Although Thurston County Superior Court Judge Anne Egeler decided in favor of Tumwater Mayor Debbie Sullivan's plan to remove the 400-year-old Davis-Meeker oak tree, the group working to save the landmark has not given up its fight.
In a hearing last Friday, May 31, Egeler granted the mayor’s request and dissolved the Temporary Restraining Order (TRO) which the group “Save the Davis-Meeker Garry Oak” (SDMGO) had obtained in an emergency ex parte hearing the previous Friday. The TRO temporarily blocked Sullivan’s plan to cut down the tree.
Following the hearing, plaintiff SDMGO’s attorney, Ronda Larson Kramer, told a gathering of the group’s supporters that she would appeal the decision before the Wednesday, June 5, 5 p.m. expiration of the TRO. Three elders from the Cowlitz tribe discussed the possibility of filing a suit of their own for a restraining order.
SDMGO issued a press release on June 2 announcing that on Friday the group “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.” The objective of the appeal is to reinstate the protective order.
At the heart of the matter, the group including citizens, professional arborists, members of local Native American tribes, and attorney Ronda Larson Kramer, is arguing that the mayor’s attempts to destroy the 400-year-old historic tree violate local, state, and federal law in numerous ways. The mayor’s case, argued by her attorney, Jeffrey Meyers, claims the TRO is invalid on procedural grounds.
The group protecting the tree launched a multi-front attack on the mayor’s efforts to remove the tree, with Kramer filing 13 documents on behalf of SDMGO and the tree. Their points of contention include the following.
A pair of mating kestrels has nested in the tree; the female is leucistic, a rare genetic variation of the species. A press release from SDMGO indicates, “The Federal Migratory Bird Treaty Act (MBTA) prohibits interference until the chicks have fledged. (See Request for TRO, paragraphs 13, 14, 31; see also expert testimony of professional raptor biologist Steve Layman). Michelle Peterson, a member of SDMGO and an environmental science graduate, provided a declaration identifying the birds and took videos of them, available on the organization’s website.
Furthermore, the tree itself is a state-protected species, Washington’s only native species of oak. Development has led to diminishing numbers of the Garry Oaks, as has the encroachment of invasive species.
According to the numerous documents from SDGMO, the only “expert opinion” Sullivan has used to support her determination to destroy the tree was a report from 2023 by the city’s arborist, Kevin McFarland. Numerous other arborists -- including those with decades of experience in the field and with advanced expertise, as well as those with decades of working with this tree in particular -- have pointed out numerous flaws in McFarland’s report.
The mayor and the city’s lone arborist supporting tree removal did not explore less drastic mitigation measures preserving the tree, which dates to the 1600s, SDMGO contends. (See Kramer’s Response to Motion to Dissolve TRO, p. 2 Background)
Arborist Beowulf Brower, who spoke on his own behalf, not that of the State Parks and Recreation Commission on which he serves, investigated claims of the mayor’s staff and uncovered evidence of falsehoods both in reporting to the city’s insurer and in reporting what the insurer said. Washington Cities Insurance Authority, WCIA, is the city’s insurer.
City Assistant Attorney Davis Abbott wrongly told WCIA that the tree is dead. He wrote in an email, “I am reaching out because we are getting some pushback from city council on removing a historical, but now very dead, tree in Tumwater.” (see Brower’s Declaration, p. 8 paragraph 28 and p. 13, Abbott’s email) As Brower notes, “the tree is very much alive.” The tree's branches today have green leaves on them.
Tumwater Director of Parks and Recreation Chuck Denney told the Historic Preservation Board in a memo that WCIA “recommended removal of the tree.” Brower said he contacted WCIA and talked with an agent who “categorically denied that WCIA ever makes recommendations to clients to remove individual trees.” Brower stated that the WCIA representative recommended that Brower file a public records request to verify, which he did. (see Brower’s Declaration, p. 7 pars. 25-27).
This report also indicated that “there was nothing in the record mentioning insurance raise rates, dropped coverage, or any consequences related to retaining or removing this Davis Meeker Oak.”
Brower learned that “City Attorney Karen Kirkpatrick later asked the insurance company to try to sway the city council to agree to the tree’s removal. (see Bower’s Declaration, p. 14).
The tree has historic significance to both the Native American tribes that have long inhabited the region, as well as to early American settlers. According to Cowlitz Indian Tribe Elder Diane Riley in her declaration to the court, the tree has historical significance to the Cowlitz Tribe.
