Perez v. City of San Antonio
U.S. Court of Appeals for the Fifth Circuit
Perez v. City of San Antonio, 115 F.4th 422 (5th Cir. 2024)
Perez v. City of San Antonio
Opinion
Case: 23-50746 Document: 231-1 Page: 1 Date Filed: 08/28/2024
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
____________ Fifth Circuit
FILED
No. 23-50746 August 28, 2024
____________
Lyle W. Cayce
Clerk
Gary Perez; Matilde Torres,
Plaintiffs—Appellants,
versus
City of San Antonio,
Defendant—Appellee.
______________________________
Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:23-CV-977
______________________________
ON PETITION FOR PANEL REHEARING
Before Richman, Chief Judge, and Stewart and Higginson, Circuit
Judges.
Carl E. Stewart, Circuit Judge:
The original opinion in this case was filed on April 11, 2024. Perez v.
City of San Antonio, 98 F.4th 586 (5th Cir. 2024). There we held that “[b]y
way of their sparse briefing on the question, Appellants fail to establish a
likelihood of success on the merits of their claims under Article I, § 6-a of the
Texas Constitution.” Because Appellants did not adequately brief that issue,
and because their other arguments lacked merit, we affirmed the district
court’s judgment and denied Appellants’ Emergency Motion for Injunction
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Pending Appeal. Appellants then submitted a petition for panel rehearing and
a petition for rehearing en banc, which are now pending before the court. In
their petitions, Appellants requested, in the alternative, that we certify a
question to the Supreme Court of Texas on grounds that the scope of Article
I, § 6-a of the Texas Constitution is a significant issue of first impression.
For the following reasons we GRANT the petition for panel
rehearing, we WITHDRAW our original opinion, and we issue the
following order certifying a question to the Supreme Court of Texas.
I. Factual and Procedural History
Gary Perez and Matilde Torres (together “Appellants”) brought
action against the City of San Antonio (the “City”) alleging that the City’s
development plan for Brackenridge Park (the “Park”) prevented them from
performing ceremonies essential to their religious practice. Appellants sued
the City under the First Amendment Free Exercise Clause, the Texas
Religious Freedom Restoration Act (“TRFRA”), and the Texas
Constitution and sought declaratory and injunctive relief to require the City
to (1) grant them access to the area for religious worship, (2) minimize tree
removal, and (3) allow cormorants to nest. Following a preliminary
injunction hearing, the district court ordered the City to allow Appellants
access to the area for religious ceremonies but declined to enjoin the City’s
planned tree removal and rookery management measures.
A. The Lipan-Apache Native American Church
Appellants are members of the Lipan-Apache Native American
Church (“Native American Church”). Perez serves as the principal chief
and cultural preservation officer for the Pakahua/Coahuiltecan Peoples of
Mexico and Texas and for the Indigenous Governors’ office for the State of
Coahuila, Mexico. Torres is a member of the Pakahua Peoples of Mexico and
Texas. Perez has worshipped and led religious ceremonies in the Park for at
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least twenty-five years. Torres has worshipped and participated in religious
ceremonies in the Park for at least ten years.
The district court determined that Appellants’ religious beliefs are
sincerely held. According to their complaint, Appellants believe that life in
the region of San Antonio began at a spring called the Blue Hole. Specifically,
a spirit in the form of a blue panther lived in the Blue Hole. And when a spirit
in the form of a cormorant visited the Blue Hole, the blue panther scared the
bird. As the bird fled, water droplets from its tail scattered across the San
Antonio River Valley, including the Park, spurring life in the region. The San
Antonio River flows through the northern portion of the Park. Appellants
also believe that a riverbend, located within the Lambert Beach area of the
Park, mirrors the celestial constellation Eridanus and bridges the physical and
spiritual worlds. Appellants require certain religious ceremonies to be
performed only at this riverbend located within the Lambert Beach area.
Moreover, they proclaim that this space’s capacity to function as a holy place
relies on the presence of trees, birds, and other natural features, which are all
part of its “spiritual ecology.” Appellants also proclaim that certain religious
ceremonies cannot be properly administered without specific trees present
and cormorants nesting.
