Donald Kammeyer et al v. United States Army Corps of Engineers et al

Filing 50

ORDER GRANTING Plaintiffs Motion for Preliminary Injunction by Judge Jesus G. Bernal re: 19 Application for Preliminary Injunction. (See document for specifics.) (iva)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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RONALD KAMMEYER, and
MURAL CONSERVANCY OF LOS
ANGELES
PlaintiffS,
v.
ONEIDA TOTAL INTEGRATED
ENTERPRISES, UNITED
STATES ARMY CORPS OF
ENGINEERS, JOHN MCHUGH,
THOMAS BOSTICK, JO-ELLEN
DARCY, and KIMBERLY
COLLOTON

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Case No.
EDCV 15-869-JGB (KKx)
ORDER: GRANTING
Plaintiff’s Motion for
Preliminary Injunction
(Doc. No. 19.)
[Motion filed June 2,
2015]

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Defendants.

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On June 15, 2015, the Court granted a Temporary

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Restraining Order which enjoined Defendant United States

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Army Corps of Engineers (“USACE”) from altering or

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destroying the Bicentennial Freedom Mural in Corona,

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California.

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for a Preliminary Injunction.

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all papers filed in support of and in opposition to the

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Application as well as the arguments presented at the

Now before the Court is Plaintiffs’ Motion
The Court has considered

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August 19, 2015 hearing.

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below, the Court GRANTS the Motion.

For the reasons expressed

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I.

BACKGROUND

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Plaintiffs Ronald Kammeyer and the Mural Conservancy

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of Los Angeles (“Plaintiffs”) seek to halt the

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destruction of the “Bicentennial Freedom Mural” (the

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“Mural”) that is displayed on the spillway of the Prado

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Dam in Corona, California.

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Plaintiffs filed their Complaint on May 4, 2015.

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(Doc. No. 1.)

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Amended Complaint (“FAC”) against Defendants USACE and

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Oneida Total Integrated Enterprises (“Oneida”).

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No. 14.)

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accomplished landscape architect who co-designed the

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Mural when he was in high school.

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Mural, which was painted by high school volunteers in

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1976, is 640 feet long and 100 feet tall, and is visible

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to commuters passing by on the State Route 91 freeway.

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(Id. ¶¶ 17-18.)

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to destroy the Mural, ostensibly due to concerns over

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graffiti and lead paint.

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allegation, Plaintiffs allege causes of action under: (1)

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the Visual Rights Act of 1990 (“VARA”), 17 U.S.C. § 101

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et seq; (2) the California Art Preservation Act (“CAPA”),

On June 2, 2015, Plaintiffs filed a First

(Doc.

The FAC alleges that Plaintiff Kammeyer is an

(FAC ¶ 4, 15.)

The

Plaintiffs allege that Defendants plan

(Id. ¶ 21.)

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Based on these

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California Civil Code § 987; (3) California Business &

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Professions Code § 17200.

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A. Motion for Preliminary Injunction

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On June 2, 2015, Plaintiffs filed their Motion for

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Preliminary Injunction.

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June 22, 2015.

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replied on June 29, 2015.

(Doc. No. 19.)

(“Opp’n,” Doc. No. 27.)

USACE opposed on
Plaintiffs

(“Reply,” Doc. No. 29.)

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In the preliminary injunction briefing, USACE

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explains that the Prado Dam and its spillway are part of

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a federal flood-risk-management project known as the

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Santa Ana River Mainstem Project (“SARM”).1

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1.)

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within the jurisdiction of the L.A. District of USACE.

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(Id. at 2.)

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project manager requested that USACE perform a safety

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survey of the Mural; this request was prompted by

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concerns over the appearance of the Mural and the

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suspicion that it contained lead paint.

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Diane Rosenberg (“Rosenberg Decl.”), Doc. No. 27-6, ¶ 3.)

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The Mural has become faded and chipped over the years,

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and has also been the target of graffiti.

(Opp’n at

The Prado Dam is located on federal lands that are

USACE explains that in August 2011, a SARM

(Declaration of

(Declaration

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SARM provides flood protection to the Santa Ana
River Basin communities in Orange, Riverside, and San
Bernardino counties. (Declaration of David Van Dorpe
(“Van Dorpe Decl.”), Doc. No. 27-5, ¶ 2.)

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of David Van Dorpe (“Van Dorpe Decl.”), Doc. No. 27-5,

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Ex. A.)

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asserts that its operations and maintenance budgets do

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not include the necessary funds.

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Dampios (“Dampios Decl.”), Doc. No. 27-8, ¶ 2.)

USACE has not maintained the Mural, as it

(Declaration of Lillian

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After USACE surveyed the Mural, it commissioned lead-

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paint testing.

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finalized in May 2014, concluded that various paints on

(Van Dorpe Decl. ¶ 10.)

The report,

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the spillway were either “lead-based” or “lead-

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containing.”

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concluded that the paint should either be encapsulated (a

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process by which a sealant is applied over the paint) or

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removed so as to prevent lead paint from washing off the

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face of the spillway and being released into the

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environment.

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manager presented these conclusions to a USACE review

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board.

