Judge hears closing arguments in Obelisk trial

First Judicial District Court Judge Matthew Wilson listens to arguments on Thursday, Sept. 12, 2024 in his Santa Fe courtroom. (Photo by Shaun Griswold / Source NM)

A ruling is expected later this fall in the trial over a controversial monument in New Mexico’s capital city that ended this week.

Closing arguments came on Friday morning from the lawyers who represent Union Protectiva de Santa Fe, a historical Spanish colonial group that sued the city after the monuments and others were removed from public spaces.

Union Protectiva and lawyers from the city of Santa Fe must turn in written factual findings and legal arguments by Sept. 27, First Judicial District Court Judge Matthew Wilson said.

Wilson said he will then issue a written ruling “in due time.”

If Wilson rules in favor of the city of Santa Fe, then the Union Protectiva is likely to ask an appeals court to review the ruling.

What follows is a summary of both sides’ closing arguments this week.

State law requires protection of historic sites

Kenneth Stalter said the New Mexico Prehistoric and Historic Sites Preservation Act prohibits the city of Santa Fe from spending public money on altering the Plaza, unless there’s no alternative. He argued on behalf of his clients with Union Protectiva that the project must include all possible planning to preserve, protect and minimize harm to the site.

He said Santa Fe Mayor Alan Webber’s June 2020 emergency order counts as an action, and therefore a project, supported by public money under state regulation.

He pointed to Webber’s testimony that he didn’t do any planning before issuing the emergency proclamation, and didn’t consult with the State Historic Preservation Office.

Stalter said the box placed over the base of the obelisk, the sign attached to the box and the removal of a plaque first installed in 1973 all count as “projects” because they were paid for with public money.

Stanley Harris, the attorney for the Santa Fe City Council, said there is no program or project about the Soldier’s Monument requiring “use” of the historic Plaza or the historic district that surrounds it, because the city government has not made a final decision on the matter.

‘Back to square one’

Stalter said the city’s changes to the obelisk after protesters damaged it counts as a “physical and visual element” under the State Historic Preservation Office regulation. He’s asking the court to force the city government to “repair and restore” it back to the way it was before in the Plaza.

Harris said the plaintiffs haven’t proposed an alternative with any basis in sound engineering, telling the judge that Union Protectiva “has no idea and has not shown that such repair and restoration is in any way feasible, prudent or even physically possible.”

Box and sign had no adverse effect on Plaza, city says

Stalter said state law includes a definition of an “adverse effect” as the “introduction of physical, audible, visual or atmospheric elements that substantially impair the historic character or significance of the site, or substantially diminish the aesthetic value of the site.”

He said the testimony and evidence show the Soldier’s Monument has been the Plaza’s central feature since the late 19th century.

“I don’t think anyone would dispute that physical and visual elements have been introduced,” Stalter said while displaying to the courtroom two photos of the obelisk before and after its destruction by protesters and alteration by city officials.

Harris said what’s important is the “use” itself is the “adverse effect” on the site, which is not the case here.

“There’s no testimony or evidence that (the box) was anything except protective, that’s what it was doing,” he said. “It was not a program or project that has an adverse effect on the Plaza.”

How courts have interpreted the law

Harris said the only time New Mexico courts have interpreted the law at issue is called National Trust for Historic Preservation v. City of Albuquerque .

Stalter said the ruling in that case allows someone to sue when their use or enjoyment of a historic site is threatened. He pointed to Vigil’s testimony about how the destruction of the obelisk affected his and his organization’s use and enjoyment of the Plaza.

Harris said it’s the plaintiff’s burden — not the defendant’s — to prove there was an alternative design for the project which wouldn’t cause substantially equal damage to the site. He said even if the plaintiffs had proven that, the project can still be legal if the less-damaging alternative is infeasible or imprudent.

Stalter said National Trust came up through the courts in a very different procedural history than this case. He said in that case, the city of Albuquerque had participated in the regulatory process with the State Historic Preservation office, where alternatives to the government’s proposal were identified and debated.

“None of that has been done here,” Stalter said.

What the judge should look at for historical significance

Harris said the changes made to the obelisk after its destruction did not affect the Plaza’s listing on the National Register of Historic Places because the obelisk isn’t mentioned in the part of the listing where a federal official called the keeper approves the site’s historical significance.

He pointed to Kimberly Parker’s expert testimony that the reason any property is listed on the National Register is for its significance, and the Soldier’s Monument is not part of the significance of the Plaza being listed.

Harris said the description part of the form also includes other things like benches, concrete sidewalks and large Cottonwood trees. That doesn’t make them part of the Plaza’s historic significance, he said.

Stalter said state law doesn’t mention the nomination form, and the National Park Service was using those forms before the New Mexico Legislature passed the law in 1989.

“If the Legislature had wanted to hang everything on the nomination forms, they very clearly could have used that and state it in this Act,” he said. “They’re putting words into this that are not in this section.”

He pointed to Parker’s testimony that even if the nomination is important, the form as a whole, including the description section, identifies the Soldier’s Monument.

He said the judge isn’t constrained to just looking at the form’s contents, because there’s nothing in state law or regulation saying so. He suggested the judge look at other evidence like expert testimony or the 2005 Cultural Landscape Report.

“We’re not saying just because benches or concrete sidewalks or Cottonwood trees are mentioned, that anything to do with them affects the historic character,” Stalter said. “What we’re saying is that defines what the property is — evaluate the historic character of these features.”

Was Union Protectiva harmed?

Stalter said under National Trust , an organization has grounds to sue under the state Prehistoric and Historic Sites Preservation Act when it has members who use, enjoy or benefit from the site.

“That time can never be brought back,” he said on behalf of his clients who have lived for more than three years without the monument in place at the Plaza.

Harris said plaintiffs don’t have standing, but for a different reason: National Trust says standing is denied if the case will undermine the effective functioning of the Act or interfere with its administration.

“Because there’s no violation of the [Prehistoric and Historic Sites Preservation Act], plaintiff can’t show an injury or hardship from any action taken by defendants,” Harris said.

Stalter said asking for enforcement of the law  “ultimately in no way undermines or interferes with the statute and regulations.”

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