Monumental Task Committee, Inc. et al v. Foxx et al

Filing 151

ORDER & REASONS: ORDERED that the City of New Orleans and Mayor Mitchell J. Landrieus Motion for Summary Judgment (R. Doc. 138) is GRANTED and that Plaintiffs' claims as to the Liberty Place Monument are DISMISSED WITH PREJUDICE. IT IS FURTHER ORDERED that the City's Motion to Dismiss (R. Doc. 120) is DISMISSED AS MOOT. Signed by Judge Carl Barbier on 3/8/17. (Reference: all cases)(sek)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

MONUMENTAL TASK
COMMITTEE, INC., ET AL.

CIVIL ACTION

VERSUS

NO: 15-6905

ANTHONY R. FOXX, ET AL.

SECTION: “J”(3)

ORDER & REASONS
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 (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
2

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.

1

Shubert v. Kemp, No. 91-4446, 1992 WL 28092 (E.D. La. Feb. 3, 1992).

3

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

2

New Orleans, La., Code of Ordinances § 146-611(b).

4

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 reerected. 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

3

As will be addressed in detail below, the City’s previous Motion for Summary
Judgment argued, with respect to the Liberty Place Monument, that Plaintiffs’

5

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

Equal Protection, Due Process, and Louisiana state law claims should be
dismissed. (R. Doc. 63.)
4 Plaintiffs provide no support for this contention. Further, this Court has
already denied Plaintiffs’ Motion to Continue the Submission Date on the City’s
Motion for Partial Summary Judgment. (R. Doc. 148.) Plaintiffs have failed to
demonstrate how the discovery requested would create a genuine issue of material
fact. Id. at 3. Accordingly, the Court shall not delay ruling on the City’s
motion in order to permit Plaintiffs to conduct additional discovery.

6

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
authority to regulate its property and abate nuisances. Id.
LEGAL STANDARD
Summary judgment is appropriate when “the pleadings, the
discovery and disclosure materials on file, and any affidavits
show that there is no genuine issue as to any material fact and
7

that the movant is entitled to judgment as a matter of law.”
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (citing Fed. R.
Civ. P. 56); Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th
Cir. 1994). When assessing whether a dispute as to any material
fact exists, a court considers “all of the evidence in the record
but refrains from making credibility determinations or weighing
the evidence.” Delta & Pine Land Co. v. Nationwide Agribusiness
Ins. Co., 530 F.3d 395, 398 (5th Cir. 2008). All reasonable
inferences are drawn in favor of the nonmoving party, but a party
cannot defeat summary judgment with conclusory allegations or
unsubstantiated assertions. Little, 37 F.3d at 1075. A court
ultimately must be satisfied that “a reasonable jury could not
return a verdict for the nonmoving party.” Delta, 530 F.3d at 399.
If the dispositive issue is one on which the moving party
will bear the burden of proof at trial, the moving party “must
come forward with evidence which would ‘entitle it to a directed
verdict if the evidence went uncontroverted at trial.’” Int’l
Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257, 1264-65 (5th Cir.
1991). The nonmoving party can then defeat the motion by either
countering with sufficient evidence of its own, or “showing that
the moving party’s evidence is so sheer that it may not persuade
the reasonable fact-finder to return a verdict in favor of the
moving party.” Id. at 1265.

8

If the dispositive issue is one on which the nonmoving party
will bear the burden of proof at trial, the moving party may
satisfy its burden by merely pointing out that the evidence in the
record is insufficient with respect to an essential element of the
nonmoving party’s claim. See Celotex, 477 U.S. at 325. The burden
then shifts to the nonmoving party, who must, by submitting or
referring to evidence, set out specific facts showing that a
genuine issue exists. See id. at 324. The nonmovant may not rest
upon the pleadings, but must identify specific facts that establish
a genuine issue for trial. See, e.g., id. at 325; Little, 37 F.3d
at 1075.
DISCUSSION
1.

