Park advocates make another legal argument against Obama Presidential Center even as construction continues

As the Obama Presidential Center’s main building rises higher above Jackson Park, the project’s main opponents on Tuesday made what could be one of their last significant legal efforts to halt construction of the historic project.

Following a series of losses in other legal venues that have enabled construction of the center to continue, attorneys representing the advocacy group Protect Our Parks argued before the 7th U.S. Circuit Court of Appeals that using public land for the presidential center remained riddled with problems.

The group is hoping the appellate court will halt or even potentially reverse construction of the museum for the former president. But a written ruling after Tuesday’s arguments could be months away and in the meantime construction continues on the center that Obama Foundation officials have said should open roughly two years from now at a cost of at least $800 million.

Judges Diane Wood, David Hamilton, and Ilana Rovner lobbed frequent questions at Protect Our Parks’ lead attorney, noted University of Chicago emeritus professor Richard Epstein, as well as attorneys for the defendants, the city of Chicago, the Obama Foundation and the U.S. Department of Justice.

Protect Our Parks, or POP, has long contended it doesn’t oppose a South Side location for Obama’s presidential center, going as far as drafting an alternate proposal at a privately owned location just west of the current site, near Washington Park. Its most recent appeal POP said the ongoing Jackson Park project is putting the city’s parkland in “grave danger” by endangering mature trees, disrupting annual bird migratory flights and closing four main South Side thoroughfares.

The appeal further argues the foundation’s takeover of 19 acres of parkland “was in violation of the public trust doctrine” and that the 99-year agreement in which the city and the Chicago Park District leased the land to the Obama Foundation for only $10 was a “giveaway,” compared to the “priceless historical” parkland designed by Frederick Law Olmsted.

So far, the group’s legal attempts — while initially delaying construction — have been unsuccessful. The most recent was last November when U.S. District Judge John Robert Blakey ruled in favor of the Obama Foundation, several federal agencies and the city of Chicago. The defendants argued past judges have essentially closed the book on the issues POP continues to raise.

“This is the third time plaintiffs seek this court’s review of claims challenging the construction of Obama Presidential Center in Jackson Park. In this iteration, plaintiffs add nothing new to theories this court has already rejected,” Elizabeth Tisher, an attorney representing the city of Chicago, said Tuesday during brief oral arguments.

And contrary to the argument that the deal violated the public trust, “presidential centers serve valuable purposes, including furthering human knowledge and understanding, educating and inspiring the public” and expanding educational opportunities, Tisher said.

The center’s plans to close roads and reconfigure park lands were OK’d by federal parks, transportation and preservation officials, the defendants argue. Federal officials determined the center’s construction and nearby roadway fixes would not pose a “significant impact” on the environment, that the site will convert current roadways into green space, and that the plans provided a “public benefit” that aligned with 2016 amendments to the state’s Museum Act allowing presidential centers on park land.

The judges on Tuesday pushed Epstein to explain how the group was legally able to meddle in what was essentially a private deal between city officials and the foundation.

What law allows “a perfect stranger to come in and upset the deal?” Wood asked.

Epstein argued taxpayers who are the beneficiaries of public property have standing to enforce the public trust, and that the foundation had not lived up to the financial terms of the agreement that required it to raise enough money to build the museum and establish an endowment before the Obama Foundation took control of the site in 2021.

The defendants said in court filings that POP’s lawsuit wasn’t being brought on behalf of the city. “In fact, they name the city as a defendant, contend it breached the master agreement, and seek relief against it.”

The foundation also said in court filings it had received enough funding — $485 million — and created an endowment by that time, which lived up to its agreement.

The Obama Foundation raised $311 million in contributions and grants in 2022, according to the foundation’s annual IRS filing. Net assets at the end of the year stood at $925 million.

But Protect Our Parks’ appeal noted that number was not audited and that the cost to build the center had grown to $700 million later that year, and hundreds of millions of dollars more were needed in an endowment to cover operations, maintenance and improvements to the site. Epstein argued taxpayers might end up footing the bill, and without advocacy from taxpayers, “otherwise what happens is you’ll never pick up the clam and look to see what’s underneath it. And in fact, what’s underneath this is a massive irregularity,” he said Tuesday.

Judge Hamilton, who was appointed to the appellate court by Obama, asked Epstein what injunctive relief would look like. “Do you want construction dismantled? … You want a stop to the building?”

Epstein said “at present,” they are not asking the existing construction be taken down. The group wants an additional environmental impact review and wants “to stop construction until they prove it’s consistent with the public trust doctrine.”

POP’s legal team also argued the courts had repeatedly erred in its rulings. A clearly frustrated Epstein sparred with the judges over his argument that POP had standing, what corporate law applied to his arguments and the relevance of past rulings.

By the end of his rebuttal, Judge Rovner asked, “I’m breathless, are you?”

Another POP attorney, Michael Rachlis, told the Tribune on Monday that if POP fails in court this time, it could petition for fresh hearings from the 7th Circuit or appeal to the U.S. Supreme Court.

“This is just a travesty,” Epstein said after oral arguments about the deal with the Obama Foundation. “I’m an academic. I don’t like seeing judicial decisions that come out which I think are indefensible. … I’ve been in Chicago all my life. I just regard this as the worst form of political connivance I’ve seen. … I’m essentially a good government guy, and this was bad government.”

aquig@chicagotribune.com