Monumental Task Committee, Inc. et al v. Foxx et al
Filing
155
ORDER & REASONS. It is ORDERED that all of Plaintiffs' remaining claims as to the General Robert E. Lee Monument, the P.G.T. Beauregard Monument, and the Jefferson Davis Monument are DISMISSED WITH PREJUDICE. It is FURTHER ORDERED that Plainti ffs' Motion to Continue (R. Doc. 67 ) is DENIED. It is FURTHER ORDERED that the City's Motion for Summary Judgment (R. Doc. 63 ) is GRANTED. It is FURTHER ORDERED that the RTA's Motion for Summary Judgment (R. Doc. 64 ) is GRANTED. It is FURTHER ORDERED that the Federal Defendants' Motion to Dismiss for Lack of Subject Matter Jurisdiction and Summary Judgment (R. Doc. 62 ) is GRANTED. Signed by Judge Carl Barbier. (Reference: 15-6905)(gec)
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 are several motions. First, Plaintiffs filed
a Motion to Continue 1 and a supplemental memorandum in support
thereof. 2
Federal
Defendants 3
and
the
City 4
filed
oppositions
thereto. Second, the City filed a Motion for Summary Judgment, 5
and
Plaintiffs
filed
an
opposition 6
thereto.
Third,
Federal
Defendants filed a Motion to Dismiss for Lack of Subject Matter
Jurisdiction
1
and
Summary
Judgment, 7
and
Plaintiffs
filed
an
R. Doc. 67.
R. Doc. 86. Plaintiffs filed their original Motion to Continue, R. Doc. 67,
on February 22, 2016. On March 24, 2016, the Court ordered Plaintiffs to
supplement their motion and clarify exactly how additional discovery would
create a genuine issue of fact. See R. Doc. 85.
3 The United States Department of Transportation (“DOT”), the Federal Transit
Administration (“FTA”), and their official capacity heads (collectively
referred to as “Federal Defendants”). Federal Defendants filed an opposition to
Plaintiffs’ original Motion to Continue, R. Doc. 74, and Plaintiffs’
Supplemental Memorandum for a Continuance, R. Doc. 87.
4 The City of New Orleans and Mayor Mitchell J. Landrieu (collectively referred
to as “the City”). The City filed an Opposition, R. Doc. 88, to Plaintiffs’
original Motion to Continue.
5 R. Doc. 63.
6 R. Doc. 71. The City filed a reply, R. Doc. 73, Plaintiff’s filed a sur-reply
in opposition, R. Doc. 142, and the City filed its own sur-reply to Plaintiff’s
sur-reply in opposition, R. Doc. 154.
7 R. Doc. 62.
2
opposition 8 thereto. Finally, the New Orleans Regional Transit
Authority
(“RTA”)
filed
a
Motion
for
Summary
Judgment, 9
and
Plaintiffs filed an opposition 10 thereto. Having considered the
motions and legal memoranda, the record, and the applicable law,
the Court finds that Plaintiffs’ Motion to Continue (R. Doc. 67)
should be DENIED, and the City’s Motion for Summary Judgment (R.
Doc. 63), the Federal Defendants’ Motion to Dismiss for Lack of
Subject Matter Jurisdiction and Summary Judgment (R. Doc. 62), and
the RTA’s Motion for Summary Judgment (R. Doc. 64) 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.
This litigation’s procedural history is contained in the Court’s
previous Orders and Reasons. See, e.g., (R. Doc. 151; R. Doc. 135;
R. Doc. 58; R. Doc. 49). In short, in June of 2015, New Orleans’
Mayor, Mitchell J. Landrieu, called upon the City Council to
initiate the process of removing these four public monuments. After
following the requisite procedures, in December of 2015, the City
8
R. Doc. 70. The Federal
opposition. R. Doc. 74.
9 R. Doc. 64.
10 R. Doc. 69.
Defendants
2
also
filed
a
reply
to
Plaintiffs’
Council
affirmatively
voted
to
remove
the
monuments,
and
an
ordinance was signed into law. Plaintiffs then filed suit seeking
a
temporary
injunction,
preliminary
injunction,
and
permanent
injunction enjoining the City from removing and relocating the
monuments. On January 26, 2016, this Court denied Plaintiffs’
request for an injunction, 11 and that decision was ultimately
affirmed by the Fifth Circuit on March 6, 2017. See Monumental
Task Comm., Inc. v. Chao, No. 16-30107, --- F. App’x ---, 2017 WL
892492 (5th Cir. Mar. 6, 2017) (unpublished). On March 8, 2017,
this Court granted the City’s motion for summary judgment and
dismissed Plaintiffs’ claims as to the Liberty Place Monument.
Monumental Task Comm., Inc. v. Foxx, No. 15-6905, 2017 WL 914056
(E.D. La. Mar. 8, 2017).
Presently before the Court are motions to dismiss Plaintiffs’
remaining claims as to the General Robert E. Lee Monument, the
P.G.T.
Beauregard
Monument,
and
the
Jefferson
Davis
Monument
(collectively, “the Monuments”). Defendants, in general, argue
that Plaintiffs do not have a protected interest in the Monuments
and cannot prevent the City from removing them. In response,
Plaintiffs raise various arguments but ultimately assert that they
have a protected property interest in the Monuments, and that this
Court
11
should
defer
ruling
on
the
R. Doc. 49.
3
motions
until
discovery
is
completed. The motions are now before the Court on the briefs and
without oral argument.
PARTIES’ ARGUMENTS
1. Plaintiffs’ Motion to Continue
a. Plaintiffs’ Arguments
Plaintiffs contend that this “Court has not permitted [them]
to conduct any discovery whatsoever.” Plaintiffs assert that they
need additional discovery on nearly all of their claims. As to
their National Historic Preservation Act (“NHPA”) and Department
of Transportation Act (“DOT Act”) claims, they assert that “the
federal
defendants
and
the
City
of
New
Orleans
have
been
cooperating for decades to create a single, unified, comprehensive
streetcar network in New Orleans.” Plaintiffs essentially argue
that any work performed on any portion of any streetcar line in
New Orleans is subject to review under section 4(f) of the DOT Act
and section 106 of the NHPA. Thus, Plaintiffs claim that the
Federal Defendants violated the DOT Act by failing to conduct a
section
4(f)
analysis
of
the
effect
of
the
totality
of
the
streetcar network in New Orleans on the Monuments, and violated
section 106 of the NHPA because they failed to conduct a section
106
review
to
determine
whether
the
planning,
funding,
construction, and maintenance of all phases of the streetcar
network in New Orleans has the potential to cause adverse effects
on
the
Monuments.