Whether Removing the Liberty Place Monument Violates the
Shubert Consent Order
The Shubert Consent Order required the City to take three

actions: (1) determine the proper boundaries of the Battle of
Liberty Place; (2) designate an area within those boundaries to
re-erect the Liberty Place Monument; and (3) re-erect the Liberty
Place Monument by January 20, 1993. (R. Doc. 138-3, at 103.) The
City argues that nothing within the plain language of the Shubert
Consent Order is ambiguous, and that the Consent Order does not
require

the

City

to

retain

the

Liberty

Place

Monument

in

perpetuity. (R. Doc. 138-1, at 7.) Plaintiffs’ only argument in
opposition is that the City must seek relief in the Shubert case
9

itself under Rule 60(b). (R. Doc. 144, at 2-3.) The Court finds
that such action is unnecessary, and that the City has utilized
the appropriate venue for relief in this Court. Accordingly, the
Court must interpret the Shubert Consent Order and determine its
requirements.
“Consent orders are interpreted as contracts and are to be
construed only by reference to the ‘four corners’ of the order
itself.” Robinson v. Vollert, 602 F.2d 87, 93 (5th Cir. 1979)
(interpreting a settlement agreement as a contract); see also
Abdelhak v. City of San Antonio, 509 F. App’x 326, 329 n.6 (5th
Cir. 2013) (same). “Reference to extrinsic evidence, such as the
circumstances of formation, is only permissible if the order is
ambiguous in some respect.” Robinson, 602 F.2d at 93 (citing U.S.
v. ITT Cont’l Baking Co., 420 U.S. 223 (1975); United States v.
Armour & Co., 402 U.S. 673 (1971)). “A determination of whether a
contract is ambiguous and the interpretation of a contract are
questions of law.” Reliant Energy Servs. v. Enron Canada Corp.,
349

F.3d

816,

821

(5th

Cir.

2003)

(citing

Stinnet

v.

Colo.

Interstate Gas Co., 227 F.3d 247, 254 (5th Cir. 2000)). When a
contract is expressed in unambiguous language, its terms will be
given their plain meaning and will be enforced as written. Certain
Underwriters at Lloyd’s London v. C.A. Turner Constr. Co., 112
F.3d 184, 186 (5th Cir. 1997). When interpreting a contract, the
focus is the parties’ intent, because courts are compelled to give
10

effect to the parties’ intentions. Pennzoil Co. v. FERC, 645 F.2d
360, 388 (5th Cir. 1981). To determine intent, a court must look
to the plain language of the contract and its purposes. See id.
The

Court

finds

that

the

Shubert

Consent

Order

is

not

ambiguous. Further, nothing within the plain language of the
Shubert Consent Order prohibits the City from removing the Liberty
Place Monument. The Shubert Consent Order only required the City
to

determine

the

historically

appropriate

boundaries

for

the

monument, select a site within such boundaries to re-erect the
monument, and re-erect the monument. See (R. Doc. 138-3, at 103.)
Moreover, even if the Shubert Consent Order prohibited the City
from later-removing the monument, such agreement may be deemed
void or absolutely null because the City cannot contract away its
police powers. See Abdelhak, 509 F. App’x at 329 n.6 (citing Vulcan
Materials Co. v. City of Tehuacana, 369 F.3d 882, 887 (5th Cir.
2004) (noting that ordinances aimed at protecting the health and
safety of citizens are squarely within the city’s police powers);
State v. Canal & C.R. Co., 24 So. 265, 268 (La. 1898) (“It is
evident that the city cannot barter away her police powers; nor
can she by her contracts estop herself from exercising the power
of suppressing nuisances or preserving the public health and the
comfort and cleanliness of the inhabitants of the city.”) (emphasis
added).

11

In Abdelahak v. City of San Antonio, the plaintiff owned
property on which he operated a mobile home trailer park. 509 F.
App’x at 327. The plaintiff’s property was located within the
Federal Emergency Management Administration 100-year floodplain,
which imposes restrictions on developments in flood-risk areas.
Id. In 1999, the plaintiff’s property was flooded and the City of
San Antonio ordered the plaintiff to shut down the park pending
compliance

with

specific

public

safety

requirements.

