Salazar v. Buono

PETITIONER:Ken L. Salazar, Secretary of the Interior, et al.

DOCKET NO.: 08-472
DECIDED BY: Roberts Court (2009-2010)
LOWER COURT: United States Court of Appeals for the Ninth Circuit

CITATION: 559 US 700 (2010)
GRANTED: Feb 23, 2009
ARGUED: Oct 07, 2009
DECIDED: Apr 28, 2010

Elena Kagan – Solicitor General, Department of Justice, argued the cause for the petitioners
Peter J. Eliasberg – argued the cause for the respondent

Facts of the case

In 1934, the Veterans of Foreign Wars built a wooden cross on top of Sunrise Rock in the Mojave National Preserve (Preserve) as a memorial to those who died in World War I. The original cross no longer exists, but has been rebuilt several times. Frank Buono, a former Preserve employee, filed suit in a California federal district court seeking to prevent the permanent display of the cross. The genesis of his suit occurred in 1999 when a request to build a Buddhist shrine in the Preserve, near the cross, was denied. He argued that the cross’ display on federal property violated the Establishment Clause of the First Amendment. The district court agreed and the cross was covered.

While the case was pending, Congress designated Sunrise Rock a national memorial and barred its dismantling with the use of federal funds. One year later, by land swap, Congress made Sunrise Rock private property in exchange for another parcel of land. Mr. Buono moved to not only enforce the previous court order preventing the display of the cross, but also to prohibit the land swap. The district court granted both motions. The Secretary of the Interior appealed, arguing that the district court abused its discretion.

On appeal, the U.S. Court of Appeals for the Ninth Circuit held that the district court did not abuse its discretion. The court reasoned that the government failed to show that the district court’s fact findings or legal standards were clearly erroneous, nor did it show that the district court made an error in judgment.


1) Can Mr. Buono’s suit be maintained when he is merely offended by the fact that public land on which a cross is displayed is not a forum for other religious symbols?

2) Did the U.S. Court of Appeals for the Ninth Circuit err in not giving effect to Congress’s land swap where Sunrise Rock was made private land?

Media for Salazar v. Buono

Audio Transcription for Oral Argument – October 07, 2009 in Salazar v. Buono

Audio Transcription for Opinion Announcement – April 28, 2010 in Salazar v. Buono

John G. Roberts, Jr.:

Justice Kennedy has the announcement this morning in case 08-472, Salazar versus Buono.

Anthony M. Kennedy:

The Mojave National Preserves much of that in the South and Southwestern California comprises about 1.6 million acres within the Mojave Desert.

To give some idea of the desert size, it exceeds the combined area of the nation’s five smallest states, just over 90% of the land of the preserve is federally owned.

The National Park Service, a division of the Department of Interior administrators of the preserve.

Sunrise Rock is a granite outcropping located within the preserve.

In 1934, members of the Veterans of Foreign Wars mounted a Latin cross on the Rock as a memorial to soldiers who died in World War I.

The cross has been replaced or repaired at various times over the years by private parties and across now consists of 4 inch diameter metal pipes that are painted white so the cross is white.

The vertical bar of the cross is less than 8 feet tall, the cross cannot be seen from the nearest highway but it is visible from a nearby access road.

The court has been asked to consider a challenge not to the first placement of the cross by the VFW, words continued presence on federal land but to a federal statute, a congressional enactment that would transfer the land on which the cross stands to a private party.

The District Court enjoined the government from implementing the statute.

The Court of Appeals affirmed and we now reverse and remand for further proceedings.

Almost 7 decades after the cross was first constructed, a challenge to its presence was bought by Frank Buono.

He is the respondent here.

He has claimed that the cross’s presence on federal land violates the establishment clause of the First Amendment.

He sought an injunction requiring the government to remove the cross.

The procedural background involved is lengthy, involved two District Court decisions and two Court of Appeals decisions before the case came here.

In the first round of litigation, the District Court found that the presence of the cross was unconstitutional because it conveyed an impression of governmental endorsement of religion.

