The future of a piece of land in St. James Parish found to be a cemetery for enslaved people was the subject of a federal court hearing Friday opposing lawyers for a proposed petrochemical plant and community advocates who want greater access to the site.

Last summer, two community groups based in the River Parishes – Inclusive Louisiana and The Descendants Project – sued chemical giant Formosa Plastics, a company planning a $9.4 billion complex in the parish, for impeding their ability to access the unmarked burial site. The case is part of a larger dispute over industrial development in the area.

Formosa filed a motion in November at the U.S. District Court in New Orleans to dismiss the case. In response to Friday’s oral arguments, Judge Carl Barbier will issue a ruling on whether the case can proceed, but encouraged the two sides to try to reach a settlement.

The advocacy groups allege the chemical company violated both the 13th Amendment — which abolished slavery — and state law by restricting access. They allege the company required extensive advanced notice and interfered with organized events, such as a Black History Month prayer service. The plaintiffs argue that they should have unrestricted rights to visit and care for the graves.

“It cannot be that Louisiana [cemetery law] only grants rights to descendants of enslaved people if landowners agree not to interfere with those rights,” said Kayla Vinson, a lawyer with the Center for Constitutional Rights representing the advocacy groups.

Formosa calls it a question of property rights and says that it has granted community members access to the cemetery when people requested to visit and hold ceremonies. It says it has fenced off the graveyard on the three sides that abut the company’s property.

Michael Drew, the lawyer representing the Formosa subsidiary, said he does not believe that the site is within the construction footprint of the planned chemical complex. 

Barbier urged the opposing parties to “make an effort to resolve this amongst yourselves without a ruling one way or the other” and offered to refer the groups to a mediator.

Friends and relatives?

Drew also rejected the plaintiffs’ 13th Amendment and state cemetery law arguments. He argued that the cemetery fails to meet the legal threshold that would allow special access, as there is “no evidence that this has been maintained as a cemetery.”

But even if the site did meet the requirements to count as a dedicated cemetery, Drew said that state law stipulates only “friends and relatives of the deceased” are granted special access to gravesites.

Barbier pushed back on this claim, saying “that seems like an impossible requirement” under the circumstances.

Joy Banner, who runs The Descendants Project, said after the hearing that she found the argument “ridiculous.”

“Hello, it’s called being a Black American, a descendant of an enslaved person,” Banner said. “I would love to know who my ancestors were, but I don’t.”

The existence of what has become known as the Buena Vista Plantation Cemetery came to light in 2019, after Formosa’s own archaeologist concluded that enslaved people were likely buried on the land, which sits on the fringes of the proposed chemical complex. Advocacy groups in the area learned about the burial site through a public records request and have since conducted further research pointing to the identities of people they concluded were buried there. 

The advocacy groups suing Formosa are among the environmental justice organizations opposing new industrial development in the Mississippi River corridor between Baton Rouge and New Orleans, on the grounds that Black communities face the brunt of the pollution. Rise St. James, another advocacy group in the area, won a previous legal fight to hold a prayer ceremony in 2020 at the site.

Formosa has also been mired in state and federal litigation over its permits for the long-stalled chemical facility. Drew noted that construction for the project has not started due to uncertainty and ongoing lawsuits related to the permits.

Vinson, representing the community groups, argued that Formosa is “seeking to use its ownership to exercise complete control over the graves of an enslaved person,” violating the 13th Amendment. Drew countered that the plaintiffs lack the authority to argue the case as a direct violation of the 13th Amendment.

Vinson acknowledged the lack of a Supreme Court precedent for the claim, but said that wasn’t an issue.

“What case other than this one makes sense to be brought under the 13th Amendment, which is certainly about ownership of a person?” she said.

Drew stressed that Formosa’s actions – including a call to the sheriff over concerns over trespassing and the presence of security – are not civil rights violations, but a matter of enforcing property rights.

“Those property rights do not end because of the existence of a cemetery,” Drew said.