For Immediate Release June 2, 2024
Fight to Save Historic Oak Tree Moves to State Appeals Court
A citizen’s group on Friday 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.
At issue is the fate of the named Davis Meeker Garry Oak and the wildlife it supports, including a nesting pair of migratory kestrels.
With the dismissal of the temporary restraining order, the city can begin to cut the tree down on or after Wednesday, June 5 at 5 p.m. The emergency appeal to the state appeals court aims to reinstate protection.
“I don’t want to erase history,” said Michelle Peterson, a lifelong Olympia-Tumwater resident. “This tree is viable and I don’t understand why the city is in such a hurry to get rid of it.”
“I was astonished by Judge Egeler’s ruling. I do not think she fairly considered all arguments and I have faith that the court of appeals will do so,” added Peterson, a member of Save the Davis Meeker Garry Oak organization.
A string of court orders began on May 24 after Tumwater Mayor Debbie Sullivan overrode the city’s Historic Preservation Commission’s refusal to remove the tree from its historic register. Removal was necessary to cut the tree because of its historic designation. Sullivan instead made an administrative decision to destroy the Garry oak, a state-protected species. The city council chose not to override the mayor.
A temporary order restraining the mayor’s action was issued on May 24 by Judge Sharonda Amamilo of Thurston County Superior Court to SDMGO.
A court order dissolving the TRO was issued May 31 by Judge Anne Egeler of Thurston County Superior Court.
The same day, the emergency appeal to the appellate court was filed by SDMGO attorney Ronda Larson Kramer.
Indigenous people for millennia used the old Cowlitz Trail along which the tree is located. Later settlers traveled the route as a branch of the Oregon Trail; the tree became a landmark for them. Eventually, it was named for pioneer settler Ezra Meeker, and later still, after environmentalist Jack Davis, who spearheaded a movement to preserve the tree from highway encroachment in 1984.
The tree was also known at one time as the hanging tree, according to a court declaration submitted by an elder of the Cowlitz Indian Tribe, as it had been used by white vigilante groups to hang Native Americans.
“Judge Egeler’s decision is procedurally and substantively flawed,” said Larson Kramer. “She failed to acknowledge the rights of the tribes to be sufficiently notified of such a drastic action. She ignored a letter placed in the record from the state archaeologist stating that a permit from them would be required to cut the tree. She relied on an out-of-date report on the tree’s health and she dismissed the requirements of the Migratory Bird Treaty Act, relying on a version of that Act that expired three years ago when President Biden eliminated a Trump-era change.”
“The Davis Meeker Garry Oak, with its history, its immense ecological value, and the wildlife living in it deserves a full and fair hearing under the law,” said Larson Kramer.
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 she expects the appellate court to rule before the timeline on the tree’s protection expires at 5 p.m. on Wednesday, June 5.
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