Ronald Kammeyer et al v. United States Army Corps of Engineers et al, No. 5:2015cv00869 - Document 50 (C.D. Cal. 2015)

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

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Ronald Kammeyer et al v. United States Army Corps of Engineers et al Doc. 50 1 O 2 3 4 5 UNITED STATES DISTRICT COURT 6 CENTRAL DISTRICT OF CALIFORNIA 7 8 9 10 11 12 13 14 15 16 RONALD KAMMEYER, and MURAL CONSERVANCY OF LOS ANGELES PlaintiffS, v. ONEIDA TOTAL INTEGRATED ENTERPRISES, UNITED STATES ARMY CORPS OF ENGINEERS, JOHN MCHUGH, THOMAS BOSTICK, JO-ELLEN DARCY, and KIMBERLY COLLOTON ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. EDCV 15-869-JGB (KKx) ORDER: GRANTING Plaintiff’s Motion for Preliminary Injunction (Doc. No. 19.) [Motion filed June 2, 2015] 17 18 Defendants. 19 20 On June 15, 2015, the Court granted a Temporary 21 Restraining Order which enjoined Defendant United States 22 Army Corps of Engineers (“USACE”) from altering or 23 destroying the Bicentennial Freedom Mural in Corona, 24 California. 25 for a Preliminary Injunction. 26 all papers filed in support of and in opposition to the 27 Application as well as the arguments presented at the Now before the Court is Plaintiffs’ Motion The Court has considered 28 1 1 August 19, 2015 hearing. 2 below, the Court GRANTS the Motion. For the reasons expressed 3 4 I. BACKGROUND 5 6 Plaintiffs Ronald Kammeyer and the Mural Conservancy 7 of Los Angeles (“Plaintiffs”) seek to halt the 8 destruction of the “Bicentennial Freedom Mural” (the 9 “Mural”) that is displayed on the spillway of the Prado 10 Dam in Corona, California. 11 12 Plaintiffs filed their Complaint on May 4, 2015. 13 (Doc. No. 1.) 14 Amended Complaint (“FAC”) against Defendants USACE and 15 Oneida Total Integrated Enterprises (“Oneida”). 16 No. 14.) 17 accomplished landscape architect who co-designed the 18 Mural when he was in high school. 19 Mural, which was painted by high school volunteers in 20 1976, is 640 feet long and 100 feet tall, and is visible 21 to commuters passing by on the State Route 91 freeway. 22 (Id. ¶¶ 17-18.) 23 to destroy the Mural, ostensibly due to concerns over 24 graffiti and lead paint. 25 allegation, Plaintiffs allege causes of action under: (1) 26 the Visual Rights Act of 1990 (“VARA”), 17 U.S.C. § 101 27 et seq; (2) the California Art Preservation Act (“CAPA”), On June 2, 2015, Plaintiffs filed a First (Doc. The FAC alleges that Plaintiff Kammeyer is an (FAC ¶ 4, 15.) The Plaintiffs allege that Defendants plan (Id. ¶ 21.) 28 2 Based on these 1 California Civil Code § 987; (3) California Business & 2 Professions Code § 17200. 3 4 A. Motion for Preliminary Injunction 5 6 On June 2, 2015, Plaintiffs filed their Motion for 7 Preliminary Injunction. 8 June 22, 2015. 9 replied on June 29, 2015. (Doc. No. 19.) (“Opp’n,” Doc. No. 27.) USACE opposed on Plaintiffs (“Reply,” Doc. No. 29.) 10 11 In the preliminary injunction briefing, USACE 12 explains that the Prado Dam and its spillway are part of 13 a federal flood-risk-management project known as the 14 Santa Ana River Mainstem Project (“SARM”).1 15 1.) 16 within the jurisdiction of the L.A. District of USACE. 17 (Id. at 2.) 18 project manager requested that USACE perform a safety 19 survey of the Mural; this request was prompted by 20 concerns over the appearance of the Mural and the 21 suspicion that it contained lead paint. 22 Diane Rosenberg (“Rosenberg Decl.”), Doc. No. 27-6, ¶ 3.) 23 The Mural has become faded and chipped over the years, 24 and has also been the target of graffiti. (Opp’n at The Prado Dam is located on federal lands that are USACE explains that in August 2011, a SARM (Declaration of (Declaration 25 26 27 1 SARM provides flood protection to the Santa Ana River Basin communities in Orange, Riverside, and San Bernardino counties. (Declaration of David Van Dorpe (“Van Dorpe Decl.”), Doc. No. 27-5, ¶ 2.) 28 3 1 of David Van Dorpe (“Van Dorpe Decl.”), Doc. No. 27-5, 2 Ex. A.) 3 asserts that its operations and maintenance budgets do 4 not include the necessary funds. 5 Dampios (“Dampios Decl.”), Doc. No. 27-8, ¶ 2.) USACE has not maintained the Mural, as it (Declaration of Lillian 6 7 After USACE surveyed the Mural, it commissioned lead- 8 paint testing. 9 finalized in May 2014, concluded that various paints on (Van Dorpe Decl. ¶ 10.) The report, 10 the spillway were either “lead-based” or “lead- 11 containing.” 12 concluded that the paint should either be encapsulated (a 13 process by which a sealant is applied over the paint) or 14 removed so as to prevent lead paint from washing off the 15 face of the spillway and being released into the 16 environment. 17 manager presented these conclusions to a USACE review 18 board. 19 believed that remediation was necessary, and presented 20 cost estimates for encapsulation ($210,000.00) and full 21 removal ($285,000.00). 22 determined full removal was appropriate, given that (1) 23 the estimated cost for encapsulation did not include 24 future upkeep costs, which would likely make 25 encapsulation more expensive than removal over the long 26 term, and (2) future construction on the spillway was 27 planned, which could lead to potential damage of the (Rosenberg Decl., Ex. B.) (Id. at 4.) (Van Dorpe Decl. ¶¶ The report In May 2014, a USACE project 11-12.) (Id. ¶ 12.) 