s long-standing efforts to pre-

serve and maintain the cross atop Sunrise Rock lead us to the

undeniable conclusion that the government’s purpose in this

case is to evade the injunction and keep the cross in place. In

brief, when litigation was first threatened against NPS, Con-

gress banned the use of government funds to remove the cross

(§ 133), the first step in forestalling inevitable enforcement of

a federal injunction. After litigation commenced, Congress

designated the cross and adjoining Preserve property as a

national memorial commemorating World War I (§ 8137).

Congress also appropriated up to $10,000 for NPS to acquire

replicas of the original cross and plaque at the site (id.), once

more trying to bolster the presence of the cross. Once the dis-

trict court enjoined display of the cross in Buono I, Congress

again prohibited the use of federal funds to remove any World

War I memorials (which, obviously, includes the cross)

(§ 8056(b)); and, while the appeal was pending in Buono II,

Congress enacted § 8121, directing the transfer of the subject

property to a private organization, but maintaining effective

government control over the memorial and the use of that

property.

The government does not contest these legislative

responses to various stages of the litigation in this case, or

their purpose aimed at preserving the cross. Rather, the gov-

ernment attempts to diminish their importance. For example,

the government argues that § 8137(c), which earmarks funds

for the replica plaque and cross, was passed before the district

5538

BUONO v. KEMPTHORNE

court’s injunction and that after the injunction, DOI has taken

no action to acquire the replicas. While this may be true,

when Congress enacted § 8121, it specifically incorporated

the Secretary’s duty to carry out the responsibilities set out in

§ 8137; Congress did not repeal the funding provisions, or

any other provision permitting ongoing government control.

The funding provisions offer historical evidence of the gov-

ernmental responses aimed at preserving the cross, as well as

ongoing legislative authorizations. In that context, it does not

matter whether DOI has exercised its powers to obtain such

replicas; the important fact is that Congress directed that it do

so, further showing its intent to preserve and maintain the

cross.

We agree with the district court that the government

engaged in “herculean efforts” to preserve the cross atop Sun-

rise Rock. Buono III, 364 F. Supp. 2d at 1182. We also agree

that “the proposed transfer of the subject property can only be

viewed as an attempt to keep the Latin Cross atop Sunrise

Rock without actually curing the continuing Establishment

Clause violation.” Id.

B. CONTINUING GOVERNMENTAL ENDORSEMENT OF

RELIGION

Our inquiry into a purported cure of an Establishment

Clause violation must also analyze whether the improper gov-

ernmental endorsement of religion has ceased. See, e.g., Mar-

shfield, 203 F.3d at 493-96. Because of the procedural posture

of this case, we have necessarily already considered that ques-

tion. We previously held that the presence of the cross in the

Preserve violates the Establishment Clause. See Buono II, 371

F.3d at 548-50. We also concluded that a reasonable observer

aware of the history of the cross would know of the govern-

ment’s attempts to preserve it and the denial of access to other

religious symbols. Id. at 550. Even a less informed reasonable

observer would perceive governmental endorsement of the

message, given that “[n]ational parklands and preserves

5539

BUONO v. KEMPTHORNE

embody the notion of government ownership,” that the Sun-

rise Rock area is used as a public campground, and finally,

because of “the ratio of publicly-owned to privately-owned

land in the Preserve.” Id. Nothing in the present posture of the

case alters those earlier conclusions. Under the statutory dic-

tates and terms that presently stand, carving out a tiny parcel

of property in the midst of this vast Preserve—like a donut

hole with the cross atop it—will do nothing to minimize the

impermissible governmental endorsement. Nor does the pro-

posed land exchange under § 8121 end the improper govern-

ment action. Such a transfer cannot be validly executed

without running afoul of the injunction.

[13] In sum, the government has not shown the district

court’s factual findings to be clearly erroneous. Nor has the

government shown that the district court applied erroneous

legal standards. Finally, the district court’s decision does not

reflect any clear error of judgment. The district court did not

abuse its discretion in enjoining the government from pro-

ceeding with the land exchange under 16 U.S.C. § 8121 and

ordering the government to otherwise comply with its prior

injunction that it not permit the display of the Sunrise Rock

cross in the Preserve.

AFFIRMED.

5540

BUONO v. KEMPTHORNE