Buono v. Salazar (Moot Brief)

8/8/2019 Buono v. Salazar (Moot Brief)

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No. 08-472

In the Supreme Court of the United States

KEN SALAZAR, SECRETARTY OF THE INTERIOR,

ET AL., PETITIONERS

v.

FRANK BUONO

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALSFOR THE NINTH CIRCUIT

BRIEF FOR THE PETITIONERS

DANIEL N. CLAY MADISON M. MORGAN

Solicitor General Acting Solicitor Department of Justice Department of the Interior

Washington, D.C. 20530 Washington, D.C. 20240(202) 514-2217 (202) 208-3175

TO BE ARGUED: MAY 3, 2010


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QUESTIONS PRESENTED

In 1934, the Veterans of Foreign Wars (VFW) erected a whitewooden cross in a remote area of the Mojave Desert as memorial

to the fallen soldiers of World War I. Since that time, the area

including and surrounding the memorial has been designated as afederal preserve, the Mojave National Preserve. After the districtcourt held that the presence of the cross on federal land violated

the Establishment Clause of the Constitution and permanentlyenjoined the government from permitting the display, Congress

enacted legislation directing the Secretary of the Interior to transferone acre of land, including the cross, to the VFW in exchange for a

parcel of land of equal value. The district court then amended itsoriginal injunction and enjoined the government from implem-

enting the Act of Congress by prohibiting the completion of theland exchange; the court of appeals affirmed. The questions

presented are:1. Whether respondent has standing to maintain this action

given that he raises no objection to the public display of a cross,but instead is offended that the public land on which the cross is

located is not also an open forum on which other persons mightdisplay other symbols.

2. Whether, assuming respondent has standing, the court ofappeals erred in upholding the lower district courts ruling that theland transfer is a sham transaction and as a result refusing to give

effect to the Act of Congress providing for the transfer of publicland to private entities.

3. Whether, assuming the respondent has standing, theinjunction from the lower district court is a violation of the Article

4, Section 3, Clause 2 of the Constitution of the United States;respecting the right of Congress to dispose of and make all needful

rules and regulations respecting the territory or other propertybelonging to the United States.

4. Whether, assuming the respondent has standing, theinjunction from the lower district court is a violation of the

freedom of contract established by the 14th

Amendment andapplied by the 5

thAmendment of the Constitution, by unfairly

restricting the right of private parties to make contracts with publicor other private entities.

(I)


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PARTIES TO THE PROCEEDINGS

The petitions are Ken L. Salazar, Secretary of the Interior;Jonathon B. Jarvis, Regional Director, Pacific West Region,

National Parks Service, Department of the Interior; and Dennis

Schramm, Superintendent, Mojave National Preserve, NationalParks Service, Department of the Interior.The respondent is Frank Buono.

(II)


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TABLE OF CONTENTSPage

Opinions Below 1

Jurisdiction 1Constitutional and statutory provisions involved. 1Statement.. 2

Summary of arguments. 5Argument.. 8

I. Respondent lacks standing under the Establish-ment Clause.. 8

A. Respondent lacks constitutional stand-ing because he lacks the requisite per-

sonal injury.... 8B. Respondent lacks prudential standing

Because he asserts the rights and spec-ulative injuries of third parties... 9

II. The placement of the cross on Sunrise Rockwithstands constitutional muster and is not

a violation of the Establishment Clause 10III. If a violation of the Establishment Clause did

occur, Congresss transfer of the land toprivate property remedies the violation.... 13

IV. The court of appeals reasons for enjoining the

land transfer lack merit and is contradictory.....14V. The injury caused by the order of the court of

appeals permanently enjoining the land transferis far greater than the alleged harm raised under

the Establishment Clause, because it violates mul-tiple constitutional protections. 15

A. The permanent revised injunction violat-es Article 4, Section 3, Clause 2 of the

Constitution because it infringesthe public property rights specifically

afforded to Congress... 16B. The permanent revised injunction violat-

es the liberty of contract established bythe 5

thAmendment and as applied by the

14th Amendment ....... 17Conclusion..19

(III)


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TABLE OF AUTHORITIES

Cases: Page

Baker v. Carr, Tenn., 82 U.S. 691 ..9Buono v. Kempthorne, CV-01-00216-RT.............6, 12, 14, 15

