Bill would allow veterans’ group to buy Mt. Soledad cross land in La Jolla

Transfer would allow association to proceed with plans to add electricity at site

Members of the Mt. Soledad Memorial Association are hoping the third time’s the charm in their quest to purchase the half-acre site on which its veterans memorial and contentious cross are situated, atop Mount Soledad in La Jolla.

The private group built the concrete cross in 1954 and has maintained the memorial since, adding some 3,600 veterans memorial plaques over the years. It currently maintains the land for the U.S. Navy.

Last week, the House and Senate passed the National Defense Authorization Bill, a $585 billion military spending bill that included the land-transfer provision by Rep. Duncan Hunter Jr. (R-Alpine). It authorizes the Defense Department to sell the land and transfer the cross to the memorial association. The president has 10 days to sign the bill, which association President and CEO Bruce Bailey said he is hopeful the commander-in-chief will do.

“It’s very encouraging to believe that after 25 years all of this litigation is hopefully over,” Bailey told La Jolla Light.

The issue has bounced around in the courts for nearly three decades. In 2011, the U.S. Circuit Court of Appeals ruled that the presence of the cross on federal land constituted the government’s endorsement of a religion.

La Jolla’s Bill Kellogg, who was president and chair of the memorial association when the previous two land-transfer attempts were derailed in the courts, told the Light he believes this proposal “has the potential to be a permanent solution.

“That’s my hope,” he said. “I think the solution is reasonable and answers the question of the separation of church and state. … It absolutely gets the government out of owning a cross.”

Kellogg said during the past several decades the memorial association has proven its dedication to use the site to honor veterans. “I don’t think (the transfer) is something that could be characterized anymore as a pretext (to show favoritism to a religion),” he said.

Bailey called the legislative provision a bipartisan effort, noting Democratic Sen. Diane Feinstein’s efforts to advocate for the bill. “She was the spearhead on the Senate end of this,” Bailey said, adding Feinstein called for the association to pay “fair appraised value” for property, rather than fair market value — a key distinction. The legislation stipulates that the property is to be used in perpetuity as a war memorial.

“That is what I believe is going to be the difference (from) what we did in the past and what the courts will see now,” Bailey said of previous transfer attempts. “As a memorial, does it have the same value as if it were a commercial piece of property — certainly not.” Bailey estimated that the land would be appraised for somewhere around $1 million.

In 1992, San Diego voters approved selling the cross and surrounding land to the memorial association, but a federal judge later voided the sale, saying it wasn’t open to competitive bidding.

In 1998, the veterans group bought the land as the highest bidder, although the 9th Circuit ruled the sale unconstitutional, saying the city gave the association the upper hand in the deal.

Should the president sign the bill into law, which would go into effect Jan. 1, Kellogg is crossing his fingers that the courts won’t nix the cross transfer this time.

“Obviously, that’s a risk, but we’re certainly hoping that that doesn’t happen again,” he said.

Jim McElroy, an attorney representing atheist Steve Trunk in his suit against the government, said it is too soon to say whether details of the transfer will satisfy all parties involved — particularly how much the association will pay for the land.

However, on Dec. 12 McElroy told U-T San Diego, he was optimistic. “Our point from the very beginning is it’s just not constitutional to have a 43-foot, 20-ton cross on government property,” he said. “We stuck to our guns and we proved our point, and now if we can get something worked out that makes sense, let’s do it.”

Bailey, himself a retired lawyer, said he knows McElroy well and will do his best to work with him on a deal amenable to both parties. “We have our differences of opinion sometimes,” Bailey said, with a laugh, “although we’re still friends. … I’ll call him and say, ‘let’s sit down and talk.’ ”

Bailey said he is not sure who will conduct the appraisal, though he said the association would start a fundraising campaign to purchase the land.

“I am very confident that with the support we have and the people who want the memorial to stay where it is, as it is, we will be able to raise those funds,” he said. “That’s pretty much what we’re going to have to do.”

Lighting the flag and memorial steps

Bailey said transfer of the land from the Department of Defense to the memorial association would also free the group to bring electricity up to site, so it could light the steps and flag at night, increasing safety and reducing the need to lower and raise the flag daily.

In 2012 the association conducted lighting tests to determine a level that wouldn’t create light pollution and that would be acceptable to the community, though Bailey said the Navy preferred that the association remain low-key, and hold off on those plans.

With electricity, the association also plans to add a kiosk to help visitors locate memorial plaques, access the association’s website and make donations. Earlier this year, the group emblazoned its name in large letters across one of the granite walls, featuring the seals of each branch of the U.S. military.

“Instead of a regional memorial, we’re trying to make this a national (site). We want people who are in Washington, D.C. saying, ‘We want to go (to San Diego) to see the zoo, Midway Museum and Mt. Soledad Veterans Memorial,” Bailey said.