28 4 The project manager USACE leadership 1 encapsulation with resulting lead-paint exposure. 2 (Rosenberg Decl. ¶ 17.) 3 contracts for removal of the Mural, and ultimately 4 awarded the job to Oneida. USACE therefore solicited (Van Dorpe Decl. ¶¶ 13-14.) 5 6 On July 25, 2014, USACE posted a Special Public 7 Notice on one of its websites about the planned removal 8 of the Mural. 9 Decl.”), Doc. No. 27-3, ¶¶ 7-8.) (Declaration of Carvel Bass (“Bass On April 9, 2015, a 10 public meeting was held at Corona High School, and the 11 general public was invited to speak or provide written 12 comments on the Mural removal project and on the Mural 13 itself. 14 USACE held another meeting with local government and 15 resource agencies, in which USACE presented further 16 details about the Mural removal project. 17 Decl. ¶ 17.) 18 local agencies that it would seek a willing partner or 19 partners to commit to re-painting the spillway with a new 20 mural and maintaining that new mural in the future. 21 (Id.) (Van Dorpe Decl. ¶¶ 25-26.) In February 2015, (Van Dorpe During the meeting, USACE informed these 22 23 B. Supplemental Briefing 24 25 After reviewing the parties’ initial briefing on the 26 preliminary injunction, the Court noted that Plaintiffs 27 had shifted their focus to their third cause of action, 28 5 1 under which they asserted that USACE had not complied 2 with its obligations under Section 106 of the National 3 Historic Preservation Act (“NHPA”). 4 significance of the preliminary injunction decision, the 5 Court concluded that fuller briefing on the issue was 6 necessary. 7 their NHPA claim properly; rather than pleading it 8 against USACE under the APA (as would have been proper), 9 Plaintiffs pleaded it against Oneida under the UCL. Given the Additionally, Plaintiffs had not pleaded (See 10 Doc. No. 35 at 2.) 11 on July 9, 2015. 12 Plaintiffs leave to file a Second Amended Complaint and 13 requested additional briefing on the NHPA cause of 14 action. The Court therefore issued an Order (Doc. No. 35.) The Order granted (Id. at 3.) 15 16 On July 17, 2015, Plaintiffs filed their Second 17 Amended Complaint, which included a cause of action under 18 the NHPA. 19 and USACE filed their supplemental briefing on the NHPA 20 cause of action. 21 Supp. Brief,” Doc. No. 37.) 22 Plaintiffs and USACE filed their opposition supplemental 23 briefs. 24 Opp’n,” Doc. No. 44.) (Doc. No. 36.) On July 31, 2015, Plaintiffs (“P. Supp. Brief,” Doc. No. 39; “U. On August 7, 2015, (“P. Supp. Opp’n,” Doc. No. 43; “U. Supp. 25 26 27 28 6 1 II. LEGAL STANDARD2 2 3 “A plaintiff seeking a preliminary injunction must 4 establish that he is likely to succeed on the merits, 5 that he is likely to suffer irreparable harm in the 6 absence of preliminary relief, that the balance of 7 equities tips in his favor, and that an injunction is in 8 the public interest.” 9 Council, Inc., 555 U.S. 7, 20 (2008). Winter v. Natural Res. Def. “A preliminary 10 injunction is an extraordinary and drastic remedy; it is 11 never awarded as of right.” Munaf v. Geren, 553 U.S. 674, 12 690 (2008) (citations omitted). 13 only on parties to the action, their officers, agents, 14 servants, employees and attorneys and those “in active 15 concert or participation” with them. 16 65(d). An injunction is binding Fed. R. Civ. P. 17 18 III. DISCUSSION 19 20 Plaintiffs seek a preliminary injunction that would 21 enjoin USACE from “tak[ing] any action that could alter, 22 desecrate, destroy or modify in any way” the Mural. 23 Neither party disputes that absent an injunction, USACE 24 will go ahead with its plans to remove the Mural. 25 26 27 2 Unless otherwise noted, all mentions of “Rule” refer to the Federal Rules of Civil Procedure. 28 7 1 In contesting the Motion, USACE primarily focuses its 2 arguments on Plaintiffs’ likelihood of success on the 3 merits. 4 the Court will first discuss the likelihood of 5 irreparable harm and the balance of equities. 6 necessary because the Ninth Circuit has endorsed a 7 “sliding scale” test for preliminary injunctions. 8 stated by the Ninth Circuit: “[w]here the balance of 9 hardships tips sharply in the plaintiff's favor and the However, before reaching the merits arguments, This is As 10 plaintiff has demonstrated a likelihood of irreparable 11 harm, however, the plaintiff need only show that “serious 12 questions” exist as to success on the merits. 13 See Alliance for Wild Rockies v. Cottrell, 632 F.3d 1127, 14 1131 (9th Cir. 2011). 15 16 A. Likelihood of Irreparable Harm 17 18 Given the facts of this case, the Court easily 19 concludes that Plaintiffs have shown a high likelihood of 20 irreparable harm: USACE intends to immediately remove the 21 Mural if not enjoined. 22 be destroyed and lost forever. 23 that “[p]roperty is always unique under general 24 principles of the law of equity and its possible loss or 25 destruction usually constitutes irreparable harm.” 26 Fisher v. Kealoha, No. CIV. 11-00589 ACK, 2012 WL 27 2526923, at *10 (D. Haw. June 29, 2012) (quoting Bennet If the Mural is removed, it will It is well established 28 8 1 v. Dunn, 504 F. Supp. 981, 986 (D. Nev. 1980). 