Court of Appeals Gives Big Win to Oak Tree

DATELINE— TUMWATER, WA

The Washington Court of Appeals ruled today in favor of the 400-year-old oak tree in Tumwater.

In the unpublished opinion, the court ruled that the mayor did not have authority to cut down the tree without permission of the Tumwater Historic Preservation Commission: "We hold that the superior court erred in concluding that the mayor was not required to obtain a permit prior to removing the tree under the Tumwater Municipal Code."

The Court of Appeals reversed Judge Anne Egeler's ruling and ordered her to reinstate the temporary restraining order that Judge Sharonda Amamilo originally issued. The Court of Appeals also ordered the superior court to hold additional proceedings to finish up the case.

Ronda Larson Kramer, one of the attorneys for the citizen group working to save the tree, explained, “The Court of Appeals understood the law and ruled correctly. The tree is safe for now, but our work is not done.” She said the group's underlying lawsuit ("complaint for declaratory and injunctive relief") is still pending in front of Judge Egeler.

Larson Kramer said that the group plans to file a motion for summary judgment soon. They have scheduled a hearing on that motion before Judge Egeler at 9:00 a.m. on December 5, 2025.

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.

New Risk Assessment Says Oak Tree Is Healthy

DATELINE— TUMWATER, WA

Five months after the Court of Appeals reversed a superior court judge who had given the Tumwater mayor unfettered authority to cut down a 400-year-old oak tree, a citizen's group is again celebrating. This time, a new tree risk assessment has confirmed what the citizen's group has been saying all along: the Davis Meeker oak is healthy.

The risk assessment by Todd Prager & Associates was thorough, unlike the original risk assessment by Kevin McFarland in 2023 that claimed the beloved tree should be cut down.

The second risk assessment came about due to substantial community pressure, especially from Cowlitz Tribe members and the Nisqually Tribe, as well as pressure from Tumwater City Councilmembers, all during a historic city council meeting that lasted well into the night due to the large number of people testifying.

In agreeing to order a more thorough risk assessment, Mayor Debbie Sullivan stated, "I take great value in my relationship with all of the tribes." You can watch the inspiring testimony from the June 4, 2024, city council meeting here: Tumwater Oak Testimony - YouTube

The tree is on the Tumwater Register of Historic Places and had been used by Native Americans for hundreds of years to guide them as they traveled on the Cowlitz Trail, a trade route used for thousands of years.

The tree later guided settlers making their way north on the Oregon Trail. Many of those pioneers stopped at the nearby farm of wealthy pioneers Isabella and George Bush, a beloved and generous mixed-race couple who were in a wagon train from Missouri that included the first group of settlers to put down roots in Tumwater.

Isabella ("Ibby") Bush had strong connections with the local Coast Salish people, likely including the Cowlitz People, who had brought the Bush family and other settlers up the Cowlitz River by canoe in October 1845. Ibby and George named their last child "Lewis Nisqually." 

Ibby was an educated woman who home-schooled their boys in Missouri, since the law there excluded the Bush children from all public schools. Later, during the early years on Bush Prairie, she conducted the region's first school in her home.

She became fluent in the Coast Salish language and housed Indian orphans until the tribes could find suitable foster parents. Isabella was also known as a vigorous and highly capable nurse, and she worked tirelessly to care for the Native Americans who were devastated by new diseases brought by the American settlers who had immunity. See here for more information on Isabella.

A descendant of one of the pioneers who came to Tumwater related this story about his ancestors' encounter with the Bush family, a giant oak tree that may have been the Davis Meeker oak, and nearby Swamp Lake: "Mr. Bush suggested that they camp under the giant oak tree on unclaimed land just northwest of his home.  He said the surrounding prairie would provide browse for the livestock and a small lake, just to the east, would be a convenient place to water the stock.  My family believes that the Davis-Meeker oak, the largest in the area, is the one they camped under."

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

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.

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.