Judge gives mixed ruling on park dispute
A federal judge has ordered the city to grant access to a fenced-off area in Brackenridge Park for members of a Native American church to conduct religious ceremonies, but allowed bird-deterrent activities to continue.
In a response to a lawsuit request, U.S. District Judge Fred Biery issued a ruling limited to those two issues because of time constraints expressed during a four-day hearing last week.
The partial order instructs the city to immediately remove a dangling, broken limb on one of the trees in the affected area and to install a gate that will remain locked except for at least two ceremonies, one in November and the other in December.
Biery wrote that he will later issue a “more thorough and detailed analysis, opinion and order” in response to the lawsuit’s request for a preliminary injunction.
The suit, brought by two members of the indigenous church, said the city’s planned tree removals and bird management in the popular park’s north end would unconstitutionally deny them access to a sacred area along a bend in the San Antonio River called Lambert Beach.
Lawyers for both sides said Monday they were pleased with the judge’s ruling, though John Greil, representing the two plaintiffs, said he was disappointed that it didn’t stop the city’s efforts to scare birds away because “the presence and nesting of cormorants in that area is essential to our clients’ ability to perform their sacred ceremonies.” City Attorney
Andy Segovia said the city would comply with the order.
The suit was filed a week after the City Council, in a 6-4 vote, approved a $3.5 million construction contract for the first phase of a bond-funded project that voters approved in 2017. Work to repair crumbling 1920s-era river walls and stabilize the foundation of an 1870s pump house was set to begin soon.
The plaintiffs are Gary Perez and Matilde Torres, San Antonians and members of the Lipanapache Native American Church and the Pakahua/coahuiltecan Peoples of Mexico and Texas.
It was the latest expression of
opposition to the tree removals the project entailed, which the city reduced in the face of ongoing controversy. The plan now calls for crews to take out 40 native trees, six of them with trunk diameters exceeding 24 inches, relocate nearly 20 others and plant new saplings.
The plaintiffs asked the judge to prevent “excessive” tree removals and bird deterrence and restore access for Native American worship in the project area, which has been fenced off since early 2022 out of safety concerns.
The case involves competing interests of constitutionally protected religious exercise and the
compelling government interest to protect public health and safety, Biery wrote in his preliminary order.
The site is about 20 feet by 30 feet, between two bald cypress trees. The city contends that one of the trees, known as tree number 129, poses a danger because of a large broken limb. The judge noted that evidence and testimony at last week’s hearing showed the limb can be quickly removed. A city employee had said the city had decided not to proceed until the court had considered it.
The city also wants to continue bird deterrent operations to comply with the Migratory Bird Treaty
Act and to prevent large amounts of bird feces that would make the area unhealthy for humans.
The judge found that the plaintiffs have a sincere religious belief and are entitled to be present at the site on Nov. 17 and Dec. 21.
To comply with the order, the judge said the city must immediately remove the broken tree limb and install a gate on the fence, which may remain locked except during the dates and times the plaintiffs need access.
“As the construction time approaches, the city shall explore whether the sacred site can be separately fenced off with fencing from the street on the exterior side of the trunks of the two trees to the riverbank, and if not, (explain) why not,” Biery wrote.
“With regard to bird deterrence, the court finds a serious public health risk exists, which surpasses plaintiffs’ desire to have the double-crested cormorant present for their dropped feathers which no doubt plaintiffs already have or can be found in other locations. Accordingly, the city may resume bird deterrent operations, except for the dates on which plaintiffs’ religious ceremonies occur.”
The judge also noted that the ceremony may not be as quiet as normal.
“Because of the publicity this matter has engendered, the court predicts plaintiffs’ time in the sacred area will be disruptively accompanied by television camera crews, other members of the press and the general public who are also protected by the First Amendment of our Bill of Rights. Plaintiffs’ religious experience may not be as satisfactory as hoped for.”