2 the property at issue here is a unique work of public art 3 with arguable historical significance. 4 of that art – which Defendants concede will occur absent 5 an injunction – is clearly irreparable harm. Moreover, The destruction 6 7 B. The Balance of Equities 8 9 The Court next concludes that the balance of equities 10 tips sharply in in Plaintiffs’ favor. 11 destroyed Plaintiffs and the public will have no further 12 recourse. 13 preliminary injunction, USACE will only suffer some delay 14 in their construction plans if it ultimately prevails. 15 Moreover, it appears unlikely that USACE’s plans to 16 modify the Prado Dam will even need to be postponed at 17 all. 18 scheduled to be raised until approximately 2019. 19 Dorpe Decl. ¶ 6.) 20 proceedings in this lawsuit will last until then. 21 USACE ultimately prevails, it will still have plenty of 22 time to remove the Mural before construction on the 23 spillway is set to begin. 24 minimal. If the Mural is On the other hand, if the Court grants a USACE has conceded that the spillway is not (Van It is highly unlikely that the If Thus, any hardship to USACE is 25 26 27 28 9 1 C. Likelihood of Success on the Merits 2 3 Given that Plaintiffs have shown both an immediate 4 threat of irreparable harm and that the balance of 5 equities tips sharply in their favor, they must only show 6 that “serious questions” exist as to their likelihood of 7 success on the merits. 8 632 F.3d at 1131. 9 Plaintiffs’ three claims against USACE. See Alliance for Wild Rockies, The Court will examine each of 10 11 1. Visual Artists Rights Act of 1990 12 13 a. Sovereign Immunity 14 15 USACE first argues that Plaintiffs’ VARA claim is 16 barred by the doctrine of sovereign immunity. 17 disagrees. The Court 18 19 Under the doctrine of sovereign immunity, “it is 20 axiomatic that the United States may not be sued without 21 its consent and the existence of consent is a 22 prerequisite for jurisdiction.” 23 Mitchell, 463 U.S. 206, 212 (1983). 24 of the government's sovereign immunity to be effective, 25 they must be “unequivocally expressed” by Congress. 26 Lehman v. Nakshian, 453 U.S. 156, 160–61 (1981). 27 same principles of sovereign immunity which would apply 28 10 United States v. In order for waivers The 1 to a suit against the United States apply to a suit 2 against a government agency, because the United States is 3 the real party in interest. 4 F.2d 74, 76 (9th Cir. 1980) (per curiam). See Helash v. Ballard, 638 5 6 There are two Congressional waivers of sovereign 7 immunity at play for purposes of this Motion,3 the first 8 of which is the Administrative Procedures Act (“APA”), 5 9 U.S.C. § 702. The APA allows a “person suffering legal 10 wrong because of agency action” to seek injunctive relief 11 (but not money damages) in a suit against the United 12 States. 5 U.S.C. § 702. 13 14 USACE does not dispute that the APA could apply to 15 Plaintiffs’ causes of action. 16 agency, has decided to take a course of action that 17 Plaintiffs assert is unlawful under VARA. 18 permits the Court to “hold unlawful and set aside agency 19 action, findings and conclusions” that are “arbitrary, 20 capricious . . . or otherwise not in accordance with 21 law.” 22 the APA would, on its face, appear to apply to 23 Plaintiffs’ claims. USACE, a government The APA 5 U.S.C. § 706(2)(A)(emphasis added). Therefore, 24 25 3 26 27 Plaintiffs also assert that they are entitled to money damages, which are allowed under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §1346(b). (Motion at 14.) However, that issue is not germane to this Motion, as Plaintiffs only seek injunctive relief. 28 11 1 USACE contends that a closer reading of Section 702 2 shows that Plaintiffs may not pursue their VARA claim 3 under the APA. 4 702(2), which explains that a court may not grant relief 5 under the APA “if any other statute that grants consent 6 to suit expressly or impliedly forbids the relief which 7 is sought.” 8 U.S.C. § 1498(b) forbids the relief Plaintiffs seek. Specifically, USACE points to Section 5 U.S.C. § 702(2). USACE argues that 28 9 10 Section 1498(b) is another Congressional waiver of 11 sovereign immunity. 12 United States to be sued for copyright infringement; yet, 13 it only allows monetary damages (not injunctive relief) 14 and requires that the claim be brought in the United 15 States Court of Claims. 16 if Section 1498(b) provided the jurisdictional basis for 17 Plaintiffs’ VARA claim, it would preclude the injunctive 18 relief they seek and would divest this Court of 19 jurisdiction. 20 Section 1498(b) applies. The statute grants consent for the 28 U.S.C. § 1498(b). Therefore, However, the Court is not persuaded that Section 1498(b) provides: 21 22 [W]henever the copyright in any work . . . shall be 23 infringed by the United States . . . the exclusive action 24 which may be brought for such infringement shall be an 25 action by the copyright owner against the United States 26 in the Court of Federal Claims for the recovery of his 27 28 12 1 reasonable and entire compensation as damages for such 2 infringement.” 