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.
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