Plaintiffs
contend
4
that
their
“expansive
interpretation of [the NHPA and the DOT Act]” is a matter of first
impression, and thus if any support for such an interpretation was
found it would create a disputed material fact and tend to prove
Plaintiffs’ claims. Lastly, Plaintiffs contend that the Monuments
have become “incorporated into the transit system” adjacent to
them, and thus they should be permitted discovery “within the
Department of Transportation and the Federal Transit Authority.”
Plaintiffs also seek additional discovery on their Veterans
Memorial
Preservation
and
Recognition
Act
(“VMPRA”)
claim.
Specifically, Plaintiffs seek to determine whether there is any
evidence to indicate that the figures atop the Monuments honor a
member of the United States Military. Plaintiffs argue that if any
evidence exists, it would support their claim that the Monuments
may not be removed.
As to their claims against the City, Plaintiffs argue that
the City did not comply with § 146-611 of the New Orleans City
Code when it solicited input from the Historic District Landmarks
Commission (“HDLC”). Plaintiffs contend that the HDLC “did not
have jurisdiction over the Lee Monument” and that the City “sought
to politicize [removal of the Monuments] by frequent reference to
the reasons the monuments were built and the motives of the
individuals who erected them.” Plaintiffs argue that they should
be permitted discovery into the “motives of the individuals and
associations of individuals” who erected the Monuments. Similarly,
5
Plaintiffs seek discovery on the reports the City Council relied
upon in reaching their conclusion that the Monuments constitute a
“nuisance” under § 146-611 of the New Orleans City Code.
Plaintiffs further assert that the City violated its own
policy on donations by “hiding” the source of funds it will use to
pay to remove the Monuments. Plaintiffs seek discovery on the
source of the funds that will be used to remove the Monuments and
whether such funds are federal in nature.
Plaintiffs seek additional discovery on whether they have a
property interest in the Monuments. Plaintiffs contend that they
have
a
property
interest
through
the
Louisiana
doctrine
of
negotiorum gestio. Further, they seek discovery on whether any
other individual or organization owns or possesses a property
interest in the Monuments.
Finally, Plaintiffs seek additional discovery on their equal
protection
claim.
In
particular,
Plaintiffs
seek
to
further
investigate whether “the City of New Orleans treated one group of
citizens
(those
who
called
for
removal
of
the
Lee,
Davis,
Beauregard and Liberty Place Monuments) differently than the City
treated another group (those who called for removal of the Jackson
Monument in Jackson Square).” Plaintiffs argue that “[t]here are
disputed material facts as to whether the City discriminated
against monuments (as it claims) or whether it discriminated
against citizens, as argued by plaintiffs.” Plaintiffs also argue
6
that they should be permitted additional discovery “regarding the
evolution”
Article
XII,
§
4
of
the
Louisiana
Constitution.
Specifically, Plaintiffs seek discovery on the legislative history
Article XII, § 4 of Louisiana Constitution.
b. Federal
Defendants’
and
The
City’s
Response
in
Opposition
The Federal Defendants and the City argue, inter alia, that
Plaintiffs are not entitled to additional discovery pursuant to
Federal
Rule
Defendants
of
Civil
contend
specificity
how
the
Procedure
that
56(d).
Plaintiffs
requested
Among
failed
discovery
to
will
other
reasons,
explain
create
with
genuine
disputes of material fact to defeat summary judgment. Defendants
argue that Plaintiffs seek discovery almost exclusively on a theory
of streetcar segmentation and “integration” that this Court has
already analyzed and rejected. Further, the Federal Defendants
argue that they seek to dismiss Plaintiffs’ claims related to one
particular streetcar project, the Loyola Avenue/Union Passenger
Terminal
route
(“Loyola/UPT”),
for
lack
of
subject
matter
jurisdiction under Federal Rule of Civil Procedure 12(b)(1). Thus,
they argue Rule 56(d) should not prevent this Court from rendering
a determination on that claim. Defendants also contend that the
disputed issues in this case are primarily of law, not disputed
fact, and therefore no discoverable facts would change the Court’s
conclusions of law. Finally, Defendants contend that the requested
7
discovery, in total, is immaterial to the issues the Court must
decide as a matter of law.
2. Federal Defendants’ Motion to Dismiss for Lack of Subject
Matter Jurisdiction
a. Federal Defendants’ Arguments 12
Federal Defendants argue that this Court lacks subject matter
jurisdiction
challenge
to
to
evaluate
certain
Specifically,
the
published
finding
its
the
merits
impact
Federal
from
Loyola/UPT
project
in
Defendants
contend
that
of
Plaintiffs’
findings
Defendants
the
January
published
contend
environmental
of
2011.
Plaintiffs’
untimely
in
that
challenges
the
studies
Therefore,
2011.
FTA
on
the
Federal
regarding
the
Loyola/UPT project are barred by the statute of limitations and
should be dismissed.
Further, as to Plaintiffs’ remaining claims, the Federal
Defendants argue that there is no genuine issue of material fact
that federal funding for streetcar projects does not have any
impact, positive or negative, on the City’s plan to remove the
Monuments. Federal Defendants contend that removing the Monuments
has no relation to New Orleans’ streetcar projects. For these
reasons,
Federal
Defendants
argue
that
Plaintiffs’
remaining
claims should be dismissed with prejudice.
12
The RTA joined in the Federal Defendants’ motion for summary judgment and
adopted Federal Defendants’ motion, memorandum, and uncontested facts. R. Doc.
64-1.
8
b. Plaintiffs’ Response in Opposition
Plaintiffs first argue that they were not permitted to conduct
discovery, and thus the Federal Defendants’ motion should be
denied. Second, Plaintiffs argue that the Loyola/UPT project is
“one part of a multi-phase, multi-year effort to construct a
unified comprehensive light rail . . . network in New Orleans.”
Plaintiffs argue that if this is true, then Plaintiffs’ claim is
not time barred and this Court has jurisdiction to entertain it.
Finally, as to Federal Defendants’ motion for summary judgment,
Plaintiffs again argue that they should be permitted to conduct
discovery that will prove their allegations.
3. The City’s Motion for Summary Judgment
a. The City’s Arguments
The City argues that all of Plaintiffs’ claims as to the
Monuments should be dismissed with prejudice. As to Plaintiffs’
DOT Act claim, the City contends that removal of the Monuments
bears
no
relation
to
a
federal
transportation
project,
and
therefore removing the Monuments does not violate the DOT Act. As
to the Plaintiffs’ NHPA claim, the City argues that Plaintiffs
cannot establish a nexus between a federally-funded project or
undertaking and removal of the Monuments. Accordingly, the City
contends
that
Plaintiffs
cannot
establish
that
removing
the
Monuments violates the NHPA. The City argues that Plaintiffs’ VMPRA
claim should be dismissed because the VMPRA does not create a
9
private right of action, but rather is a federal criminal statute.