3 4 28 U.S.C. § 1498(b) (emphasis added.) VARA claims 5 are not for copyright infringement; rather, they are 6 designed to protect the artistic and reputational rights 7 of the artist. 8 also referred to as “moral rights” – afford protection 9 “for the author’s personal, non-economic interests in See 17 U.S.C. § 106A(a). These rights – 10 receiving attribution for her work, and in preserving the 11 work in the form in which it was created, even after its 12 sale or licensing.” 13 1212, 1227 (9th Cir. 2000) (quoting Jane C. Ginsburg, 14 Copyright in the 101st Congress: Commentary on the Visual 15 Artists Rights Act and the Architectural Works Copyright 16 Protection Act of 1990, 14 colum. Vla J.L. & Arts 477, 17 478 (1991)). 18 in the “Copyrights” Title of the United States Code, the 19 Court is not persuaded that they constitute claims for 20 copyright “infringement” as contemplated by Section 21 1498(b). Leicester v. Warner Bros., 232 F.3d As such, even though VARA claims are listed 22 23 This conclusion is supported by the text of VARA 24 itself. 25 rights,” explains that an artist has VARA rights “whether 26 or not the author is the copyright owner.” 27 106A(b) Section 106A(b), entitled “Scope and exercise of 17 U.S.C. § It is thus clear that a VARA claim is not a 28 13 1 copyright infringement claim, as a VARA claim may be 2 brought by someone who doesn’t own the copyright. 3 4 Accordingly, the Court finds that the APA, rather 5 than Section 1498(b), provides the applicable waiver of 6 sovereign immunity here. 7 injunctive relief as contemplated by the APA. As such, Plaintiffs may seek 8 9 b. Plaintiffs’ VARA Claim 10 11 Although Plaintiffs may seek injunctive relief under 12 VARA, their VARA claim founders on the merits. 13 facts present here, VARA does not grant Kammeyer the 14 right to prevent removal of the Mural. Under the 15 16 VARA provides that “the author of a work of visual 17 art . . . shall have the right (A) to prevent any 18 intentional distortion, mutilation, or other modification 19 of that work which would be prejudicial to his or her 20 honor or reputation, and any intentional distortion, 21 mutilation, or modification of that work is a violation 22 of that right, and (B) to prevent any destruction of a 23 work of recognized stature, and any intentional or 24 grossly negligent destruction of that work is a violation 25 of that right.” 17 U.S.C. § 106A(a) (3). 26 27 28 14 1 Plaintiffs contend that Kammeyer is the author of the 2 Mural (a work of visual art) and that he thus has the 3 right to enjoin USACE’s destruction of the Mural. 4 Court were to accept Plaintiffs’ interpretation of VARA, 5 Kammeyer would have the lifetime right to keep the Mural 6 on the spillway, regardless of safety, environmental, or 7 other important public policy concerns.4 8 not have intended this “lifelong-veto” when enacting 9 VARA. If the Congress could 10 11 The First Circuit addressed this issue by concluding 12 that VARA does not protect “site-specific” art. 13 v. Pembroke Real Estate, Inc., 459 F.3d 128, 134 (1st 14 Cir. 2006). 15 art, the “location of the work is an integral element of 16 the work,” and thus “because the location of the work 17 contributes to its meaning, site-specific art is 18 destroyed if moved from its original site.5” Phillips The court explained that with site-specific In summing 19 20 21 22 4 For example, imagine that the spillway had a growing crack within it that threatened its structural integrity, and it needed to be torn down immediately and rebuilt. Plaintiffs’ legal theory would mean that he, as an artist, would be able to prevent USACE from taking such steps. 23 5 24 25 26 27 28 To be sure, the Mural may not technically be a piece of “site-specific” art. In “site-specific” art, the artist “incorporates the environment as one of the media with which he works.” Phillips, 459 F.3d at 134. For example, a “sculpture that has a marine theme that integrates the large granite stones of [a] park with [the] sculpture and the granite sea walls of Boston Harbor” is clearly site-specific art. See id. Nevertheless, the First Circuit’s rationale behind the (continued . . .) 15 1 up the problem of applying VARA’s protections to site- 2 specific art, the First Circuit explained: 3 4 Once a piece of art is considered site- 5 specific, and protected by VARA, such objects 6 could not be altered by the property owner 7 absent consent of the artist. 8 conclusion could dramatically affect real 9 property interests and laws. Such a 10 11 Phillips, 459 F.3d at 142. 12 Plaintiffs urge could present potential problems much 13 graver than merely encumbering an owner’s property 14 interest. 15 whose upkeep implicates serious public safety and 16 environmental concerns. 17 and manage SARM and the dam in a manner that protects the 18 public and promotes their designated function. 19 proposed improvements to the SARM, including raising the 20 height of the dam, constructing protective dikes within 21 the basin, and raising the elevation of the spillway are 22 indisputably consistent with these objectives. Here, applying VARA as The dam is a large infrastructural component USACE must be allowed to operate USACE’s 23 24 25 To address the “life-long veto” problem, the Court could conclude that the Mural is site-specific and thus 26 ( . . . continued) 27 site-specific exception to VARA is more important than whether the Mural may be classified as site-specific. 