An environmental group suing Tumwater Mayor Debbie Sullivan for her decision to remove the historic Davis-Meeker Garry Oak is requesting the court extend its temporary restraining order (TRO) against the tree’s removal until July 30.
The group asks for the extension due to the sighting of a mating pair of American kestrels in the tree (see video, below). The female in the pair is also white, which is an uncommon genetic variation, according to the group.
Since the TRO was issued on May 24, Sullivan has requested Thurston County Superior Court to dissolve the order. The plaintiff group, called the Save the Davis-Meeker Garry Oak, held its position in response to Sullivan’s request and reasoned that the TRO’s extension would allow time for the pair’s chicks to fledge.
The group is specifically asking for an extension until the end of July as the nesting cycle of kestrels lasts two months, according to a statement by the group.
The TRO currently has no deadline as it is worded in a way that Tumwater needs to stop its plans until a further court order is issued. The city’s attorneys for the case argued that Washington court rules state that the terms of a TRO expire after 14 days.
Though neither listed in the federal nor state government’s list of endangered species, the American kestrel is listed under birds protected by the Migratory Bird Treaty Act (MBTA).
The plaintiff group held that if the removal of the Davis-Meeker oak prevails, Sullivan would violate the law that prohibits the “taking” of protected migratory bird species without the authorization of the U.S. Fish and Wildlife Service.
The killing, capturing, selling, trading, and transporting of listed birds and their nests and eggs are considered as forms of taking. The plaintiff groups argued in their complaint that direct and indirect acts that lead to these actions, such as cutting a tree that serves as habitat for a protected bird, may also be considered “taking.”
In a reply filed to the court yesterday, the city’s attorneys argued that habitat destruction does not constitute “taking” in the context of MBTA, unlike how it is interpreted for the Endangered Species Act.
In a sworn statement to the Superior Court, Tumwater resident Michelle Peterson stated that she first saw the pair of kestrels nesting in the tree’s cavity on May 25. Videos of the birds have been uploaded on the plaintiff group’s website.
Peterson, who has an environmental science degree from Western Washington University, stated that she identifies birds by shape, color, and flight pattern and through an app called Merlin Bird ID which identifies birds by sound.
In another sworn statement, raptor biologist Steve Layman from Whidbey Island held that the female kestrel appears to be sitting on eggs. The biologist revealed this due to Peterson’s observation that the female bird stayed in the tree cavity for 45 minutes before emerging.
Layman also noted that the female kestrel’s white coloring is a mark of leucism, which causes animals to partially lose different types of pigmentation.
The condition differs from albinism which only hinders the production of a specific pigment called melanin. Another differentiation is that leucism does not affect the pigments in an animal’s eye.
Layman noted that is not easy for birds with leucism to reach adulthood, explaining that having light colors is a liability in the wild as leucistic birds cannot easily blend with their environment.
The biologist also held that the female kestrel is likely more than a year old but noted that it takes a few years before kestrels reach sexual maturity. Layman stated that female kestrels may be capable of reproducing at a younger age if it is well-fed by a male kestrel.
During the Tumwater City Council meeting on Tuesday, May 28, City Administrator Lisa Parks said that the city staff has no plans to bring the removal of the historic tree back to the city council for further discussion unless they have to talk about the ongoing legal proceedings.
Parks added that they intend to follow with their plans to reach out to the community for their input on how to commemorate the tree when the time is appropriate. A joint meeting between the Historic Preservation Commission, the Tree Board, and the Parks and Recreation Commission was planned for May 30 but has since been postponed due to the TRO.
“There isn't a current plan right now to have anything any other meeting or conversation about the tree outside of the legal process… nor outside of the community outreach process that we currently are anticipating moving forward with after the legal proceedings are resolved,” Parks said.
“If something changes with regard to the legal proceedings, I can't answer what would happen in that case. We would deal with that when it came up,” she added.
Parks mentioned they will update the council either through an executive session or in some other manner as recommended by the city attorney.
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JulesJames
Baby birds learning to fly over a busy road. A tree hollowed out enough for a bird’s nest over a busy road. Not convincing arguments for postponing turning this tree into cherished trivets.
Thursday, May 30 Report this
RondaLarsonKramer
@JulesJames Tree cavities are rare in young trees. Oaks have amazing abilities to create tree cavities and then live hundreds more years. Birds that are cavity nesters are adapted to use such trees. Birds of all sorts will nest over a busy road if they require a specific type of tree structure to nest and such type is hard to come by but happens to exist next to a busy road. Oaks with cavities are hard to come by, which is why it is not surprising to find cavity nesting species in the 400-year-old Davis Meeker oak. The benefits outweigh the downsides, in the view of the birds who choose this tree.
Friday, May 31 Report this
GinnyAnn
I minored in Environmental Science when I attained my Masters at UWT. I know that this bird has overcome her difficult coloring to survive in this hostile world in order to brood chicks. She and her mate have found a safe home in the cavity of the Meeker Oak, which would not have a cavity at all if it were a young tree. Birds are able to fly over a roadway, as everyone knows who isn't an infant, Why are so many people so eager and in a hurry to destroy the lives of these birds and this tree? There are countless other little critters who depend on this tree for survival as well. The tree and the birds are hurting no one and have no future threat to anyone or any property. The public has repeatedly and vehemently spoken against the exansion of the airport and removal of the Meeker Oak. As far as I can deduce from reading about the actions of Mayor Sullivan and City Administrator Parks, the removal of the oak would allow for commercial development. Are the moneyed few going to benefit by the destruction of these innocent lives and the anger of the public? Yes. Why?
Friday, May 31 Report this
TheGreatAnon
OFFS.
Friday, May 31 Report this
Yeti1981
This whole saga is just silly.
Friday, May 31 Report this
Boatyarddog
The last Two Commenters just really have nothing to say..
So, they just mutter Gibberish.
9nly to Show how uneducated and uncompassionate they are.
This NOT the first time.
GROW UP KIDS!
Saturday, June 1 Report this