Id.

The

plaintiff filed suit to enjoin the city’s action, but, in 2005 the
parties consummated a settlement 5 and agreed that the plaintiff
could obtain any mobile home permits on the property to which he
was legally entitled. Id. In 2007, the plaintiff’s property flooded
again. Id. The city temporarily ceased electrical services to the
park and ultimately stopped issuing new permits for electrical
hookups to future tenants. Id. The plaintiff filed suit arguing,
inter alia, that the city breached the terms of the 2005 settlement
agreement. Id. at 328. The plaintiff argued that the terms of the
settlement agreement effectively exempted his property from the
city’s regulations. Id. In interpreting the settlement agreement,
the court stated that it “does not tend to demonstrate that the
City intended to ‘contract away’ its power to enforce public safety

5

The settlement agreement provided that the city would “restore to [Abdelhak]
all of the permits for mobile home spaces that [he] may lawfully place upon his
property and still be in compliance with all applicable code requirements
applicable to all mobile home parks.” Abdelhak, 509 F. App’x at 327 n.2.

12

regulations on the property from that point on. . . . The ability
to protect the health and safety of residents . . . is of extreme
importance. Ordinances aimed at protecting the health and safety
of citizens are squarely within the City’s police powers. [] The
settlement cannot be read as rescinding that authority.” Id. at
329 n.6 (emphasis added).
Thus, the Shubert Consent Order cannot be read as rescinding
the City’s authority to remove the Liberty Place Monument pursuant
to the Monuments Ordinance. See id.; see also Boston Beer Co. v.
State of Mass., 97 U.S. 25, 33 (1877) (“Whatever differences of
opinion may exist as to the extent and boundaries of the police
power, and however difficult it may be to render a satisfactory
definition of it, there seems to be no doubt that it does extend
to the protection of the lives, health, and property of the
citizens and to the preservation of good order and public morals.
The legislature cannot, by any contract, divest itself of the power
to provide for these objects.”); Vt. Dep’t of Pub. Serv. v. Mass.
Mun. Wholesale Elec. Co., 558 A.2d 215, 220 (Vt. 1988) (“Therefore,
if a public corporation enters into a contract that barters away
or otherwise restricts the exercise of its legislative or police
powers, then the contract is ultra vires and void ab initio.”);
P.C.B. P’ship v. City of Largo, 549 So. 2d 738, 742 (Fla. 2d Dist.
Ct. App. 1989) (noting that a municipality cannot limit its police
power by contract). Accordingly, the Court holds that the Shubert
13

Consent Order does not prohibit the City from removing the Liberty
Place Monument.
2.

Whether Removing the Liberty Place Monument Violates the NHPA
Congress enacted the National Historic Preservation Act to

encourage historic preservation in the United States in federal
and federally-assisted projects. Friends of St. Frances Xavier
Cabrini Church v. FEMA, 658 F.3d 460, 462 (5th Cir. 2011). The
NHPA “requires each federal agency to take responsibility for the
impact that its activities may have upon historic resources.”
Coliseum Square Ass’n, Inc. v. Jackson, 465 F.3d 215, 224 (5th
Cir. 2006). Section 106 of the NHPA, now codified at 54 U.S.C. §
306108, prohibits federal agencies from approving the expenditure
of federal funds on an undertaking without taking into account
“the effect of the undertaking on any historic property.” Section
106 upholds the NHPA’s objectives “neither by forbidding the
destruction

of

historic

sites

nor

by

commanding

their

preservation, but instead by ordering the government to take into
account the effect any federal undertaking might have on them.”
Coliseum Square Ass’n, 465 F.3d at 225. The NHPA is procedural in
nature. Id. “It does not itself require a particular outcome, but
rather ensures that the relevant federal agency will, before
approving funds or granting a license to the undertaking at issue,
consider the potential impact of that undertaking on surrounding
historic places.” Id. (quoting Bus. & Residents All. of E. Harlem
14

v. Jackson, 430 F.3d 584, 591 (2d Cir. 2005)). When a government
agency receives an application for a federally-assisted project,
i.e., one in which federal funds will be used, the agency official
evaluates the proposed federal action to determine whether it is
an “undertaking” and, if so, whether it is the type of activity
that has the potential to affect historic properties. Friends of
St. Frances Xavier Cabrini Church, 658 F.3d at 463 (citing 36
C.F.R.