28 16 1 not covered by VARA’s protections. 2 another route more logically sound; specifically, one 3 based on interpretation of 17 U.S.C. § 113(d)(1), another 4 section of VARA. 5 to VARA for a “work of visual art” installed before June 6 1, 19916 that “has been incorporated in or made part of a 7 building in such a way that removing the work from the 8 building will cause the destruction . . . of the work.” Yet, the Court finds Section 113(d)(1) creates an exception 9 10 The question then becomes whether the term “building” 11 covers the Prado Dam. 12 court examining a VARA claim has construed “building” to 13 mean something other than a standard residential or 14 commercial space. 15 However, Plaintiffs offer no cases that have held a 16 large, man-made structure should not be deemed a 17 “building” under VARA. 18 an exception for buildings apply to a dam – changes to a 19 functional, man-made structure may be necessary from time 20 to time, and the structure’s owner should not be 21 permanently prevented from ever making such changes. Plaintiffs argue that no other (Motion at 12-13 (collecting cases).) And the same justifications for 22 23 The above analysis assumes that the Mural could not 24 be moved from its current location. 25 assert that there is a “strong possibility” that the 26 Mural could be moved, using a technique known as the 27 6 The date VARA became effective. 28 17 However, Plaintiffs 1 “Strappo Method.” 2 Doc. No. 20, ¶ 3.) 3 evidence about how this process would work, or how much 4 it would cost. 5 without causing its destruction, another VARA exception, 6 17 U.S.C. § 113(d)(2), applies. 7 explains that an owner may remove a work of visual art if 8 the owner (1) provides written notice to the author of 9 the owner’s intention and (2) the author has not removed (Declaration of Isabel Rojas-Williams, Plaintiffs do not present any However, even if the Mural could be moved Section 113(d)(2) 10 the work or paid for its removal within ninety days. 11 U.S.C. § 113(d)(2). 12 formal written notice to Plaintiffs’ counsel of USACE’s 13 intention to remove the Mural from the dam. 14 of Lawrence Minch (Doc. No. 27-7), Ex. B.) 15 ninety-day window closed on June 3, 2015. 17 On March 5, 2015, USACE provided (Declaration Thus, the 16 17 Plaintiffs, without any citations to evidence or 18 further explanation, state that the notice did not “truly 19 [provide] 90 days to remove the Mural” and that USACE 20 “inserted arbitrary deadlines to present a plan.” 21 at 12.) 22 assertions. (Reply The Court is not persuaded by these unsupported 23 24 In sum, the Court concludes that the Prado Dam is a 25 “building” for the purposes of Section 113(d) and finds 26 that USACE has complied with Section 113(d)(2)’s ninety- 27 day notice provision applicable to removals of works of 28 18 1 visual art. 2 mural can be removed. 3 possible, USACE has complied with the applicable notice 4 provisions. 5 visual art incorporated into buildings applies. 6 either instance, Plaintiffs likely cannot prevail on 7 their VARA claim. Accordingly, it is immaterial whether the If removal without destruction is If it is not, VARA’s exception for works of In 8 9 2. California Arts Preservation Act 10 11 Plaintiffs also argue that they are likely to succeed 12 on their claims under CAPA, California’s analog to VARA. 13 (Motion at 14-16.) 14 CAPA. 15 Plaintiffs’ argument, however, is not that CAPA is 16 preempted, but that CAPA cannot apply to a federal 17 agency’s actions on federal land.7 USACE responds that VARA preempts (Opp’n at 22-23.) The real problem with 18 19 It is well settled that the activities of federal 20 installations are shielded by the Supremacy Clause from 21 direct state regulation unless Congress provides “clear 22 and unambiguous” authorization for such regulation. 23 v. State Water Resources Control Board, 426 U.S. 200, 24 211(1976); accord, Hancock v. Train, 426 U.S. 167, 178– EPA 25 26 27 7 At the August 19, 2015 hearing, the Court ordered the parties to submit additional briefing on this issue. The parties did so on August 21, 2015. (Doc. Nos. 4748.) 28 19 1 179 (1976). 2 the Supreme Court held in Arizona v. California, 283 U.S. 3 423 (1931) that the United States was under no obligation 4 to submit the plans and specifications of the Boulder Dam 5 construction project to the State of Arizona for 6 approval. 7 the United States must be free to perform its functions 8 without conforming to the police regulations of a state. 9 Id. Consistent with this principle of immunity, 283 U.S. at 451-52. The Court emphasized that 10 11 Here, Plaintiffs contend that USACE should be subject 12 to California state law (CAPA), even though it is a 13 federal agency seeking to take action on federal land. 14 USACE hopes to remove the Mural, in part so that it may 15 proceed with raising the height of the Prado Dam’s 16 spillway. 