Further, even if the VMPRA created a private right of action, the
City contends that Plaintiffs have not and cannot meet their burden
of proving that removing the Monuments violates the VMPRA.
As to Plaintiffs’ equal protection claim, the City argues
that Plaintiffs have failed to state a valid equal protection claim
because the Monuments Ordinance and the Monuments’ removal apply
equally to all classes of citizens, and the City is not forced to
remove all offensive statues at once. As to Plaintiffs’ due process
claims,
the
City
argues
that
Plaintiffs
do
not
have
a
constitutionally protected property interest in the Monuments and
thus do not have a substantive or procedural due process claim.
Further, Plaintiffs participated in many, if not all, of the
meetings regarding the City’s decision to remove the Monuments.
Finally, the City urges the Court to retain supplemental
jurisdiction over Plaintiffs’ pendent state-law claims and dismiss
them with prejudice. The City contends that Plaintiffs cannot
demonstrate that removing the Monuments will infringe upon their
right to preserve, foster, and promote their historic, linguistic,
and cultural origins. Therefore, the City argues that Plaintiffs’
claims under Article XII, § 4 of the Louisiana Constitution should
be dismissed. The City further contends that Plaintiffs cannot
demonstrate that the City Council was “arbitrary and capricious”
in its decision to remove the Monuments. Therefore, the City argues
10
that this Court should not disrupt the City Council’s decision to
remove the Monuments. As to the alleged violation of the City’s
donation policy, the City argues that this claim is moot because
Foundation for Louisiana, a non-profit corporation, is donating
the funds to remove the Monuments, and the donation is documented
by an act of donation. Accordingly, for all of these reasons, the
City asks this Court to dismiss Plaintiffs’ remaining claims with
prejudice.
b. Plaintiffs’ Response in Opposition
Plaintiffs’ response only addresses “the points at which
[Plaintiffs
believe]
the
Court
erred
in
accepting
arguments
proffered by the City of New Orleans and its Mayor, Mitchell J.
Landrieu.”
Plaintiffs
response
does
not
address
any
of
the
arguments as to why Plaintiffs’ federal statutory claims, equal
protection claim, Article XII, § 4 of the Louisiana Constitution
claim, city donation policy claim, and § 146-611 of the New Orleans
City Code claim should be dismissed. In short, Plaintiffs argue
that they have a protected property interest in the Monuments under
the Louisiana doctrine negotiorum gestio, and that the City does
not own the Beauregard Equestrian Monument.
11
DISCUSSION
1. Plaintiffs are Not Entitled to Discovery and Defendants’
Motions are Granted
The common refrain throughout Plaintiffs’ submissions is that
“[t]his Court has not permitted [them] to conduct any discovery.”
See (R. Doc. 67-1; R. Doc. 70; R. Doc. 71.) First, it should be
noted that “discovery is not mandatory before a Rule 56 summary
judgment may be granted.” Dreyer v. Yelverton, 291 F. App’x 571,
579 (5th Cir. 2008) (emphasis in original). Rather, under Rule
56(d) of the Federal Rules of Civil Procedure, “if a party opposing
a motion for summary judgment shows, by way of affidavit or
declaration, that for some specific reason it cannot present facts
essential
to
justify
its
opposition,
the
Court
may
defer
consideration of the summary judgment motion, deny it, allow time
for the non-moving party to obtain affidavits or declarations or
to take discovery, or issue any other appropriate order.” Doores
v. Robert Ress., LLC, No. 12-1499, 2013 WL 4046266, at *1 (E.D.
La. Aug. 8, 2013) (citing Fed. R. Civ. P. 56(d)) (emphasis added).
“To justify a continuance, the Rule 56(d) motion must demonstrate
(1) why the movant needs additional discovery, and (2) how the
additional discovery will likely create a genuine issue of material
fact.” Id. (citing Stearns Airport Equip. Co. v. FMC Corp., 170
F.3d 518, 534 (5th Cir. 1999) (alterations omitted). “The party
seeking a continuance under Rule 56(d) ‘must be able to demonstrate
12
how postponement and additional discovery will allow him to defeat
summary judgment; it is not enough to rely on vague assertions
that discovery will produce needed, but unspecified, facts.’” Id.
(citing Stearns Airport Equip., 170 F.3d at 535). Accordingly, the
Court shall address whether Plaintiffs have sustained this burden
with regard to each of their claims.
a. Plaintiffs’ DOT Act and NHPA Claims
Plaintiffs contend that they need additional discovery to
support their DOT Act and NHPA claims. This Court’s Order and
Reasons denying Plaintiffs’ motion for a preliminary injunction
summarized Plaintiffs’ DOT Act claims as follows:
Plaintiffs
allege
that
the
Federal
Defendants
facilitated
or
significantly
contributed
to
the
planning, funding, construction, and maintenance of six
specific transportation projects involving the streetcar
system in New Orleans:
(a) the Loyola Avenue/Union Passenger Terminal
Streetcar Expansion project;
(b) a new streetcar line along North Rampart
Street, from Canal Street to Elysian Fields
Avenue;
(c) construction of the Cemeteries Transit
Center;
(d) proposed construction of a streetcar line
along St. Claude Avenue to Poland Avenue;
(e) proposed construction of a downtown
transportation hub in the Central Business
District; and
(f) refurbishment and rehabilitation of the
historic St. Charles Avenue streetcar line.
(Rec. Doc. 1, at 16.)
13
Plaintiffs claim that the Federal Defendants violated
the [DOT Act] by failing to conduct a section 4(f)
analysis of the effect of the totality of the streetcar
network in New Orleans on the monuments. Plaintiffs
argue that the Secretary of Transportation’s section
4(f) reviews failed to assume that the planning,
funding, construction, and maintenance of the entire
streetcar network in New Orleans was the scope of the
“project” under review, and therefore failed to consider
the extent to which the entire streetcar network
resulted in “use” of section 4(f) resources, including
the
Lee Monument,
Beauregard Monument,
and
Davis Monument. Next, Plaintiffs argue that the Federal
Defendants prepared an inadequate section 4(f) review of
the project because they impermissibly divided the
project into segments. Plaintiffs argue that by
segmenting the project, the Secretary failed to
acknowledge that the whole project, particularly
maintenance of the St. Charles Avenue streetcar line,
the [Loyola/UPT], and the new streetcar line along North
Rampart Street, constitutes use of the monuments.
As a result, Plaintiffs claim that the Secretary
approved the project without determining whether there
is
any
feasible
alternative
to
removing
the monuments and without attempting to minimize the
harm caused by the streetcar network’s use of
the monuments. In sum, Plaintiffs argue that the
Secretary’s
refusal
to
prevent
removal
of
the
[Monuments], which they claim have been adversely
affected by the planning, funding, construction, and
maintenance of the entire streetcar system in New
Orleans,
is
arbitrary,
capricious,
an
abuse
of
discretion, and not in accordance with law.