Commonwealth of Massachusetts v. Mellon,118 U.S. 447............9

Elk Grove Unified School District v. Newdon,542 U.S. 1,12, (2004).......8,9

Freedom of Religion Foundation., Inc v. City of Marshfield,

203 F.3d 487 (2007)......14

Horne v. Fed. Res. Bank of Minneapolis, 344 U.S. 725.8

Kleppe v. New Mexico, 529 U.S. 49..16

Lemon v. Kurtzman, 403 U.S. 602..10, 11

McCreary County v. ACLU, Kentucky 545 U.S. 844.10, 12

Morta v. Korea Insurance Corporation, 840 F.2d 1452...17

Swomley v. Watt, 526 D.C. 1271.8

U.S. v. State of California, 332 U.S. 19 (1947)16,17

U.S. v. State of California and County of San Francisco,

310 U.S. 16, 84 L.Ed. 1050.7Valley Forge Christian College v. Americans United For

Separation of Church and State, 102 U.S. 752..9,13

West Coast Hotel v. Parrish, 300 U.S. 379, (1937)..17

(IV)


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Constitution and Statutes Page

U.S. Constitution:

Art. III...5,8,9

Art. IV, Sec. 3, Cl. 2..7,16Amed. I..passim

Amed. V...7,17,18

Amed. XIV..7,17,18

California Desert Protection Act of 1994,

16 U.S.C. 410aaa et seq. .....2

Consolidated Appropriations Act, 2001,

106-554, App. D, 133, 114 Stat. 2783A-2303

Department of Defense Appropriations Act, 2002,Pub. L. No. 107-117, Div. A, 115 Stat. 2230...3

Department of Defense Appropriations Act, 2003,Pub. L. No. 107-248, 8065(b), 116 Stat. 1551..3

Defense Appropriations Act, 2004,

Pub. L. No. 108-87, 117 Stat. 1054......4,5

43 C.F.R. 17.1....11

16 U.S.C. 410..2

16 U.S.C. 470a...11

(V)


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OPINIONS BELOW

The opinions of the court of appeals (Pet. App. 54a-85a, 100a-113a) are reported at 527 F .3d 758 and 371 F .3d 543. The

opinions of the district court (Pet. App. 86a-99a, 114a-144a) are

reported at 364 F. Supp. 2d 1175 and 212 F. Supp. 2d 1202.

JURISDICTION

The judgment of the court of appeals was entered on

September 6, 2007. The judgment was amended and a petition forrehearing was denied on May 14, 2008 (Pet. App. 35a-85a). On

August 6, 2008, Justice Kennedy extended the time within whichto file a petition for a writ of certiorari to and including September

11, 2008. On August 28, 2008, Justice Kennedy Further extendedthe time to and including October 10, 2008, and the petition was

filed on that date. The petition for a writ of certiorari was grantedon February 23, 2009. The jurisdiction of this court rests on 28

U.S.C. 1254(1).

CONSITITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Article 4, Section 3, Clause 2 of the United States Constitution

provides in part that Congress shall have the Power to dispose ofand make all needful Rules and Regulations respecting the

Territory or other Property belonging to the United States; and

nothing in this Constitution shall be so constructed as to Prejudiceand Claim of the United States.

The First Amendment of the United States Constitution

provides in part that Congress shall make no law respecting anestablishment of religion, or prohibiting the free exercise thereof.

The Fifth Amendment of the United States Constitution provides in part that no person be deprived of life, liberty, or

property, without due process of law; nor shall private property betaken for public use, without just compensation.

The Fourteenth Amendment of the United States Constitution

provides in part that nor shall any state deprive any person of life,

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liberty, or property, without due process of law.

STATEMENT

1. In 1934, the Veterans of Foreign Wars (VFW) erected a

memorial to the fallen service members of World War I andsubsequent wars. The memorial was in the form of a white wooden

cross that was placed on top of a larger boulder known as SunriseRock in San Bernardino County, California. Immediately in front

of the memorial was placed a plaque which identified the cross as awar memorial and identified the organization which erected the

cross. The war memorial plaque stated: The Cross, Erected inMemory of the Dead of All Wars, Erected 1934 by Member of the

Veterans of Foreign Wars, Death Valley post 2884. Since the timethat the memorial was erected and subsequent deteriorated, private

parties have replaced the cross multiple times without replacing the

plaque; the plaque is no longer located at the site. The current crossis approximately eight feet tall by five feet wide, is constructed offour-inch diameter metal pipes that have been painted white, and

has been bolted to the top of Sunrise Rock.At the time the VFW erected the cross, Sunrise Rock and the

surrounding lands were under the direct authority of the Bureau ofLand Management. The control of this property changed under the

California Desert Protection Act of 1994, 16 U.S.C. 410, whichestablished the Mojave National Preserve. The Preserve is

approximately 1.6 million acres, of which 90% is the property ofthe United States federal government, 6% is privately owned, and

roughly 4% is owned by State of California.The Preserve is located on the Northwest side of Cima Road,

which runs southeast through part of the Preserve. Sunrise Rock,and the memorial are located on the north side of Cima Road, in a

remote location that is part of the natural desert environment.According to the respondent, the only visible signs of human

activity are that of recreation, including off road vehicles andhikers. The cross is only visible to vehicles on Cima Road from

one hundred yards away.2. The memorial has been the subject of several pieces of

federal legislation and federal actions. In 1999, the Park Service

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denied a request to erect a Buddhist shrine near the cross as itwould be intended for religious purposes and not that of a war

memorial. In order to avoid conflict, the Park Service indicated itsintention of removing the cross. In 2001, Congress passed the

