Historic Oak Gets Another Favorable Court Ruling

DATELINE— TUMWATER, WA

The citizens group working to save an historic 400-year-old oak tree in Tumwater are celebrating this week after receiving a second partial victory in the Washington Court of Appeals. It came a month after another ruling in the tree’s favor by the same court.

In the latest ruling, the court decided that the group did not have to rewrite its reply brief. The mayor had wanted the reply brief redone because it contains “extra-record evidence,” which is evidence obtained after Judge Egeler ruled against the group and dissolved the temporary restraining order on May 31, 2024. That order is what the group is appealing.

Ordinarily, evidence that can be considered on appeal is only the evidence that was before a trial court when it made the ruling that is being appealed. But there are exceptions to this, and the Court of Appeals applied those exceptions in the oak case.

Ronda Larson Kramer, one of the attorneys for the group, explained, “The ruling does leave open the possibility for the court to not use some of the evidence that we put in our reply brief, but we are very pleased with the ruling overall because the court accepted unconditionally the most important extra-record evidence.”

In December, the Court of Appeals rejected the mayor’s request to dismiss the appeal.

Second Risk Assessment Is Likely Favorable for the Tree

The citizen’s group is also celebrating because it suspects the second risk assessment, which was completed almost a month ago by arborists Todd Prager and Associates, gave the oak tree a clean bill of health.  “If the second risk assessment had concluded the tree was high risk, the mayor would have publicized it in a heartbeat,” said Michelle Peterson, the citizen group's spokesperson. “Her silence speaks volumes.”

On December 13, 2024, arborists air excavated the roots of the historic oak tree, which was the last step in their risk assessment. (The contract for the risk assessment expired December 31st.) Click here for the air excavation video.

More than two feet of dirt had been piled up around the tree in the past above the original grade. Burying roots like this can encourage fungal pathogens. Ray Gleason, an arborist for the citizen’s group, explained, “The purpose of air excavation in this case was to determine if a fungal pathogen was present in the roots.”

Larson Kramer said, "The arborists applied for and were granted a permit to do this work from the Washington Department of Archaeology and Historic Preservation."  

Removing compacted soil piled around a tree can have huge benefits. Scientists discovered this by accident when a large oak tree in England was pulled up by a hurricane and set back down again decades ago.

Peterson noted that the group had made repeated public records requests for communications from the arborists that would have been sent to the mayor immediately after the December 13 air excavation, but the city has delayed producing anything. “This delay is a good sign. We expect the mayor is trying to do damage-control to her reputation at this time, before she releases information stating that the tree is healthy, since that information would contradict everything she has been saying for the past year and a half,” said Peterson.

In the first risk assessment, which was done in 2023, city arborist Kevin McFarland concluded that the tree was high risk, but his final report included a memo from another company, Tree Solutions, that contradicted this. McFarland himself had earlier said in an unreleased email that the tree wasn't high risk.

According to documents obtained through public records requests by the citizen’s group (P009774-112224), between June and the end of October 2024, the mayor’s efforts to remove the tree have cost the city $66,000 in attorney fees and almost $50,000 for a second risk assessment.

On November 19, 2024, the mayor announced publicly that she had decided not to run for re-election.

The Davis Meeker Garry Oak is located at 7527 Old Highway 99, Tumwater, Washington.

Photo credit Ronelle Funk, January 12, 2019, 9:32 a.m.

Group Suing Mayor over Oak Tree Receives Partial Win

DATELINE— TUMWATER, WA

Recently, the Court of Appeals dealt Tumwater Mayor Debbie Sullivan a blow by rejecting her request to dismiss an appeal by a citizens group suing her to save an historic 400-year-old oak tree. The mayor had argued that the appeal was moot because the mayor had agreed on June 4th to get a second risk assessment of the tree. The first risk assessment, which the mayor cited in her original decision to remove the tree, has been widely criticized by arborists and community members alike as deeply flawed.

The Court of Appeals rejected the mayor’s notion that the appeal was moot. It noted that the mayor continues to claim she is free to cut down the tree based on the first risk assessment regardless of the outcome of the second risk assessment.

According to public records requests, between June and the end of October 2024, the mayor’s efforts to remove the tree have cost the city $66,000 in attorney fees and almost $50,000 for a second risk assessment. On November 19, 2024, the mayor announced publicly that she had decided not to run for re-election.

The mayor orders oak seedlings pulled up

Meanwhile, beneath the tree several Garry oak seedlings had sprouted from the tree’s acorns this year. The citizens group asked that the city let the oak seedlings live. Ronda Larson Kramer, one of the attorneys for the group, wrote to city councilmembers in an email dated November 17, 2024:

[The tree] will be the first look at the City of Tumwater that many people will get when visitors start arriving as part of the 20,000 passengers per month that the Port of Olympia is expecting by 2040 at the Olympia Airport. … We suggest management going forward that restores some Garry oak savannah characteristics at the base of the tree …. This would include allowing the oak seedlings currently growing at the base of the tree inside the fence around the tree to mature. This will enable the roots of the seedlings to meld with the roots of the Davis Meeker oak in a process called inosculation, which will result in more energy being provided to the Davis Meeker oak over time.

It appears that when the mayor found out, she immediately told city staff to pull the seedlings up. Eight days later this was done. She apparently made her request to staff verbally because the citizens group’s public records request for documentation produced nothing.

Tanya Nozawa, a member of the Tumwater Tree Board, then asked the city to explain. “I was told that the oaks were pulled up because they were growing next to the road,” said Nozawa.