§

800.3(a)).

The

term

“undertaking”

means

a

project,

activity, or program funded in whole or in part under the direct
or indirect jurisdiction of a federal agency. 54 U.S.C. § 300320;
36 C.F.R. § 800.16(y). “If the undertaking is a type of activity
that does not have the potential to cause effects on historic
properties, . . . the agency official has no further obligations
under section 106.” 36 C.F.R. § 800.3(a)(1). If the undertaking
might affect historic properties, the agency begins the four-step
review process mandated under section 106 of the NHPA. Friends of
St. Frances Xavier Cabrini Church, 658 F.3d at 463.
The City’s removal of the Liberty Place Monument does not
violate Section 106 of the NHPA. As recently noted by the District
of Columbia Circuit, Section 106 “applies by its terms only to
federally funded or federally licensed undertakings.” Nat’l Min.
Ass’n v. Fowler, 324 F.3d 752, 760 (D.C. Cir. 2003) (quoting
Sheridan Kalorama Historical Ass’n v. Christopher, 49 F.3d 750,
755 (D.C. Cir. 1995)). Unless the City’s efforts to remove the
15

Liberty Place Monument are either federally funded or federally
licensed, Section 106 does not apply. See Sheridan Kalorama, 49
F.3d at 755-766. Plaintiffs have not argued, let alone presented
any evidence, that removal of the Liberty Place Monument may be
federally funded, permitted, approved, or licensed. Accordingly,
Section 106 is inapplicable to the removal of the Liberty Place
Monument.
Nevertheless, and despite Plaintiffs’ failure to brief this
issue, the Court shall attempt to address Plaintiffs’ assertion
that the City must initiate a Section 106 review prior to removing
the Liberty Place Monument because the monument was previously
moved pursuant to federal funds. (R. Doc. 1, at 3.) As explained
below, this argument also fails.
A brief summary of the previous removal of the Liberty Place
Monument will help place the Plaintiffs’ argument in context.
Around 1990, the City of New Orleans received an Urban Development
Action Grant to improve traffic flow and streets in close proximity
to the Liberty Place Monument. See (R. Doc. 138-3, at 45.) Because
it was federally funded, the project was considered a federal
undertaking. Out of an abundance of caution, the Liberty Place
Monument was removed to avoid any adverse effects on the monument. 6

6

“Adverse effects” include: Physical destruction of or damage to all or part
of the property; Removal of the property from its historic location;
Introduction of visual, atmospheric or audible elements that diminish the
integrity of the property’s significant historic features. 36 C.F.R. §
800.5(a)(2)(i),(iii),(v).