B. Brackenridge Park, the Sacred Area and Project Area, and the Bond Project
The Park is a public park in the City, consisting of approximately 343
acres. The Park contains various features and attractions including paths,
sports fields, the San Antonio Zoo, the Japanese Tea Garden, the Sunken
Garden Theater, and the Witte Natural History Museum. The Park has also
been inhabited and utilized by indigenous peoples for thousands of years.
Appellants and other members of the Native American Church believe that
a specific area within the Lambert Beach section of the Park is a sacred
location where they must gather to worship and conduct religious
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ceremonies. This area is also the site of the City’s planned reformation
efforts, which include repairing retaining walls along the San Antonio River.
In this litigation, Appellants refer to this area as the “Sacred Area” and the
City refers to it as the “Project Area.” Appellants define the Sacred Area as
the twenty-foot by thirty-foot area between two cypress trees on the southern
riverbank of the Lambert Beach area. Within the Project Area, the City
developed plans to repair the retaining walls along the San Antonio River,
repair the historic Pump House, and construct a handicap-accessible ramp.
In May 2016, San Antonio citizens voted in favor of a $850 million
bond package for public improvements. Proposition 3 of the bond package—
dedicated to improvements related to parks, recreation, and open spaces—
included $7,750,000 for improvements to the Park. The improvements
planned for the Park, which are the subject of this suit, are collectively
referred to as the “Bond Project.” To design the Bond Project and determine
the repair methodology to be utilized, the City commissioned the bond
project design team, a team of various professionals, including architects,
engineers, and historic preservation officials. The bond project design team
recommended utilizing a cantilevered wall system to repair the retaining
walls. To arrive at this recommendation, the team considered multiple
factors including, but not limited to, tree density and location, topography,
existing retaining wall stability and height, equipment accessibility,
construction feasibility, legal compliance, and regulatory compliance. The
City also determined that certain trees in the Project Area would (1) interfere
with the construction, (2) be irreparably damaged by the construction, or (3)
damage the repaired retaining walls and historical structures in the future.
Thus, the City developed plans to (1) completely remove 46–48 trees, (2)
relocate 20–21 trees to other areas of the Park, (3) preserve about 16 trees in
place, and (4) plant at least 22 new trees in the Project Area. The City held
public meetings to receive community input regarding repairs of the original
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walls. Appellants, and other citizens, expressed concern with the removal
and relocation of trees in the Project Area and a desire for the City to consider
alternative plans that would preserve more trees in place.
Additionally, the City’s plan for the Bond Project includes bird
deterrent techniques1 intended to deter migratory birds from nesting in the
Lambert Beach area. Pursuant to the Migratory Bird Treaty Act,2 the
removal or relocation of trees planned for the Project Area cannot proceed if
migratory birds, including cormorants, are nesting in the area. The City
contracted with the U.S. Department of Agriculture (“USDA”) and
coordinated with the Texas Parks and Wildlife Department (“TPWD”) and
the U.S. Fish and Wildlife Service (“UFWS”) to modify bird habitats and
deter birds from nesting in highly urbanized areas of the Park, including the
Project Area.
To complete the Bond Project, the City must comply with local, state,
and federal regulations. Locally, with the San Antonio Development Services
Department, the City applied for and received a variance from a City Unified
Development Code (“UDC”) provision that requires 80% significant tree
preservation and 100% heritage tree preservation for projects within the 100-
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1
The litigants and the district court use “rookery management,” “anti-nesting”
measures, and “bird deterrence” activities interchangeably. The rookery management
program is the product of extensive consultation and engagement with technical advisors
and wildlife management experts. To assist with the City’s bird deterrence efforts, the
Texas Parks and Wildlife Department (“TPWD”) recommended habitat modifications (by
removing old nests and dead wood to open the tree canopy) and other deterrent techniques
to encourage the birds to relocate from the undesired location or to prevent establishment
in the first place. Those techniques include pyrotechnics, clappers, spotlights, lasers,
distress calls, effigies, balloons, explosives, and drones. Notably, these measures “do not
harm the birds or keep them from reproducing.” Moreover, these techniques are legal and
in accordance with U.S. Fish and Wildlife Service (“UFWS”) guidelines, as well as TPWD
Code.