Consolidated Appropriations Act, 2001 which prohibited the use of

federal funds in the removal of the cross. One year later, Congressdesignated the cross on Sunrise Rock as well as the immediatesurrounding property as a national memorial commemorating

United States participation in World War I and honoring theAmerican veterans of the war. Department of Defense

Appropriations Act, 2002. The legislation also required theSecretary of the Interior to acquire a replica of the original plaque

and to install the plaque at the memorial. Then in 2003, Congressprohibited the spending of any federal funds to remove any World

War I memorial, including but not limited to the cross at SunriseRock, in the Department of Defense Appropriations Act, 2003.

3. The respondent filed action in March 2001 and alleged thatthe presence of the cross on federal land violated the Establishment

Clause of First Amendment of the United States Constitution. TheRespondent lives in Oregon, but alleged that he regularly visits the

Preserve, where he was formally employed as AssistantsSuperintendent of the Mojave National Preserve. The respondent

is a practicing Roman Catholic, who never complained about thecross during his employment with the Park Service, and who has

stated that he does not find the cross itself to be objectionable.Instead, the respondent maintains that his is offended by the

display of a cross on federal property that does not permit othergroups or individuals to erect permanent displays. Additionally, the

respondent claims that he would avoid the cross on future visits tothe Preserve.

The United States district courted entered a judgment in thisaction on behalf of the respondent, and permanently enjoined the

government from permitting the display of the cross. The lowercourt held that the respondent had standing because he was

unconstitutionally subjected to an unwelcome religious display, thecross. The court also held that since the cross was located on

federal land, it violated the Establishment Clause because theprimary effect was to advance a religion, namely Christianity. The

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U.S. court of appeals stayed the district courts injunction andrequired the immediate removal of the cross. In response, the

government covered the cross with a large plywood box, and thecross remains covered.

4. While the governments appeal was pending, Congress

enacted legislation ordering the Secretary of the Interior to conveyone acre of the Mojave National Preserve which included the crossand Sunrise Rock to the VFW, in exchange for a privately owned

five-acre parcel of land elsewhere in the Preserve. DefenseAppropriations Act, 2004. The act further maintained that if the

Secretary of the Interior determined that the conveyed propertywas no longer being maintained as a war memorial, the property

would revert to the ownership of the United States. This reversionclause did not specify that the memorial must remain a cross.

5. The court of appeals affirmed the district courts judgmentand held that the cases had not been rendered moot by the Defense

Appropriations Act of 2004 because the land transfer was notcomplete at the time of review and could take as long as two years

to complete. The court did not make a ruling as to theconstitutionality of the transfer, leaving the constitutionality to be

determined in the future after the transfer had been completed.The court also held that the respondent had standing to

challenge the cross because he had suffered a personalized injuryas opposed to an abstract injury because he would be more likely

to avoid the Sunrise Rock area on future trips to the Preserve. Assuch, he would be prevented from enjoying the public land

afforded for the use of all citizens of the United States.6. In response to the holding of the court of appeals, the

respondent filed a motion to modify the district courts earlier permanent injunction. He asserted the Congresss transfer was

merely an attempt to circumvent and evade the injunction. Thedistrict court agreed and held that the land transfer was designed to

continue the display of the cross, while avoiding the EstablishmentClause violation. As a result, the court permanently enjoined the

government from implementing the land transfer.7. The court of appeals affirmed this district courts decision.

The court held that the injunction would not cause thegovernments endorsement of religion to actually cease. As such,

the court held the land transfer could not be validly executed

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without violation the injunction which prohibited the endorsement

of a particular religion.The court of appeals based its decision on the premise that

there would still be continued government control after the land

transfer was complete. The Defense Appropriations Act, 2004provided that the land surround the cross and Sunrise Rock wouldrevert back to the ownership of the United States, if the Secretary

of the Interior determined that the VFW was no longer maintaininga war memorial on the site.

In the courts view, the park service also would continue tomaintain supervisory and managerial responsibilities over the use

of the land and would have an implied easement to enter the property in order to install a replica of the original plaque as

ordered by Congress.The court also relied on three additional factors: first, the land

exchange was directed by Congress in an appropriations bill ratherthan initiated by the Park Service pursuant to agency procedures;

second, that Congress transferred the land to the VFW rather thanselling it to the general public through normal means; and third,

that Congress engaged in repeated legislative efforts to maintainthe cross at Sunrise Rock. According, the court determined that the

governments purpose in this case was to evade the injunction.

