Seventh Circuit Hears Arguments in Obama Library Land Grab Suit

Plans for the $500 million privately funded campus include a museum, public meeting spaces, a recording studio and an athletic center.

An artist rendering of the planned Obama Presidential Center in Chicago’s Jackson Park. (Photo via the Obama Foundation)

CHICAGO (CN) — The Seventh Circuit was skeptical Thursday of a parks advocacy organization’s arguments opposing the construction of the Obama Presidential Center in Chicago’s Jackson Park, in a case that has left many supporters of the former president bewildered and angry.

If the Clinton Foundation had approached New York City and asked for 20 acres of Central Park for its Harlem headquarters, it would have been laughed out of court.

But that is essentially what the Obama Foundation asked of Chicago — and got, in a sweetheart deal inked under former Mayor Rahm Emanuel, who previously served as Obama’s chief of staff. The deal gives the foundation the right to use 20 acres of lakefront public land in Jackson Park for 99 years for $10.

A lawsuit challenging this transfer under the public trust doctrine has garnered the attention of local and national preservation organizations.

“It’s wrenching,” Preservation Chicago’s CEO Ward Miller told Courthouse News. “We welcome the center with open arms, but this is a terrible site. It’s being shoehorned in. So many laws are being ill-used, and even gutted to make this happen.”

Charles Birnbaum, CEO and founder of the Washington, D.C.-based the Cultural Landscape Foundation, echoed these sentiments.

“When you have a beloved figure like President Obama basically getting the Good Housekeeping seal of approval to the confiscation of public parkland, it sends a message to other municipalities. Which is, if you have a powerful and well-connected board of directors, you too can confiscate parkland held in trust,” Birnbaum told Courthouse News.

Jackson Park was designed by Frederick Olmsted and Calvert Vaux, the designers of New York’s Central Park, and is famous as the site of the 1893 World’s Fair. It is located on the city’s southside, just east of the University of Chicago, where Obama taught as a law professor.

Initially, the Obama Foundation intended to build a traditional presidential library operated by the National Archive and Records Administration on the site. But then, the Obamas announced a change in plans. Instead of housing the official presidential records under supervision of the National Archives, the newly renamed Obama Presidential Center will be a “privately owned, managed and operated” campus featuring a museum, public meeting spaces, a recording studio and an athletic center.

The $500 million privately funded campus will eat up 3.5% of the park’s acreage, but since about half of the park is a lagoon, it will take up far more of the park’s solid ground. It will also require rerouting and expanding major city streets, which will almost double its footprint on the area. Attendees will be required to buy admission tickets and pay parking fees.

Two years ago, the environmental nonprofit Protect Our Parks and three city residents sued the Chicago Park District and the city of Chicago over the proposal, arguing that the project represents “a short con shell game, a corrupt scheme to deceive and seemingly legitimize an illegal land grab.”

This was not the intended use of Jackson Park, Protect Our Parks claims, which was explicitly dedicated to the people of the State of Illinois “as a public park…free to all persons forever,” according to the complaint.

While there are many other museums along Chicago’s lakefront and in public parks, all of them were built on the site of prior buildings, or on land reclaimed from the lake, according to Preservation Chicago. None of them took away the city’s precious green space, whereas “the Obama Foundation’s current plan for the presidential center will require cutting 200-400 old-growth trees,” Miller said.

But U.S. District Judge John Blakey, an Obama appointee, was unconvinced by Protect Our Park’s arguments and dismissed its attempt to block construction last year.

(Photo via the Obama Foundation)

He said it was a mischaracterization to imply that the “museum’s mission merely ‘seeks to preserve and enhance the legacy of the former president and his wife’ rather than benefit the public.” 

University of Chicago law professor Lior Strahilevitz told Courthouse News that Blakey made the right decision.

“The Obama Presidential Center involves precisely the kinds of uses of land that are consistent with the public trust,” he said in an emailed statement. “A presidential museum with a Chicago public library branch and recreational spaces resembles permitted uses of the lakefront such as the Museum Campus, McCormick Place, Soldier Field, and Navy Pier.”

Strahilevitz and other law professors filed an amicus brief with the Seventh Circuit siding with the city.

At oral arguments Thursday, the Chicago-based Seventh Circuit was skeptical that the public trust doctrine should be used to overturn the city’s decision.

U.S. Circuit Judge Amy Barrett, a Donald Trump appointee, told Protect Our Parks attorney and University of Chicago law professor Richard Epstein, “It seems that we have a decision by the city that this library is a greater public interest.”

And U.S. Circuit Judge Michael Brennan, another Trump appointee, asked, “If we were to apply a fiduciary duty [standard], how would courts be differentiated from zoning boards?”

U.S. Circuit Judge Daniel Manion, a Ronald Reagan appointee, also sat on the panel.

Epstein urged the court to review the city’s decision for breach of fiduciary duty under the public trust doctrine.

“The city’s position would mean the public trust doctrine is a dead letter,” Epstein said. “If the city authorizes [the project], and nothing else matters, then clearly we lose.”

He continued, “This is something that completely destroys the character of Jackson Park, and will require Jackson Park be delisted from the National Registry of Historic Places. This is a net transfer to the Obama Foundation of at least $1 billion dollars.”

Attorney Benna Ruth Solomon, representing the city, told the court that the Illinois Aquarium and Museum Act “defines museums as a park purpose.”

“We don’t have a situation where we’re taking parkland and giving it to a non-park use,” she said. “A park that has lost a little bit of its historic character can still be enjoyed as a park.”

Solomon said the use agreement is “not a giveaway or a conveyance. It is not a lease,” and dismissed concerns that the facility will be run by a private charitable organization rather than the National Archives.

“The foundation’s private interest is only incidental to the OPC’s substantial public benefit,” Solomon told the court, abbreviating the name of the center.

She also denied Epstein’s claim that building the center will result in the park’s delisting from the National Registry.

At the very tail end of arguments, Judge Brennan asked Epstein whether placing the center in Washington Park would raise the same concerns.

Washington Park, located just a few miles west of Jackson Park, was another site considered by the Obama Foundation, and in a report authored by the University of Chicago, was actually found to be a better location. Washington Park is accessible by train, whereas Jackson Park is not.

Choosing Washington Park as the Center’s location would require cutting far fewer trees, would not necessitate rerouting Lakeshore Drive, and would not require building a parking garage in Lake Michigan’s water table.

It remains unclear why the foundation chose Jackson Park over Washington Park, according to Birnbaum.

This decision “is very contradictory to what we saw as the environmentally driven leadership that we had for eight years,” the Cultural Landscape Foundation CEO said.

Birnbaum added, “Especially now, with coronavirus, having free and open meadows in which to wander and stroll is irreplaceable. The lakefront is so cherished because you have freedom of movement, and our spiritual contact with nature is more important now than ever before. This pandemic has shown us that the best spaces are the most open.”

National and municipal parks have seen a surge in visitors lately, as thousands of people cooped up under Covid-19 shutdowns try to enjoy the outdoors while maintaining safe social distances.

But this newfound appreciation for public lands may be too late to save Jackson Park from being irreparably changed by the construction of the Obama Presidential Center.

“We believe the parklands belong to the people of the state of Illinois, and they should be forever free and clear,” Miller, CEO of Preservation Chicago, said. “The lakefront lands are not a political tool for our politicians to give away. This is so much of what makes Chicago special and we shouldn’t squander them and pick away at them until there’s nothing left.”

The city and the Obama Foundation did not respond to requests for comment.

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