Monumental Task Comm., Inc. v. Foxx, 157 F. Supp. 3d 573, 586 (E.D.
La. 2016). Plaintiffs also allege that “the Federal Defendants
violated the NHPA by failing to conduct a section 106 review to
determine
whether
the
planning,
funding,
construction,
and
maintenance of all phases of the streetcar network in New Orleans
has the potential to cause adverse effects on historic properties
14
adjacent to any of the streetcar lines, such as the monuments.”
Id. at 590.
This
Court
previously
held
that
Plaintiffs
failed
to
demonstrate a likelihood of success on the merits of their DOT Act
and NHPA claims. Id. at 590-91. On appeal, Plaintiff-Appellants
argued that their DOT Act and NHPA claims were likely to be
meritorious because the DOT and FTA “planned, funded, constructed
and maintain the numerous streetcar lines in New Orleans as a
single, comprehensive network still under construction.” Further,
Plaintiff-Appellants argued that if the streetcar lines constitute
a single, ongoing project or undertaking, then the City cannot
damage
or
destroy
the
Monuments.
Despite
these
arguments,
identical to those raised here, the Fifth Circuit affirmed this
Court’s previous decision specifically holding that Plaintiffs
“failed to present a prima facie case in support of their” DOT Act
and NHPA claims. Chao, 2017 WL 892492, at *1. Further, the Fifth
Circuit made clear that there was “no chance” Plaintiffs would
eventually prevail on the merits of these claims. Id. at *1 n.1.
The DOT Act aims to prevent federally-funded transportation
projects
from
unnecessarily
harming
historic
sites.
See
Save
Barton Creek Ass’n v. Fed. Highway Admin., 950 F.2d 1129, 1141
(5th Cir. 1992) (noting that section (4) of the DOT Act generally
prohibits the use of federal funds to build highways through parks
of local significance). Section 4(f) of the DOT Act, now codified
15
at
49
U.S.C.
§
303(c),
provides
that
the
Secretary
of
Transportation may approve a transportation project that uses land
from a historic site only if the Secretary determines, first, that
there is “no prudent and feasible alternative” to using that land
and, second, that the project includes “all possible planning to
minimize harm” to the historic site resulting from the use. 49
U.S.C. § 303(c). Section 4(f) does not apply to locally-funded
projects. See Riverfront Garden Dist. Ass’n, Inc. v. City of New
Orleans, 2000 WL 35801851, at *10 (E.D. La. Dec. 11, 2000) (“The
locally funded portion [of the project] is not covered by the [DOT
Act].”). Further, Section 4(f) only applies if a federally-funded
transportation project “uses” a historic site. Neighborhood Ass’n
of the Back Bay, Inc. v. Fed. Transit Admin., 463 F.3d 50, 55 (1st
Cir. 2006). A “use” of section 4(f) property occurs (1) when “land
is permanently incorporated into a transportation facility”; (2)
when “there is a temporary occupancy of land that is adverse in
terms of the statute’s preservation purpose”; or (3) when “there
is a constructive use” of the property. 23 C.F.R. § 774.17. A
“constructive use” occurs when “the project’s proximity impacts
are
so
severe
that
the
protected
activities,
features,
or
attributes that qualify the property for protection under Section
4(f) are substantially impaired.” Id. § 774.15(a). “Substantial
impairment occurs only when the protected activities, features, or
attributes of the property are substantially diminished.” Id.
16
Ultimately, after conducting the appropriate review, the Secretary
may make a finding of “de minimis impact” on the historic site if
the Secretary determines that the transportation project will have
no adverse effect on the historic site or there will be no historic
properties affected by the transportation project. 49 U.S.C. §
303(d)(2).
Three
of
the
six
transportation
projects
listed
by
Plaintiffs—(1) the proposed streetcar line along North Rampart
Street; (2) the proposed streetcar line along St. Claude Avenue;
and (3) the proposed construction of the downtown transportation
hub in the Central Business District—have not been approved, nor
federally funded, by either the DOT or the FTA. (R. Doc. 21-1, at
3-4.) Further, the Loyola/UPT project, the Cemeteries Transit
Center, and the refurbishment of the St. Charles Avenue streetcar
line—all federally funded projects—were subject to section 4(f)
reviews, and such reviews determined that each project would have
a de minimis impact on historic property. 13 Importantly, Plaintiffs
fail to explain how any of the six streetcar projects may harm the
Monuments, let alone how the three federally-funded projects “use”
the Monuments. Indeed, Plaintiffs acknowledge that the Secretary
of Transportation has not sought to displace any of the Monuments
with streetcar tracks. Therefore, Plaintiffs fail to identify a
13
R. Doc. 27 at 3-4.
17
legal nexus between any of the six streetcar projects and the
removal of the Monuments. 14 See Foxx, 157 F. Supp. 3d at 588-89
(footnote added). Further, even assuming that Plaintiffs were able
to establish that the Monuments have become part of the street car
network, 15 Plaintiffs fail to demonstrate that the DOT Act would
apply to such a project, as they concede that removal of the
Monuments
will
Monuments
is
be
not
locally
a
funded.
In
federally-funded
short,
removal
transportation
of
the
project.
Accordingly, no additional discovery will create a genuine issue
of material fact on Plaintiffs’ DOT Act claims, and Plaintiffs’
DOT Act claims are dismissed with prejudice. 16
Plaintiffs’ NHPA claims fail for similar reasons. Plaintiffs
have failed to demonstrate any nexus between a federally-funded
project or undertaking and the removal of the Monuments. And,
“[u]nless the City’s efforts to remove the [Monuments] are either
federally funded or federally licensed, Section 106 does not
apply.” Foxx, 2017 WL 914056, at *6 (citing Sheridan Kalorama
14
Plaintiffs’ “impermissible segmentation” argument also fails. This Court
determined that assuming the DOT Act applied in this case “each streetcar
project identified by Plaintiffs has independent utility.” Foxx, 157 F. Supp.
3d at 588 (citing Riverfront Garden Dist. Ass’n, 2000 WL 35801851, at *9).
15 Plaintiffs referenced, in passing, that the civil law doctrine of custom
contra legem requires acknowledgment that New Orleanians have established the
Monuments as part of the streetcar network. R. Doc. 11-2 at 42. However,
Plaintiffs have provided no support for this argument, and it appears that the
doctrine custom contra legem is now prohibited under Louisiana law because
“custom may not abrogate legislation.” Foxx, 157 F. Supp. 3d at 589 n.2.
16 To the extent that Plaintiffs’ challenge to the Loyola/UPT project still
remains, this claim is also dismissed as barred by the statute of limitations.
Id. at 588 n.1.
18
Historical Ass’n v. Christopher, 49 F.3d 750, 755-66 (D.C. Cir.
