concurring in part and dissenting in part:
I concur in the result reached by the majority with respect to the Lincoln, Nebraska and Aberdeen, South Dakota locations. I respectfully dissent, however, from the result reached by the majority with respect to the Fargo, North Dakota location.
The majority reads Monterey County Democratic Cent. Comm. v. United States Postal Service1 and the plurality opinion in United States v. Kokinda2 as holding that no federally owned ingress-egress sidewalk is a public forum. See op. at 654-66. I suggest that this reading of those cases is overly broad. Both of those cases held that a federally owned walkway that is not a public thoroughfare and that is separated from the public sidewalk by a parking lot is not necessarily a public forum. Thus, there are two questions to ask: (1) is the walkway in question a public thoroughfare and (2) is the walkway physically indistinguishable from the public sidewalk. Because sidewalks are traditionally considered public fora,3 this Court should hold that a sidewalk is not a public forum only if these questions are answered in the negative.
In both Lincoln, Nebraska and Aberdeen, South Dakota these requirements are met. In Lincoln, a parking lot separates the postal walkway from the public sidewalk, and the walkway is neither designed nor used as a public thoroughfare. In Aberdeen, the raised terrace is clearly not a public thoroughfare-its only purpose is to allow access *663into the building. Although there is no parking lot separating the terrace from the public sidewalk, the fact that it is elevated five or six feet above the public sidewalk is certainly sufficient separation to apprise those who approach of the difference.
In Fargo, I agree that the granite ledge, which is actually part of the building, is not a public forum. Thus, it was permissible for the government to move Mr. Jacobsen’s newsrack (or its concrete counterweight) from the ledge. I would hold, however, that the portion of the sidewalk owned by the government is a public forum.
The majority states “there is a clear line of demarcation in the sidewalk that distinguishes the federal entryway from the municipal sidewalk.” Majority op. at 657. A review of the transcript and exhibits reveals that the only demarcation consists of a crack in the sidewalk between two sections of the concrete and a difference in the texture of the concrete itself. A person approaching would not be apprised of the difference. In Monterey and in Kokinda, the federal sidewalk was physically distinguishable from the municipal sidewalk, and both courts stressed that physical separation as a factor in their decisions. Here, there is no physical separation, there is only a property line and the fact that the contractor poured the concrete so that a crack is fortuitously located on or near that property line.
Furthermore, the federally owned sidewalk in Fargo is a public thoroughfare. No one disputes that the municipal sidewalk is a public thoroughfare, and that the municipal sidewalk is a public forum. Because there is no physical separation, the federally owned sidewalk is nothing more than an extension of this same public thoroughfare. Thus, I would find that the sidewalk in front of the Fargo post office is a public forum.4
The majority finds that it was permissible for the government to move Mr. Jacobsen’s newsrack for safety reasons. While it is true that it is permissible for the government to move the newsrack for safety reasons, mere invocation of a safety justification will not suffice to protect the government’s actions.
Patricia Heintzman, the GSA building manager in Fargo, testified that both locations in which Mr. Jacobsen placed his news-rack were in the way of pedestrian traffic. The majority finds that there was adequate justification for moving Mr. Jacobsen’s news-rack because it was allegedly situated in the middle of the sidewalk, whereas the other racks were allegedly either on the granite ledge or in the alcove. Mr. Jacobsen’s news-rack was in a public forum, and the government has the burden of proving the validity of its safety justification. After reviewing the records and the transcript, I find that the exact location of the other newsracks is unclear. Without knowing the location of the other newsracks, it is impossible to analyze the accuracy of the government’s assertions. I would hold that the government did not carry its burden.
My conclusion is bolstered by other facts that cast doubt on the government’s position. Mr. Jacobsen placed his newsrack next to several other newsracks in each instance. Mr. Jacobsen’s newsrack was first removed in September 1985. This lawsuit was filed November 1985. Mr. Jacobsen’s newsrack was removed from its second location in January 1986. None of the other newsracks which were located in the same “hazardous” area as Mr. Jacobsen’s, were moved to the curb until August 1987.5 In short, almost two years elapsed between the time Mr. Ja-cobsen’s newsrack was removed, ostensibly for safety reasons, and the time that the other newsracks were removed from the same location. Indeed, the testimony regarding the removal of the other newsracks shows that they were finally removed because the vendors had not complied with the Randolph-Sheppard Act — not because there *664was a safety hazard. The government’s contention that Mr. Jacobsen’s newsrack was removed because it created a safety hazard does not withstand analysis in light of these facts.
The only justification that the government has for removing Mr. Jacobsen’s newsrack is his non-compliance with the Randolph-Sheppard Act. I do not express an opinion on the constitutionality of that Act and its applicability to a public forum such as the sidewalk in front of the Fargo post office. The district court did not consider this aspect of this suit because the court found, mistakenly I believe, that this sidewalk was not a public forum. I would remand this portion of the case so that the parties and the district court might have a full opportunity to address this issue.
. 812 F.2d 1194 (9th Cir.1987).
. 497 U.S. 720, 110 S.Ct. 3115, 111 L.Ed.2d 571 (1990).
. See, e.g. United States v. Grace, 461 U.S. 171, 179, 103 S.Ct. 1702, 1708, 75 L.Ed.2d 736 (1983):
Sidewalks, of course, are among those areas of public property that traditionally have been held open to the public for expressive activities and are clearly within those areas of public property that may be considered, generally without further inquiry, to be public forum property.
See also, Monterey County, 812 F.2d at 1197: “Public places of outdoor pedestrian traffic— sidewalks — long have been representative of areas held open to the public for expressive activities”; and Jacobsen v. United States Postal Service, 812 F.2d 1151, 1153 (9th Cir.1987):
Sidewalks are presumptively a public forum, even though they are owned by the federal government. Where there is no separation, fence or other indication that government sidewalks are being used in some special way in connection with the federal building they abut, the government cannot deprive them of their character of a public forum by the simple expedient of a statutory definition.
. With respect to the Fargo location, United States v. Grace, 461 U.S. 171, 103 S.Ct. 1702, 75 L.Ed.2d 736 (1983), is highly instructive. The Court held that the sidewalks surrounding the Supreme Court building were public fora because "[tjhere is no separation, no fence, and no indication whatever to persons stepping from the street to the curb and sidewalks ... that they have entered some special type of enclave”.. Id. at 180, 103 S.Ct. at 1708-09.
. I note in passing that the preliminary injunction hearing was originally scheduled for August 4, 1987.