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believed that remediation was necessary, and presented

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cost estimates for encapsulation ($210,000.00) and full

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removal ($285,000.00).

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determined full removal was appropriate, given that (1)

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the estimated cost for encapsulation did not include

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future upkeep costs, which would likely make

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encapsulation more expensive than removal over the long

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term, and (2) future construction on the spillway was

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planned, which could lead to potential damage of the

(Rosenberg Decl., Ex. B.)

(Id. at 4.)

(Van Dorpe Decl. ¶¶

The report

In May 2014, a USACE project

11-12.)

(Id. ¶ 12.)

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The project manager

USACE leadership

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encapsulation with resulting lead-paint exposure.

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(Rosenberg Decl. ¶ 17.)

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contracts for removal of the Mural, and ultimately

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awarded the job to Oneida.

USACE therefore solicited

(Van Dorpe Decl. ¶¶ 13-14.)

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On July 25, 2014, USACE posted a Special Public

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Notice on one of its websites about the planned removal

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of the Mural.

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Decl.”), Doc. No. 27-3, ¶¶ 7-8.)

(Declaration of Carvel Bass (“Bass
On April 9, 2015, a

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public meeting was held at Corona High School, and the

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general public was invited to speak or provide written

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comments on the Mural removal project and on the Mural

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itself.

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USACE held another meeting with local government and

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resource agencies, in which USACE presented further

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details about the Mural removal project.

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Decl. ¶ 17.)

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local agencies that it would seek a willing partner or

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partners to commit to re-painting the spillway with a new

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mural and maintaining that new mural in the future.

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(Id.)

(Van Dorpe Decl. ¶¶ 25-26.)

In February 2015,

(Van Dorpe

During the meeting, USACE informed these

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B. Supplemental Briefing

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After reviewing the parties’ initial briefing on the

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preliminary injunction, the Court noted that Plaintiffs

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had shifted their focus to their third cause of action,

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under which they asserted that USACE had not complied

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with its obligations under Section 106 of the National

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Historic Preservation Act (“NHPA”).

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significance of the preliminary injunction decision, the

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Court concluded that fuller briefing on the issue was

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necessary.

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their NHPA claim properly; rather than pleading it

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against USACE under the APA (as would have been proper),

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Plaintiffs pleaded it against Oneida under the UCL.

Given the

Additionally, Plaintiffs had not pleaded

(See

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Doc. No. 35 at 2.)

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on July 9, 2015.

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Plaintiffs leave to file a Second Amended Complaint and

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requested additional briefing on the NHPA cause of

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action.

The Court therefore issued an Order
(Doc. No. 35.)

The Order granted

(Id. at 3.)

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On July 17, 2015, Plaintiffs filed their Second

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Amended Complaint, which included a cause of action under

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the NHPA.

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and USACE filed their supplemental briefing on the NHPA

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cause of action.

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Supp. Brief,” Doc. No. 37.)

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Plaintiffs and USACE filed their opposition supplemental

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briefs.

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Opp’n,” Doc. No. 44.)

(Doc. No. 36.)

On July 31, 2015, Plaintiffs

(“P. Supp. Brief,” Doc. No. 39; “U.
On August 7, 2015,

(“P. Supp. Opp’n,” Doc. No. 43; “U. Supp.

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II. LEGAL STANDARD2

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“A plaintiff seeking a preliminary injunction must

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establish that he is likely to succeed on the merits,

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that he is likely to suffer irreparable harm in the

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absence of preliminary relief, that the balance of

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equities tips in his favor, and that an injunction is in

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the public interest.”

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Council, Inc., 555 U.S. 7, 20 (2008).

Winter v. Natural Res. Def.
“A preliminary

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injunction is an extraordinary and drastic remedy; it is

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never awarded as of right.” Munaf v. Geren, 553 U.S. 674,

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690 (2008) (citations omitted).

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only on parties to the action, their officers, agents,

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servants, employees and attorneys and those “in active

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concert or participation” with them.

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65(d).

An injunction is binding

Fed. R. Civ. P.

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III. DISCUSSION

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Plaintiffs seek a preliminary injunction that would

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enjoin USACE from “tak[ing] any action that could alter,

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desecrate, destroy or modify in any way” the Mural.

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Neither party disputes that absent an injunction, USACE

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will go ahead with its plans to remove the Mural.

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Unless otherwise noted, all mentions of “Rule”
refer to the Federal Rules of Civil Procedure.

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In contesting the Motion, USACE primarily focuses its

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arguments on Plaintiffs’ likelihood of success on the

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merits.

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the Court will first discuss the likelihood of

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irreparable harm and the balance of equities.

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necessary because the Ninth Circuit has endorsed a

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“sliding scale” test for preliminary injunctions.

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stated by the Ninth Circuit: “[w]here the balance of

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hardships tips sharply in the plaintiff's favor and the

However, before reaching the merits arguments,

This is

As

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plaintiff has demonstrated a likelihood of irreparable

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harm, however, the plaintiff need only show that “serious

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questions” exist as to success on the merits.

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See Alliance for Wild Rockies v. Cottrell, 632 F.3d 1127,

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1131 (9th Cir. 2011).

