(CN) — A bend in the San Antonio River, now laden with concrete within the city’s Brackenridge Park, has been sacred for the Lipan Apache since time immemorial.
They call it Yanaguana — Spirit Waters — and gather there on certain dates, including winter solstice, in accord with the location of the river-shaped constellation Eridanus. Beneath the constellation, members of the Lipan-Apache “Hoosh Chetzel” Native American Church crowd into the 20-by-30-foot sacred area for spiritual ceremonies.
The trees on the opposite side of the river are important for the band of Apache Indians because cormorants nest in them.
Standing at the water’s edge, they look down at their reflections, and those of cormorants nesting above, believing it links them to lower, middle and upper worlds, and when the cormorants take flight their prayers are carried to heaven.
San Antonians Gary Perez and Matilde Torres, two of the church's ceremonial leaders, sued the city in August, six months after it put up fencing around a two-acre area of the park, blocking Lipan Apache from accessing the sacred site.
San Antonio officials maintain the fencing is needed to keep people out of a construction zone — the city plans to repair riverside retaining walls in the park, one restoration project among many funded by an $850 million bond the city’s voters approved in 2017.
The city also erected the fencing for bird deterrence. In addition to cormorants, herons and egrets nest in the area and the birds’ droppings have rendered playground equipment and picnic areas unusable for 10 months of the year, according to the city. Tests have also found high levels of E. coli in the river from the excrement.
By using the fencing to facilitate harassment of these migratory birds — deploying lasers, spotlights, pyrotechnics and sound machines — the city says it has stopped them from nesting in large numbers in the area for the past two years.
Torres and Perez claim the city violated their rights under the First Amendment’s free exercise clause, the Texas Religious Freedom and Restoration Act and the Texas Constitution by barring them from the site.
In addition, they argue the city has opted for a cantilever system to repair the walls on the river’s north bank that will require digging a 10-foot-wide trench and the removal of all but 14 of 83 trees in which cormorants nest for part of the year, when an alternative method would necessitate the removal of only 10 trees.
U.S. District Judge Fred Biery, a Bill Clinton appointee, staked out a middle ground in two rulings on the plaintiffs’ motion for injunctive relief he issued in October.
He found the “plaintiffs have a sincere religious belief and are entitled to be present at the site,” ordering the city to give them access to it for ceremonies on specific “astronomical dates.” But he barred access by individual church members.
He opted not to stop the city’s tree removal and nesting-disruption measures.
The plaintiffs appealed to the Fifth Circuit and a panel of the New Orleans-based appellate court temporarily stayed Biery’s order. Another Fifth Circuit panel heard arguments Thursday.
Jane Webre, an attorney with the Austin firm Scott Douglass & McConnico representing San Antonio, argued the plaintiffs’ access claims are moot because the city has moved the fencing to let them and other Lipan Apache get to the hallowed site.
But John Greil, the plaintiffs’ counsel, countered that the issue is still in play since the city has said it will close the sacred area again if any hazards there pose a danger to the public.
“This case is about the unnecessary destruction of a religious practice,” Greil said.
He asserted Supreme Court precedent requires the city to accomplish its goals of removing trees, stabilizing retaining walls and deterring birds in ways that are least restrictive to plaintiffs’ religious practice — a standard of review known as “strict scrutiny” which courts employ for government actions that burden fundamental rights such as exercise of religion.
According to Greil, a professor at the University of Texas Law School’s Law and Religion Clinic, the city’s project manager said he did not consider an alternative wall reinforcement approach supported by the plaintiffs because doing so “would take time and money” and “we would like to proceed with the project.”
But Webre said San Antonio had considered the alternative approach. In March it even had a group of arborists, engineers and city managers visit the northern bank.
“The specific purpose was, can we save more trees? They toured the site, and they measured, and they walked the walls, and at the end of all that they determined, you know, we can’t save any more trees,” she explained.
U.S. Circuit Judge Stephen Higginson questioned if the city had just decided it was impractical, instead of impossible, to save more trees. “Because my concern is impracticality probably doesn’t suffice under strict scrutiny,” the Barack Obama appointee said.
Webre insisted the evidence shows no more trees would be saved from the plaintiffs’ preferred method.
Greil, however, contended the city dismissed the alternative approach based on its mistaken belief that Interior Department regulations of historically significant structures — Brackenridge Park is in the National Register of Historic Places — would prevent it from drilling into the front of the walls.
He claims drilling through front of the walls would allow the city to attach a rebar structure to stabilize them, and avoid digging a big trench behind them that would necessitate chopping down numerous trees.
Toward the end of the hourlong hearing, U.S. Circuit Judge Carl Stewart, a Bill Clinton appointee, asked Greil if the case has boiled down to a dispute about whether the retaining walls should be reinforced.
“No,” Greil replied. “My clients do not object to rebuilding the walls.” Though the wall project area will be across the river from the sacred site, he said the project zone is where the church members' “spiritual ecology is relevant” as the trees above it are where cormorants nest.
“So my clients are being reasonable,” Greil concluded. “They are saying we understand some trees have to be removed. But the difference between removing 10 and removing all but 14 is that the cormorants will still have a nesting canopy under an alternative. And they will not under the city’s proposal.”
Chief U.S. Circuit Judge Priscilla Richman, a George W. Bush appointee, rounded out the panel. The judges gave no timeline for a ruling.
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