Thurston County Superior Court Judge Anne Egeler on Friday dissolved a temporary restraining order preventing the city of Tumwater and Tumwater Mayor Debbie Sullivan from taking down the historic Davis Meeker Garry oak tree near Old Highway 99.
A citizen group called the Save the Davis Meeker Garry Oak, who originally requested the restraining order, has until 5 p.m. Wednesday, June 5, to file an emergency motion to appeal before the restraining order expires. The group started a GoFundMe page with a goal of $8,000 to cover the cost of an evaluation of the tree from an independent arborist. And the cost of an experienced environmental lawyer is estimated to be $50,000.
Egeler began the court proceedings with a disclosure that she was endorsed by all mayors in Thurston County, including Sullivan, when she filed as a candidate to hold her seat after being appointed in 2023.
Attorney Jeffrey Myers represented the City of Tumwater. He said the city believes the temporary restraining order (TRO) was issued improperly. He said there was no notice given as required by state law, and there's been no reason given as to why the city didn't receive notice of the citizen group's plans to bring the issue to court.
"The city maintains offices here, this dispute has been ongoing and discussed in numerous city council meetings for the better part of a month and a half," Myers said. "There is no reason to believe that a party seeking a restraining order could not have notified the city at least a day before a TRO was sought."
He said instead, they received a voicemail the morning the TRO was sought from the group's attorney, Ronda Larson Kramer.
Myers said the group's original case failed to provide a basis for a restraining order and they didn't identify what court the TRO was being sought in. He said denying the city any chance to respond denies them due process and would render a restraining order void.
"The TRO is drafted in such a way that there are absolutely no findings whatsoever," he said. "There is no finding of harm. There is no finding of what injury the plaintiffs would suffer. There is no finding as to why any such harm would be irreparable. There are no findings as to why notice could not be given to the city and why it had to be dispensed with. There are no factual findings at all."
Myers said there were no findings regarding the public interest in the tree. He said the "unfortunately dying" Davis Meeker Garry Oak poses a threat to public safety, and that is motivating the city of Tumwater to keep its roadways safe and avoid being liable for damage.
Egeler asked Myers when the tree would be cut down if she were to have the TRO dissolved. He said the city would have its contractor re-mobilize immediately and it would be down in a matter of days, Monday at the earliest.
Larson Kramer argued the TRO should be extended for a number of reasons, including the presence of a mating pair of American kestrels nesting in the tree. She said it's possible cutting the tree down could be in violation of the Migratory Bird Treaty Act.
She also argued Sullivan hasn't given any of the local tribes ample opportunity to provide input. She said though there were no tribe representatives involved in the case, there were several tribal elder declarations included in the plaintiff's submissions.
"This court should put her plans on hold to give the baby birds time, to give the tribes time, and to give the council time to exercise its authority and pass a city ordinance that is harder for (Sullivan) to misconstrue under the archaeological resource law, RCW 27.53.060," Larson Kramer said.
Myers said this case didn't include any pleading that raises archaeological resource laws. And the city ordinances that were referenced don't apply to the tree because it's not a man-made structure.
He said the plan to remove the tree isn't in violation of the Migratory Bird Treaty Act or Endangered Species Act because it doesn't apply to habitat take. He said it applies mostly to hunters.
Egeler said that under the law, a party requesting a temporary restraining order must show three things: a clear, legal or equitable right, a well grounded fear of immediate invasion of that right, and that the act complained of will result in actual and substantial injury to the moving party.
"All of these requirements have to be met, and the plaintiffs have not met the first criteria, to establish a clear legal or equitable right," she said.
Egeler said the mayor's decision to proceed is compliant with code. There was not an obligation to obtain a permit before removing a historic tree as opposed to a historic structure. And the code allows removal of a tree the city determines is posing a hazard. State law addressing archaeological resources doesn't pertain to trees.
She said any issues regarding endangered species or migratory birds weren't clearly established in the briefing. And the plaintiffs don't have a clear legal standing to raise arguments on behalf of the tribes regarding notice.
Egeler ruled the TRO would be dissolved, but if the tree were to be removed as early as Monday morning, she said it would destroy the plaintiffs' ability to appeal the decision to the next court. Instead, it will expire at 5 p.m. Wednesday, June 5, to provide time for an appeal.
Larson Kramer told The Olympian Judge Egeler's decision was procedurally and substantively flawed.
She said allowing the tree to be cut down will destroy a kestrel nest and potentially kill their offspring. And despite Myers' claims, she says the tree isn't dying.
"The court failed to consider the Migratory Bird Treaty Act, which prevents anyone from cutting down a tree with nesting kestrels in it," she said. "The court also got the law wrong when it comes to preservation of archaeological resources."
Larson Kramer said she provided the court and opposing counsel with a letter from the Assistant State Archaeologist stating that under RCW 27.53.060, the mayor can't cut down the tree without an Archaeological Excavation and Removal permit. She said the group she represents plans to take the issue to a higher court.
"We will not sit still for the tree to be cut down," Larson Kramer said. "We are going to pursue all legal options."
___
(c)2024 The Olympian (Olympia, Wash.)
Visit The Olympian (Olympia, Wash.) at www.theolympian.com
Distributed by Tribune Content Agency, LLC.