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A. Likelihood of Irreparable Harm

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Given the facts of this case, the Court easily

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concludes that Plaintiffs have shown a high likelihood of

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irreparable harm: USACE intends to immediately remove the

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Mural if not enjoined.

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be destroyed and lost forever.

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that “[p]roperty is always unique under general

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principles of the law of equity and its possible loss or

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destruction usually constitutes irreparable harm.”

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Fisher v. Kealoha, No. CIV. 11-00589 ACK, 2012 WL

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2526923, at *10 (D. Haw. June 29, 2012) (quoting Bennet

If the Mural is removed, it will
It is well established

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v. Dunn, 504 F. Supp. 981, 986 (D. Nev. 1980).

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the property at issue here is a unique work of public art

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with arguable historical significance.

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of that art – which Defendants concede will occur absent

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an injunction – is clearly irreparable harm.

Moreover,

The destruction

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B. The Balance of Equities

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The Court next concludes that the balance of equities

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tips sharply in in Plaintiffs’ favor.

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destroyed Plaintiffs and the public will have no further

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recourse.

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preliminary injunction, USACE will only suffer some delay

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in their construction plans if it ultimately prevails.

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Moreover, it appears unlikely that USACE’s plans to

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modify the Prado Dam will even need to be postponed at

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all.

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scheduled to be raised until approximately 2019.

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Dorpe Decl. ¶ 6.)

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proceedings in this lawsuit will last until then.

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USACE ultimately prevails, it will still have plenty of

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time to remove the Mural before construction on the

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spillway is set to begin.

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minimal.

If the Mural is

On the other hand, if the Court grants a

USACE has conceded that the spillway is not
(Van

It is highly unlikely that the
If

Thus, any hardship to USACE is

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C. Likelihood of Success on the Merits

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Given that Plaintiffs have shown both an immediate

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threat of irreparable harm and that the balance of

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equities tips sharply in their favor, they must only show

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that “serious questions” exist as to their likelihood of

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success on the merits.

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632 F.3d at 1131.

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Plaintiffs’ three claims against USACE.

See Alliance for Wild Rockies,

The Court will examine each of

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1. Visual Artists Rights Act of 1990

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a. Sovereign Immunity

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USACE first argues that Plaintiffs’ VARA claim is

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barred by the doctrine of sovereign immunity.

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disagrees.

The Court

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Under the doctrine of sovereign immunity, “it is

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axiomatic that the United States may not be sued without

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its consent and the existence of consent is a

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prerequisite for jurisdiction.”

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Mitchell, 463 U.S. 206, 212 (1983).

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of the government's sovereign immunity to be effective,

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they must be “unequivocally expressed” by Congress.

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Lehman v. Nakshian, 453 U.S. 156, 160–61 (1981).

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same principles of sovereign immunity which would apply

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United States v.
In order for waivers

The

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to a suit against the United States apply to a suit

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against a government agency, because the United States is

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the real party in interest.

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F.2d 74, 76 (9th Cir. 1980) (per curiam).

See Helash v. Ballard, 638

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There are two Congressional waivers of sovereign

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immunity at play for purposes of this Motion,3 the first

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of which is the Administrative Procedures Act (“APA”), 5

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U.S.C. § 702.

The APA allows a “person suffering legal

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wrong because of agency action” to seek injunctive relief

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(but not money damages) in a suit against the United

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States.

5 U.S.C. § 702.

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USACE does not dispute that the APA could apply to

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Plaintiffs’ causes of action.

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agency, has decided to take a course of action that

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Plaintiffs assert is unlawful under VARA.

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permits the Court to “hold unlawful and set aside agency

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action, findings and conclusions” that are “arbitrary,

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capricious . . . or otherwise not in accordance with

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law.”

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the APA would, on its face, appear to apply to

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Plaintiffs’ claims.

USACE, a government

The APA

5 U.S.C. § 706(2)(A)(emphasis added).

Therefore,

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Plaintiffs also assert that they are entitled to
money damages, which are allowed under the Federal Tort
Claims Act (“FTCA”), 28 U.S.C. §1346(b). (Motion at 14.)
However, that issue is not germane to this Motion, as
Plaintiffs only seek injunctive relief.

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USACE contends that a closer reading of Section 702

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shows that Plaintiffs may not pursue their VARA claim

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under the APA.

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702(2), which explains that a court may not grant relief

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under the APA “if any other statute that grants consent

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to suit expressly or impliedly forbids the relief which

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is sought.”

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U.S.C. § 1498(b) forbids the relief Plaintiffs seek.

Specifically, USACE points to Section

5 U.S.C. § 702(2).

USACE argues that 28

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Section 1498(b) is another Congressional waiver of

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sovereign immunity.

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United States to be sued for copyright infringement; yet,

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it only allows monetary damages (not injunctive relief)

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and requires that the claim be brought in the United

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States Court of Claims.

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if Section 1498(b) provided the jurisdictional basis for

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Plaintiffs’ VARA claim, it would preclude the injunctive

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relief they seek and would divest this Court of

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jurisdiction.

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Section 1498(b) applies.

