Court of Appeals Declines to Hear Davis Meeker Gary Oak Plea

For Immediate Release June 3, 2024

Court and background documents at https://www.davis-meeker-oak.org/ Media Resources

Fundraiser: https://www.gofundme.com/f/save-the-old-oak-tree-by-the-olympia-airport-in-tumwater-wa

Facebook page: https://www.facebook.com/groups/1207869877018181/

Hashtag: #tumwateroak

Court of Appeals Declines to Hear Davis Meeker Gary Oak Plea

Olympia—An appeals court Monday declined to take up the issue of the imminent death of the historic Davis Meeker Garry Oak next to the Olympia airport.

The healthy 400-year-old oak lies on a trail used for millennia by Indigenous people and later also by settlers. It supports a variety of wildlife including the federally protected migratory kestrels currently nesting in it.

The citizens’ group Save the Davis Meeker Garry Oak on Friday sought emergency review by the Washington State Appeals Court (Div. II) after a lower-court judge dissolved a protective order the group obtained on May 24.

Thurston County Superior Court Judge Anne Egeler issued a ruling, also on Friday stating that the court was giving the citizens’ group "reasonable time" to do an "emergency motion on appeal". But there is no such thing as an “emergency motion” to start an appeal in

Washington state courts.

This procedure does not exist. It is unclear whether Judge Egeler was aware that such a procedure does not exist.

She was appointed to the bench in January 2023 after having practiced appellate law for many years at the Washington Attorney General’s Office. Because the procedure does not exist, the Court of Appeals issued a ruling on Monday summarily rejecting the citizens’ group’s request for emergency review.

With the ruling, the city can begin to cut the tree down on or after Wednesday, June 5 at 5:01 p.m. Tumwater Mayor Debbie Sullivan has vowed to do so.

“To actually have a reasonable time for an appeal, Judge Egeler would have had to give us months to do the appeal, not days,” said Ronda Larson Kramer, attorney for the group. “She gave us false hope.”

The group will be out in force Tuesday evening at the Tumwater City Council, asking the council to take action to override Mayor Sullivan’s determination to kill the tree and the ecosystem it supports.

The meeting will be held at the Tumwater City Hall on Tuesday, June 4 at 7:00 p.m. 555 Israel Rd. SW, Tumwater, Wash. 98501

Go to http://www.zoom.us/join and enter the Webinar ID 867 2542 1395 and Passcode 325962.

“I don’t want to erase history,” said Michelle Peterson, a lifelong Olympia-Tumwater resident. “This tree is viable and the city has not been listening to its residents. It will be up to the council to act.”

The case against Mayor Sullivan rests on four points:

1. Mayor Sullivan gave the tribes only two weeks’ notice of her plan to cut the tree, though she received the flawed report she relied on seven months earlier in October of 2023. This violates requirements to offer early and appropriate consultation with tribes.

2. Because the oak is listed in the historic register, (Tumwater Municipal Code 2.62.060) a permit is required for removal. Mayor Sullivan claims that the code allows an exception to the permit requirement if an emergency exists. The code clearly states that the emergency exception only allows repairs, not destruction (TMC 2.62.030(K)). Cutting a tree down is not a repair.

3. There is a mating pair of kestrels in a cavity in the tree. The Federal Migratory Bird Treaty Act prohibits interference until the chicks have fledged.

4. The city relied on an arborist’s report that was flawed, both as to the risk the tree posed and to the recommendation to cut it down. A subcontracted expert arborist who did an analysis of the oak’s trunk concluded that pruning, rather than removal, was the recommended action.

Attorney Larson Kramer said the group is considering its legal options.

###

Fight to Save Historic Oak Tree Moves to State Appeals Court

For Immediate Release June 2, 2024

Fight to Save Historic Oak Tree Moves to State Appeals Court

A citizen’s group on Friday sought emergency review by the Washington State Appeals Court (Div. II) after a lower-court judge dissolved a protective order for a healthy 400-year-old oak tree on old Hwy 99 next to the Olympia airport.

At issue is the fate of the named Davis Meeker Garry Oak and the wildlife it supports, including a nesting pair of migratory kestrels.

With the dismissal of the temporary restraining order, the city can begin to cut the tree down on or after Wednesday, June 5 at 5 p.m. The emergency appeal to the state appeals court aims to reinstate protection.

“I don’t want to erase history,” said Michelle Peterson, a lifelong Olympia-Tumwater resident. “This tree is viable and I don’t understand why the city is in such a hurry to get rid of it.”

“I was astonished by Judge Egeler’s ruling. I do not think she fairly considered all arguments and I have faith that the court of appeals will do so,” added Peterson, a member of Save the Davis Meeker Garry Oak organization.

A string of court orders began on May 24 after Tumwater Mayor Debbie Sullivan overrode the city’s Historic Preservation Commission’s refusal to remove the tree from its historic register. Removal was necessary to cut the tree because of its historic designation. Sullivan instead made an administrative decision to destroy the Garry oak, a state-protected species. The city council chose not to override the mayor.

A temporary order restraining the mayor’s action was issued on May 24 by Judge Sharonda Amamilo of Thurston County Superior Court to SDMGO.

A court order dissolving the TRO was issued May 31 by Judge Anne Egeler of Thurston County Superior Court.

The same day, the emergency appeal to the appellate court was filed by SDMGO attorney Ronda Larson Kramer.

Indigenous people for millennia used the old Cowlitz Trail along which the tree is located. Later settlers traveled the route as a branch of the Oregon Trail; the tree became a landmark for them. Eventually, it was named for pioneer settler Ezra Meeker, and later still, after environmentalist Jack Davis, who spearheaded a movement to preserve the tree from highway encroachment in 1984.

