240 F. Supp. 3d 487
E.D. La.2017Background
- In 2015 New Orleans moved to remove four public monuments, including the Liberty Place Monument; plaintiffs sued seeking injunctive relief. The court previously denied a preliminary injunction and the Fifth Circuit affirmed as to three Confederate monuments. The Liberty Place claim remained.
- The Liberty Place Monument was removed around 1990 during a federally funded Canal Street project; the City entered a MOA with the State Historic Preservation Officer and later a consent order in Shubert requiring the City to select an appropriate site and re-erect the monument by early 1993. The monument was reinstalled in 1993.
- Plaintiffs contend the Shubert Consent Order (and NHPA Section 106 procedures) prohibit the City from removing the Liberty Place Monument now, and assert due process, equal protection, and Louisiana constitutional claims.
- The City moved for partial summary judgment arguing: the Shubert Consent Order only required re-erection (not permanent retention); the NHPA Section 106 obligations ended with the completion of the federal undertaking; and plaintiffs have no constitutionally protected property or liberty interest in the monument.
- The court held the Consent Order is unambiguous and does not bar later removal; the MOA/Section 106 obligations ended with completion of the federal project; Section 106 does not apply to a non-federal, non‑federally‑funded removal; and plaintiffs lack a protected property/liberty interest. Claims dismissed with prejudice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Shubert Consent Order bars removal | Shubert required permanent retention of monument at its location | Shubert only required selection of site and re‑erection by 1993; no perpetual restriction | Consent Order does not prohibit removal; City may exercise police powers |
| Whether NHPA §106 applies now | Past federal funding/move makes §106 permanently apply to future removals | §106 applies only to federal undertakings; past MOA obligations ended when undertaking finished | §106 does not apply; obligations ended with completion of federal project |
| Whether plaintiffs have procedural/substantive due process/property interest | Plaintiffs claim interest in aesthetic/cultural preservation of monument | City: plaintiffs have only abstract interest, no legitimate entitlement | No constitutionally protected property/liberty interest; due process claims dismissed |
| Whether equal protection or La. Const. art. XII, §4 claims succeed | Removal denies ability to preserve cultural/historical origins | City: monument removal is government speech; no discriminatory classification shown | Equal protection and Article XII claims dismissed; City may decide public monuments |
Key Cases Cited
- Celotex Corp. v. Catrett, 477 U.S. 317 (summary judgment standard) (U.S. 1986)
- Waterford Citizens’ Ass’n v. Reilly, 970 F.2d 1287 (MOA obligations end with the federal undertaking) (4th Cir. 1992)
- Tyler v. Cisneros, 136 F.3d 603 (MOA is a binding agreement and agency must carry out terms during undertaking) (9th Cir. 1998)
- Vulcan Materials Co. v. City of Tehuacana, 369 F.3d 882 (municipality cannot contract away police powers) (5th Cir. 2004)
- Coliseum Square Ass’n, Inc. v. Jackson, 465 F.3d 215 (NHPA §106 is procedural; it requires consideration but not preservation) (5th Cir. 2006)
- Pleasant Grove City v. Summum, 555 U.S. 460 (monuments on public property constitute government speech) (U.S. 2009)