157 F. Supp. 3d 573
E.D. La.2016Background
- City of New Orleans enacted an ordinance under City Code §146-611 to remove four public monuments (Lee, Beauregard, Jefferson Davis, Battle of Liberty Place) after public hearings and agency recommendations; plaintiffs filed suit and sought a preliminary injunction to halt removal.
- Plaintiffs (MTC, LLS, FHL, BC130) asserted federal statutory claims (DOT Act §4(f), NHPA §106, VMPRA), §1983 constitutional claims (due process, equal protection), and state-law claims (La. Const. art. XII §4, municipal donation policy, and ordinance application); they relied on expert reports predicting damage during removal.
- Defendants (City, Federal Defendants, RTA) responded that required federal reviews occurred for federally funded projects, the monument removals are locally funded, qualified contractors would handle relocation, and the City followed procedures including significant public comment.
- The court held a preliminary injunction hearing and found plaintiffs failed to show likely irreparable harm and failed to demonstrate a substantial likelihood of success on the merits of any federal, constitutional, or state-law claim.
- The City acknowledged the Liberty Monument was subject to an existing federal consent order from Shubert v. Kemp; §146-611(e) requires suspension of removal that would conflict with a court order and the City intends to seek court approval for that monument specifically.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Irreparable harm from relocation | Moving/storing monuments risks irreversible damage; expert says damage likely if mishandled | City will use highly qualified riggers/crane company; photographs show safe prior moves | No—plaintiffs showed only possibility of harm, not likely irreparable harm; injunction denied |
| DOT Act (§4(f)) segmentation/use | Federal funding of streetcar projects should be viewed as a single project whose cumulative effects "use" monuments; segmentation unlawful | Only three projects had federal funding; each had independent utility and de minimis findings; no nexus to monument removal | No likelihood of success; plaintiffs failed to show federal project caused or required removal |
| NHPA (§106) compliance | FTA/DOT should have done §106 review for entire streetcar network including effects on monuments | Section 106 reviews done for federally funded projects; monuments not within areas of potential effects; no causal link | No likelihood of success; no agency duty shown to cover monument removals funded locally |
| VMPRA private right of action | Plaintiffs seek civil enforcement of criminal statute protecting veterans' memorials | VMPRA is criminal, no recognized private right to prosecute; monuments don’t commemorate U.S. military service at issue; removals are not willful destruction via interstate commerce or on federal land | No likelihood of success; statute does not create private civil cause of action and elements not met |
| Equal Protection | City selectively removed some monuments but not others, violating equal protection | Ordinance applies neutrally to monuments; equal protection protects people, not monuments; rational-basis standard | No likelihood of success; ordinance is facially neutral and rationally related to legitimate interests |
| Substantive due process / property interest | Plaintiffs (MTC, BC130) claim property or liberty interests in monuments (volunteer investment, historical associations) | Public monuments on public land are City property; donations do not convey private ownership; Roman-law/negotiorum gestio and mandate theories inapplicable | No likelihood of success; plaintiffs lack constitutionally protected property interest |
| Procedural due process / vagueness of §146-611 | Ordinance is vague/overbroad and process was insufficient | City followed multi-agency review and extensive public hearings; §146-611 provides adequate standards and is civil/ discretionary | No likelihood of success; plaintiffs had meaningful opportunity to be heard and ordinance not unconstitutionally vague |
| Effect of Shubert consent order & §146-611(e) | Because Liberty Monument is under a court order, removal of all four is suspended until court permits | §146-611(e) suspends only removal that would violate a court order; City must seek relief for Liberty Monument specifically | Court rejects plaintiffs’ broad interpretation; only the monument subject to the existing order is stayed; City must obtain relief for Liberty Monument before removing it |
Key Cases Cited
- Munaf v. Geren, 553 U.S. 674 (federal standard for extraordinary relief / preliminary injunction)
- Winter v. Nat. Res. Def. Council, 555 U.S. 7 (2008) (plaintiff must show likely irreparable harm for preliminary injunction)
- Planned Parenthood Ass’n of Hidalgo Cty. Tex., Inc. v. Suehs, 692 F.3d 343 (5th Cir. 2012) (four-factor injunction test)
- Save Barton Creek Ass’n v. FHWA, 950 F.2d 1129 (5th Cir. 1992) (segmentation/piecemeal analysis for NEPA/DOT Act context)
- Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402 (administrative-review standard; narrow APA review)
- Camp v. Pitts, 411 U.S. 138 (administrative-review focuses on existing record)
- Pleasant Grove City v. Summum, 555 U.S. 460 (2009) (placement/removal of monuments is government speech)
- Mathews v. Eldridge, 424 U.S. 319 (procedural due process balancing test)
- Cleburne Living Ctr. v. City of Cleburne, 473 U.S. 432 (equal protection rational-basis framework)