Preservation group throwing punches with new list of endangered New Orleans sites _lowres

Advocate staff photo by MATTHEW HINTON--Lee Circle in New Orleans, La. Thursday, July 9, 2015 where an 1884 monument to Confederate General Robert E. Lee was placed in what once was Tivoli Circle.

A three-judge panel of the 5th U.S. Circuit Court of Appeals aimed a barrage of skeptical questions Wednesday at groups hoping to keep three Confederate monuments on prominent display in New Orleans.  

As is typical, the judges did not issue an immediate ruling, but they seemed mostly unpersuaded by the legal theories offered by four groups trying to block the statues' removal, which is supported by Mayor Mitch Landrieu and was authorized by the City Council on a 6-1 vote late last year. 

The judges are expected to decide in the coming weeks whether the monuments must stay in place while the full case plays out in a federal district court.

Led by the Monumental Task Committee, the monument supporters argue that the upkeep their members have done over the years at the statues of Gen. Robert E. Lee, Confederate President Jefferson Davis and Gen. P.G.T. Beauregard gives them an ownership interest in the statues and therefore a say in what happens to them. 

The hearing, before Judges Patrick Higginbotham, Jennifer Walker Elrod and Stephen Higginson, involved whether the statues should remain in place while U.S. District Judge Carl Barbier hears the full case on whether the city has the right to take down the three statues.  

Franklin Jones, an attorney for the groups seeking to block the removal, said that taking down the statues now could do them permanent damage, and he asked the appeals court to order that they remain in place while the case before Barbier plays out. That process could stretch into next year, he predicted.

"What we're asking this court to do is not decide on the merits but allow us to go to the district court with the status quo maintained," Jones said.

The city argued that the monuments are city property on city land and it has a right to do with them what it chooses.

"This case is ultimately a simple question of whether the city has the power to remove its own property," said Adam Swensek, an attorney for the city.

On the question of whether doing maintenance work on the statues gives the monument supporters some kind of legal ownership, Higginson, who was appointed by President Barack Obama, asked repeatedly if there is any precedent for using the legal doctrine underlying that argument in that manner. The judges seemed unconvinced by Jones' replies.

"You talked about exploring legal theories, but it sounds very much like you don't know one, and I don't hear one," said Higginbotham, an appointee of President Ronald Reagan. 

Whether the groups have a potentially winnable case at the district court is a key question for whether the appeals court will order the monuments to stay standing while a trial plays out.

Another factor is whether the monuments would be irreparably damaged if they were moved and therefore need to be protected until after the case is over. But the judges spent little time on that issue and seemed to give little credence to the idea that the city would not be able to find a contractor capable of removing the statues safely.

While questioning the city's attorneys, Elrod, an appointee of President George W. Bush, said the court was not looking to decide whether taking down the monuments was the right decision and was not looking to weigh in on the symbolism of the statues themselves or the character of the people they represented.

That position echoed comments made by, Barbier, an appointee of President Bill Clinton, when deciding earlier on a similar issue in district court.

Elrod also raised one additional question: whether the monuments or the land they stand on could belong to an organization other than the city itself.

Jones said that was a legal avenue the groups are exploring, particularly Beauregard Camp No. 130, which he said could make some claim to being the successor to the organization that originally erected the Beauregard statue. But the groups offered no evidence that was the case.

A fourth monument that the city wants to remove, which commemorates the so-called Battle of Liberty Place during Reconstruction, was not part of the hearing because it is protected by a separate federal consent decree.

That decree dates back to a previous attempt to remove the marker during roadwork on Canal Street that involved federal funds.

The city, arguing it has fulfilled the terms of that agreement by putting the marker back on public display on nearby Iberville Street and leaving it there for more than two decades, has asked Barbier to lift that order.

The federal agencies involved in negotiating the consent decree have filed documents with the court saying they have no interest in keeping the decree in force.

Follow Jeff Adelson on Twitter, @jadelson.​