The statute grants consent for the

28 U.S.C. § 1498(b).

Therefore,

However, the Court is not persuaded that
Section 1498(b) provides:

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[W]henever the copyright in any work . . . shall be

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infringed by the United States . . . the exclusive action

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which may be brought for such infringement shall be an

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action by the copyright owner against the United States

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in the Court of Federal Claims for the recovery of his

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reasonable and entire compensation as damages for such

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infringement.”

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28 U.S.C. § 1498(b) (emphasis added.)

VARA claims

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are not for copyright infringement; rather, they are

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designed to protect the artistic and reputational rights

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of the artist.

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also referred to as “moral rights” – afford protection

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“for the author’s personal, non-economic interests in

See 17 U.S.C. § 106A(a).

These rights –

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receiving attribution for her work, and in preserving the

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work in the form in which it was created, even after its

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sale or licensing.”

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1212, 1227 (9th Cir. 2000) (quoting Jane C. Ginsburg,

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Copyright in the 101st Congress: Commentary on the Visual

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Artists Rights Act and the Architectural Works Copyright

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Protection Act of 1990, 14 colum. Vla J.L. & Arts 477,

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478 (1991)).

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in the “Copyrights” Title of the United States Code, the

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Court is not persuaded that they constitute claims for

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copyright “infringement” as contemplated by Section

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1498(b).

Leicester v. Warner Bros., 232 F.3d

As such, even though VARA claims are listed

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This conclusion is supported by the text of VARA

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itself.

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rights,” explains that an artist has VARA rights “whether

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or not the author is the copyright owner.”

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106A(b)

Section 106A(b), entitled “Scope and exercise of

17 U.S.C. §

It is thus clear that a VARA claim is not a

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copyright infringement claim, as a VARA claim may be

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brought by someone who doesn’t own the copyright.

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Accordingly, the Court finds that the APA, rather

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than Section 1498(b), provides the applicable waiver of

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sovereign immunity here.

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injunctive relief as contemplated by the APA.

As such, Plaintiffs may seek

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b. Plaintiffs’ VARA Claim

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Although Plaintiffs may seek injunctive relief under

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VARA, their VARA claim founders on the merits.

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facts present here, VARA does not grant Kammeyer the

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right to prevent removal of the Mural.

Under the

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VARA provides that “the author of a work of visual

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art . . . shall have the right (A) to prevent any

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intentional distortion, mutilation, or other modification

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of that work which would be prejudicial to his or her

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honor or reputation, and any intentional distortion,

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mutilation, or modification of that work is a violation

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of that right, and (B) to prevent any destruction of a

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work of recognized stature, and any intentional or

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grossly negligent destruction of that work is a violation

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of that right.”

17 U.S.C. § 106A(a) (3).

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Plaintiffs contend that Kammeyer is the author of the

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Mural (a work of visual art) and that he thus has the

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right to enjoin USACE’s destruction of the Mural.

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Court were to accept Plaintiffs’ interpretation of VARA,

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Kammeyer would have the lifetime right to keep the Mural

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on the spillway, regardless of safety, environmental, or

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other important public policy concerns.4

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not have intended this “lifelong-veto” when enacting

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VARA.

If the

Congress could

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The First Circuit addressed this issue by concluding

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that VARA does not protect “site-specific” art.

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v. Pembroke Real Estate, Inc., 459 F.3d 128, 134 (1st

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Cir. 2006).

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art, the “location of the work is an integral element of

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the work,” and thus “because the location of the work

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contributes to its meaning, site-specific art is

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destroyed if moved from its original site.5”

Phillips

The court explained that with site-specific

In summing

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For example, imagine that the spillway had a
growing crack within it that threatened its structural
integrity, and it needed to be torn down immediately and
rebuilt. Plaintiffs’ legal theory would mean that he, as
an artist, would be able to prevent USACE from taking
such steps.

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To be sure, the Mural may not technically be a
piece of “site-specific” art. In “site-specific” art,
the artist “incorporates the environment as one of the
media with which he works.” Phillips, 459 F.3d at 134.
For example, a “sculpture that has a marine theme that
integrates the large granite stones of [a] park with
[the] sculpture and the granite sea walls of Boston
Harbor” is clearly site-specific art. See id.
Nevertheless, the First Circuit’s rationale behind the
(continued . . .)

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up the problem of applying VARA’s protections to site-

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specific art, the First Circuit explained:

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Once a piece of art is considered site-

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specific, and protected by VARA, such objects

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could not be altered by the property owner

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absent consent of the artist.

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conclusion could dramatically affect real

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property interests and laws.

Such a

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Phillips, 459 F.3d at 142.

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Plaintiffs urge could present potential problems much

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graver than merely encumbering an owner’s property

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interest.

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whose upkeep implicates serious public safety and

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environmental concerns.

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and manage SARM and the dam in a manner that protects the

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public and promotes their designated function.

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proposed improvements to the SARM, including raising the

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height of the dam, constructing protective dikes within

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the basin, and raising the elevation of the spillway are

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indisputably consistent with these objectives.

