After federal district and appeals courts rejected the group's last challenge to the Obama Presidential Center, Protect Our Parks has launched a new suit arguing that the agencies which reviewed the project erred in not considering Washington Park instead of Jackson Park as the best location for the OPC.
Nadav Shoked, an expert in local government, land use planning and property law at the Northwestern University Pritzker School of Law, predicts that the Supreme Court court will reject POP's first lawsuit, currently on its appeals docket, and he takes a similarly dim view of the second suit's prospects.
"At this point, this is — I don't want to say their last pathetic shot, because God knows what else they're going to come up with, but at this point they are left with what basically are last-resort kind of arguments," he said. "It doesn't mean they're necessarily going to fail. I think they will fail, but who knows?"
Unlike the first case, Protect Our Parks v. Chicago Park District, the new one, Protect Our Parks v. Buttigieg, "doesn't really involve any kind of novel or interesting legal theory that should drag on or actually force courts, whether district courts or courts of appeals, to make some principled decision," he said. He predicted that the court would take much less time to decide this case than the last one.
Shoked compared the lawsuit to someone suing over construction of a new building blocking one's view; that view does not belong to anyone, so one would sue over the processes that enabled the building to be constructed in the first place. This "community procedural" is typically done to play for time; for instance, for a change in the market or for an amenable change in city government.
Unlike in the last case, when POP said, and the courts disagreed, that the OPC could not be built in Jackson Park because that parkland was protected by the public trust doctrine, POP now says that the federal government's agencies that reviewed the project "did not go quite meticulously enough through the procedurals as they should have," Shoked said.
"Because this is being built in Jackson Park, which is a park, close to water, on the National Registry of Historic Places and has traffic going through it, you have to go through a lot of agencies to get their approval," he noted. "Now they're saying that, yes, they went through these proper procedures, but they didn't do it correctly."
The gist of POP's argument is that the reviewing agencies did not look at viable alternatives, and specifically Washington Park, which at one point had been considered for the OPC campus.
The agencies that did the reviews, the Federal Highway Administration, the National Park Service and the Army Corps of Engineers, have "dozens and hundreds of these cases in front of them every day," said Shoked, but "alternatives" in those cases usually involve considering whether things like pipelines can be moved a short distance away from a historic or environmental site. In those cases, the agencies are thinking about efficiency versus harm to a site.
In this case, the question is not about whether the OPC would be more or less expensive in one place or another, but whether it would achieve the same goals in one location over another. "It assumes that the agency should have decided what the best location for a park amenity is," Shoked said. "I don't think it's what the statutes imagined."
Asked about the later reference to a supposed infraction of the public trust doctrine in POP's court filing, Shoked said, "Some people just can't let go."
He predicts POP will ask the court to delay OPC construction, observing that POP "at least in theory" has a good argument for a temporary injunction as any changes on the ground will change their argument in case the group wins. In order to get an injunction, POP needs to show irreparable harm if they do not get one, and they need to show they have a fairly good chance of winning.
Shoked said the battle will be on the latter point. He predicts that the district court will throw Protect Our Parks v. Buttigieg out and that the appeals court will not take it up.
"The city could always argue that the process dragged here for a good, long while," he said. "It took roughly two years across two administrations. I think that that should probably help the city. I've said before, the argument here for the plaintiffs is to try and persuade the court to buy into this argument that agencies should have considered their proposition that the center should just have been situated elsewhere to avoid all these harms. To my mind, that's asking too much."
Shoked compared the lawsuit over the Keystone Pipeline, which had been filed over its location in tribal lands in North Dakota. The suit was not over whether pipelines were a good or bad thing; deciding whether pipelines are good or bad is not the job of the federal regulatory agencies.
"Should we have a pipeline or not; should we have a center or not — it's not what those agencies were entrusted with doing," he said. "Agencies get a lot of leeway from courts. Courts are restrained in their willingness to deal with agency decision-making."
On a last note, Shoked did say that the Obama Foundation "had picked the location that's the most difficult location that's (expletive) imaginable."
"You can't imagine a place that would have to go through more administrative agencies than this one: a park which is also on a historic registry, which is also next to a body of water, which also has traffic going through it," he said. "You can't imagine a location that asked for more problems than this one."
"It doesn't make it a bad location, because of course there's a reason they picked it. But from a legal perspective, it's a very dramatic location."