16

Prior to removing the monument, the City of New Orleans, through
former Mayor Sidney Barthelemey, entered into a Memorandum of
Agreement (“MOA”) 7 with the Louisiana State Historic Preservation
Officer (“SHPO”), Leslie P. Tassin. See (R. Doc. 138-3, at 40-44.)
The MOA between the City of New Orleans and the SHPO consisted of
letters exchanged between Mayor Barthelemey and the SHPO. On
October 20, 1989, Mayor Barthelemey submitted a proposed agreement
to the SHPO and requested that the SHPO submit a finding of “no
adverse effect” so the City could proceed to fix the streets near
the Liberty Place Monument. (R. Doc. 138-3, at 40.) The City agreed
to the following in exchange for the SHPO issuing a finding of “no
adverse effect”:
(1) To have the [Liberty Place Monument] carefully
dismantled under the supervision of the Historic
District Landmarks Commission, stored either in a
bonded warehouse or equivalent facility and reerected by May 1, 1991, unless the City and State
mutually agree to extend the date.
(2) To suggest a new site mutually agreed to by the
City and the SHPO and within the area determined to
be historically appropriate to the site of the [Battle
of Liberty Place.] This would be the area in which
research shows the main portion of the “Battle” which
7 An MOA is executed between the City, when it uses federal funds for a project,
and the SHPO to plan to avoid or mitigate any adverse effects on historic
property eligible for inclusion in the National Register. See Friends of the
Atglen-Susquehanna Trail, Inc. v. Surface Transp. Bd., 252 F.3d 246, 253-254
(3d Cir. 2001) (citing 36 C.F.R. § 800.5(a)(1)) (explaining that an adverse
effect occurs when an undertaking alters, directly or indirectly, any of the
characteristics that make a property historic and eligible for inclusion in the
National Register). “An executed MOA evidences the agency’s compliance with §
106 of the NHPA and governs the carrying out of the federal undertaking.” Id.
at 254 (citing 36 C.F.R. § 800.6(c)). Further, prior to the Shubert litigation,
the Liberty Place Monument was deemed eligible for the inclusion on the National
Register of Historic Places. (R. Doc. 138-3, at 45.)

17

the monument commemorates took place. There will be
an appropriate landscaping plan developed by the City.
(3) To arrange an appropriate archeological review of
the present site of the monument if the April 21, 1981
letter from SHPO is not deemed adequate by the present
staff.
(4) To
perform
appropriate
archeological
review
acceptable to the SHPO on the new site when it is
selected, and
(5) To
refurnish
the
monument
to
appearance when originally erected.

its

original

Id. On October 23, 1989, the Louisiana SHPO responded to the City’s
proposed agreement and accepted stipulations 1, 3, 4, and 5. Id.
at 42. However, the SHPO asked for clarification on the second
stipulation because the SHPO believed that the Battle of Liberty
Place took place between: (1) the Mississippi River, (2) the center
line of South and North Peters Streets, (3) the upriver side of
Poydras Street, and (4) the downriver side of Iberville Street.
Id. Thus, the SHPO requested assurance that the Liberty Place
Monument would be placed within those boundaries. See id. On
October 25, 1989, Mayor Barthelemey responded to the SHPO stating
that “[t]he clarification you have made regarding the second
stipulation is affirmed.” Id. at 43. That same day, the SHPO
submitted a finding of “no adverse effect” on the Liberty Place
Monument and the MOA was confected. Once the City agreed to the
MOA’s

terms,

it

was

bound

to

“carry

out

the

undertaking

in

accordance with the terms of the agreement.” Tyler v. Cisneros,

18

136 F.3d 603, 608-09 (9th Cir. 1998) (citing Waterford Citizens’
Ass’n v. Reilly, 970 F.2d 1287, 1290 n.8 (4th Cir. 1992); 36 C.F.R.
§ 800.6(c) (explaining that once an agency enters an MOA, it “shall
carry out the undertaking in accordance with the terms of the
agreement” and failure to do so requires the agency to resubmit
the undertaking to the Advisory Council for comment).

In other

words, an “MOA is a contract and the City is bound by its terms.”
Tyler v. Cuomo, 236 F.3d 1124, 1134 (9th Cir. 2000) (citing
Citizens’ Comm. for Envtl. Protection v. U.S. Coast Guard, 456 F.
Supp.

101,

115

(D.N.J.

1978)).

Notably

absent

from

the

MOA,

however, is any requirement that the City maintain and display the
Liberty Place Monument in perpetuity.
Thus, the issue is whether the City’s receipt of federal funds
to move the Liberty Place Monument in the early 1990s permanently
and indefinitely subjects the Liberty Place Monument to the NHPA.
The City argues that it does not and cites to Waterford Citizen
Ass’n v. Reilly, 970 F.2d 1287 (4th Cir. 1992) in support of this
position. (R. Doc. 138-1, at 10.) There, the Waterford Citizens’
Association 8
Environmental

brought

a

Protection

declaratory
Agency

action

(“EPA”)

to

to

renew

compel
NHPA

the

review

procedures before expanding an existing sewerage system at a
historic site. In 1978, a sewer collector system was constructed

8

Waterford is a small Quaker village in Virginia that is listed on the National
Register of Historic Places. Waterford Citizen Ass’n, 970 F.2d at 1288.