2
16 U.S.C. § 703 et seq.
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year floodplain. Moreover, state and federal regulations govern the
preservation of the Lambert Beach retaining walls. As historic structures, the
retaining walls contribute to the Park’s designation as a City Historic
Landmark and as a State Antiquities Landmark and its placement on the
National Register of Historic Places. Because of this historic designation,
construction is regulated by the Texas Historical Commission and the United
States Army Corps of Engineers (“USACE”). The City must submit a final
treatment plan and obtain a permit from USACE before repairing the
retaining walls or removing or relocating trees within the Lambert Beach
area. Once USACE approves the final treatment plan, a thirty-day comment
period will begin to solicit feedback from stakeholders, including local
indigenous tribes. Lastly, the Secretary of the Interior’s Design guidelines,
the Americans with Disabilities Act, and Occupational Safety and Health
Administration regulations are all applicable to the bond project
improvements.
From roughly February 2023 to November 2023, the City temporarily
prevented Appellants, Native American Church members, and peyote
pilgrims from entering the Lambert Beach area. Appellants filed the instant
suit on August 9, 2023, alleging that the City’s bird deterrence activities,
temporary closure of the Project Area, and proposed removal or relocation of
trees in the Project Area place a substantial burden on their religious beliefs
in violation of the First Amendment of the U.S. Constitution, the Texas
Constitution, and TRFRA. They sought a preliminary injunction, which
itemized the relief requested as (1) access to the Sacred Area for religious
services, (2) preservation of the spiritual ecology of the Sacred Area by
minimizing tree removal, and (3) preservation of the spiritual ecology of the
Sacred Area by allowing cormorants to nest. As to the preservation of the
spiritual ecology, Appellants requested that the district court order the City
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to “reevaluate the Bond Project to develop alternative plans that will
accommodate [their] religious beliefs.”
C. The District Court’s Decision
After holding a four-day preliminary injunction hearing, the district
court adopted the parties’ stipulated facts3 and determined that the City’s
plans did not burden Appellants’ free exercise of religion. The district court
concluded that Appellants held a sincere religious belief and had met their
burden to prove the four elements for injunctive relief as to “access for
religious services in the Sacred Area.” It thus granted access for religious
services involving fifteen to twenty people for approximately an hour on
specified astronomical dates coinciding with Appellants’ spiritual beliefs. 4
The district court also ordered the City to immediately remove the broken
limb that the City maintained “pose[d] a risk of injury or death” in the
Project Area. As to their request for “access for individual worship,” the
district court held that Appellants had waived this request but also noted that
the balance of equities supported the conclusion that unplanned,
unsupervised individual access was impractical. Following expert testimony,
the district court concluded that the bird deterrent operation was in the realm
_____________________
3
To the extent any of the findings of fact constituted conclusions of law, the district
court adopted and treated them as such.
4
Torres testified at the injunction hearing that the average number of congregants
participating in religious ceremonies or worship services has been between fifteen and
twenty since 2020.
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of public health and safety.5 It also determined that the City had met its
burden of proving “a compelling government interest for public health and
safety, and the [balance of] equities favor[ed] the City on” Appellants’
requested relief regarding minimizing tree removal and allowing cormorants
to nest.
D. Appellants’ Emergency Motion for Injunction Pending Appeal
After the district court denied Appellants access for individual
worship and declined to enjoin the City’s planned tree removal and rookery
management measures, Appellants filed with this court an Emergency
Motion for Injunction Pending Appeal and to Expediate the Appeal (the
“Emergency Motion”). In their Emergency Motion, Appellants contended
that they satisfied the “irreparable harm” and “success on the merits”
elements of a claim for an injunction because they had sufficiently proven a
TRFRA violation and federal and Texas constitutional violations. See
Atchafalaya Basinkeeper v. U.S. Army Corps of Eng’rs, 894 F.3d 692, 696 (5th
Cir. 2018) (citation omitted). Appellants further argued that they satisfied
the remaining requirements for obtaining an injunction pending appeal. The
City opposed the motion.
We granted Appellants’ motion to expedite the appeal and held oral
argument in December 2023. We also issued a temporary administrative stay
and ordered that Appellants’ opposed motion for injunction pending appeal
_____________________
5
Expert opinion from Dr. J. Hunter Reed, a state wildlife veterinarian and health
specialist, expressed significant public health concerns for citizens enjoying the Park. He
warned that “[w]hen large rookeries are established in the immediate vicinity of
playgrounds, infrastructure, and recreational hardscapes, the risk of zoonotic disease
transmission . . . increases substantially.” He continued that “[t]he sheer magnitude of
fecal contamination, high likelihood of human contact with fecal matter, and limited ability
to perform effective environmental decontamination make rookery management action
paramount to disease risk mitigation.”