1995)). Accordingly, no amount of discovery will create a genuine
issue of material fact, and Plaintiffs’ NHPA claims are dismissed
with prejudice.
b. Plaintiffs’ VMPRA Claim
Plaintiffs
also
seek
discovery
on
their
VMPRA
claim.
Specifically, Plaintiffs seek to determine whether there is any
evidence to indicate that the figures atop the Monuments honor
members of the United States Military. Plaintiffs’ request for
discovery as to this issue is immaterial to their success on this
claim and therefore denied. As this Court explained in its previous
Order and Reasons, the VMPRA “makes it a criminal offense for a
defendant to willfully injure or destroy any monument on public
property commemorating the service of any person in the armed
forces of the United States if, in committing the offense, the
defendant
uses
an
instrumentality
of
interstate
or
foreign
commerce, or if the monument is located on property owned by, or
under the jurisdiction of, the federal government. The VMPRA
imposes a fine, imprisonment of not more than ten years, or both.”
Foxx, 157 F. Supp. 2d at 591 (emphasis added) (citing 18 U.S.C.
§ 1369). This Court further explained that “[d]ecisions whether to
prosecute
or
prosecutor’s
file
criminal
decision.
charges
Private
are
citizens
generally
have
‘no
within
standing
the
to
institute a federal criminal prosecution and no power to enforce
19
a criminal statute.’” Id. (quoting Gill v. Texas, 153 F. App’x
261, 262 (5th Cir. 2005)). Further, this Court held that “there is
no basis to believe that the City will willfully injure or destroy
the monuments; the City simply intends to remove and relocate
them.” Id. Finally, “Plaintiffs have offered no evidence to show
that the monuments are located on federal land. . . .” Id.
Accordingly, no amount of discovery will create a genuine issue of
material fact as to this claim, and Plaintiffs’ VMPRA claim is
dismissed with prejudice.
c. Plaintiffs’ Equal Protection Claims
Plaintiffs
seek
discovery
as
to
whether
“the
City
discriminated against monuments (as it claims) or whether it
discriminated
Plaintiffs’
against
argument
citizens,
differs
as
argued
slightly
from
by
that
plaintiffs.”
previously
addressed by this Court. Previously, Plaintiffs argued that the
Monuments Ordinance classified between monuments because the City
has not proposed to remove other monuments that allegedly meet the
criteria for removal pursuant to § 146-611 of the City Code.
However, now, Plaintiffs argue that the City of New Orleans, and
presumably the City Council, treated two classes of individuals—
one consisting of those who called for the removal of the Lee,
Davis, Beauregard, and Liberty Place Monuments and the other
consisting of those who called for removal of the Andrew Jackson
20
Statue in Jackson Square—differently. 17 Regardless of this slight
variation, Plaintiffs’ argument fails, and they are not entitled
to additional discovery on their equal protection claim.
The Equal Protection Clause of the Fourteenth Amendment is
“essentially
a
direction
that
all
persons
similarly
situated
should be treated alike.” Wood v. Collier, 836 F.3d 534, 538 (5th
Cir. 2016). “[E]qual protection does not require that all persons
be dealt with identically, but it does require that a distinction
made
have
some
relevance
to
the
purpose
for
which
the
classification is made.” Id. (quoting Baxstrom v. Herald, 383 U.S.
107, 111 (1966)). Plaintiffs’ equal protection claims are without
merit. First, Plaintiffs have not alleged how these groups of
individuals were treated differently. Second, to the extent that
Plaintiffs are arguing that these groups were treated differently
because the Monuments were chosen to be removed and the Andrew
Jackson statue was not, the “classes” are not suspect classes nor
subject to intermediate scrutiny. Accordingly, this differential
treatment is subject to rational basis review, which requires the
City to show that “there is any reasonably conceivable state of
facts that could provide a rational basis for the classification”
that furthers a legitimate state interest. See id. This Court has
already
determined
that
there
17
is
at
least
one
“reasonably
Plaintiffs raised this argument in their original complaint. See R. Doc. 1
at 38.
21
conceivable” basis for deciding not to remove the Andrew Jackson
statue while deciding to remove the General Lee, Jefferson Davis,
P.G.T. Beauregard, and Liberty Place monuments. See Monumental
Task Comm., Inc. v. Foxx, No. 15-6905, 2016 WL 5780194, at *5 (E.D.
La. Oct. 4, 2016) (dismissing plaintiff Richard Marksbury’s classof-one equal protection claim). Some of the rational reasons why
the City and the City Council may have treated the group of
individuals who called for the removal of the Andrew Jackson statue
differently than those who called for removal of the Monuments are
that the “[Andrew Jackson] statue occupies the center frame of New
Orleans’ most famous, historic, and heavily photograph[ed] public
square, is not tainted by the same degree of invidious animus, or
that the open legal issues raised by the removal of the Confederate
monuments
should
be
resolved
before
additional
monuments
are
considered for removal.” Id. at *6. Accordingly, assuming the City
treated similarly situated groups of individuals differently by
agreeing to remove the Monuments and not the Andrew Jackson statue,
there was a rational basis for doing so.
Finally, to the extent that Plaintiffs argue that the City
violated
their
equal
protection
rights
because
all
similarly
situated monuments were not treated alike, this argument also
fails. Here, the challenged ordinance does not distinguish between
classes of individuals or groups. The monuments ordinance applies
to all classes of citizens and it does not have a disparate impact
22
on members of a suspect class.” Foxx, 157 F. Supp. 2d at 593.
Further, “the Equal Protection Clause ensures the equal protection
of persons, not monuments.” Id. The City is not required to “choose
between attacking every aspect of a problem or not attacking the
problem at all.” Id. (citing Dandridge v. Williams, 397 U.S. 471,
486-87 (1970)). Therefore, permitting discovery on Plaintiffs’
equal protection claims would prove futile as it would not serve
to
defeat
summary
judgment.