The tree was also known at one time as the hanging tree, according to a court declaration submitted by an elder of the Cowlitz Indian Tribe, as it had been used by white vigilante groups to hang Native Americans.

“Judge Egeler’s decision is procedurally and substantively flawed,” said Larson Kramer. “She failed to acknowledge the rights of the tribes to be sufficiently notified of such a drastic action. She ignored a letter placed in the record from the state archaeologist stating that a permit from them would be required to cut the tree. She relied on an out-of-date report on the tree’s health and she dismissed the requirements of the Migratory Bird Treaty Act, relying on a version of that Act that expired three years ago when President Biden eliminated a Trump-era change.”

“The Davis Meeker Garry Oak, with its history, its immense ecological value, and the wildlife living in it deserves a full and fair hearing under the law,” said Larson Kramer.

The case against Mayor Sullivan rests on four points:

1. Mayor Sullivan gave the tribes only two weeks’ notice of her plan to cut the tree, though she received the flawed report she relied on seven months earlier in October of 2023. This violates requirements to offer early and appropriate consultation with tribes.

2. Because the oak is listed in the historic register, (Tumwater Municipal Code 2.62.060) a permit is required for removal. Mayor Sullivan claims that the code allows an exception to the permit requirement if an emergency exists. The code clearly states that the emergency exception only allows repairs, not destruction (TMC 2.62.030(K)). Cutting a tree down is not a repair.

3. There is a mating pair of kestrels in a cavity in the tree. The Federal Migratory Bird Treaty Act prohibits interference until the chicks have fledged.

4. The city relied on an arborist’s report that was flawed, both as to the risk the tree posed and to the recommendation to cut it down. A subcontracted expert arborist who did an analysis of the oak’s trunk concluded that pruning, rather than removal, was the recommended action.

Attorney Larson Kramer said she expects the appellate court to rule before the timeline on the tree’s protection expires at 5 p.m. on Wednesday, June 5.

###

Citizens in Court to Protect Historic Garry Oak from City of Tumwater

For Immediate Release                                                               May 28, 2024

Court documents at https://www.davis-meeker-oak.org/copy-of-legal-documents-1

Hashtag: #tumwateroak

Citizens in Court to Protect Historic Garry Oak from City of Tumwater

OLYMPIA—The citizen’s group that obtained a court order on Friday, May 24 to prevent the City of Tumwater from cutting down a historic, state-protected 400-year-old Garry oak will be in court this Friday, May 31 at 9:00 a.m. before Judge Egeler, at 2000 Lakeridge Dr. S.W. Bldg. 3, Olympia, WA 98502.

At issue is a city motion to vacate the temporary restraining order issued by Judge Sharonda Amamilo of Thurston County Superior Court for the group Save the Davis Meeker Gary Oak.

The judge issued the TRO by request of attorney Ronda Larson Kramer to prevent immediate destruction of the oak, a state-protected species listed in the Tumwater Register of Historic Places. Larson Kramer has asked the court to retain the TRO and extend it for two months as a pair of nesting kestrels has been found in the tree and are protected under federal law.

Citizens organized earlier this month after Mayor Debbie Sullivan overrode the refusal of the city’s Historic Preservation Commission to remove the tree from the Tumwater Register of Historic Places. It was added in 1995 and is the only living thing on the register. The rest are area buildings. Ignoring the commission, Sullivan made an administrative decision to cut the tree down.

SDMGO has submitted motions to the court to keep the order in effect for four reasons:

Errors within the city-funded tree-risk matrix artificially elevated the risk of the tree from a moderate to high-risk rating. The decision for removal contradicts expert recommendations for “load reduction pruning” contained in that report by a contracted arborist. The report was primarily written in June of 2023. The timeline defined in the report was valid for a period of one year. The report is effectively moot because the timeline has already passed without incident.

“The arborist’s report produced for the City of Tumwater condemning this tree contains a litany of errors,” said Larson Kramer.

Because the oak is listed in the historic register, (Tumwater Municipal Code 2.62.060) a permit is required for removal. Mayor Sullivan claims that the code allows an exception to the permit requirement if an emergency exists. However, the code states that the emergency exception only allows repairs, not destruction, of something on the register (TMC 2.62.030(K)).

“Cutting down a tree is not a repair,” said Larson Kramer.

There is a mating pair of kestrels in a cavity in the tree. The female is leucistic or white, an uncommon genetic variation. The Federal Migratory Bird Treaty Act prohibits interference until the chicks have fledged. The nesting cycle for kestrels is normally two months and the requested extension of the TRO will protect them.

Mayor Sullivan gave the tribes only two weeks’ notice of her plan to cut the tree, though she received the flawed report she relied on seven months earlier. This violates requirements to offer early and appropriate consultation with tribes.

“The mayor merely carries out the laws that the council enacts,” said Larson Kramer. “The council is the body that has authority to stop this atrocious violation of the law by the mayor.”

Indigenous people for millennia used the old Cowlitz Trail where the tree is located. Later settlers traveled the route as a branch of the Oregon Trail; the tree became a landmark for them. Eventually, it was named after environmentalist Jack Davis who spearheaded a movement to preserve the tree from highway encroachment in 1984 and for pioneer settler Ezra Meeker.

SDMGO will be at the Tumwater City Council meeting on Tuesday, June 4 at 7 p.m. at the Tumwater City Hall, 555 Israel Rd. S.W. in Tumwater.

“The issue is the council members' inaction to save this tree,” said Michelle Peterson of Tumwater. “My mayor shouldn't steamroll this through. Last week, the Bellingham City Council enacted measures to protect landmark trees. This week, we should do the same; the council can lead the way.”

At the June 4 meeting, the group will request the council adopt a measure identical to one recently passed in Bellingham that protects heritage trees.

###