2:15-cv-06905
E.D. La.Jan 26, 2016Background
- The City of New Orleans passed an ordinance (City Code §146-611) to remove four monuments: Robert E. Lee, P.G.T. Beauregard, Jefferson Davis, and the Battle of Liberty Place monument after agency recommendations and public hearings.
- Plaintiffs (MTC, Louisiana Landmarks Society, Foundation for Historical Louisiana, Beauregard Camp No. 130) sued federal and city defendants seeking TRO/preliminary and permanent injunctions to stop removal, alleging federal statutory, federal constitutional, and state-law violations.
- Plaintiffs alleged federal violations under the DOT Act (section 4(f)), the NHPA (section 106), and the Veterans Memorial Preservation and Recognition Act; they also asserted §1983 claims (due process and equal protection) and Louisiana law claims (LA Const. art. XII §4, donation policy, and procedural defects under §146-611).
- Plaintiffs submitted expert reports arguing relocation risks (rigging/crane risk and fragility of bronze/statues); the City submitted expert evidence that reputable, experienced riggers/crane firms would be retained and that relocation can be done safely.
- The City defended the ordinance as a proper exercise of municipal discretion (nuisance criteria: ideological conflict with equal protection, history of vandalism/violence, maintenance/security costs outweigh significance) and explained donation compliance and plan to seek court clearance for the Liberty Monument (consent order).
- The Court held a preliminary injunction hearing and denied the motion, finding plaintiffs failed to show likely irreparable harm and failed to show a likelihood of success on any asserted claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Likelihood of irreparable harm from relocation | Removal/transport will likely irreparably damage fragile, historic monuments (expert rigging/sculpture reports) | Removal can be done safely by experienced riggers/crane firms; plaintiffs show only possibility, not likelihood | Denied — plaintiffs failed to show likely irreparable harm |
| DOT Act / §4(f) (segmentation and "use") | Federal defendants impermissibly segmented streetcar projects; the streetcar network as a whole "uses" monuments triggering §4(f) review | Only three projects were federally funded; each had independent utility and de minimis/No adverse effect findings; no causal/factual nexus linking funding to monument removal | Denied — plaintiffs not likely to prevail on DOT Act claim |
| NHPA §106 consultation | Federal defendants failed to define APE and consider cumulative effects of streetcar projects on monuments | Section 106 review occurred for federally-funded projects; monuments were outside APEs; no nexus to removal | Denied — plaintiffs not likely to prevail on NHPA claim |
| VMPRA (private right of action) | Plaintiffs contend VMPRA prohibits willful injury/destruction and should be privately enforceable to stop removal | VMPRA is criminal statute without private cause of action; monuments do not commemorate U.S. military service, and removal is not willful destruction under facts | Denied — plaintiffs not likely to prevail on VMPRA claim |
| §1983 Equal Protection | City unequally applied §146-611 (failed to remove other "offensive" monuments) | Ordinance applies to all and does not classify protected groups; political/legislative decisions are subject to rational-basis review | Denied — plaintiffs not likely to prevail on Equal Protection claim |
| §1983 Due Process / Property interest | Plaintiffs (MTC, BC130) claim property or liberty interests in monuments through volunteer maintenance, donations, or historical association | Monuments are public property; donations divested donors; negotiorum gestio/mandate doctrines do not create constitutional property rights; removal is government speech | Denied — plaintiffs lack recognized property interest and likely fail on due process claim |
| Procedural Due Process / Vagueness of §146-611 | Ordinance is vague/overbroad and plaintiffs were deprived without adequate process | City conducted multi-agency reviews and multiple public hearings; the ordinance is a civil municipal procedure, not criminal, and provides adequate guidance | Denied — plaintiffs fail to show procedural due process or vagueness violations |
| State-law claims (LA Const. art XII §4, donation policy, ordinance criteria, Liberty Monument consent order) | Removal violates state cultural-protection provision; donation acceptance and ordinance application unlawful; consent order blocks removal of the Liberty Monument | Article XII §4 does not compel City to promote plaintiffs’ cultural speech; donation documented and compliant; City council findings not arbitrary; §146-611(e) suspension applies only to items covered by a court order | Denied — plaintiffs not likely to prevail on state-law claims; Liberty Monument remains subject to prior court order until lifted |
Key Cases Cited
- Munaf v. Geren, 553 U.S. 674 (2008) (standard: preliminary injunctive relief is extraordinary and requires clear showing)
- Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7 (2008) (plaintiff must show likelihood of irreparable harm; possibility is insufficient)
- Planned Parenthood Ass'n of Hidalgo Cty. Tex., Inc. v. Suehs, 692 F.3d 343 (5th Cir. 2012) (four-factor preliminary injunction test reiterated)
- Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971) (APA review standard and deference to administrative record)
- Camp v. Pitts, 411 U.S. 138 (1973) (review focuses on administrative record)
- Save Barton Creek Ass'n v. Federal Highway Admin., 950 F.2d 1129 (5th Cir. 1992) (segmentation/piecemeal analysis and independent utility factors)
- Piedmont Heights Civic Club, Inc. v. Moreland, 637 F.2d 430 (5th Cir. 1981) (independent utility and segmentation framework)
- Pleasant Grove City v. Summum, 555 U.S. 460 (2009) (placement/removal of permanent monuments is government speech and not subject to Free Speech Clause)