This significance extends beyond the Cowlitz Tribe to the Nisqually and even to members of the Kanaka people of Hawaii. These Hawaiians, of whom Riley is a descendant, were brought to this area as indentured workers in the 1820s.
The tree stands on the historic Cowlitz trail, a spur of the famous Oregon Trail, but much older than American Westward Expansion, as it was a trail used by both the Cowlitz and other local tribes for hundreds of years, Riley noted.
The tree also was historically known as the Hanging Tree, Kramer told The JOLT in an interview, adding that she had heard this information from various sources; Riley also mentions the Hanging Tree.
Bill Iyall, a former chairman of the Cowlitz Indian Tribe and a professional engineer, also provided a declaration testifying to the importance of this tree both personally and to the tribe.
SDMGO contends that the mayor violated the State of Washington code in failing to adequately notify local Native American tribes of her plans to remove the tree. to the court that the city did not inform the tribe until approximately May 13, two weeks before the mayor planned the demolition.
Since the city arborist’s report recommending the removal of the tree is from 2023, Riley asked why the city only gave two weeks’ notice.
The Washington State Department of Archaeology and Historic Preservation (DAHP) informed Kramer by email that “the mayor cannot cut down the Davis Meeker oak tree without an Archaeological Excavation and Removal Permit from” the DAHP. “The mayor has not applied for the permit yet,” Kramer stated in one of the declarations filed with the court.
The Davis-Meeker Oak has been on the Tumwater Register of Historic Places since 1995. By city code, it must be delisted before it can be torn down without a permit. Although -- according to SDMGO -- Sullivan attempted to have the Historic Preservation Commission delist the tree, the commission refused and voted unanimously in April to keep the tree on the Register and to recommend that the city council preserve rather than tearing down the venerable oak.
The mayor (and city attorney Karen Kirkpatrick, according to SDMGO’s petition for the TRO) wrongly determined that a clause in city code allows her to remove the tree without a permit. Yet that clause allows for only emergency repair of a historically listed structure, not for its destruction, SDMGO and Kramer have pointed out.
“An important message we’re trying to get out there is that city Council is fully empowered to fix this thing right now,” Kramer told The JOLT. “Why haven’t they? There may be a lack of understanding by some that they have that power.” The mayor’s message is that she has that power, and the council doesn’t, she added.
The SDGMO wants the city council to follow the example of Bellingham City Council, which passed an emergency ordinance last week to protect legacy trees, Kramer told The JOLT.
The reason for SDGMO filing for the TRO on Friday was that Thursday evening, they received word from someone who works with the city that the mayor had accepted a bid for the tree’s removal and was scheduling it to happen “during Memorial Day Weekend when everyone was out of town,” according to the declaration of Tanya Nozawa, Tumwater Tree Board and SDGMO member. Thus, if the tree was to be saved, the TRO had to be obtained on Friday.
The mayor’s attorneys have argued that the lawsuit seeking the TRO was filed without having notified the defendant, thereby nullifying the TRO. Yet Kramer contacted the city’s attorney prior to filing the request.
The TRO will expire on Wednesday., June 5 at 5 p.m., at which time the mayor’s contractor could tear down the tree.
In the meantime, Kramer has filed an appeal of Egeler’s decision. Just before press time today, she told The JOLT, “our emergency appeal was put in the lap of the Court of Appeals commissioner.”
That appeal faces an uphill battle because of the very limited time allowed by Egeler.
Kramer told The JOLT, “Judge Egeler's ruling, in which she claimed she was giving me ‘reasonable time’ to do an ‘emergency appeal’ was not based on any procedure in existence. There is no such thing as an ‘emergency appeal.’ The Court of Appeals summarily denied it accordingly.
“To actually have a reasonable time for an appeal, Judge Egeler would have had to give us months to do the appeal, not days. The Court of Appeals' commissioner wrote, ‘But this Court cannot decide an appeal before the record on appeal is submitted and before full merits briefing, even if it determines to accelerate review....’”
Kramer is also investigating the possibility of petitioning for the case to be removed to federal court. That move would focus the case on the MBTA protection of the nesting kestrels.
Additionally, some elders of the Cowlitz Indian Tribe who have been involved with efforts to save the tree are looking into the possibility of filing their own lawsuit for a TRO.
The Washington State Department of Archaeology and Historic Preservation is working on processing a stop to the tree’s removal because the city has not filed for the required permit from that state agency, Kramer wrote.
17 comments on this item Please log in to comment by clicking here
JHermes
I must be missing something here. Is there some kind of forceful ANTI-tree lobby, or is this mayor just on a power trip vs. an innocent plant and its birdy inhabitants?