SUMMARY OF ARGUMENT

I. Respondent lacks standing under the Establishment Clause

to challenge Congresss land transfer. The respondent does notobject to the public display of the cross on federal government

property, but is instead offended that the property is not an openforum for which other individuals and organizations may erect

religious or other types of displays. Therefore, the respondentsinjuries are not a result of unwelcomed unconstitutional

government endorsed religious exercise, but instead are a result ofconstitutional government legislation which he does not agree. As

such, this alleged injury is not sufficient to confer standing underArticle III, Section 2 of the Constitution. Additionally, the

respondent lacks proper standing as a plaintiff because he does notassert his individual rights, but instead asserts the rights and

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inability of third parties to erect displays on the Sunrise Rock area.Only, if he attempted to erect a display and was barred from doing

so, could he gain some degree of standing under this action.II. The placement of the cross on Sunrise Rock withstands

Constitutional muster and is not a violation of the Establishment

Clause. The legislation protecting the cross was secular in that itdesignated and protected the cross as a war memorial, not as areligious shrine; similar to other World War I memorials. There is

no evidence to suggest that it was the intention of the governmentto promote or inhibit the free exercise of a particular religion and

an objective observe would not assume government endorsementgiven the circumstances and history of the cross. Additionally,

there is no evidence to suggest excessive government entanglementwould be brought about by the land transfer. On the contrary, the

land transfer would end all government involvement with the crossas well as any presumption of government endorsement.

III. If a violation of the Establishment Clause did occur,Congresss land transfer remedies the violation. The land transfer

would remove the prerequisite element of governmentinvolvement, entanglement, or endorsement, because the display of

the cross would no longer be on land owned by the federalgovernment. At the very least, Congresss transfer of the land

presumptively ends any endorsement. Additionally, thegovernment does not retain any impermissible control over the

property under the land transfer, because the reversionary clause ofthe land transfer does not require the VFW to main the cross on

Sunrise Rock, but instead requires it to maintain a war memorialon the site.

IV. The court of appeals erred and lacks merit in its reasoningfor enjoining the land transfer. The court held that a reasonable

observer, even without knowing that Sunrise Rock is federallyowned, would believe or at least suspect that the cross rests on

public land because of the vast size of the preserve. Buono v.Kempthorne, CV-01-00216-RT. However, the court contradicts

this rational by concluding that a reasonable observer aware of thehistory of Sunrise Rock would know that the cross was erected by

private individuals. This references to how an objective observerwould perceive the intentions behind the placement of the cross on

Sunrise Rock; as such the lower courts decision contradicting this

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conclusion should be overturned.V. The injury caused by the order of the court of appeals

which permanently enjoined the land transfer is far greater than the potential harm raised under the Establishment Clause, because it

violates multiple constitutional protections. When the multiple

constitutional violations brought about by the courts injunction aretaken together they provide more weight and overshadow thealleged harms brought about by a violation of the Establishment

Clause to the respondent.A. The permanent injunction affirmed by the court of appeals

is a violation of Article 4, Section 3, Clause 2 of the United StatesConstitution. Congress is afforded authority over all property

belonging to the United States and is entrusted with the acquisitionand disposal of all government property; including property that

has been designated a national preserve or national memorial. Thiswould and does include the federally owned Sunrise Rock.

Historically, this court has held that The power over public land isentrusted to Congress without limitations and it is for Congress and

not the courts to say how the trust shall be administered. U .S. v.State of California and County of San Francisco, 310 U.S. 16, 84

L.Ed. 1050. As such the injunction is invalid.B. The permanent injunction violates the liberty of contract

established by the Fifth Amendment and as applied by theFourteenth Amendment. The injunction nullifies the land exchange

and contract between the federal government, the VFW, and HenrySandoz without due process of law. Historically, the constitution

has been interpreted to protect the rights of individuals to makecontracts with other individuals and public entities; however, the

injunction unjustly inhibits this right and was enacted withoutprotecting the due process rights of the VFW and Henry Sandoz,

the forgoing land owner of the exchange. As such, this actionshould be remanded to a lower court with instructions.