19

in

Waterford

by

the

Loudoun

County

Sanitation

Authority

(“Sanitation Authority”). Id. The project was funded by the EPA
and affected a site listed on the National Register; therefore,
the Sanitation Authority and the EPA were required to comply with
Section 106 of the NHPA. The EPA, Virginia’s Historic Preservation
Officer

(“VHPO”),

and

the

Advisory

Council

of

Historic

Preservation (“ACHP”) executed an MOA whereby the EPA agreed to
ensure that the Sanitation Authority submit any revision of the
sewer system’s final plan to the Virginia Historic Preservation
Officer. Id.
In 1990, twelve years after the completion of the sewerage
system, a developer was granted permission by the Sanitation
Authority to connect new sewer lines into Waterford’s sewer system.
Id. The Sanitation Authority requested no additional grant money
from the EPA for the expansion and did not consult with the VHPO
prior to granting approval. The ACHP and the Virginia Historic
Preservation Officer saw the new sewer connection as a revision of
the sewer system’s final plan. The ACHP and the VHPO argued that
the EPA was required to comply with the original agreement by
submitting proposed revisions to the sewer system for review and
reopen the Section 106 process. Id. The EPA refused to submit the
revisions

for

review

or

reopen

the

Section

106

process.

In

response, the Waterford Citizens’ Association filed suit seeking

20

a declaratory judgment that Section 106 of the NHPA required the
EPA to comply with the original agreement.
The Citizens’ Association argued that the MOA remained in
effect even after the completion of the original project. Id. at
1292. (emphasis added). They further argued that the new hookup to
the sewer system was subject to the original MOA and Section 106
of the NHPA. Id. The Fourth Circuit disagreed. Specifically, while
the court stated that the EPA was bound by the MOA for the period
of the undertaking, i.e., the completion of the original project,
it held that the obligation assumed by the EPA by executing the
MOA “lasted only through the life of the original project. . . .
Although

Section

106

authorizes

an

agreement

and

although

a

resultant agreement is binding on the parties to it during the
‘undertaking,’

the

agreement

does

not,

in

turn,

perpetuate

responsibility extending beyond the term of the undertaking—here
the construction of the original sewer project.” Id. (emphasis
added).
Thus, in this case, it follows that the City’s obligations
under Section 106 of the NHPA and the MOA executed by the City and
the Louisiana SHPO for the original removal and re-erection of the
Liberty Place Monument were extinguished upon the completion of
that federal undertaking. See id. By April 8, 1993, the Shubert
court determined that the agreement to re-erect the Liberty Place
Monument

was

accomplished,

and
21

thus

the

federal

undertaking

completed. See (R. Doc. 138-3, at 112-117.) Accordingly, any
obligation pursuant to that federal undertaking ceased upon such
completion. Therefore, the City’s plan to remove the Liberty Place
Monument, which is not funded, approved, or related to any federal
funding or undertaking, does not require the initiation of Section
106 procedures or violate Section 106 the NHPA.
3.

Plaintiffs’ Remaining Claims as to the Liberty Place Monument
Plaintiffs’ remaining claims are alleged violations of the

Fifth and Fourteenth Amendments to the United States Constitution
and Article 12, Section 4 of the Louisiana Constitution. See (R.
Doc. 1, at 30, 31, 41, 49.). Again, Plaintiffs have failed to brief
these issues in response to the City’s motion; however, the Court
will address each in turn.
a.