17 States v. State of Mont., 699 F. Supp. 835 (D. Mont. 18 1988). 19 challenging Montana’s attempt to enforce its building 20 codes and regulations on construction projects occurring 21 on federal military installations. 22 37. 23 of Montana, by the enforcement of its building codes, is 24 attempting to exercise authority over the plans and 25 specifications for construction projects at federal 26 military installations, the conflict is indistinguishable 27 from the conflict presented in Arizona v. California, 283 These facts are analogous to those in United There, the United States brought an action 499 F. Supp. at 836- The court explained that “[t]o the extent the State 28 20 1 U.S. 423, 451 (1931).” 2 California itself is not seeking to enforce its own 3 authority, Plaintiffs are attempting to use state law to 4 restrict a construction project on federal land. 5 Accordingly, the Court finds that Arizona’s holding is 6 controlling, and that USACE’s conduct likely cannot be 7 restricted by CAPA. Id. at 838. Here, although 8 9 As such, the Court finds that Plaintiffs have not 10 shown serious questions exist as to their CAPA claim. 11 12 3. Section 106 of the National Historic Preservation 13 Act 14 15 Finally, Plaintiffs contend that they are likely to 16 show that USACE did not comply with its obligations under 17 Section 106 of the National Historic Preservation Act 18 (“NHPA”).8 Plaintiffs bring this claim under the APA.9 19 20 21 22 23 24 25 26 27 8 As previously explained, Plaintiffs and USACE present these arguments in the supplemental briefing that the Court ordered on this issue. (See Doc. No. 35 (July 9, 2015 Order explaining why supplemental briefing was necessary on this issue).) 9 As previously stated, under the APA a court may overturn an agency’s decision if it finds that it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). The standard of review is narrow, and does not empower courts to substitute their judgment for that of the agency. See Marsh v. Oregon Natural Res. Council, 490 U.S. 360, 378 (1989). 28 21 1 Section 106 of the NHPA is a “stop, look, and listen 2 provision” that requires federal agencies to consider the 3 effects of its programs. 4 Connell, 725 F.3d 988, 1005 (9th Cir. 2013). 5 NHPA, a federal agency must make a “reasonable and good 6 faith effort to identify historic properties; determine 7 whether identified properties are eligible for listing on 8 the National Register based on criteria in 36 C.F.R. § 9 60.4; assess the effects of the undertaking on any See Montana Wilderness Ass'n v. Under the 10 eligible historic properties found; determine whether the 11 effect will be adverse; and avoid or mitigate any adverse 12 effects.” Id. 13 14 Plaintiffs contend that USACE failed at the first 15 step: it never made a good faith effort to identify 16 whether the Mural was historic property before initiating 17 the plan to remove it. 18 19 Under the NHPA, an agency must “take the steps 20 necessary to identify historic properties within the area 21 of potential effects” before beginning an undertaking. 22 36 C.F.R. § 800.4(b). 23 identifying “historical properties”, an agency must “in 24 consultation with the [State Historical Preservation 25 Officer] . . . review existing information on historic 26 properties within the area of potential effects, 27 including any data concerning possible historic In going through the process of 28 22 1 properties not yet identified.” 2 An agency is also required to “seek information, as 3 appropriate, from consulting parties, and other 4 individuals and organizations likely to have knowledge 5 of, or concerns with, historic properties, and identify 6 issues relating to the undertaking’s potential effects on 7 historic properties.” 36 C.F.R. § 800.4(a)(2). 36 C.F.R. § 800.4(a)(3). 8 9 USACE contends it fulfilled its NHPA obligations 10 through a series of steps it took while in the beginning 11 stages of the SARM Project.10 12 USACE prepared a General Design Memorandum (“GDM”). 13 (Supplemental Declaration of Stephen Dibble (“Dibble 14 Decl. II”), Doc. No. 38, ¶ 3.) 15 Appendix that outlined the SARM Project’s potential 16 impacts on cultural resources. 17 Appendix noted that the Prado Dam itself could 18 potentially be considered a historic property. First, in August 1988, The GDM included an (Id. ¶ 4.) The GDM (Id.) 19 20 To evaluate the Prado Dam, as called for in the GDM 21 Appendix, USACE commissioned a report in October 1989. 22 (Id. ¶ 5.) 23 Reservoir, Riverside and San Bernardino Counties, 24 California,” concluded that the Prado Dam itself (not the The report, entitled “The Prado Dam and 25 10 26 27 The SARM Project was designed to provide urban flood protection to communities in Orange, Riverside, and San Bernardino Counties. (Dibble Decl. II ¶ 3.) The SARM Project recommended, among other things, raising the Prado Dam to provide additional flood protection. (Id.) 28 23 1 Mural, which was barely mentioned) was eligible for 2 inclusion in the National Register of Historic Places. 3 (Id., Ex. 3, Doc. No. 38-3 at 14.) 4 principally focuses on the history, construction, 5 functioning, and architecture of the dam itself. 6 Doc. No. 38-3 at 1-14.) 