Monumental Task Comm., Inc. v. Foxx

• Citation: 240 F.Supp.3d 487
• Decision Date: 08 March 2017
• Docket Number: CIVIL ACTION NO: 15–6905
• Parties: MONUMENTAL TASK COMMITTEE, INC., et al. v. Anthony R. FOXX, et al.
• Court: U.S. District Court — Eastern District of Louisiana

240 F.Supp.3d 487

MONUMENTAL TASK COMMITTEE, INC., et al.

v.Anthony R. FOXX, et al.

CIVIL ACTION NO: 15–6905

United States District Court, E.D. Louisiana.

Signed March 8, 2017

Franklin Hardy Jones, III, McAlpine & Cozad, James R. Logan, IV, Logan & Soileau, LLC, New Orleans, LA, Jennifer A. Fiore, John B. Dunlap, III, Susan Eccles, Dunlap Fiore, LLC, Baton Rouge, LA, for Monumental Task Committee, Inc., et al.

Peter M. Mansfield, Jason M. Bigelow, K. Paige O'Hale, U.S. Attorney's Office, N. Sundiata Haley, Haley Law Firm, Randy George McKee, McKee Law Firm, L.L.C., Adam J. Swensek, Cherrell Simms Taplin, Churita H. Hansell, Ewell Patrick Eagan, Rebecca H. Dietz, City Attorney's Office, Gregory J. Feeney, Kelly Hart & Pitre LLP, New Orleans, LA, for Anthony R. Foxx, et al.

SECTION: "J"(3)

ORDER & REASONS

CARL J. BARBIER, UNITED STATES DISTRICT JUDGE

Before the Court is the City of New Orleans and Mayor Mitchell J. Landrieu's ("the City") Motion for Partial Summary Judgment (R. Doc. 138), Plaintiffs' response thereto (R. Doc. 144), and the City's reply (R. Doc. 150). Having considered the motion and legal memoranda, the record, and the applicable law, the Court finds that City's motion should be GRANTED.

FACTS AND PROCEDURAL BACKGROUND

This case arises from the New Orleans City Council's ("City Council") decision to remove three monuments honoring Confederate leaders and a fourth commemorating an 1874 battle between the White League and the City of New Orleans' first integrated police force. On June 26, 2015, Mayor Landrieu called upon the City Council to initiate the process of removing these four public monuments. On July 9, 2015, following remarks from Mayor Landrieu in support of removing the monuments and soliciting recommendations from various City agencies regarding whether the monuments should be deemed a nuisance and removed from public property, the City Council adopted a resolution. On December 1, 2015, the City Council introduced an ordinance providing for the removal of the monuments. On December 17, 2015, the City Council affirmatively voted to remove the monuments, and the ordinance was signed into law. Plaintiffs filed suit on the same day seeking a preliminary injunction to enjoin the City from relocating the monuments. On January 26, 2016, this Court entered an Order and Reasons denying Plaintiffs' motion for preliminary injunction. Plaintiffs appealed this Court's denial of their preliminary injunction to the Fifth Circuit on February 4, 2016. Thereafter, on March 6, 2017, the Fifth Circuit affirmed this Court's decision denying Plaintiffs' motion for preliminary injunction. In short, the Fifth Circuit held that Plaintiffs failed to demonstrate a constitutionally or otherwise legally protected interest in the Robert E. Lee Monument, the P.G.T. Beauregard Equestrian Monument, and the Jefferson Davis Monument. Monumental Task Comm., Inc. v. Chao , No. 16–30107, 678 Fed.Appx. 250, 2017 WL 892492 (5th Cir. Mar. 6, 2017).

Plaintiffs' present motion relates to the Liberty Place Monument. The Liberty Place Monument sits at the river side of Iberville Street in New Orleans, Louisiana. The monument commemorates the 1874 battle between the White League and the City of New Orleans' first integrated police force. This is not the first time the Liberty Place Monument has been subject to litigation in this Court. In the 1980s, the City of New Orleans accepted a Housing and Urban Development ("HUD") grant to subsidize road improvements on Canal Street. Because this federally funded project required the removal of the Liberty Place Monument, an impact analysis was conducted pursuant to Section 106 of the National Historic Preservation Act ("NHPA"). The City agreed to re-erect the monument by September 1, 1991, but failed to do so by that date. As a result, Francis Shubert sought an injunction ordering the City to release and re-erect the Liberty Monument in its former location.¹ The parties came to an agreement and jointly filed a pleading captioned "Stipulations and Consent Order" (" Shubert Consent Order" or "Consent Order"). (R. Doc. 138–3, at 112–117.) The Shubert Consent Order contained the following stipulations:

(1) [By no] later than October 28, 1992, the City would conclude its negotiations the Louisiana State Historic Preservation Officer concerning the boundaries of the site selection area determined to be historically appropriate to the site of the Battle of Liberty Place;

(2) [By no] later than December 9, 1992, the City would pick a site within the designated site selection area on which to re-erect the Liberty Monument; and

(3) [By no] later than January 20, 1993, the City would complete the actual re-erection of the Liberty Monument.

