Buono v. Kempthorne

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

FRANK BUONO, 

Plaintiff-Appellee,

v.

DIRK KEMPTHORNE,* Secretary of

the Interior, in his official

capacity; JONATHAN B. JARVIS, No. 05-55852

Regional Director, Pacific West

Region, National Park Service,  D.C. No.

CV-01-00216-RT

Department of the Interior, in his

OPINION

official capacity; DENNIS SCHRAMM,

Superintendent, Mojave National

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

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

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

*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).

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

the Northern District of California, sitting by designation.

11793

11794 BUONO v. KEMPTHORNE

Opinion by Judge McKeown

11796 BUONO v. KEMPTHORNE

COUNSEL

Sue Ellen Wooldridge, Kathryn E. Kovacs, United States

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

appellants.

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

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

appellee.

BUONO v. KEMPTHORNE 11797

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

Foundation, Virginia Beach, Virginia, for amicus curiae The

National Legal Foundation.

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

(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

1

Further 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”).

11798 BUONO v. KEMPTHORNE

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

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-

BUONO v. KEMPTHORNE 11799

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-

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.”

2

The 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).

11800 BUONO v. KEMPTHORNE

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

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

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).

4

Buono 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.

BUONO v. KEMPTHORNE 11801

enjoined from permitting display of the Latin cross in the area

of Sunrise Rock in the Mojave National Preserve.”5

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

5

We 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.

11802 BUONO v. KEMPTHORNE

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.

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

BUONO v. KEMPTHORNE 11803

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

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-

11804 BUONO v. KEMPTHORNE

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-

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-

BUONO v. KEMPTHORNE 11805

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

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-

11806 BUONO v. KEMPTHORNE

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

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.

BUONO v. KEMPTHORNE 11807

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.

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

11808 BUONO v. KEMPTHORNE

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

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

BUONO v. KEMPTHORNE 11809

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

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

F.3d at 1141.

The Supreme Court has held that pre-enforcement review

of a statute is appropriate where the governmental purpose in

enacting the statute evidences an improper endorsement of

religion in violation of the Establishment Clause. See 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 Establishment

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-

11810 BUONO v. KEMPTHORNE

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

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.

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

6

Our 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-

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.

7

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

BUONO v. KEMPTHORNE 11811

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

Buono has alleged a sufficient constitutional injury to over-

come any argument that his challenge to § 8121 is unripe. See

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

sents a concrete injury, rather than an “imaginary” or “specu-

lative” one.9

B. PRUDENTIAL COMPONENT OF RIPENESS

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 judicial

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

cial review. Abbott Labs. v. Gardner, 387 U.S. 136, 148-49

(1967), overruled on other grounds by Califano v. Sanders,

430 U.S. 99 (1977).

8

The various governmental actions are discussed in further detail infra

§ II.A.3.

9

The 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).

11812 BUONO v. KEMPTHORNE

This case easily satisfies both prudential components. As to

the harm,“[o]ne does not have to await the consummation of

threatened injury to obtain preventive relief. If the injury is

certainly impending, that is enough.” Union Carbide, 473

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

hardship resulting from the continuation of an Establishment

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-

10

Unlike 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).

BUONO v. KEMPTHORNE 11813

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

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

11814 BUONO v. KEMPTHORNE

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

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.

BUONO v. KEMPTHORNE 11815

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

mon sense should.

Even though the transfer itself is not complete, the certainty

of the governmental action taking place is sufficiently ripe to

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

cluding 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 commenced). 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-

11

The 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).

11816 BUONO v. KEMPTHORNE

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).

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

12

In 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.

13

Although the Seventh Circuit adopted a presumption that “a sale of

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

endorsement of religion” in the absence of “unusual circumstances,” Mar-

shfield, 203 F.3d at 491, we decline to adopt such presumption. The

Supreme Court’s Establishment Clause jurisprudence recognizes the need

BUONO v. KEMPTHORNE 11817

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

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.

to conduct a fact-specific inquiry in this area. Compare McCreary County

v. American Civil Liberties Union of Kentucky, 545 U.S. 844, 884-85

(2005) (holding unconstitutional postings of Ten Commandments at

county courthouses on the basis that counties’ purpose in erecting displays

demonstrated impermissible governmental endorsement of religion), with

Van Orden v. Perry, 545 U.S. 677, 700 (2005) (upholding “passive monu-

ment” 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 jurisprudence). Moreover, the “public function” cases dis-

cussed in Marshfield suggest that constitutional violations are not pre-

sumptively 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 formal public control over election primary “immaterial”

to analysis of constitutional violation).

11818 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

In addition, § 8121(a) expressly reserves NPS’s manage-

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

14

The 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.

BUONO v. KEMPTHORNE 11819

(“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).

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.

11820 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.

Based on the government’s ongoing supervisory, mainte-

nance 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

BUONO v. KEMPTHORNE 11821

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.

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 dispositive,

both acts demonstrate the government’s unusual involvement

in this transaction. These facts, coupled with the govern-

ment’s selection of beneficiaries of the land exchange who

11822 BUONO v. KEMPTHORNE

have a significant interest and personal investment in preserv-

ing the cross that has been ordered removed, provide addi-

tional evidence that the government is seeking to circumvent

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

trict court’s conclusion that the VFW was a straw purchaser.

Id. at 1181.

3. HISTORY OF THE GOVERNMENT’S PRESERVATION

EFFORTS

Finally, the government’s long-standing efforts to preserve

and maintain the cross atop Sunrise Rock lead us to the unde-

niable 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, Congress

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

BUONO v. KEMPTHORNE 11823

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

11824 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.

In sum, the government has not shown the district court’s

factual findings to be clearly erroneous. Nor has the govern-

ment 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 proceeding

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.