Here, applying VARA as

The dam is a large infrastructural component

USACE must be allowed to operate

USACE’s

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To address the “life-long veto” problem, the Court
could conclude that the Mural is site-specific and thus

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( . . . continued)

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site-specific exception to VARA is more important than
whether the Mural may be classified as site-specific.

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not covered by VARA’s protections.

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another route more logically sound; specifically, one

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based on interpretation of 17 U.S.C. § 113(d)(1), another

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section of VARA.

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to VARA for a “work of visual art” installed before June

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1, 19916 that “has been incorporated in or made part of a

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building in such a way that removing the work from the

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building will cause the destruction . . . of the work.”

Yet, the Court finds

Section 113(d)(1) creates an exception

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The question then becomes whether the term “building”

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covers the Prado Dam.

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court examining a VARA claim has construed “building” to

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mean something other than a standard residential or

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commercial space.

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However, Plaintiffs offer no cases that have held a

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large, man-made structure should not be deemed a

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“building” under VARA.

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an exception for buildings apply to a dam – changes to a

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functional, man-made structure may be necessary from time

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to time, and the structure’s owner should not be

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permanently prevented from ever making such changes.

Plaintiffs argue that no other

(Motion at 12-13 (collecting cases).)

And the same justifications for

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The above analysis assumes that the Mural could not

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be moved from its current location.

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assert that there is a “strong possibility” that the

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Mural could be moved, using a technique known as the

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The date VARA became effective.

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However, Plaintiffs

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“Strappo Method.”

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Doc. No. 20, ¶ 3.)

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evidence about how this process would work, or how much

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it would cost.

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without causing its destruction, another VARA exception,

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17 U.S.C. § 113(d)(2), applies.

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explains that an owner may remove a work of visual art if

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the owner (1) provides written notice to the author of

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the owner’s intention and (2) the author has not removed

(Declaration of Isabel Rojas-Williams,
Plaintiffs do not present any

However, even if the Mural could be moved

Section 113(d)(2)

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the work or paid for its removal within ninety days.

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U.S.C. § 113(d)(2).

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formal written notice to Plaintiffs’ counsel of USACE’s

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intention to remove the Mural from the dam.

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of Lawrence Minch (Doc. No. 27-7), Ex. B.)

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ninety-day window closed on June 3, 2015.

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On March 5, 2015, USACE provided

(Declaration
Thus, the

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Plaintiffs, without any citations to evidence or

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further explanation, state that the notice did not “truly

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[provide] 90 days to remove the Mural” and that USACE

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“inserted arbitrary deadlines to present a plan.”

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at 12.)

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assertions.

(Reply

The Court is not persuaded by these unsupported

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In sum, the Court concludes that the Prado Dam is a

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“building” for the purposes of Section 113(d) and finds

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that USACE has complied with Section 113(d)(2)’s ninety-

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day notice provision applicable to removals of works of

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visual art.

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mural can be removed.

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possible, USACE has complied with the applicable notice

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provisions.

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visual art incorporated into buildings applies.

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either instance, Plaintiffs likely cannot prevail on

7

their VARA claim.

Accordingly, it is immaterial whether the
If

removal without destruction is

If it is not, VARA’s exception for works of
In

8
9

2. California Arts Preservation Act

10
11

Plaintiffs also argue that they are likely to succeed

12

on their claims under CAPA, California’s analog to VARA.

13

(Motion at 14-16.)

14

CAPA.

15

Plaintiffs’ argument, however, is not that CAPA is

16

preempted, but that CAPA cannot apply to a federal

17

agency’s actions on federal land.7

USACE responds that VARA preempts

(Opp’n at 22-23.)

The real problem with

18
19

It is well settled that the activities of federal

20

installations are shielded by the Supremacy Clause from

21

direct state regulation unless Congress provides “clear

22

and unambiguous” authorization for such regulation.

23

v. State Water Resources Control Board, 426 U.S. 200,

24

211(1976); accord, Hancock v. Train, 426 U.S. 167, 178–

EPA

25
26
27

7

At the August 19, 2015 hearing, the Court ordered
the parties to submit additional briefing on this issue.
The parties did so on August 21, 2015. (Doc. Nos. 4748.)

28
19

1

179 (1976).

2

the Supreme Court held in Arizona v. California, 283 U.S.

3

423 (1931) that the United States was under no obligation

4

to submit the plans and specifications of the Boulder Dam

5

construction project to the State of Arizona for

6

approval.

7

the United States must be free to perform its functions

8

without conforming to the police regulations of a state.

9

Id.

Consistent with this principle of immunity,

283 U.S. at 451-52.

The Court emphasized that

10
11

Here, Plaintiffs contend that USACE should be subject

12

to California state law (CAPA), even though it is a

13

federal agency seeking to take action on federal land.

14

USACE hopes to remove the Mural, in part so that it may

15

proceed with raising the height of the Prado Dam’s

16

spillway.

17

States v. State of Mont., 699 F. Supp. 835 (D. Mont.

18

1988).

19

challenging Montana’s attempt to enforce its building

20

codes and regulations on construction projects occurring

21

on federal military installations.

22

37.