Id. By April 1993, the Liberty Place Monument was replaced. The Shubert court then held that the City of New Orleans had complied with the Shubert Consent Order, and the court refused to become enmeshed in other disputes beyond the Consent Order. Id.

The City now seeks to remove the Liberty Place Monument pursuant to the New Orleans Public Monuments Ordinance ("Monuments Ordinance").² Plaintiffs assert that the Shubert Consent Order prohibits the City from removing the Liberty Place Monument pursuant to the Monuments Ordinance. (R. Doc. 1; R. Doc. 144.) Further, Plaintiffs argue that removing the Liberty Place Monument violates Section 106 of the NHPA, Plaintiffs' due process rights under the Fifth and Fourteenth Amendments to the United States Constitution, the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, and article XII, § 4 of the Louisiana Constitution. (R. Doc. 1, at 29–31.) In response, the City filed the present Motion for Partial Summary Judgment arguing that the planned removal of the Liberty Place Monument does not violate the Shubert Consent Order, the NHPA, nor Plaintiffs' constitutional rights. (R. Doc. 138–1.) The City's motion is now before the Court on the briefs and without oral argument.

PARTIES' ARGUMENTS

1. The City's Arguments

First, the City argues that removing the Liberty Place Monument pursuant to the Monuments Ordinance does not violate the Shubert Consent Order. (R. Doc. 138–1, at 7.) Specifically, the City asserts that the Consent Order obligated the City to do three things: (1) work with the Louisiana State Historic Preservation Officer ("SHPO") to determine an area historically appropriate to the site of the Battle of Liberty Place; (2) pick a site within that area to re-erect the monument; and (3) re-erect the monument by January 20, 1993. Id. at 7–8. The City argues that the Shubert court specifically determined that the City complied with the Shubert Consent Order when it restored the monument in 1993. Id. Further, the City argues that the Shubert Consent Order does not prohibit the City from removing the monument after it was re-erected. Id. at 8. "It required simply that the City fulfill its promise to re-erect the monument when the Canal Street road work was complete—a requirement imposed by the NHPA as a pre-condition to accepting HUD funds." Id.

Second, the City argues that removing the Liberty Place Monument does not violate the NHPA. (R. Doc. 138–1, at 10.) The City argues that a one-time receipt of federal funds does not permanently "federalize" historic local properly and divest the local government of its police powers. Id. Finally, as to Plaintiffs' remaining constitutional claims, the City incorporates all of the arguments it presented in its previous Motion for Summary Judgment (R. Doc. 63).³ Id. at 12. The City asserts that Plaintiffs do not have a constitutionally protected right in the Liberty Place Monument and cannot demonstrate that removal of the monuments will infringe upon their right to preserve their historic and cultural origins. (R. Doc. 63, at 14–19.)

2. Plaintiffs' Arguments

Plaintiffs first argue that the Court should defer ruling on the City's motion because depositions, answers to interrogatories, admissions, and affidavits are unavailable. (R. Doc. 144, at 2.) Plaintiffs argue that none of this information is available to them "because this Court suggested the defendants should file dispositive motions before plaintiffs had an opportunity to conduct discovery."⁴ Id. Second, Plaintiffs argue that the City has chosen the wrong vehicle for the relief it seeks. Plaintiffs aver that the City must overturn the Shubert Consent Order or seek relief in the Shubert case itself under Rule 60(b) of the Federal Rules of Civil Procedure. Id. Plaintiffs argue that such action would be futile because there has been no significant change in the law or facts that would permit the City to withdraw from the Shubert Consent Order. Id. at 3. Accordingly, Plaintiffs argue that the City's motion should be denied, and any issues relating to the Shubert Consent Order must be litigated in that case after it is reopened and re-allotted. Id.

3. The City's Reply to Plaintiffs' Arguments

In response to Plaintiffs' opposition, the City argues that the Shubert Consent Order is clear and unambiguous, and as such, there is no need for additional discovery. (R. Doc. 150, at 3.) The City argues that the Plaintiffs' position is premised on the argument that the Shubert Consent Order obliges the City to keep the Liberty Place Monument at its current location in perpetuity. Id. The City asserts that if any such obligation exists, it would be found in the Shubert Consent Order itself, not in additional discovery. Id. Moreover, the City argues that Plaintiffs have had ample opportunity to obtain any information they believed was necessary through discovery, but have elected not to do so. Id. at 5. Finally, the City argues that its motion is not a collateral attack on the Shubert Consent Order; therefore, Federal Rule 60 is inapplicable, and the City's promise to re-erect the Liberty Place Monument as a condition to a small federal road grant twenty years ago cannot serve to permanently divest the City of its inherent...