7 report that USACE provided, the Mural receives two 8 sentences of discussion.11 The report (See In the fourteen pages of the (Id. at 10.) 9 10 After the report was completed, USACE sent a letter 11 to the State Historical Preservation Office (“SHPO”) on 12 March 27, 1991, advising it that USACE had concluded that 13 the Prado Dam was eligible for listing as a historic 14 property. 15 Programmatic Agreement for the implementation of the SARM 16 Project. 17 and the American Council on Historic Preservation 18 (“ACHP”), USACE finalized the Programmatic Agreement in 19 April 1993. 20 Programmatic Agreement was ultimately signed by USACE, 21 the SHPO, the ACHP, Orange County, Riverside County, San 22 Bernardino County, and two Native American 23 representatives. (Dibble Decl. II ¶ 6.) (Id. ¶ 7.) USACE also drafted a After consultation with the SHPO (Id. Ex. 8, Doc. No. 38-8 at 1.). (Dibble Decl. II ¶ 11.) The As part of the 24 25 26 27 11 The report states, “. . . a large red, white, and blue logo, “200 Years of Freedom, 1776-1976,” was painted on the Prado Dam spillway in 1976 by students from the Corona High School. Easily visible from Highway 91 just south of the dam, the logo remains today one of the dam’s most striking features.” 28 24 1 Programmatic Agreement, USACE agreed that it would 2 develop a treatment plan to address the adverse effects 3 of the SARM Project on historic properties. 4 addressed the effects on the Prado Dam, which was likely 5 going to be modified as part of the SARM Project, by 6 completing a Historic American Engineering Record 7 (“HAER”) documentation of the Dam, which occurred in June 8 1996. 9 HAER is 89 pages long. (Id. Ex. 13, Doc. No. 38-13.) (Id.) (Id.) USACE The body of the It principally discusses 10 the design, construction, physical layout, and operating 11 principles of the Prado Dam. 12 contents of the HAER).) 13 for two sentences – the same two sentences from the 14 October 1989 report. (Id. at 2-3 (table of It discusses the Mural itself (Id. at 13.) 15 16 In 2011, USACE determined that lead paint on the 17 Mural would hinder further work on the Prado Dam. 18 (Dibble Decl. II ¶ 22.) 19 Archeologist with USACE, concluded that the Mural was not 20 a historic property based solely on the 1993 Programmatic 21 Agreement. 22 concluded that there was no basis for a new consultation 23 to evaluate the Mural. 24 Additionally, Mr. Dibble concedes that he did not consult 25 with the SHPO as part of his NHPA evaluation. 26 Decl. ¶ 8 (“Based on my review of the proposal for the 27 paint removal action, the conclusion of my evaluation was Mr. Dibble, a Senior District (Dibble Decl. ¶ 8.) Mr. Dibble also (Dibble Decl. II ¶ 23.) 28 25 (Dibble 1 that there were no historic properties in the [Area of 2 Potential Effects] or surrounding the spillway, and thus 3 no Section 106 consultation was necessary.”) (emphasis 4 added).) 5 6 There is clearly a serious question as to whether 7 USACE’s actions were sufficient under Section 106 of the 8 NHPA. 9 took place in 1989 – over 27 years ago. 10 USACE’s only attempt at “evaluation” of the Mural And the October 1989 report is deficient for two reasons. 11 12 First, the report clearly did not focus on the Mural 13 itself; it centered on the history, functioning, and 14 architecture of the Prado Dam. 15 14.) 16 obviously does not evaluate the historical significance 17 of it. 18 Dibble should not have relied on those two sentences when 19 conducting his evaluation in 2011. 20 that an agency official may be required to reevaluate 21 properties that were subjected to “incomplete prior 22 evaluations.” (See Doc. No. 38-3 at 1- The report devotes two sentences to the Mural, and Even if this could be called an evaluation, Mr. The NHPA explains 36 C.F.R. § 800.4(c)(1). 23 24 The second reason is the report’s age. The NHPA 25 itself recognizes that “the passage of time, changing 26 perceptions of significance . . . may require the agency 27 official to reevaluate properties previously determined 28 26 1 eligible or ineligible.” 2 Mural is now approximately 40 years old – it was 13 years 3 old at the time of the 1989 report. 4 certainly serious questions as to whether it is subject 5 to changing perceptions of its significance. 6 of the only a handful of bicentennial murals remaining, 7 and it is both the largest and most visible of those 8 still existing. 9 15-2, ¶ 1.) 36 C.F.R. § 800.4(c)(1). The And there are It is one (Declaration of Daniel Paul, Doc. No. Daniel Paul, an architectural historian, 10 declares that the Mural has become one of the last public 11 works of any kind manifestly associated with the United 12 States Bicentennial, and that it is thus a historic 13 physical landmark. 14 has been recognized in news articles as one of the 15 largest patriotic murals in America and has been honored 16 by numerous local, state, and federal government 17 officials. 18 15-1, ¶ 2; Ex. E.). 19 Corona have passed resolutions in favor of restoring and 20 preserving the Mural.12 21 No. 43-1 ¶ 4.) 22 pride and meaning to local residents. 