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ARGUMENT

I. RESPONDENT LACKS STANDING UNDER THE ESTA-BLISHMENT CLAUSE

The U.S. Code and relevant case law establish that in order tohave standing to contest the validity of legislation or governmentalaction the claimant must show an injury in fact and that he has

been deprived of a constitutional right. Swomley v. Watt, 526 D.C.1271. Additionally, the claimant must show that he and his rights

adversely affected, aggrieved, or injured by a statute orgovernment action. Horne v. Federal Reserve Bank of

Minneapolis, 344 U.S. 725. In short this is the bare minimumcriteria for constitutional standing under the Article III of the

Constitution. Additional prudential dimensions of standing mustbe taken into consideration when determining the standing and the

resulting claim of a claimant. Prudential dimensions of standingis the general prohibition on a litigants raising another persons

legal rightElk Grove Unified School District v. Newdon, 542 U.S.1,12, (2004). Here, respondent cannot demonstrate either

constitutional standing or prudential standing.

A. Respondent Lacks Constitutional Standing Because He

Lacks The Requisite Personal Injury

1. Respondents action does not meet the requisite injury

outlined by Article III because it does not seek to remedy a

personal injury, but instead is intended to advance his view of theEstablishment Clause one that requires public property to beopen to all displays and religious symbols. The respondent, a

practicing Roman Catholic, has public expressed that he has notbeen injured by the placement of the memorial on Sunrise Rock or

the subsequent land transfer. Instead, the respondent maintains thatother groups which do not include the respondent (third parties)

may believe the cross is offensive or feel excluded from thedesignation of the cross as a war memorial and its placement on

public land. As such the respondent, upon his own admission, hasno concrete specific personal injury or qualifying interest.

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2. This action a clear violation of constitutional standingunder the Establishment Clause which requires allegation of a

particular, concrete injury to qualifying interest involved. Valley Forge Christian College v. Americans United For Separation of

Church and State, 102 U.S. 752. Since the respondent cannot

demonstrate that an injury occurred to his person as a result of the placement of the war memorial cross on Sunrise Rock and thesubsequent land transfer, and because standing is not given to

claimants who seek to remedy the alleged injuries of third parties,he does not have standing under the Establishment Clause or

Article III.Therefore, his action should be dismissed and the lowercourts decision overturned because the respondent in this action

lacks request constitutional standing.

B. Respondent Lacks Prudential Standing Because He As-

serts The Rights of Third Parties

Prudential standing encompasses the general prohibition

on litigants raising another persons legal rights. Newdon, 542U.S. Essentially, this requires a claimant to seek a redress of his

own personal injury brought about by legislation or governmentaction, not injuries of parties or groups with whom his is not

directly affiliated with. As such the courts have no power toinquire into validity of law [or legislation] by proceedings brought

directly for that purpose by one whose rights are not affected byoperation of such laws. Commonwealth of Massachusetts v.

Mellon, 118 U.S. 447. At the bare minimum a plaintiff must havesome personal stake in [the] outcome of the litigation Baker v.

Carr, Tenn., 82 U.S. 691.If the court deems that the respondent has constitutional

standing, the court must dismiss the respondents action for a lackof prudential standing because he seeks to assist the rights of

others with whom he is not associated. The respondent maintainsthat he has no personal injury by the placement of the cross on

Sunrise Rock and the subsequent land transfer, but is insteadseeking to remedy what respondent assumes is the oppression of

other individuals expressive desires. In essence, respondentmaintains that others may not be permitted to erect other displays

on Sunrise Rock. However, respondent has never attempted, never

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been denied, and does not plan on in the future erecting a displayon Sunrise Rock; he only complains that others may not be able to

do so. However, nothing prevents a third party from filing suit, ifand when they are prevented from erecting a display on Sunrise

Rock. If a third party has attempted to erect such a display it is

their duty, not the duty of the respondent, to file an action. Becauseof this respondent has no qualifying interest in this action. Only ifthe respondent attempted and was prevented from erecting a

display on Sunrise Rock would he have prudential standing underthis particular action. As such, the respondent does not have

prudential standing and his action should be dismissedaccordingly.

II. THE PLACEMENT OF THE CROSS ON SUNRISE

ROCK WITHSTANDS CONSTITUTIONAL MUSTER

AND IS NOT A VIOLATION OF THE ESTABLISHME-

NT CLAUSE

Even if the respondent has standing, he is incorrect in assertingthat the placement of the cross on Sunrise Rock is a violation of

the Establishment Clause. Historically this Court has ascribed alitmus test when deciding Establishment Clause cases three such

tests may be gleaned from our cases. First, that stature must have asecular purpose; second, its principal or primary effect must be one

that neither advances nor inhibits religion; finally, the statutemust not foster excessive government entanglement with

religion. Lemon v. Kurtzman, 403 U.S. 602. The three tests are

commonly referred to as the Lemon Doctrine. Additionally, theCourt must address the intent behind the legislation or governmentaction; in which the interpretation of intent belongs to the

objective observer who takes account of the traditional externalsigns that show up in the text, legislative history, and

implementation of the statute or comparable official act.McCreary County v. ACLU, Kentucky 545 U.S. 844. If the actionsor legislation of government passes both of these constitutional

hurdles, the Lemon Doctrine and perceived intent, then that actionof government is in accordance with the Constitution and not a

violation of the Establishment Clause.1. The placement of the cross on Sunrise Rock and the

