What was he thinking? | On Culture | Chicago Reader

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What was he thinking?

Here’s the explanation from the judge who tossed the lawsuit against the Obama Presidential Center in Jackson Park.

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Jackson Park - ERIC ALLIX ROGERS
  • Eric Allix Rogers
  • Jackson Park

In an abrupt conclusion to a federal district court hearing Tuesday, Judge John Robert Blakey announced that he was ruling in favor of the city of Chicago and the Chicago Park District and "terminating" the lawsuit brought by the activist group Protect Our Parks (POP) that sought to keep the Obama Presidential Center out of historic Jackson Park.

How did he come to that conclusion? A 52-page memo from the judge posted later Tuesday spells it out, starting with the "principle," drawn from an earlier case, that it’s the legislature, not the courts, that can decide when it might be necessary to "encroach" on parkland. The job of the court, Judge Blakey wrote, is only to determine whether the intent of the legislation was being honored, and whether it’s all constitutional.

To which, in this case, he ultimately answered yes and yes.

A major legal issue, and the heart of the case, hung on an otherwise esoteric question: Was the land the Obama Presidential Center will be built on ever part of Lake Michigan? That’s because submerged and formerly submerged lands have had special protection under a "Public Trust Doctrine" recognized by U.S. courts since the 19th century. POP (represented by Mark Roth of the Roth Fioretti law firm) argued—and the judge agreed—that Illinois courts have extended that protection to parkland even if it was never submerged.

But the judge also agreed with attorneys for the city (at the hearing, that was Michael Scodro of the law firm of Mayer Brown), who argued that the level of protection for parkland varies depending on whether it was ever actually underwater.

And, the judge wrote, to have the more stringent protection, the land would need to have been underwater at the time that Illinois became a state in 1818. The map POP used to claim formerly submerged land protection, he observed, dates to the Pleistocene era.

This land "may have been submerged 11,000 years ago," the judge noted, but, according to a map cited by city attorneys, it was dry by 4,000 years ago.

Given this evidence, Judge Blakey found that the Obama Presidential Center site falls into the "never-submerged land" category, and that it does not violate the Public Trust Doctrine under the level of scrutiny that category demands.

But he didn't stop there. Even under the higher level of scrutiny that formerly submerged land would require, he wrote, it would not be a public trust violation because the doctrine allows for changes in the use of such land if there’s sufficient public benefit—and the center will offer "a multitude of benefits to the public."

He didn’t buy into what he called POP’s "attempt to twist this public benefit into a private purpose."

Also, Judge Blakey found that Illinois law does not require the city to "pick the best location" for the center, do an analysis of the location, or charge the center "reasonable rent," as the plaintiffs argued. He rejected their claims of overreach and due process (the latter because a federal claim can’t be based “solely on violations of state statutes”), and concluded that their claim that a 2016 change in the Illinois Museum Act was illegal “special legislation” was simply wrong.

The judge wrote that "construction [on the OPC] should commence without delay."

But it's not quite an all-clear for the Obama Presidential Center yet. An unwieldy, multifaceted federal review process still has to play out, and Protect Our Parks says it will be filing an appeal of this decision.  v

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