Accordingly,
Plaintiffs’
equal
protection claims are dismissed with prejudice.
d. Plaintiffs’ Negotiorum Gestio Claim
Plaintiffs
gestio
claim.
seek
additional
Specifically,
discovery
Plaintiffs
on
argue
their
that
negotiorum
“[o]ne
key
element determining the extent of plaintiffs’ property interest
may be the length of time the City was unaware of Monumental Task
Committee’s volunteer efforts.” Once again, the Court finds that
additional discovery on this claim would be futile. The Fifth
Circuit’s opinion made clear that Plaintiffs failed to present a
prima facie case in support of their negotiorum gestio claim. Chao,
2017
WL
negotiorum
892492,
gestio
at
*1
claim
(holding
wholly
that
lacked
Plaintiff-Appellants’
“legal
viability
or
support”). Further, the Louisiana Fourth Circuit Court of Appeals
recently addressed this precise issue. See McGraw v. City of New
Orleans, No. 2016-0446, 2017 WL 1164945 (La. App. 4 Cir. Mar. 29,
23
2017). 18
There,
the
plaintiff
presented
essentially
identical
arguments to those presented in this Court. In upholding the
district court’s denial of the plaintiff’s request for declaratory
and injunctive relief, the court held that the plaintiff did not
acquire a property interest in the Monuments under the theory of
negotiorum gestio. Id. at *7. The court held that the “provisions
of the Civil Code indicate clearly that the doctrine of negotiorum
gestio confers no ownership rights upon the manager who undertakes
without authority the administration of another’s affairs.” Id. at
*9. “Moreover, even if rights in things could be acquired by
negotiorum gestio . . . the monuments at issue are public things
held by the City in its public capacity. Therefore, [plaintiff]
cannot acquire rights in the monuments.” Id. Accordingly, as this
Court, the Fifth Circuit, and the Louisiana Fourth Circuit Court
of Appeals have all previously determined, Plaintiffs have not
been vested with a protected property interest in the Monuments
under the doctrine of negotiorum gestio. Therefore, it is more
than apparent that no amount of discovery will allow Plaintiffs to
defeat summary judgment on this claim, and Plaintiffs’ negotiorum
gestio claim is dismissed with prejudice.
18
Pierre A. McGraw provided Plaintiffs’ Rule 56(d) affidavit in this case.
24
e. Plaintiffs’ Due Process Claims
Plaintiffs argue that they need additional discovery on the
following issues:
Whether the city conveyed or donated any right, title or
interest to any portion of Tivoli Circle to the Lee
Monumental Association; Whether erection of the Lee
Monument was paid for by private individuals or
associations, and, if so, what payments were made;
Whether erection of the Lee Monument was paid for by an
organization or association chartered by the State of
Louisiana, and, if so, whether the State of Louisiana
obtained any right, title or interest to the Lee
Monument; Whether the City conveyed or donated any
right, title or interest to the land on which the
Beauregard Equestrian Monument was erected to the
Beauregard Monument Association; Whether erection of the
Beauregard Equestrian Monument was paid for by private
individuals or associations, and if so the amount of the
payments; Whether erection of the Beauregard Equestrian
Monument was paid for by an organization or association
chartered by the State of Louisiana and if so whether
the State of Louisiana acquired any right, title or
interest in the Beauregard Equestrian Monument; Whether
the City conveyed or donated any right, title or interest
to the land on which the Jefferson Davis Monument is
erected to the Jefferson Davis Monument Association;
Whether erection of the Davis Monument was paid for by
private individuals or associations; Whether erection of
the Davis Monument was paid for by an organization or
association chartered by the State of Louisiana, and, if
so, whether the State of Louisiana acquired any right,
title or interest to the monument; whether the New
Orleans City park Improvement Association incorporated
on or about August 13, 1891 or its legal successor
possesses any right, title or interest in the land on
which the
Beauregard Equestrian Monument is erected;
Whether
the
New
Orleans
City
Park
Improvement
Association has indicated that it is attempting to
determine ownership of the land on which the Beauregard
Equestrian Monument is erected and/or ownership of the
Beauregard Equestrian Monument itself. 19
19
R. Doc. 67-3.
25
Plaintiffs contend that discovery on these issues will “create
genuine issues of fact as to whether Beauregard camp No. 130, the
State of Louisiana, the successors to the organizations that raised
and contributed money toward erection of the monuments, and the
descendants
of
the
individuals
who
contributed
money
toward
erection of the monuments acquired a protected property interest
in the monuments.”
First, the only Plaintiffs in this lawsuit are Monumental
Task Committee, Inc., Louisiana Landmark Society, the Foundation
for Historical Louisiana, Inc., and Beauregard Camp No. 130, Inc.
Accordingly,
discovery
as
to
to
the
extent
whether
that
other,
Plaintiffs
non-plaintiff
seek
additional
individuals
or
organizations may have a protected interest in the Monuments, that
request is denied. Further, Plaintiffs’ argument that they, or any
other
individual
or
organization,
own
or
possess
a
property
interest in the Monuments or the land upon which they are located
is misplaced. The Louisiana Civil Code divides things into three
categories: common, public, and private things. La. Civ. Code.
art. 448. “Public things are owned by the state or its political
subdivision in their capacity as public persons,” and “the City is
a political subdivision of the State.” McGraw, 2017 WL 1164945, at
*9 (citing La. Civ. Code art. 450). “The very definition of a
‘public thing’ prohibits a private person from owning a public
thing.” Band v. Audubon Park Comm’n, 2005-0937, p. 5 (La. App. 4
26
Cir. 7/12/06), 936 So. 2d 841, 845. Thus, “the City may own
streets, public squares, and public parks in its public capacity.”
McGraw, 2017 WL 1164945, at *10.
Plaintiffs
have
repeatedly
disclaimed
that
they
own
the
Monuments, 20 and, as explained above, neither Plaintiffs nor any
other individual or organization can acquire a property interest
in the Monuments under the Louisiana doctrine of negotiorum gestio.
Moreover, Plaintiffs have not produced any evidence that they own
the land upon which the Monuments are located. This is likely
because the General Robert E. Lee Monument was erected on public
property which is owned by the City. See Foxx, 157 F. Supp. 3d at
597 (citing Sarpy v. Municipality No. 2, 9 La. Ann. 597 (1854));
cf. Tilton v. New Orleans City R. Co., 35 La. Ann. 1062, 1063 (La.
1883) (citing Sarpy for the proposition that, at the time, no
particular form or ceremony was necessary for dedication of land,
and that title to land dedicated to public use inured to the
benefit of the donee, i.e., the City of New Orleans). Similarly,
Plaintiffs admit that “there is no doubt the Beauregard Equestrian
Monument is inside City Park,” R. Doc. 139-3 at 3, and there is
also “no question that the property of City Park . . . has always
belonged to the City of New Orleans.” See City of New Orleans v.
20 See R. Doc. 140, at 3 n.10. Further, the Fifth Circuit specifically held that
“although [Plaintiff-Appellants] implied at oral argument that the ownership of
the monuments and the land on which they sit may be uncertain . . . [the Fifth
Circuit found] no evidence in the record suggesting that any party other than
the City has ownership.” Chao, 2017 WL 892492, at *1.
27
State, 443 So. 2d 562, 570 (La. 1983). Similarly, the Jefferson
Davis Monument is located in the neutral ground of Jefferson Davis
Parkway, which is also public property. See La. Civ. Code art.
