Save the Davis-Meeker Garry Oak group leading multi-pronged effort to save historic Tumwater tree

By Jeffrey Westbrook

Although Thurston County Superior Court Judge Anne Egeler ruled in favor of Tumwater Mayor Debbie Sullivan’s plan to remove the 400-year-old Davis-Meeker oak, 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 lifted the Temporary Restraining Order (TRO) that the group Save the Davis-Meeker Garry Oak (SDMGO) had obtained in the emergency ex parte hearing the previous Friday . The TRO temporarily blocked Sullivan’s plan to cut down the tree.

Following the hearing, SDMGO plaintiff attorney Ronda Larson Kramer told a gathering of the group’s supporters that she will appeal the decision before the TRO expires on Wednesday, June 5 at 5 p.m. Three Cowlitz tribal elders have discussed the possibility of filing their own lawsuit for a restraining order.

SDMGO issued a press release on June 2, announcing that on Friday the group “requested emergency review by the Washington State Court of Appeals (Div II) after a lower court judge dissolved a protective order for a healthy 400 year old oak on Old Hwy. 99 near Olympia Airport.” The objective of the appeal is to reinstate the protective order.

At the heart of the issue, the group, which includes citizens, professional arborists, members of local Native American tribes and attorney Ronda Larson Kramer, argue that the mayor’s attempts to destroy the historic 400-year-old tree violate local, state and federal law in several ways. The mayor’s case, argued by her attorney, Jeffrey Meyers, argues that the TRO is invalid on procedural grounds.

The group protecting the tree launched a multi-pronged 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.

Arguments about nature and ecology

A pair of mating calls nested in the tree; the female is leucistic, a rare genetic variation of the species. A press release from the SDMGO indicates, “The Federal Migratory Bird Treaty Act (MBTA) prohibits interference until chicks have hatched. (See TRO Application, paras. 13, 14, 31; see also expert testimony of professional raptor biologist Steve Layman). Michelle Peterson, SDMGO member and environmental science graduate, provided a bird identification statement and video footage of the birds, available on the organization’s website.

Additionally, the tree itself is a state protected species, the only native oak species in Washington. Development has resulted in the decline of Garry oaks, as has the encroachment of invasive species.

Bad arborist report

According to numerous SDGMO documents, the only “expert opinion” Sullivan used to support his decision to destroy the tree was a 2023 report by the city’s arborist, Kevin McFarland. Numerous other arborists—including those with decades of field experience and advanced expertise, as well as those with decades of work with this particular tree—pointed out numerous flaws in McFarland’s report.

The mayor and the city’s lone arborist who advocates removing the trees have not explored less drastic mitigation measures to preserve the tree, which dates back to the 1600s, the SDMGO claims. (See Kramer’s Response to Motion to Dissolve TRO, p. 2 Background)

Reports of the tree’s death have been greatly exaggerated

Arborist Beowulf Brower, who spoke on behalf of himself and not the state Parks and Recreation Commission where he works, investigated the mayor’s staff’s claims and found evidence of falsity in both the reporting to the city’s insurer and the reporting of what what the insurer said. . The Washington Cities Insurance Authority, WCIA, is the city’s insurer.

Assistant DA Davis Abbott wrongly told WCIA the tree was dead. He wrote in an email: “I am contacting you because we are receiving pushback from the city council regarding the removal of a historic but now very dead tree in Tumwater.” (see Brower’s Statement, p. 8 para. 28 and p. 13, Abbott’s email) As Brower notes, “the tree is very much alive.” The branches of the tree today have green leaves on them.

Tumwater Parks and Recreation Director Chuck Denney told the Historic Preservation Board in a memo that the WCIA “recommended the removal of the tree.” Brower said he contacted WCIA and spoke with an agent who “categorically denied that WCIA ever makes recommendations to clients to remove individual trees.” Brower said the WCIA representative recommended that Brower file a public records request, which he did. (see Brower’s Declaration, p. 7 paras. 25-27).

This report also indicated that there was “nothing in the record that mentions increased insurance rates, decreased coverage, or any consequences related to the retention or removal of this Davis Meeker Oak.”

Brower learned that “Attorney Karen Kirkpatrick later asked the insurance company to try to influence the city council to agree to the removal of the tree. (see Bower’s Statement, p. 14).

