Judge Orders San Antonio to Allow Native American Church to Worship in Park

A U.S. District Judge has mandated the city to provide members of a Native American church access to a restricted section in Brackenridge Park for religious rites. However, measures to deter birds can persist.

U.S. District Judge Fred Biery made this decision in reaction to a lawsuit petition, focusing exclusively on these two matters due to the limited time highlighted in a recent four-day hearing.

The interim directive requires the city to promptly address a hazardous, hanging tree branch in the designated area and to put up a gate. This gate will be locked, opening only for two scheduled ceremonies, one in November and the other in December.

Judge Biery indicated that a more comprehensive judgement concerning the preliminary injunction sought by the lawsuit will be delivered in the future.

The two indigenous church members who filed the lawsuit said that the city’s proposed tree reductions and bird management at the popular park’s north end would unconstitutionally bar them from accessing a sacred area along Lambert Beach, a bend in the San Antonio River.

Both sides’ attorneys expressed satisfaction with the judge’s decision on Monday, but John Greil, who is representing the two plaintiffs, expressed disappointment that it did not prevent the city from attempting to scare away birds because “the presence and nesting of cormorants in that area is essential to our clients’ ability to perform their sacred ceremonies.” According to City Attorney Andy Segovia, the city will abide by the ruling.

A week after the City Council sanctioned a $3.5 million construction contract with a 6-4 vote for the initial phase of a project funded by bonds, which voters greenlit in 2017, a lawsuit was initiated. This project aimed to mend deteriorating river walls from the 1920s and fortify the base of a pump house from the 1870s, with construction set to kick off shortly.

The individuals bringing forth the lawsuit are Gary Perez and Matilde Torres, residents of San Antonio. Both are members of the Lipan-Apache Native American Church and the Pakahua/Coahuiltecan Peoples of Mexico and Texas.

This lawsuit represents the most recent opposition to the proposed tree removals associated with the project. Amid ongoing disputes, the city has revised its plans. The updated blueprint mandates the removal of 40 indigenous trees, of which six possess trunk widths surpassing 24 inches. Additionally, about 20 trees are to be relocated, with new saplings being planted.

The project location has been closed off since early 2022 due to safety concerns. The plaintiffs urged the judge to stop “excessive” tree reductions, stop bird deterrence, and allow access for Native American worship to be resumed there.

The case juxtaposes the constitutional rights of religious practice against the government’s imperative to safeguard public health and safety, as stated in Judge Biery’s initial order.

The area in question measures approximately 20 feet by 30 feet, nestled between two bald cypress trees. The city has raised concerns about one specific tree, labeled as tree number 129, due to a significantly damaged branch. However, based on evidence and testimonies presented during the recent hearing, the judge pointed out that this branch could be swiftly removed. A city official mentioned that they had deferred any action until the court weighed in. Additionally, in accordance with the Migratory Bird Treaty Act and to maintain the site’s hygiene due to potential bird droppings, the city aims to persist with bird deterrent measures.

Judge Biery determined that the plaintiffs hold genuine religious convictions and have the right to access the site on Nov. 17 and Dec. 21.

Heeding the judge’s directives, the city is obligated to promptly eliminate the damaged branch from the tree and set up a gate. This gate should remain locked, unlocking solely when the plaintiffs require entrance on the specified dates.

“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 predicted that due to the high level of publicity surrounding the case, the ceremony will be interrupted by news coverage, and public interest in the religious freedom matter.