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subsequent land transfer has a secular purpose. As indicated by a plaque in front of Sunrise Rock and from the designation of

Congress, the cross at Sunrise Rock intended merely as warmemorial to the veterans of World War I and to the fallen soldiers

of every other war; regardless of religion. As such this government

actions was not intended to and does not have a religious purpose,but is designed to honor fallen American soldiers. Thereby makingthis governmental action comparable to previous legislative

attempts to honor military personnel and establish nationalmemorials. Therefore, this action of government does have a

primary secular purpose.2. The placement of the cross on Sunrise Rock and subsequent

land transfer does not promote or inhibit religion. Congressdesignated Sunrise Rock as a war memorial. As such, the

Department of the Interior, specifically the Secretary of the Interioris responsible for the maintenance and integrity of the memorial,

as well as all national memorials and national historic landmarks.16 U.S.C. 470a. Therefore any decisions made by the Secretary of

the interior concerning the memorial at Sunrise Rock are withthese purposes in mind. The respondent claims that the government

inhibited religion by preventing a Buddhist shrine from beingerected on Sunrise Rock. However, the shine was intended to be a

religious display and not a display honoring World War I soldiers,allowing the display would have compromised the integrity of the

memorial and may have lead to observers assigning a religiousmeaning to the cross on Sunrise Rock. A display honoring World

War I soldiers, without the primary purpose of advancing areligion would not have been rejected on these grounds. Therefore

the legislation and actions of the government did not promote orinhibit religion.

3. The placement of the cross on Sunrise Rock and subsequentland transfer does not foster excessive government entanglement.

The prior holdings of this Court do not call for total separation between church and state; total separation is not possible in an

absolute sense. Some relationship between government andreligious organizations in inevitable. Lemon, 403 U.S. 602. As

such, entanglement between religion and government is expectedand accepted to a degree, the problem is when this entanglement

becomes excessive. The point at which entanglement becomes

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excessive is arbitrary and depends on the factors surrounding thecase. However, in this action the government was not engaged in

excessive entanglement with religion because the cross wasintended as a war memorial and not a religious shrine, and because

the land transfer ended all entanglement with religion. The

government maintained that once the memorial was no longer on public land and was privately owned that any perceivedentanglement and any alleged injuries would cease. Essentially,

once the land transfer would be completed, the government wouldhave no relationship to the cross and thus there would be no

excessive entanglement. Therefore the legislation and actions ofthe government did not foster excessive government entanglement.

4. An objective observer viewing the cross on Sunrise Rockwould not perceive intent on the part of the government to

establish a religion. This Court has maintained that true purposeis unknowable, and its search is merely an excuse for courts to act

selectively and unpredictably in picking out evidence of subjectiveintent. [instead, intent] belongs to the objective observer who

takes account of the traditional external signs that show up in thetext, legislative history, and implementation of the statute or

comparable official act. McCreary County 545 U.S. 844. In itdecision the court of appeals held that a reasonable observer

aware of the history of Sunrise Rock would know that the crosswas erected by private individuals. Buono, CV-01-00216-RT. As

such, anyone familiar with the history of Sunrise Rock wouldknow that the cross was placed on the rock as a war memorial by

the VFW and the federal government, thus addressing anyconcerns about government intent.

While an informed objective observer would not question theintent of the federal government concerning the cross on Sunrise

Rock, traditionally this Court has been concerned with the ignorantobjective observer who is unaware of the history of the action. We

maintain that even an ignorant objective observer would not makea connect between the cross and the federal government, and thus

would not form an opinion as to intent of the government. This isbecause the plaque which accompanies the cross clearly identifies

the cross a war memorial and further identified which organizationerected the memorial - the VFW. As such, the plaque serves as a

form of enlightenment for the ignorant objective observer and

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prevents the observer from forming the opinion that the cross waserected by the government and is intended to advance Christianity.

Therefore, neither the informed objective observer nor the ignorantobjective observer would or could believe that the cross was

erected by the federal government and was intended as a religious

symbol.

III. IF A VIOLATION OF THE ESTABLISHMENT CLAU-

SE DID OCCUR, CONGRESSS TRANSFER OF

THE LAND TO PRIVATE PROPERTY REMEDI-

ES THE VIOLATION

If this Court finds that a violation of the Establishment

Clause did occur, the violation becomes moot and is remedied bythe land transfer enacted by Congress. When faced with the lower

courts decision, Congress ordered a land exchange in which

Sunrise Rock and the surrounding area was transferred to theVFW, who originally erected the memorial. The only stipulation pertaining to the transfer was that a World War I memorial be

maintained on the sight; however, the legislation did not specificwhat form the memorial had to take. Congress ordered this action

in order to preserve the integrity of the war memorial and to end allgovernment involvement with the memorial, as is well within its

constitutionally vested powers. The land transfer promoted thesignificant government objective of showing respect for the

countrys fallen service member while avoiding social conflict. Assuch, the land transfer is a compromise between two competing

ideals and is not a violation of the Establishment Clause of theConstitution.