Earlier this year, staff at the city had colluded on how to evade Tumwater’s critical areas ordinances protecting Garry oak trees. In anticipation of the mayor having the Davis Meeker oak cut down, Tumwater Parks and Recreation Director Chuck Denney wrote in an email dated March 21, 2024, “[S]uckers will sprout quickly from the stump if it is not cut/ground into the dirt. That’ll create a situation where we are re-growing the Davis/Meeker Oak and all the protections that come w/it.”  

Because the tree is an archaeological resource, grinding the stump is illegal without a permit from the Washington Department of Archaeology and Historic Preservation. The mayor has not applied for a permit to grind the stump, let alone a permit to remove the tree. (She claims in her legal briefing that the tree is not an archaeological object and therefore, she does not need a permit).

Mike Matlock, Community Development Director for the city, wrote in an email dated February 13, 2024, “[W]e would have to plant 250 trees as part of our environmental mitigation for the removal of the tree.” A few days later, he wrote, “I think we might have another solution to mitigate at a far lesser value than 250:1. We can talk further when we meet.”

Michelle Peterson, spokesperson for the citizens group, said, “We’re appalled by the city’s apparent focus on ridding the city of Garry oaks just because its own ordinances protect them and make it slightly harder to do whatever the city wants with its roads.”

Garry oak communities are now one of North America's most imperiled vegetation types, and Garry oak ecosystems have been identified by the Washington Department of Fish and Wildlife (WDFW) as a habitat that is critically imperiled and at risk of extinction. As much as 99% of the native prairie oak ecosystem has been lost due to development, economic activity, the growth of invasive species such as ivy, and constantly advancing conifer trees. WDFW has put out a best management practices guide for managing Garry oak.

The second risk assessment proceeds

Recently, arborists did work as part of the second risk assessment. On December 13, 2024, arborists air excavated the roots of the historic oak tree. More than two feet of dirt had been piled up around the tree in the past above the original grade. Burying roots like this can encourage fungal pathogens. The purpose of air excavation is to determine if a fungal pathogen is present in the roots. The arborists applied for and were granted a permit to do this work from the Washington Department of Archaeology and Historic Preservation.  

Removing compacted soil piled around a tree can have huge benefits, as was discovered by accident when a large oak tree in England was pulled up by a hurricane and set back down again decades ago.

The Davis Meeker Garry Oak is located at 7527 Old Highway 99, Tumwater, Washington.

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Garry oak seedling growing at the base of the Davis Meeker oak. Photo credit: Tanya Nozawa, September 27, 2024.

Place where the mayor's employee pulled up the oak seedling on November 25, 2024, shortly after the citizens group notified the city council of its existence and asked that it be preserved. Photo credit: Tanya Nozawa, December 1, 2024.

Garry oak seedlings growing at the base of the Davis Meeker oak. Photo credit: Pam Hanson, July 17, 2024.

Place where the mayor's employee pulled up the oak seedlings on November 25, 2024, shortly after the citizens group notified the city council of their existence and asked that they be preserved.  Photo credit: Ronda Larson Kramer, December 9, 2024.

Using an air excavator, arborists from Todd Prager & Associates remove fill dirt piled onto the roots decades ago. They removed the dirt to check for fungal pathogens as part of the second risk assessment.  Photo and video credit: Tanya Nozawa.

Davis-Meeker Oak Cowlitz Trail Walk on Sunday, October 27th

DATELINE— TUMWATER, WA

Supporters of the Davis Meeker oak and Cowlitz Tribe elders are gathering at the oak tree at 1 p.m. on Sunday, October 27, to walk 2.7 miles on the path of the Cowlitz Trail/Oregon Trail. The walk ends next to a possible grave mound in a forest where one of the last known unpaved remnants of the Cowlitz Trail crosses through.

The walk will pass by the old homestead of Tumwater pioneers George and Isabella Bush. George and Isabella and their five sons were among the first settlers to come to the south Puget Sound region after journeying on the Oregon Trail from Missouri. Bush was a wealthy educated farmer in Missouri, but as a free African American in a slave state, he and his German American wife faced increasing discrimination and decided to move west. 

At the end of the walk on Sunday, attendees can expect food and a fire in the fire pit and are encouraged to bring camp chairs. The chairs will be ferried to the end while people are doing the walk.  

The Davis Meeker oak has been a trail marker on the Cowlitz Trail for hundreds of years. The trail is a traditional trading route that later became a spur of the Oregon Trail. There are very few places where the Cowlitz Trail remains unpaved, and so this is a special opportunity to see one of those places.

It is adjacent to another parcel with an unpaved segment of the trail that developers are seeking to pave over and build over 200 apartments, a grocery store, storage facilities, a YMCA, and more. Both parcels were purchased 11 years after Chief Leschi was executed, and the buyer was the sheriff’s deputy who kicked the pin from the trap door on the gallows. The parcels are in the traditional lands of the Nisqually Tribe.

Meanwhile, attorneys for the citizen group that is fighting to save the oak tree from the mayor’s plan to remove it have been busy lately with cross-motions in the Court of Appeals. The group is accepting tax deductible donations for attorney fees on its website.

The Davis Meeker Garry Oak is located at 7527 Old Highway 99, Tumwater, Washington.

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Map created by Ronda Larson Kramer using February 11, 1854 survey plat map of Township 17N Range 2W, from the General Land Office Records from the U.S. Department of the Interior Bureau of Land Management.