23

of Montana, by the enforcement of its building codes, is

24

attempting to exercise authority over the plans and

25

specifications for construction projects at federal

26

military installations, the conflict is indistinguishable

27

from the conflict presented in Arizona v. California, 283

These facts are analogous to those in United

There, the United States brought an action

499 F. Supp. at 836-

The court explained that “[t]o the extent the State

28
20

1

U.S. 423, 451 (1931).”

2

California itself is not seeking to enforce its own

3

authority, Plaintiffs are attempting to use state law to

4

restrict a construction project on federal land.

5

Accordingly, the Court finds that Arizona’s holding is

6

controlling, and that USACE’s conduct likely cannot be

7

restricted by CAPA.

Id. at 838.

Here, although

8
9

As such, the Court finds that Plaintiffs have not

10

shown serious questions exist as to their CAPA claim.

11
12

3. Section 106 of the National Historic Preservation

13

Act

14
15

Finally, Plaintiffs contend that they are likely to

16

show that USACE did not comply with its obligations under

17

Section 106 of the National Historic Preservation Act

18

(“NHPA”).8

Plaintiffs bring this claim under the APA.9

19
20
21
22
23
24
25
26
27

8

As previously explained, Plaintiffs and USACE
present these arguments in the supplemental briefing that
the Court ordered on this issue. (See Doc. No. 35 (July
9, 2015 Order explaining why supplemental briefing was
necessary on this issue).)
9

As previously stated, under the APA a court may
overturn an agency’s decision if it finds that it is
“arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law.” 5 U.S.C. §
706(2)(A). The standard of review is narrow, and does
not empower courts to substitute their judgment for that
of the agency. See Marsh v. Oregon Natural Res. Council,
490 U.S. 360, 378 (1989).

28
21

1

Section 106 of the NHPA is a “stop, look, and listen

2

provision” that requires federal agencies to consider the

3

effects of its programs.

4

Connell, 725 F.3d 988, 1005 (9th Cir. 2013).

5

NHPA, a federal agency must make a “reasonable and good

6

faith effort to identify historic properties; determine

7

whether identified properties are eligible for listing on

8

the National Register based on criteria in 36 C.F.R. §

9

60.4; assess the effects of the undertaking on any

See Montana Wilderness Ass'n v.
Under the

10

eligible historic properties found; determine whether the

11

effect will be adverse; and avoid or mitigate any adverse

12

effects.”

Id.

13
14

Plaintiffs contend that USACE failed at the first

15

step: it never made a good faith effort to identify

16

whether the Mural was historic property before initiating

17

the plan to remove it.

18
19

Under the NHPA, an agency must “take the steps

20

necessary to identify historic properties within the area

21

of potential effects” before beginning an undertaking.

22

36 C.F.R. § 800.4(b).

23

identifying “historical properties”, an agency must “in

24

consultation with the [State Historical Preservation

25

Officer] . . . review existing information on historic

26

properties within the area of potential effects,

27

including any data concerning possible historic

In going through the process of

28
22

1

properties not yet identified.”

2

An agency is also required to “seek information, as

3

appropriate, from consulting parties, and other

4

individuals and organizations likely to have knowledge

5

of, or concerns with, historic properties, and identify

6

issues relating to the undertaking’s potential effects on

7

historic properties.”

36 C.F.R. § 800.4(a)(2).

36 C.F.R. § 800.4(a)(3).

8
9

USACE contends it fulfilled its NHPA obligations

10

through a series of steps it took while in the beginning

11

stages of the SARM Project.10

12

USACE prepared a General Design Memorandum (“GDM”).

13

(Supplemental Declaration of Stephen Dibble (“Dibble

14

Decl. II”), Doc. No. 38, ¶ 3.)

15

Appendix that outlined the SARM Project’s potential

16

impacts on cultural resources.

17

Appendix noted that the Prado Dam itself could

18

potentially be considered a historic property.

First, in August 1988,

The GDM included an

(Id. ¶ 4.)

The GDM

(Id.)

19
20

To evaluate the Prado Dam, as called for in the GDM

21

Appendix, USACE commissioned a report in October 1989.

22

(Id. ¶ 5.)

23

Reservoir, Riverside and San Bernardino Counties,

24

California,” concluded that the Prado Dam itself (not the

The report, entitled “The Prado Dam and

25
10

26
27

The SARM Project was designed to provide urban
flood protection to communities in Orange, Riverside, and
San Bernardino Counties. (Dibble Decl. II ¶ 3.) The
SARM Project recommended, among other things, raising the
Prado Dam to provide additional flood protection. (Id.)

28
23

1

Mural, which was barely mentioned) was eligible for

2

inclusion in the National Register of Historic Places.

3

(Id., Ex. 3, Doc. No. 38-3 at 14.)

4

principally focuses on the history, construction,

5

functioning, and architecture of the dam itself.

6

Doc. No. 38-3 at 1-14.)

7

report that USACE provided, the Mural receives two

8

sentences of discussion.11

The report

(See

In the fourteen pages of the

(Id. at 10.)

9
10

After the report was completed, USACE sent a letter

11

to the State Historical Preservation Office (“SHPO”) on

12

March 27, 1991, advising it that USACE had concluded that

13

the Prado Dam was eligible for listing as a historic

14

property.