450. Finally, State ex rel. Singelmann v. Morrison makes clear
that the City has authority to remove the Monuments. 57 So. 2d
238, 244 (La. Ct. App. 1952) (holding that a private association
could not erect a memorial on public property without consent of
the governing authority, that the location, manner, and design of
statues is within the discretion of the governing authorities of
the City of New Orleans, and that the City of New Orleans can
require removal of monuments located on public property). In all,
the City owns the property upon which the Monuments are located,
and the Monuments at issue “are public things . . . owned by the
City in its public capacity, and subsequently dedicated to the
public use.” McGraw, 2017 WL 1164945, at *9. And when the City
owns public things in its public capacity “it is not possible for
persons to acquire those things.” Id. (noting that, as public
things, the Lee, Beauregard, and Davis monuments are insusceptible
of private ownership, are inalienable, imprescriptible, and exempt
from
seizure).
Accordingly,
Plaintiffs
are
not
entitled
to
additional discovery as to whether they or any other individual or
organization owns or possess a property interest in the Monuments,
because no amount of discovery could prove that private persons
own a public thing. Further, even if Plaintiffs proved that they,
28
or some other individual or association, had a property interest
in the Monuments, which they do not, the City has authority to
remove the Monuments because they are located on public property.
See Singelmann, 57 So. 2d at 244.
It follows that Plaintiffs’ due process claims must also be
dismissed, because Plaintiffs do not have a protected interest in
the Monuments. See Doe v. Taylor Indep. Sch. Dist., 15 F.3d 443,
450 (5th Cir. 1994) (noting that to state a cause of action under
§ 1983 for violation of the Due Process Clause, plaintiffs “[m]ust
show that they have asserted a recognized ‘liberty or property’
interest within the purview of the Fourteenth Amendment, and that
they were intentionally or recklessly deprived of that interest,
even temporarily, under color of state law.”); Foxx, 157 F. Supp.
3d at 594 (“If there is no denial of life, liberty, or property,
then the government is not required to provide due process.”).
Similarly, Plaintiffs’ procedural due process claim is dismissed
with prejudice. Procedural due process “refers to the procedures
the government must follow before it deprives a person of life,
liberty, or property.” Foxx, 157 F. Supp. 3d at 598. Procedural
due process
is “the opportunity to be heard ‘at a meaningful
time and in a meaningful manner.’” Mathews v. Eldridge, 424 U.S.
319, 333 (1976). However, “a meaningful time” means prior to the
deprivation of the liberty or property right at issue. See Bowlby
v. City of Aberdeen, 681 F.3d 215, 220 (5th Cir. 2012). As
29
explained above, Plaintiffs do not have a protected property
interest in the Monuments to require constitutionally adequate due
process. Moreover, “even assuming that Plaintiffs were deprived of
a constitutionally-protected property interest, Plaintiffs fail to
demonstrate . . . that the process provided by the City was
inadequate.”
Foxx,
157
F.3d
at
598.
Plaintiffs
were
given
a
meaningful opportunity to be heard when they participated at public
comment meetings prior to the City ultimately deciding to remove
the
Monuments. 21
Accordingly,
Plaintiffs’
substantive
and
procedural due process claims are dismissed with prejudice.
f. Plaintiffs’ § 146-611 Claims
Plaintiffs contend that “City did not comply with the original
nuisance statute, 146-611 of the City Code, which required the
City [to] solicit input from the Historic District Landmarks
Commission (HDLC).” Plaintiffs argue that the HDLC “did not have
jurisdiction over the Lee Monument.” Further, Plaintiffs seek
discovery as to “whether the City was required to solicit comments
from the Central Business District Historic District Landmarks
Commission (CBD-HDLC) rather than the HDLC panel. . . .” In
addition
to
discovery
on
these
21
two
issues,
Plaintiffs
seek
To the extent that Plaintiffs argue removing the monuments pursuant to § 146611 of the City Code denies Plaintiffs due process because § 146-611 is
unconstitutionally vague, this claim is also dismissed with prejudice. The
ordinance does not prohibit any conduct and proscribes no action, rather it
merely vests discretion within the City Council to remove monuments, statues,
plaques, or other structures from outdoor display on public property. The Court
finds that this discretion is not impermissibly broad. See Foxx, 157 F. Supp.
3d at 599-600.
30
additional discovery as to whether the reports submitted to the
City Council were accurate. Plaintiffs assert that “[i]f the
reports are wrong on the facts, there is no support for the City’s
legal conclusion the monuments are a public nuisance.”
The plain language of § 146-611 of the City Code provides, in
relevant part: “In any hearing conducted pursuant to this section,
the council shall solicit the recommendations of the city planning
commission when required by the City Charter and comments and
recommendations of the historic district landmarks commission. .
. .” New Orleans, La., Code of Ordinances § 146-611(c) (1995)
(emphasis added). The CBD-HDLC is not referenced within § 146-611.
The City Code speaks for itself, additional discovery on this issue
is denied, and this “claim” is dismissed with prejudice.
Plaintiffs’ also seek additional discovery on whether the
reports submitted to the City Council are factually accurate.
Specifically, Plaintiffs seek discovery as to whether the reports
submitted by the Director of Property Management for the City of
New Orleans, 22 the New Orleans Police Superintendent, 23 and the
City Attorney for the City of New Orleans 24 are accurate. Notably,
these reports have been in the record for over a year, yet
Plaintiffs have provided no argument, nor produced any evidence,
as to how these reports are inaccurate. Assuming the reports are
22
23
24
R. Doc. 28-8.
R. Doc. 28-9.
R. Doc. 28-10.
31
inaccurate, Plaintiffs neglect the fact that the City Council
sought
recommendations
organizations,
comments,
held
from
public
including
numerous
hearings,
Plaintiffs’,
as
persons
and
to
and
city
considered
whether
the
public
Monuments
should be removed. Thus, it is apparent that the three reports at
issue were not the sole reason the City Council decided to remove
the Monuments. Plaintiffs essentially ask the Court to determine
whether every public comment voiced to the City Council in support
of, and in opposition to, removing the Monuments was factually
accurate.
Plaintiffs
have
provided
no
authority
for
such
a
position, likely because none exists.
The
relevant
“capriciously
or
inquiry
is
arbitrarily.”
whether
Foxx,
the
157
City
F.
Council
Supp.
3d
acted
at
601
(quoting Herman v. City of New Orleans, 2014-0891, p. 7 (La. App.
4. Cir. 1/21/15); 158 So. 3d 911, 915-16). This Court previously
explained
how
the
City
Council
did
not
act
arbitrarily
or
capriciously in deciding to remove the Monuments. The Court held
that: (1) Plaintiffs have not argued that the City Council was
arbitrary and capricious in concluding that the four monuments
honor ideologies that are inconsistent with equal protection; (2)
Plaintiffs were unable to demonstrate that the City Council was
arbitrary and capricious in concluding that the Monuments are sites
of criminal activity and possible civil unrest; and (3) Plaintiffs
failed to demonstrate that the City Council was arbitrary and
32
capricious
in
concluding
that
the
costs
of
maintaining
the
Monuments outweigh the benefits of keeping them. See id. at 601602. “Plaintiffs have established only that they disagree with the
City’s action, not that the City abused its power. This Court,
however, ‘has nothing to do with the question of the wisdom or
good policy of municipal ordinances. If [ordinances] are not
satisfying to a majority of the citizens, their recourse is to the
ballot—not the courts.’” Id. at 603 (quoting Palermo Land Co. v.