It's a live tree with green leaves that birds like. Really, where's the harm?
Go run for Congress or something. Sheesh.
Monday, June 3 Report this
griffithga
Thank you SDMGO for taking on this case to save the tree and questioning the city's decision-making process.
Monday, June 3 Report this
Reidbates
Last year I was behind two cars traveling southbound on Old 99 when suddenly a large limb of the tree fell from near the top of the tree. Fortunately there was just barely enough time for the first car to swerve out of the southbound lane without striking the limb. I saw that car swerve into the northbound lane but traffic was light on that Saturday late afternoon. Conditions could easily have been different resulting in a different and tragic outcome. This is a great tree but public safety has to be the highest priority. I think it should only be retained if a consensus of arborists hired by the city/state deem it to be safe to the public.
Monday, June 3 Report this
ejpoleii
Sounds to me like this is a power play by the mayor who is likely forcing the city arborist to bend to her will. There is plenty of time to do a good analysis by a team of independent arborists. I'm no expert but it looks to me like the tree just needs some pruning. What's the damn hurry?!
Tuesday, June 4 Report this
Marianne
If safety is truly the issue, then have a qualified arborist do corrective pruning. It’s that simple. Cutting down the tree should be the very last resort after all efforts to save it are exhausted.
Tuesday, June 4 Report this
mathisje
I may be overly cynical, but with all the development south of the airport, old highway 99 desperately needs more lanes. A certain oak tree stands in the way. Anybody ask the City what plans or intentions it has to widen that road?
Also, Kevin Macfarland is an outstanding arborist. We been using him for many years. Provide some specifics on the report from other arborists and how they differ from Kevin's and what data they are suing to back up disputing his report. Put the other arborist reports online.
Tuesday, June 4 Report this
DeeperThoughts
I am impressed with the dedication of this attorney Kramer to save the historic Garry Oak tree. She can always file a motion for reconsideration for Jude Egeler to take the Court of Appeals timeline into consideration. With all of the exceptional reporting by the JOLT and information presented in this article, it is hard to believe any sane person, let alone an elected Mayor Sullivan, would be doubling down to destroy this 400 year old tree. Yet this is what makes Mayor Sullivan happy, lies and destruction. There are so many mitigating issues present that necessitate this decision being halted until they are resolved. This tree is not dying, only the conscience and morals of Mayor Sullivan and her mafia underboss city administrator Lisa Parks are.
Tuesday, June 4 Report this
BevBassett
There has been a lot of interest in saving this tree. It's not gone yet. We still have lots of hope and many legal options. But our local government agencies do not act democratically to reflect the will of the majority of the citizens they serve: instead they often act in ways that serve the wants and desires of special interests such as developers. And that's exactly what's happening right here in the case of the threatened cutting of this Historic Davis Meeker Oak Tree. DON'T LET THEM GET AWAY WITH IT! SPEAK OUT AND TELL MAYOR SULLIVAN YOU SAY NO!!!
Tuesday, June 4 Report this
PamelaJHanson
Thank you The Jolt! No matter what happens this week, your journalism is going to be printed by me and handed out at the Air Show on the 15th and 16th, the air show right next to the Davis Meeker Garry Oak Tree, Davis-meeker-oak.org. It will be shaming moments if there is a stump because the stump will probably be known as "The stump of the City of Tumwater. " It will go down in history as their failure to reach a meaningful resolution with calm people. The Tumwater City Council Meeting is tonight, a time for testimony and gathering. The Air Show "should be" fun (wear yellow)! And, I think the 2nd Tumwater City Council Meeting this month is cancelled. Save the historic 400 year mother oak tree!
Tuesday, June 4 Report this
Deanima
Deeper Thoughts is neither.
His/her posts on this issue have been a non-stop attack on the character and motives of the decision makers. My experience around the issue of character and morals assassination has been that those who engage in it often lack both. I have also observed through the years that those who are most critical and abusive to those who have to make a hard decision are those who have never had to.