In order for a claimant to raise a challenge under theEstablishment Clause, this Court requires allegation of a

particular, concrete injury to qualifying interest involved. ValleyForge Christian College, 102 U.S. 752. However, since this was a

private transaction between the federal government and the VFWwhich in no way involved the respondent, the respondent has no

cause to challenge this transaction. Additionally, this initialcomplain of the cause which maintained that the cross on Sunrise

Rock is a violation of the Establishment Clause because it does not

allow other private individuals to erect displays on public land is

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rendered moot by the land transfer, because upon its completionthe memorial will no longer be located on federally controlled

land, but will be privately owned and funded by the VFW. Similarcases maintain that as long as the private purchaser had

preformed the necessary formalities to effect a transfer of proper,

paid a fair price and assumed the traditional duties of ownership,the sale validity extinguished any government endorsement ofreligion. Freedom of Religion Foundation., Inc v. City of

Marshfield, 203 F.3d 487 (2007). As such, this transaction is validand extinguished or makes moot the violation claimed under the

Establishment Clause. Therefore, this Court should reverse thelower courts decision and dismiss the respondents action.

IV. THE COURT OF APPEALS REASONS FOR

ENJOING THE LAND TRANSFER LACK MERIT

AND ARE CONTRADICTORY

Even if the respondent has standing concerning the alleged

violation of the Establishment Clause, the decision, specifically theinjunction, of the court of appeals must be reversed because the

reasoning of the lower court lacks merit and is exceedinglycontradictory. In rendering its decision, the court of appeals held

that the placement of the cross on Sunrise Rock and subsequentland transfer was a violation of the Establishment Clause because a

reasonable observer, even without knowing that Sunrise Rock isfederally owned would believeor at least suspect that the cross

rests on public land because of the vast size of the reserve.Buono,

CV-01-00216-RT. However, an objective observer could notconclude with any reasonable degree of certainty that Sunrise Rockis federally owned. In fact, only 90% is the property of the United

States federal government, while 6% is privately owned. There isno physical marker or barrier to indicate which land is privately

owned and which land is public owned, as such an objectiveobserver cannot fully pass judgment as to which part of thePreserve are public held and which parts are privately held.

Additionally, we maintain that after the land transfer occursthat an objective observer would reasonably conclude that the

cross on Sunrise Rock is not federally owned. The inability of thefederal government to establish or promote a religion is a common-

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ly recognized doctrine by a majority of United States citizens. Assuch, the placement of the cross on perceived federal lands would

create dissidence in the mind of the observer, leading him to reachthe only logically conclusion, that the cross is privately owned and

sit atop of privately controlled land. When this fact is combined

with the display of the plaque in front of the memorial which proclaims that cross and memorial was erected and is owned by private parties, any objective observe would conclude that the

government is not promoting, establishing, or inhibiting religionand that the memorial is privately owned.

The court of appeals also provided contradictory reasoningwhich favored the appellant in this cause. The lower court held that

a reasonable observer aware of the history of Sunrise Rock wouldknow that the cross was erected and maintained by private

individuals.Buono, CV-01-00216-RT. This reasoning favors andserves as strong support for our claim that an objective observe

would not conclude that the federal government was endorsing areligion, but would be inclined to believe that the cross on Sunrise

Rock was privately owned and maintained. While the court ofappeals did not speak of an objective observer who is unaware of

the history of the cross at Sunrise Rock, we maintain that the plaque located in front of the memorial servers a tool of

enlightenment which informs the individual observer of the natureand the ownership of the memorial. Therefore, based on the

reasoning of the court of appeals, this Court should reverse thedecision of the lower court.

V.THE INJURY CASED BY THE ORDER OF THECOURT OF APPEALS, PERMANENTLY ENJOING

THE LAND TRANSFER IS FAR GREATER THAN

THE ALLEGED HARM RAISED UNDER THE

ESTABLISHMENT CLAUSE, BECAUSE IT

VIOLATES MULTIPLE CONSTITUTIONAL PROT-

ECTIONS.