Due Process

The Due Process Clause of the Fourteenth Amendment declares
that no State shall “deprive any person of life, liberty, or
property without due process of law.” U.S. Const. amend. XIV, § 1.
There are two types of due process protections: substantive and
procedural. Jones v. Bd. of Supervisors of the Univ. of La. Sys.,
No. 14-2304, 2015 WL 3409477, at *4 (E.D. La. May 27, 2015). In
order for a person to have a procedural due process claim that
damages or other relief can remedy, that person must have been
denied life, liberty, or property protected by the Fourteenth
Amendment. Wilson v. Birnberg, 667 F.3d 591, 597 (5th Cir. 2012)
22

(citing Meza v. Livingston, 607 F.3d 392, 299 (5th Cir. 2010)).
The Supreme Court has adopted a two-step analysis to examine
whether an individual’s procedural due process rights have been
violated. The first question “asks whether there exists a liberty
or property interest which has been interfered with by the State;
the second examines whether the procedures attendant upon that
deprivation were constitutionally sufficient.” Meza, 607 F.3d 392,
299 (quoting Ky. Dep’t of Corr. v. Thompson, 490 U.S. 454, 460
(1989)).
Substantive due process bars arbitrary, wrongful government
action

regardless

of

the

fairness

of

the

procedures

used

to

implement them. Lewis v. Univ. of Tex., 665 F.3d 625, 630-31 (5th
Cir. 2011); March Outdoor Advert., Inc. v. Reg’l Transit Auth.,
489 F.3d 669, 673 n.3 (5th Cir. 2007) (quoting Zinermon v. Burch,
494 U.S. 113, 125 (1990)). In order to establish a substantive due
process violation, a plaintiff must first show the existence of a
constitutionally

protected

right

to

which

the

Fourteenth

Amendment’s due process protection applies. Simi Inv. Co., Inc. v.
Harris Cnty, Tex., 236 F.3d 240, 249-50 (5th Cir. 2000). “If there
is no denial of life, liberty, or property, then the government is
not required to provide due process.” Monumental Task Comm., Inc.
v. Foxx, 157 F. Supp. 3d 573, 594 (E.D. La. 2016). The Supreme
Court has explained that property interests, for the purposes of
the Due Process Clause, are created and defined by existing rules
23

or understandings that stem from an independent source such as
state law. Bd. of Regents of State Colls. v. Roth, 408 U.S. 564,
577 (1972). The Court further stated that a protected property
interest requires more than a person’s abstract need, desire, or
unilateral expectation of it; one must instead have a legitimate
claim of entitlement to the property interest. Id.
Plaintiffs’ complaint alleges that they have a recognizable
interest in the aesthetic and cultural well-being of the City of
New Orleans and in the preservation of the Liberty Place Monument.
(R. Doc. 1, at 8.) This abstract need or desire to preserve the
well-being of New Orleans and the Liberty Place Monument is not a
constitutionally protected right. Because Plaintiffs have failed
to provide any evidence of a constitutionally protected right in
the Liberty Place Monument, Plaintiffs’ due process claims as to
the Liberty Place Monument are dismissed.
b.

Equal Protection

The Equal Protection Clause commands that no state shall “deny
to any person within its jurisdiction the equal protection of the
laws.” U.S. Const. amend. XIV, § 1. The clause ‘is essentially a
direction that all persons similarly situated should be treated
alike.’” Qutb v. Strauss, 11 F.3d 488, 492 (5th Cir. 1993) (quoting
City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439
(1985)). The Equal Protection Clause is implicated “[o]nly if the

24

challenged government action classifies or distinguishes between
two or more relevant groups.” Id.
Plaintiffs have failed to present any evidence that removal
of the Liberty Place Monument “classifies or distinguishes between
two

or

more

relevant

groups.”

Therefore,

Plaintiffs’

equal

protection claims as to the Liberty Place Monument are dismissed.
c.