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be carried with the case on October 27, 2023. On February 21, 2024, at the
City’s request, we lifted the temporary administrative stay in part to allow
the rookery bird deterrent management activities to proceed for the
immediate next months until migratory cormorants arrived.
II. DISCUSSION
Appellants have raised four claims for relief—(1) a TRFRA claim, (2)
a First Amendment Free Exercise claim, (3) a claim under the freedom-to-
worship provision of the Texas Constitution, and (4) a claim under the
religious-service-protections provision of the Texas Constitution. Appellants
argue that they are likely to succeed on the merits of each claim because the
City previously barred them from worshipping in the Sacred Area, seeks to
permanently prevent them from performing religious services by destroying
the area’s spiritual ecology, and has never attempted to accommodate their
religious exercise. Those arguments, and each of Appellants’ claims for
relief, were addressed in the original panel opinion filed in this case. We
pretermit further consideration of those claims pending resolution of the
Texas constitutional issue we now certify.
Appellants assert that the City’s plan violates the religious-service-
protections provision of the Texas Constitution, which provides that the
state of Texas and its political subdivisions:
may not enact, adopt, or issue a statute, order, proclamation,
decision, or rule that prohibits or limits religious services,
including religious services conducted in churches,
congregations, and places of worship . . . by a religious
organization established to support and serve the propagation
of a sincerely held religious belief.
Tex. Const. art. I, § 6-a.
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Appellants contend that the City’s planned changes to the Sacred
Area amount to a limitation of their religious services, while the City argues
that those changes aim to promote safety and public health. Appellants
further argue that § 6-a “does not even allow the City to try to satisfy strict
scrutiny; it is a categorical bar on what the City seeks to do.”
Notwithstanding the City’s interest in the park project, Appellants aver that
the City’s tree-removal and rookery management measures independently6
violate § 6-a because they would “prohibit and limit [Appellants’] future
religious services by irreparably destroying the very aspects of the Sacred
Area that make it a living place of worship for [Appellants].”
Whether § 6-a imposes a complete bar on all restrictions to religious
services or invokes a strict scrutiny inquiry is a determination best left to the
Supreme Court of Texas.7 To ascertain Texas law, this court looks first to the
final decisions of the Supreme Court of Texas. See In re Katrina Canal
Breaches Litig., 495 F.3d 191, 206 (5th Cir. 2007). Where there is no definite
pronouncement from the Supreme Court of Texas on an issue, we may
choose to certify a question to that court.8 Neither party has cited any cases
interpreting this constitutional provision, nor has this court found any. This
potentially outcome determinative issue raises novel and sensitive questions
about the scope of religious service protections under the Constitution of the
_____________________
6
In addition to their arguments that the City’s fencing violates §6-a by barring
access for religious services, Appellants contend that “the City’s tree-removal and anti-
nesting measures independently violate Section 6-a.”
7
See, e.g., Barr v. City of Sinton, 295 S.W.3d 287, 305 (Tex. 2009) (holding that
Texas citizens do not have “an absolute right to engage in [religious] conduct” because
“[t]he government may regulate such conduct in furtherance of a compelling interest”).
8
Under Texas law, “[t]he Supreme Court of Texas may answer questions of law
certified to it by any federal appellate court if the certifying court is presented with
determinative questions of Texas law having no controlling Supreme Court precedent.”
Tex.R.App. P. 58.1; see also Tex. Const. art. V, § 3–c(a).
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State of Texas. Thus, we conclude that certification of this issue to the
Supreme Court of Texas is appropriate.
III. QUESTION CERTIFIED
We CERTIFY the following question to the Supreme Court of Texas:
Does the “Religious Service Protections” provision of the
Constitution of the State of Texas—as expressed in Article 1,
Section 6-a—impose a categorical bar on any limitation of any
religious service, regardless of the sort of limitation and the
government’s interest in that limitation?
“We disclaim any intention or desire that the Supreme Court of Texas
confine its reply to the precise form or scope of the question certified.” See,
e.g., Janvey v. Golf Channel, Inc., 792 F.3d 539, 547 (5th Cir. 2015).
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