15

Programmatic Agreement for the implementation of the SARM

16

Project.

17

and the American Council on Historic Preservation

18

(“ACHP”), USACE finalized the Programmatic Agreement in

19

April 1993.

20

Programmatic Agreement was ultimately signed by USACE,

21

the SHPO, the ACHP, Orange County, Riverside County, San

22

Bernardino County, and two Native American

23

representatives.

(Dibble Decl. II ¶ 6.)

(Id. ¶ 7.)

USACE also drafted a

After consultation with the SHPO

(Id. Ex. 8, Doc. No. 38-8 at 1.).

(Dibble Decl. II ¶ 11.)

The

As part of the

24
25
26
27

11

The report states, “. . . a large red, white, and
blue logo, “200 Years of Freedom, 1776-1976,” was painted
on the Prado Dam spillway in 1976 by students from the
Corona High School. Easily visible from Highway 91 just
south of the dam, the logo remains today one of the dam’s
most striking features.”

28
24

1

Programmatic Agreement, USACE agreed that it would

2

develop a treatment plan to address the adverse effects

3

of the SARM Project on historic properties.

4

addressed the effects on the Prado Dam, which was likely

5

going to be modified as part of the SARM Project, by

6

completing a Historic American Engineering Record

7

(“HAER”) documentation of the Dam, which occurred in June

8

1996.

9

HAER is 89 pages long.

(Id. Ex. 13, Doc. No. 38-13.)
(Id.)

(Id.)

USACE

The body of the

It principally discusses

10

the design, construction, physical layout, and operating

11

principles of the Prado Dam.

12

contents of the HAER).)

13

for two sentences – the same two sentences from the

14

October 1989 report.

(Id. at 2-3 (table of

It discusses the Mural itself

(Id. at 13.)

15
16

In 2011, USACE determined that lead paint on the

17

Mural would hinder further work on the Prado Dam.

18

(Dibble Decl. II ¶ 22.)

19

Archeologist with USACE, concluded that the Mural was not

20

a historic property based solely on the 1993 Programmatic

21

Agreement.

22

concluded that there was no basis for a new consultation

23

to evaluate the Mural.

24

Additionally, Mr. Dibble concedes that he did not consult

25

with the SHPO as part of his NHPA evaluation.

26

Decl. ¶ 8 (“Based on my review of the proposal for the

27

paint removal action, the conclusion of my evaluation was

Mr. Dibble, a Senior District

(Dibble Decl. ¶ 8.)

Mr. Dibble also

(Dibble Decl. II ¶ 23.)

28
25

(Dibble

1

that there were no historic properties in the [Area of

2

Potential Effects] or surrounding the spillway, and thus

3

no Section 106 consultation was necessary.”) (emphasis

4

added).)

5
6

There is clearly a serious question as to whether

7

USACE’s actions were sufficient under Section 106 of the

8

NHPA.

9

took place in 1989 – over 27 years ago.

10

USACE’s only attempt at “evaluation” of the Mural
And the October

1989 report is deficient for two reasons.

11
12

First, the report clearly did not focus on the Mural

13

itself; it centered on the history, functioning, and

14

architecture of the Prado Dam.

15

14.)

16

obviously does not evaluate the historical significance

17

of it.

18

Dibble should not have relied on those two sentences when

19

conducting his evaluation in 2011.

20

that an agency official may be required to reevaluate

21

properties that were subjected to “incomplete prior

22

evaluations.”

(See Doc. No. 38-3 at 1-

The report devotes two sentences to the Mural, and

Even if this could be called an evaluation, Mr.

The NHPA explains

36 C.F.R. § 800.4(c)(1).

23
24

The second reason is the report’s age.

The NHPA

25

itself recognizes that “the passage of time, changing

26

perceptions of significance . . . may require the agency

27

official to reevaluate properties previously determined

28
26

1

eligible or ineligible.”

2

Mural is now approximately 40 years old – it was 13 years

3

old at the time of the 1989 report.

4

certainly serious questions as to whether it is subject

5

to changing perceptions of its significance.

6

of the only a handful of bicentennial murals remaining,

7

and it is both the largest and most visible of those

8

still existing.

9

15-2, ¶ 1.)

36 C.F.R. § 800.4(c)(1).

The

And there are

It is one

(Declaration of Daniel Paul, Doc. No.

Daniel Paul, an architectural historian,

10

declares that the Mural has become one of the last public

11

works of any kind manifestly associated with the United

12

States Bicentennial, and that it is thus a historic

13

physical landmark.

14

has been recognized in news articles as one of the

15

largest patriotic murals in America and has been honored

16

by numerous local, state, and federal government

17

officials.

18

15-1, ¶ 2; Ex. E.).

19

Corona have passed resolutions in favor of restoring and

20

preserving the Mural.12

21

No. 43-1 ¶ 4.)

22

pride and meaning to local residents.

23

citizens have signed a petition to “Save the Prado Dam.”

(Id. ¶ 8.)

Furthermore, the Mural

(See Declaration of Eric Bjorgum, Doc. No.
The cities of Norco, Eastvale, and

(Doc. No. 39-1, Exs. A, B; Doc.

