Caltrans policy stymies a proposed veterans monument

ORCUTT, Calif. — Small-town folks struggling to put up a monument to veterans: It sounds like something straight out of “Mayberry R.F.D.,” but for residents of this Central Coast town, it feels more like “Catch-22.”

After three years, the privately funded $60,000 monument, which is sponsored by the American Legion and would be placed on a sliver of land owned by the California Department of Transportation, is still unbuilt. The sticking point has been opposition from Caltrans to the monument’s use of the American flag and the agency’s apparent reluctance to allow the display of words — such as “United States” — on the monument’s military emblems.

The issue surfaced last week before the Santa Barbara County Board of Supervisors, which sent a letter to Caltrans urging it to let the flag “stand tall in the center of this beautiful monument.”

In an interview, Peter Adam, the supervisor representing Orcutt, was unequivocal about the idea of striking the flag from a veterans monument: “That’s a degree of crazy we shouldn’t allow.”

A flag does wave at — or near — the site of the proposed monument. Under a state law allowing flagpoles in sidewalks, the agency has allowed the monument’s organizers to plant a flag about 20 feet from where a flag would fly if a flag were to fly over the monument.

“At least it’s there,” said Steve LeBard, a driving force behind the effort.

As the Marine veteran who served in Vietnam explains it, the original idea was simple.

About a decade ago, Orcutt was emerging from a long civic sleep, and a group LeBard helped found, the Old Town Orcutt Revitalization Assn., started dressing up the vintage downtown with an old-fashioned clock, brick crosswalks and metal horse troughs overflowing with flowers.

Residents also wanted a flagpole next to the Caltrans park-and-ride lot on the edge of town. The idea soon morphed into a monument — a flagpole encircled by five 8-foot, black concrete columns, one each for the Air Force, Army, Coast Guard, Marines and Navy.

The catch, it turned out, was the flag. Caltrans had grave reservations about allowing it on the 1,500-square-foot, ice-plant-covered patch it owns between the parking lot and Orcutt’s Clark Avenue.

As Caltrans director Malcolm Dougherty put it in a 2011 letter to LeBard, a federal court ruling “makes it clear that Caltrans employees are not elected policy makers and cannot engage in government speech by displaying political symbols, such as flags, on Caltrans property while preventing the display of other messages.”

The source of Caltrans’ concern is a 1st Amendment case it lost in 2003. The U.S. 9th Circuit Court of Appeals ruled that Caltrans should not have allowed removal of activists’ antiwar banners from a highway overpass in Santa Cruz while letting U.S. flags remain. The department’s policy since then has been to bar all flags from state roads, according to Caltrans spokesman Jim Shivers.

“We’re not blocking this monument,” Shivers said. “We’d like to see it done as a fitting tribute to the men and women who have served this country, but we must comply with the federal court’s ruling.”

“We have to be very, very careful about what types of messages are allowed,” he said. “If we allow one full message presented by an applicant, we’re then bound to allow for all other messages.”

Exactly what constitutes a permissible message is an open question.

As LeBard was preparing to pitch the project to county supervisors, he said, he received a cautionary email from a local Caltrans employee about a military emblem on his life-size mock-up: “Be sure to black out the ‘United States’ and motto part of the seal before displaying it at the hearing.”

That would mean altering the services’ official seals and removing mottoes such as the Marines’ “Semper Fidelis.”

“There’s no way I’d accept that,” LeBard said. “There’s no way any veteran would accept it.”

Shivers said he was unaware of such advice from anyone at Caltrans. No decisions have yet been made, he said, adding that the agency hopes to transfer the tiny property to Santa Barbara County, which, presumably, would allow the monument as it was designed.

But there’s a catch.

LeBard said his nonprofit would have to pay Caltrans an unaffordable $10,000 in administrative fees — and even then, the deal would not be assured.

And there’s a second catch: There’s no guarantee the county will want the land.

“Being an obstreperous sort, I might just refuse to take their ground,” said county supervisor Adam, a vegetable grower and cattle rancher. “There’s so much stuff wrong with this state that people have to start saying, ‘No, we’re not going to facilitate you being paralyzed by your own will.’ Caltrans should do the right thing.”

As the bureaucratic back-and-forth proceeds, Amy Courtney, one of the plaintiffs in the flag lawsuit, is astonished that her case is being used to keep flags from flying.

“It’s counter to our intention in the lawsuit,” said Courtney, an organic farmer and massage therapist in Santa Cruz. “Even on the overpass, our intent was never, ever to take down the American flag. We were enjoying that there was this spontaneous forum for free expression and we just wanted to participate in it.”

In late 2001, Courtney and her friend Cassandra Brown hung a couple of antiwar banners next to one of the many American flags draped from highway overpasses after the Sept. 11 attacks. After their banners were removed, once by a police officer and another time by unknown parties, they sued Caltrans, which said it required permits for banners other than American flags.

Like LeBard, Courtney said the appeals court ruling addresses overpasses — places that aren’t typical public forums — but not necessarily veterans monuments.

“City Hall gets to fly a flag, but people don’t get to fly pirate flags there,” she said. “It seems to me Caltrans is just trying to play it safe and thereby shooting themselves in the foot.”

steve.chawkins@latimes.com