Facts

Ronald Kammeyer was a landscape architect who co-designed the Bicentennial Freedom Mural that was displayed on the spillway of the Prado Dam in Corona, California. Kammeyer co-designed the mural when he was in high school. The mural, which was painted by high school volunteers in 1976, was 640 feet long and 100 feet tall, and was visible to commuters passing by on the State Route 91 freeway. The mural had become faded and chipped over the years, and had also become the target of graffiti.
The Prado dam is located on federal lands that are within the jurisdiction of the Los Angeles District of the United States Army Corps of Engineers (Corps). In May 2014, the Corps commissioned lead-paint testing and found that various paints on the spillway were either lead-based or lead-containing. In July 2015, the Corps received a letter from the Advisory Council of Historic Preservation (ACHP), advising that it had received an inquiry from the public regarding the Corps' proposal to remove lead-based paint from the Prada Dam--specifically, paint connected to the mural. In September 2015, the Corps sent a letter to the ACHP--copied to the California State Historic Preservation Officer (SHPO)--providing background on the Corps' previous consultation efforts under Section 106 of the National Historical Preservation Act (NHPA) as to the proposed lead-paint removal. The proposed lead-paint removal was part of the larger Santa Ana River Mainstem undertaking,
In October 2015, the ACHP sent the Corps a letter, recommending that the Corps assess the eligibility of the mural for listing on the National Register in consultation with the SHPO and any other consulting parties. The Corps, as required by the NHPA, made a reasonable and good faith effort to identify whether the mural was a historic property and to determine whether the mural was eligible for listing on the National Register. Ultimately, the mural was determined not eligible for listing on the National Register and thus was not a historic property.
Kammeyer and Mural Conservancy of Los Angeles filed an action against the Corps and Oneida Total Integrated Enterprises, seeking to halt the destruction of the Bicentennial Freedom Mural.

PLAINTIFFS' CONTENTIONS: Plaintiffs contended that plaintiff Kammeyer is an accomplished landscape architect; that the Bicentennial Freedom Mural was eligible for listing on the National Register because it was a historic property; and that defendants planned to destroy the mural, ostensibly due to concerns over graffiti and lead paint. Based on those allegations, plaintiffs alleged causes of action under the Visual Artists Rights Act of 1990; the California Art Preservation Act; violation of the NHPA and the Administrative Procedures Act; and the California Business and Professions Code. Plaintiffs argued that defendants' efforts to satisfy the NHPA's procedural requirements were "only half of the story" because the parties had also discussed an alternative: preserving or repainting the mural.

DEFENDANTS' CONTENTIONS: Federal defendants contended that they fulfilled their NHPA obligations and that they were therefore entitled to summary judgment on the NHPA claim. Defendants contended that, after making a reasonable and good faith effort to identify whether the mural was a historic property, it found that the mural lacked exceptional significance and that it did not have significant historical associations beyond its commemoration of an event. Defendants pointed out that the report also found that the mural did not qualify on exceptional grounds as an art piece or as the work of a significant artist, and that the property did not have the potential to yield information important to understanding the history of the Bicentennial era, the founding of America, or mural design. Defendants thus argued that that the mural was not eligible for listing on the National Register.

Result

The court granted federal defendants' motion for summary judgment.