Historical and Native American Significance

The tree has historical significance to both the Native American tribes that have long lived in the region and to the early American settlers. According to Cowlitz Indian Tribe Elder Diane Riley in her statement to the court, the tree has historical significance to the Cowlitz Tribe.

This meaning 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 laborers in the 1820s.

The tree is on the historic Cowlitz Trail, a spur of the famous Oregon Trail, but much older than the American Westward Expansion, as it was a route used by both the Cowlitz and other local tribes for hundreds of years, Riley noted.

The tree was also historically known as the Hanging Tree, Kramer said SHOCK in an interview, adding that he heard this information from various sources; Riley also mentions the Hanging Tree.

Bill Iyall, former chairman of the Cowlitz Indian Tribe and professional engineer, also provided a statement attesting to the importance of this tree both personally and to the tribe.

Laws protecting historic and Native American interests

SDMGO claims the mayor violated Washington state code by 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 about May 13, two weeks before the mayor planned the demolition.

Since the city arborist’s report recommending the tree’s removal is from 2023, Riley questioned why the city only gave two weeks’ notice.

The Washington State Department of Archeology and Historic Preservation (DAHP) informed Kramer via email that “the mayor cannot cut down the Davis Meeker oak without an archaeological excavation and removal permit from DAHP.” “The mayor has not yet applied for the permit,” Kramer said in one of the court filings.

Other laws prohibiting the cutting of the tree

The Davis-Meeker Oak has been on the Tumwater Register of Historic Places since 1995. By city code, it must be removed before it can be torn down without a permit. Although — according to SDMGO — Sullivan tried to petition the Historic Preservation Commission to delist the tree, the commission refused and voted unanimously in April to keep the tree on the register and recommend that the city council preserve rather than tear down the venerable oak. .

The mayor (and City Attorney Karen Kirkpatrick, according to SDMGO’s TRO petition) wrongly determined that a clause in city code allowed him to remove the tree without a permit. However, that clause only allows for the emergency repair of a historically listed structure, not its destruction, SDMGO and Kramer pointed out.

“An important message we’re trying to get across is that the City Council is fully empowered to deal with this right now,” Kramer said. SHOCK. “Why didn’t they? There may be a lack of understanding by some that they have this power.” The mayor’s message is that she has that power and the council doesn’t, she added.

SDGMO wants the city council to follow the lead of the Bellingham City Council, which passed an emergency ordinance last week to protect heritage trees, Kramer said. SHOCK.

The mayor’s unilateral action forced SDGMO’s quick response

The reason SDGMO filed for the TRO on Friday was because Thursday evening, they received word from someone working with the city that the mayor had accepted a bid to remove the tree and scheduled it to happen “over Memorial Day weekend, when all the world was out of town,” according to Tanya Nozawa, Tumwater Tree Board and SDGMO member. Thus, if the tree was to be saved, the TRO had to be obtained by Friday.

The mayor’s attorneys argued that the lawsuit seeking the TRO was filed without the defendant being served, thus voiding the TRO. However, Kramer contacted the city attorney before filing the request.

What lies ahead

The TRO will expire on Wednesday, June 5 at 5 p.m., at which time the mayor’s contractor could take down the tree.

Meanwhile, Kramer appealed Egeler’s decision. Just before press time today, she said SHOCK“our emergency appeal has been placed in the lap of the Commissioner of the Court of Appeal.”

This appeal faces an uphill battle due to the very limited time given by Egeler.

Kramer said SHOCK, “Judge Egeler’s decision, in which he claimed to give me ‘reasonable time’ to make an ’emergency appeal’ was not based on any existing procedure. There is no such thing as an “emergency call”. Accordingly, the Court of Appeals summarily dismissed.

“To actually have a reasonable time frame for an appeal, Judge Egeler should have given us months to appeal, not days. The Court of Appeals Commissioner wrote: “But this Court cannot rule on an appeal before the brief on appeal has been filed and before a full briefing on the merits, even if it decides to expedite review. . . .”

Kramer is also investigating the possibility of filing a petition to have the case removed to federal court. That move would focus the case on the MBTA’s protection of nesting vices.

In addition, some elders of the Cowlitz Indian Tribe who were involved in efforts to save the tree are considering filing their own lawsuit for a TRO.

The Washington State Department of Archeology and Historic Preservation is working on processing a halt to the removal of the tree because the city did not apply for the necessary permit from the state agency, Kramer wrote.