Tuesday, June 4 Report this
BobMulvihill
I was contacted about this by someone named Tanya, who submitted her questions via our website (www.aviary.org). Unfortunately, she must have typed in her email incorrectly, because my reply to her bounced back. Because the information I was going to share with her may be of interest to those who are following this story here, I am copying it below:
From: Tanya
Message Body:
There are two American kestrel falcons with a active nest in a 400 year old oak tree in Tumwater Washington. We have video of the falcons and one is white. The mayor wants to tree removed even though it is healthy and there are arborists who are volunteering to do a assessment because the city’s was flawed. The mayor has been notified that destroying the tree and active nest of the falcons is a federal violation f the migratory species act and her attorney said that law pertains to hunters. This is false as you know. The city wants to remove the tree in one day, unless we can find so one to help us. Please don’t let them destroy these baby falcons and their home and this majestic tree. Let me know what I can to to help thank you
Dear Tanya,
Contact the Washington Department of Fish and Wildlife right away. https://wdfw.wa.gov/about/enforcement
It is illegal to interfere with the nesting of a wild bird species without special exception permits, and I doubt that the mayor’s office has bothered to get one of those. Indeed, they probably would be turned down even if they applied for it. The nest will reach its natural conclusion before too long, and then the discussion about the tree removal can begin.
If they do end up removing the tree, you can proactively provide a replacement nest site for the birds for next year by finding a place nearby where you can erect a kestrel box on a tall pole (even a utility pole if there is one nearby, although that will require special permission from the utility company; but, they usually are happy to help with projects like that and may even fund it).
Good luck---I hope you succeed in delaying any disturbance to the kestrel nest until after the young have all fledged.
Best,
Bob
Robert S. Mulvihill
Ornithologist
Department of Conservation and Field Research
National Aviary
700 Arch Street
Pittsburgh, PA 15212
Main: 412-323-7235
Direct: 412-522-5729
Email: robert.mulvihill@aviary.org
Tuesday, June 4 Report this
jPowell
Here is a solution to the Davis-Meeker Garry Oak tree dispute:
For the group that would like to save the tree, seek out a bonding company and insurance policy to cover the potential liability in the event the tree causes damage to property or person.
I am sure there is a company that would provide such a policy for a price. There seems to be a large group that has voiced its concern for the future of the tree. Given this, I am sure the cost to each member of the group would be reasonable.
Then ask the city to release its liability for the potential damage to the group.
This would make the mayor happy, release the taxpayers of the city from liability, and place it with the folks who would like to see the tree preserved and retained.
Tuesday, June 4 Report this
mathisje
The article quotes that contrary to statements by Director Denney that the City insurer recommended removal of the tree, a public records request revealed that “there was nothing in the record mentioning insurance raise rates, dropped coverage, or any consequences related to retaining or removing this Davis Meeker Oak.” Seems the issue of uninsured liability is not an immediate driver to have the tree removed. If it isn't, what is?
On the other hand, the tree can be dead inside and still have leaves. Reason says this is an arborist call and the only authoritative inspection made public was Kevin MacFarland's. If the tree is dean inside, it's easy to tell with by drilling some core samples. sample. McFarland is a great arborist. without empirical proof his report is wrong, the tree should come down. Trees are not immortal. Use the live part to make scores of new saplings. stop the mindless rhetoric and arguing about extraneous, irrelevant issues.
Wednesday, June 5 Report this
longtimeresident
And the comments continue...It was enlightening to listen to the Tumwater City Council meeting last night, especially the presentation by an attorney from the Washington State Attorney General's Office on the laws governing Open Meetings. It was very clear that the Council was in violation of the law, as so much business concerning the Davis-Meeker Tree was carried on behind closed doors. I don't know who asked for that presentation - it's hard to believe the Mayor may have asked for it! So, there is a temporary stay on the removal of the Tree, until an independent arborist (not the city's arborist) is able to assess its viability. Timeline is anyone's guess right now.
Wednesday, June 5 Report this
TerryLeigh
Also, historic trees can be supported/ reinforced. There are a number of historic trees protected from damage & liability in the Southern USA & East Coast Historic areas. I wonder, surely that would be less expensive than removal? Not to mention the cost to the city of Tumwater after removal, of multiple prolonged litigation cases?
Wednesday, June 5 Report this
CPWINOLY
I thought that I would never see such angst created by a tree
A tree so old, it’s often said, that much of it is surely dead
Though many say that their poor mayor is just a vicious arbor slayer
Whose interest, I am also told, is solely to expand a road
Alas, poor lonely Garry Oak your mighty trunk may soon be broke
Into a thousand chips of wood (some may cry foul, and others “good”)
Too bad such passion can’t be found for those whose homes are on bare ground.
Wednesday, June 5 Report this
longtimeresident
Less than an hour ago (Thurs. June 6, 2024) an application was submitted by the Save the Davis-Meeker Tree group, for participation in Tumwater's Fourth of July Parade. THANK YOU to the reporter who did such a good job in his In-Depth report earlier this week, and also for giving readers access to the documents already filed in court. And meanwhile, the Kestrels have no idea what is going on!
Thursday, June 6 Report this