Planning Comm’n of Calcasieu Par., 561 So. 2d 482, 491 (La. 1990)).
Accordingly, additional discovery will not allow Plaintiffs to
survive summary judgment on this claim, and Plaintiffs’ claims
that the City did not comply with § 146-611 of the City Code are
dismissed with prejudice.
g. Plaintiffs’ Claims under Article 12, § 4 of the Louisiana
Constitution
Plaintiffs argue that removing the Monuments violates their
rights under Article XII, § 4 of the Louisiana Constitution.
According to Plaintiffs, the Monuments were erected to preserve,
foster, and promote the historic and cultural origins of the
citizens of New Orleans and the residents of Louisiana. Plaintiffs
contend that they need additional discovery on “the legislative
history of Article 12, § 4 of the Louisiana Constitution.”
Plaintiffs’
request
is
not
a
request
for
additional
discovery. Rather, the legislative history of a constitutional
33
provision is legal research. Nothing prevented Plaintiffs from
conducting legal research on the legislative history or reported
cases on Article XII, § 4 of the Louisiana Constitution. Therefore,
additional discovery on the legislative history of Article XII, §
4 of the Louisiana Constitution is denied as it would not serve to
defeat summary judgment on this claim.
Moreover, Plaintiffs incorrectly contend that this Court did
not hear Plaintiffs’ state law claim arising under Article XII, §
4 of the Louisiana Constitution. This Court explicitly exercised
supplemental jurisdiction on Plaintiffs’ state law claims, Foxx,
157 F. Supp. 3d at 600, and held that “Plaintiffs [failed] to
demonstrate that the removal of the monuments will infringe upon
their right to preserve, foster, and promote their historic,
linguistic, and cultural origins.” Id. at 601. As the Louisiana
Fourth Circuit Court of Appeal noted, “the only reported decision
interpreting [Article XII, § 4 of the Louisiana Constitution]” is
this
Court’s
request
for
previous
an
Order
injunction.
and
Reasons
McGraw,
2017
denying
WL
Plaintiffs’
1164945,
at
*9.
Plaintiffs have not provided any additional arguments, cited to
any additional cases or legal sources, or produced any additional
evidence to persuade this Court that it was incorrect in holding
that removal of the Monuments will not infringe upon Plaintiffs’
rights under Article XII, § 4 of the Louisiana Constitution. The
City has a right to “speak for itself” and removal of the Monuments
34
is a form of such government speech. Foxx, 157 F. Supp. 3d at 600601. Accordingly, Plaintiffs’ claims under Article XII, § 4 of the
Louisiana Constitution are dismissed with prejudice.
h. Plaintiffs’ City Donation Policy Claims
Finally, Plaintiffs seek discovery on the “‘money trail’
between the anonymous donor or donors allegedly paying for removal
of the monuments and the coffers of the City of New Orleans.”
Plaintiffs seek discovery on whether “any of the funds channeled
to the City of New Orleans by Foundation for Louisiana are federal
in origin, and if so the identity of the federal programs from
which the funds originated.” Plaintiffs argue that “the City’s
naked effort to hide the source of funds it will use to pay for
removal of the monuments” violates the City’s policy on donations,
which in turn, violates Plaintiffs’ right to due process of law.
Plaintiffs are not entitled to additional discovery on this
claim. First, Plaintiffs do not have a protected right in the
Monuments. Accordingly, removing the Monuments does not violate
Plaintiffs’
right
to
due
process.
Second,
Plaintiffs’
city
donation policy claim is moot. Id. at 601. “The City has explained
that funds for the removal are being donated by Foundation for
Louisiana, a non-profit corporation. The donation is documented in
writing by an Act of Donation committing to provide up to $175,000
to cover costs associated with removal of the four monuments. Thus,
the donation complies with the City’s policy. Furthermore, even if
35
there had been no writing, Policy Memorandum No. 125 provides that
any of its provisions may be waived with approval of the City’s
Chief Administrative Officer.” Id.; see also (R. Doc. 35-1 at 110).
Accordingly, the evidence before the Court proves that the City is
not attempting to hide the source of funds it will use to remove
the
Monuments.
No
discovery
is
permitted
on
this
issue,
and
Plaintiffs’ claims as to the City’s donation policy are dismissed
as moot.
2. Summary
This lawsuit and the events which preceded it displayed the
breadth of our democracy. Constituents urged their representative
officials
to
remove
monuments
which
they
deemed
offensive.
Citizens who supported the display of these figures objected with
the
same
employed
fervor.
to
The
proper
determine
procedural
whether
removal
mechanisms
of
the
were
monuments
then
was
warranted and authorized, which resulted in the decision to uproot
these
figures
from
their
current
location.
Objectors
then
petitioned the judiciary and challenged the actions of their
government. This Court was then tasked solely with determining
whether the government had authority to remove the monuments in
question, or whether their removal violated Plaintiffs’ rights.
This Court’s role has never been, and will never be, to pass
judgment, in approval or protest, on the wisdom of the government’s
actions. In the end, for the reasons explained in this decision
36
and others, this Court has determined that the government’s actions
are
authorized
and
do
not
violate
Plaintiffs’
rights.
Consequently, Plaintiffs’ claims as to the General Robert E. Lee
Monument, the P.G.T. Beauregard Monument, and the Jefferson Davis
Monument must be dismissed with prejudice.
37
CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that all of Plaintiffs’ remaining claims
as to the General Robert E. Lee Monument, the P.G.T. Beauregard
Monument, and the Jefferson Davis Monument are DISMISSED WITH
PREJUDICE.
IT IS FURTHER ORDERED that Plaintiffs’ Motion to Continue (R.
Doc. 67) is DENIED.
IT IS FURTHER ORDERED that the City’s Motion for Summary
Judgment (R. Doc. 63) is GRANTED.
IT IS FURTHER ORDERED that the RTA’s Motion for Summary
Judgment (R. Doc. 64) is GRANTED.
IT IS FURTHER ORDERED that the Federal Defendants’ Motion to
Dismiss
for
Lack
of
Subject
Matter
Jurisdiction
and
Judgment (R. Doc. 62) is GRANTED.
Summary
New Orleans, Louisiana this 24th day of April, 2017.
CARL J. BARBIER
UNITED STATES DISTRICT JUDGE
38
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