Article XII, Section 4 of the Louisiana Constitution

Finally, Plaintiffs argue that the City’s “effort to remove
the . . . Liberty Monument is a violation of the rights guaranteed
by Article 12, § 4 of the Louisiana Constitution.” (R. Doc. 1, at
41.) As this Court explained in its Order and Reasons denying
Plaintiffs’ motion for preliminary injunction:
Article XII, section 4 of the Louisiana Constitution of
1974 recognizes the “right of the people to preserve,
foster, and promote their respective historic linguistic
and cultural origins.” La. Const. art. XII, § 4. The
driving force behind the provision was preservation of
the
French
language
and
culture.
Lee
Hargrave,
“Statutory” and Hortatory” Provisions of the Louisiana
Constitution of 1974, 43 La. L. Rev. 647, 682 (1983).
The law was supported primarily by French-speaking
delegates who were concerned with the protection of the
Acadian French culture. Id. No court has ever
invalidated a law using this provision.
Professor Lee Hargrave suggested that the development
and intent of article XII, section 4 support a narrow
construction of the law. For example, the principal
drafter’s stated intent was “to encourage bilingualism
rather than make a drastic innovation.” Id. at 684.
Moreover, an early proposal of the section expressly
included certain rights: “This includes the right of the
people of a political subdivision to use the language or
languages of their choice in their local schools and
other public institutions. Private schools are free to
25

teach in any language.” Id. at 682-83. However, these
two sentences were deleted in committee. Therefore,
although article XII, section 4 recognizes the right of
the people to preserve and advance their language, “the
development of the proposal indicates there would hardly
be a right to have the public schools teach that
language.” Id. at 684.
Considering the legislative history, Hargrave argued
that “[a]t best, this provision might been seen as a
particularization of those principles protecting the
rights of association that have been grafted onto the
first amendment, encompassing a right to unite and
associate for promotion of certain values and causes.”
Id. However, “as with its first amendment cousin, it is
unlikely that the section would be invoked to protect
all cultural origins.” Id. For example, it would not
permit a citizen who immigrated to Louisiana “to foster
his origins by committing ritualistic robbery and
murder.” Id. Thus, the rights covered by article XII,
section 4 are “vague ones that can be balanced against
other interests.” Id.
According to Plaintiffs, the purpose of the Liberty Place Monument
is to “recognize[] conflicts that emerged in New Orleans and
elsewhere during the post-Civil War period.” (R. Doc. 1, at 41.)
Nevertheless, Plaintiffs have not presented any evidence that
removal of the Liberty Place Monument will infringe upon their
right to preserve, foster, and promote their historic, linguistic,
and

cultural

origins.

Further,

monuments

displayed

on

public

property typically represent government speech, Pleasant Grove
City, Utah v. Summum, 555 U.S. 460, 470 (2009), and the City has
the right to “speak for itself.” Id. at 467. Plaintiffs may not
compel the City to promote their culture. cf. Hargrave, supra, at
684 (explaining that Article XII, Section 4 does not establish a

26

right

to

promote

a

particular

cultural

origin).

Accordingly,

Plaintiffs’ claims under Article XII, Section 4 of the Louisiana
Constitution are dismissed.
4.

Summary
In conclusion, and to ensure clarity, the Court holds as

follows: (1) The Shubert Consent Order does not prevent the City
from removing the Liberty Place Monument; thus, its removal does
not violate the Shubert Consent Order; (2) Removal of the Liberty
Place Monument does not violate the National Historic Preservation
Act, and the City is not required to initiate a Section 106 review
prior to removing the Liberty Place Monument; (3) Plaintiffs have
failed to demonstrate a constitutionally or legally protected
right or interest in the Liberty Place Monument, and thus removal
of the monument does not violate Plaintiffs’ rights under the
United States or Louisiana Constitutions. Consequently, for the
reasons explained above, the City’s Motion for Summary Judgment is
granted, and Plaintiffs’ claims as to the Liberty Place Monument
are dismissed with prejudice.

27

CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that the City’s Motion for Summary
Judgment (R. Doc. 138) is GRANTED and that Plaintiffs’ claims as
to the Liberty Place Monument are DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that the City’s Motion to Dismiss (R.
Doc. 120) is DISMISSED AS MOOT.
New Orleans, Louisiana this 8th day of March, 2017.

CARL J. BARBIER
UNITED STATES DISTRICT JUDGE

28