Finally, the Mural is clearly a source of
Over 14,000

24
25
26
27

12

Additionally, the ACHP recently weighed in and
expressed concerns to USACE about the public notice it
provided regarding the plans to remove the mural. (Doc.
No. 39-1, Ex. C.)

28
27

1

(Declaration of Peter Usle (“Usle Decl.”) Doc. No. 21,

2

Ex. B.)

3
4

In sum, there are serious questions as to whether

5

USACE “in consultation with the SHPO . . . review[ed]

6

existing information on historic properties . . .

7

including any data concerning possible historic

8

properties not yet identified” before approving the

9

removal of the Mural.

See 36 C.F.R. § 800.4(a)(2).

10

USACE was required to “seek information, as appropriate,

11

from consulting parties, and other individuals and

12

organizations likely to have knowledge of, or concerns

13

with, historic properties, and identify issues relating

14

to the undertaking’s potential effects on historic

15

properties.”

16

that they did not do so.

17

Plaintiffs have raised serious questions about whether

18

USACE’s decision to remove the Mural was arbitrary or

19

capricious under the APA.

20

Fishermen's Ass'ns v. Nat'l Marine Fisheries Serv., 265

21

F.3d 1028, 1034 (9th Cir. 2001) (An agency decision is

22

inadequate where the agency “entirely failed to consider

23

an important aspect of the problem or failed to

24

“consider[] the relevant factors and articulate[] a

25

rational connection between the facts found and the

26

choice made.”)

36 C.F.R. § 800.4(a)(3).

It is apparent

Thus, the Court concludes that

See Pacific Coast Fed'n of

27
28
28

1

USACE also argues that, even if it didn’t consult a

2

proper evaluation, it would not matter, as the Mural

3

“would not be eligible for inclusion in the National

4

Register.”

5

relevant guidelines, properties that are “primarily

6

commemorative in nature” or that “have achieved

7

significance within the past 50 years” are generally not

8

considered eligible for inclusion in the National

9

Register of Historic Properties.

(U. Supp. Brief at 7.)

To be sure, under the

36 C.F.R. § 60.4.

10

However, a commemorative property may qualify if its

11

“design, age, tradition, or symbolic value has invested

12

it with its own exceptional significance.”

13

property is less than 50 years old, it may be designated

14

a historic property if it is of “exceptional importance.”

15

Id.

16

historical interest in the Mural, the Court concludes

17

that there is a serious question as to whether the Mural

18

meets one of these exceptions.

19

sidestep its duties under the NHPA by putting forth

20

belated and self-serving speculation about what a proper

21

Section 106 evaluation would reveal.

Id.

And if a

Given the groundswell of public support and renewed

Furthermore, USACE cannot

22
23

In light of the above, the Court finds that there are

24

serious questions as to whether Plaintiffs will prevail

25

on their APA claim that USACE did not properly evaluate

26

the Mural under Section 106 of the NHPA.

27
28
29

1

c. The Public Interest

2
3

Finally, the Court finds that Plaintiffs have shown

4

that an injunction here would be in the public interest.

5

Plaintiffs have presented thousands of signatures and

6

comments attesting to the Mural’s value to the community;

7

community members note the sense of civic pride and

8

patriotic appreciation the Mural engenders.

9

Decl., Exs. A, B.)

(See Usle

Furthermore, local governments have

10

begun to come forward to express their support for

11

preserving the Mural.

12

Doc. No. 43-1 ¶ 4 (resolutions by Cities of Norco,

13

Eastvale, and Corona).)

14

makes clear that there is “a public interest in

15

preserving the integrity of cultural and artistic

16

creations.”

(See Doc. No. 39-1, Exs. A, B;

Additionally, California law

Cal. Civ. Code § 987(a).

17
18
19

Accordingly, the Court finds Plaintiffs have shown
that an injunction would be in the public’s interest.

20
21

IV. CONCLUSION

22
23

The Court finds that Plaintiffs have shown an

24

immediate threat of irreparable harm and that the balance

25

of equities tips sharply in their favor.

26

finds that Plaintiffs have shown serious questions exist

27

as to their NHPA cause of action brought under the APA.

28
30

The Court also

1

Finally, the Court finds that an injunction would serve

2

the public interest.

3

Plaintiffs’ Motion, and ORDERS as follows:

The Court therefore GRANTS

4
5

 USACE or their agents, servants, employees,

6

attorneys, or any other persons in active concert or

7

participation with USACE, shall not take any action

8

that could alter, desecrate, destroy or modify in any

9

way the painted mural known as the “200 Years of

10

Freedom Mural” painted on the spillway of the Prado

11

Dam in Corona, California until this matter is fully

12

adjudicated.

13
14

 The Court shall retain the nominal bond of five

15

hundred dollars ($500) Plaintiffs’ posted June 11,

16

2015, as security for the preliminary injunction.

17
18

IT IS SO ORDERED.

19
20
21
22
23
24
25

Dated:

August 24, 2015

_________________________
Jesus G. Bernal
United States District Judge

26
27
28
31