Even if this Court maintains the respondent has standing andthat the alleged violation of the Establishment Clause did occur,

this Court should reverse the injunction that was affirmed by thecourt of appeals because the injunction violates multiple constituti-

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onal provisions which combined outweigh and overshadow theharmed brought about by the alleged violation of the Establishment

Clause. When presented with two or more evils or constitutionalviolations, this Court is charged with choosing the lesser of the

constitutional violations. In this cause the respondent presents only

one constitutional violation, while we maintain that the injunctionwhich was affirmed by the lower court is a violation of twoconstitutional protections; specifically the property rights afforded

to Congress and the liberty of contract afforded to all citizens.

A. The permanent injunction violates Article 4, Section 3,

Clause 2 of the Constitution because it infringes on the

public property rights specifically afforded to Congress

Article 4, Section 3, Clause 2 of the Constitution states theCongress shall have Power to dispose of and make all needful Rule

and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution

shall be so constructed as to Prejudice and Claims of the UnitedStates. As such, Congress charged with the administration,

oversight, acquisition, and disposition of publicly owned land, andexercises power both of proprietor and of legislative over public

domain. Kleppe v. New Mexico, 529 U.S. 49. As proprietor,Congress may designate a steward to exercise control over the

land. In the case of national park and national memorials, alloversight is given to the Department of the Interior, specifically the

Secretary of the Interior. The Secretary of the Interior or suchofficer as he may designate shall execute all executive duties

appertaining to the surveying and sale of the lands of the UnitedStates. 43 CFR 17.1. As such, the authority to oversee and to stop

the sale of public land and public land transfers falls under thedirect authority of the Congress as administered by the Secretary of

the Interior or his designated officer, not the courts.This Court has held that the constitutional power of Congress

under this clause [Article 4, Section3, Clause 2] vesting in it powerto dispose of and make all needful rules respecting territory or

other property belonging to United States is without limitation, andneither courts nor executive agencies may proceed contrary to act

of Congress in that congressional area of national power United

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States v. State of California, 332 U.S. 19 (1947). This holding stillmaintains its precedential value and should be the standard used

when deciding this case. As such, since the land transfer was an actdesignated by Congress and the property rights of the United States

are without limitation, the courts cannot proceed contrary to the

act; thus the injunction is invalidated because prohibits and runscontrary to the protected and unlimited property rights oflegislation enacted by Congress. Therefore, this Court should

maintain the precedential standing of United States, 332 U.S. 19and reverse the injunction pertaining to the land transfer that was

affirmed by the court of appeals.

B. The permanent injunction violates the liberty of contract

established by the Fifth Amendment and as applied by the

Fourteenth Amendment.

The Fifth Amendment of the United States Constitution provides in part that no person be deprived of life, liberty, or

property, without due process of law; nor shall private property betaken for public use, without just compensation. The Fourteenth

Amendment of the United States Constitution applies thisprotection to the states and provides in part that nor shall any state

deprive any person of life, liberty, or property, without due processof law. Historically, this Court has held that freedom of contact

between private parties is an important civilized concept, andcourts should respect the agreements people reach and resolve

disputes thereunder according objective principles. Morta v. Korea Insurance Corporation, 840 F.2d 1452. However, this

freedom of contract is not unlimited and is necessarily subjectto the restraints of due process, and regulation which is reasonable

in relation to its subject and is adopted in the interests of thecommunity is dues process. West Coast Hotel v. Parrish, 300

U.S. 379, (1937). As such freedom of contract may only belimited upon due process of law; however, the parties involved in

the land exchange, a contract, were not afforded due processprotections.

The injunction sought by the respondent, a party not affiliatedwith the land transfer, immediately and permanently halted the

execution of the congressionally enacted land transfer. However,

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the injunction was issued by the district court and affirmed by thecourt of appeal without the presence or representation of the other

parties, not including the United States government, involved inthe contract/land transfer. Neither: Henry Sandoz (whose property

was being traded in exchange for Sunrise Rock) nor the VFW (the

intended recipient of Sunrise Rock) was included in theproceedings at either the district court or the court of appeals. Thisalone is a clear violation of both parties due process rights;

however, when this violation is combined with the fact that a partynot directly involved with the land transfer/contract filed an action

to terminate that contract it is clear that the liberty of contractrights of the federal government, Henry Sandoz, and the VFW

were violated. Therefore, this Court should overturn the injunctionand remand this cause of action to a lower court with instructions

to dismiss the case.

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CONCLUSION

The judgment of the court of appeals should be reversed andthis case remanded with instructions to dismiss.

Respectfully submitted.

DANIEL N. CLAY MADISON M. MORGAN

Solicitor General Acting Solicitor Department of Justice Department of the Interior

Washington, D.C. 20530 Washington, D.C. 20240(202) 514-2217 (202) 208-3175

APRIL 2010

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Buono v. Salazar (Moot Brief)

Documents

Transcript of Buono v. Salazar (Moot Brief)