For Immediate Release June 3, 2024
Court and background documents at https://www.davis-meeker-oak.org/ Media Resources
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:
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.
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.
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.
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.
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