23 citizens have signed a petition to “Save the Prado Dam.” (Id. ¶ 8.) Furthermore, the Mural (See Declaration of Eric Bjorgum, Doc. No. The cities of Norco, Eastvale, and (Doc. No. 39-1, Exs. A, B; Doc. Finally, the Mural is clearly a source of Over 14,000 24 25 26 27 12 Additionally, the ACHP recently weighed in and expressed concerns to USACE about the public notice it provided regarding the plans to remove the mural. (Doc. No. 39-1, Ex. C.) 28 27 1 (Declaration of Peter Usle (“Usle Decl.”) Doc. No. 21, 2 Ex. B.) 3 4 In sum, there are serious questions as to whether 5 USACE “in consultation with the SHPO . . . review[ed] 6 existing information on historic properties . . . 7 including any data concerning possible historic 8 properties not yet identified” before approving the 9 removal of the Mural. See 36 C.F.R. § 800.4(a)(2). 10 USACE was required to “seek information, as appropriate, 11 from consulting parties, and other individuals and 12 organizations likely to have knowledge of, or concerns 13 with, historic properties, and identify issues relating 14 to the undertaking’s potential effects on historic 15 properties.” 16 that they did not do so. 17 Plaintiffs have raised serious questions about whether 18 USACE’s decision to remove the Mural was arbitrary or 19 capricious under the APA. 20 Fishermen's Ass'ns v. Nat'l Marine Fisheries Serv., 265 21 F.3d 1028, 1034 (9th Cir. 2001) (An agency decision is 22 inadequate where the agency “entirely failed to consider 23 an important aspect of the problem or failed to 24 “consider[] the relevant factors and articulate[] a 25 rational connection between the facts found and the 26 choice made.”) 36 C.F.R. § 800.4(a)(3). It is apparent Thus, the Court concludes that See Pacific Coast Fed'n of 27 28 28 1 USACE also argues that, even if it didn’t consult a 2 proper evaluation, it would not matter, as the Mural 3 “would not be eligible for inclusion in the National 4 Register.” 5 relevant guidelines, properties that are “primarily 6 commemorative in nature” or that “have achieved 7 significance within the past 50 years” are generally not 8 considered eligible for inclusion in the National 9 Register of Historic Properties. (U. Supp. Brief at 7.) To be sure, under the 36 C.F.R. § 60.4. 10 However, a commemorative property may qualify if its 11 “design, age, tradition, or symbolic value has invested 12 it with its own exceptional significance.” 13 property is less than 50 years old, it may be designated 14 a historic property if it is of “exceptional importance.” 15 Id. 16 historical interest in the Mural, the Court concludes 17 that there is a serious question as to whether the Mural 18 meets one of these exceptions. 19 sidestep its duties under the NHPA by putting forth 20 belated and self-serving speculation about what a proper 21 Section 106 evaluation would reveal. Id. And if a Given the groundswell of public support and renewed Furthermore, USACE cannot 22 23 In light of the above, the Court finds that there are 24 serious questions as to whether Plaintiffs will prevail 25 on their APA claim that USACE did not properly evaluate 26 the Mural under Section 106 of the NHPA. 27 28 29 1 c. The Public Interest 2 3 Finally, the Court finds that Plaintiffs have shown 4 that an injunction here would be in the public interest. 5 Plaintiffs have presented thousands of signatures and 6 comments attesting to the Mural’s value to the community; 7 community members note the sense of civic pride and 8 patriotic appreciation the Mural engenders. 9 Decl., Exs. A, B.) (See Usle Furthermore, local governments have 10 begun to come forward to express their support for 11 preserving the Mural. 12 Doc. No. 43-1 ¶ 4 (resolutions by Cities of Norco, 13 Eastvale, and Corona).) 14 makes clear that there is “a public interest in 15 preserving the integrity of cultural and artistic 16 creations.” (See Doc. No. 39-1, Exs. A, B; Additionally, California law Cal. Civ. Code § 987(a). 17 18 19 Accordingly, the Court finds Plaintiffs have shown that an injunction would be in the public’s interest. 20 21 IV. CONCLUSION 22 23 The Court finds that Plaintiffs have shown an 24 immediate threat of irreparable harm and that the balance 25 of equities tips sharply in their favor. 26 finds that Plaintiffs have shown serious questions exist 27 as to their NHPA cause of action brought under the APA. 28 30 The Court also 1 Finally, the Court finds that an injunction would serve 2 the public interest. 3 Plaintiffs’ Motion, and ORDERS as follows: 4 5 The Court therefore GRANTS USACE or their agents, servants, employees, 6 attorneys, or any other persons in active concert or 7 participation with USACE, shall not take any action 8 that could alter, desecrate, destroy or modify in any 9 way the painted mural known as the “200 Years of 10 Freedom Mural” painted on the spillway of the Prado 11 Dam in Corona, California until this matter is fully 12 adjudicated. 13 14 The Court shall retain the nominal bond of five 15 hundred dollars ($500) Plaintiffs’ posted June 11, 16 2015, as security for the preliminary injunction. 17 18 IT IS SO ORDERED. 19 20 21 22 23 24 25 Dated: August 24, 2015 _________________________ Jesus G. Bernal United States District Judge 26 27 28 31

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