In 2002, the Court granted an injunction of forbidding the government from maintaining the cross and its location and preserve, the Court of Appeals affirmed the judgment of the District Court.

And it affirmed it both on the issue of respondents standing to bring the suit and on the merits of its constitutional challenge.

The government did not seek review of the decision of Court of Appeals, so that decision became final.

While the government’s appeal was pending Congress passed a statute and the statute directed the Secretary of the Interior to transfer the cross in the land on which it stands to the Veterans of Foreign Wars, VFW, in exchange for privately owned land elsewhere in the Preserve and this is the so-called Land Transfer Statute and it presents the primary issue to be decided here.

In the second round, respondent then returned to the District Court, and that second round of litigation began.

This time the respondent sought injunctive relief against the land transfer and land transfer statute.

The District Court granted his request; it concluded that the land transfer statute was an attempt to evade the earlier injunction, the 2002 injunction.

The Court of Appeals again affirmed, we granted the government’s petition for review.

Since this Court did not renew the first Court of Appeals decisions, we do not rule on respondents standing to bring the first suit.

Now, that’s a final judgment.

We now must decide whether respondent has standing to seek release in the second phase of litigation.

We conclude that respondent does have standing in the second suit.

He established his entitlement to the 2002 injunction in the first stages of the litigation, that ruling became final and he then sought to prevent the government from frustrating or avoiding or evading the 2002 injunction.

Anthony M. Kennedy:

His interest in doing so was sufficiently personal and concrete to support his standing.

The next question is whether the District Court was correct to issue an injunction against the land transfer statute.

The District Court granted this relief on the premise that it was necessary to protect the respondent’s rights under the 2002 injunction but the District Court committed reversible errors in our view in reaching this conclusion.

First the District Court did not consider the substantial change in circumstances brought about by the land transfer statute.

The District Court dismissed Congress’s motives in passing the statute as illicit.

As a result, it took insufficient account of the context in which the statute was enacted and the reasons for its passage.

Private parties placed across on federal land.

They do not do so, as an attempt to place the government’s approval behind a particular creed.

Their intent was to honor fallen soldiers.

The cross stood for nearly 7 decades before the statute was enacted by which time the cross and the cause it commemorated had become entwined in the public’s consciousness.

The 2002 injunction thus presented the government with the dilemma, it could not maintain the cross without violating the injunction but it could not remove the cross without conveying disrespect for those the cross was seem as honoring.

Dealing neither alternative satisfactory, Congress enacted the land transfer statute.

The statute embodied the legislative judgment that this dispute is best resolved through a framework and policy of accommodation.

The statute should not have been dismissed as an invasion for bought about a change of law in a congressional statement of policy applicable to this case.

The District Court also erred by focusing on the religious aspects of the cross, divorced from its background and context.

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

Across by the side of a public highway marking for instance, the place where a state trooper perished need not be taken as a statement of governmental support for sectarian beliefs.

The cross is a religious symbol but it is also a symbol often used to honor and respect those who have major work and noble contributions on behalf of this nation and its people.

This cross is like so many others that mark the graves of Americans who fell in battles, battles whose tragedies are compounded if the fallen are forgotten.

The District Court did not consider and so gave insufficient weight to these aspects of the cross.

Finally the District Court erred by striking down the land transfer statute without considering whether other less severe alternatives existed.

Our respect for a coordinate branch of government for business to interfere with an act of Congress except upon a clear showing that relief is necessary.

It is Congress’s judgment that the land transfer is a proper accommodation of competing interests but even if the District Court decided otherwise, it was incumbent upon the court to consider alternative forms of relief that did not involve invalidating the statute.

The judgment of the Court of Appeals is reversed and the case is remanded for further proceedings.

The Chief Justice joins us this opinion in full and Justice Alito joins in part.

The Chief Justice has filed a concurring opinion; Justice Alito has filed an opinion concurring in part and in the judgment.

Justice Scalia has filed an opinion concurring in the judgment which Justice Thomas joins.

Justice Stevens has filed a dissenting opinion which Justices Ginsburg and Sotomayor joined.

Justice Breyer has filed a dissenting opinion.