Perez v. City of San Antonio
U.S. Court of Appeals for the Fifth Circuit
Perez v. City of San Antonio, 98 F.4th 586 (5th Cir. 2024)
Perez v. City of San Antonio
Opinion
Case: 23-50746 Document: 209-1 Page: 1 Date Filed: 04/11/2024
United States Court of Appeals
for the Fifth Circuit
____________ United States Court of Appeals
Fifth Circuit
No. 23-50746
FILED
April 11, 2024
____________
Lyle W. Cayce
Gary Perez; Matilde Torres, Clerk
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
______________________________
Before Richman, Chief Judge, and Stewart and Higginson, Circuit
Judges.
Carl E. Stewart, Circuit Judge:
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
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No. 23-50746
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. The parties
appealed. We AFFIRM. Also before us is Appellants’ Emergency Motion
for Injunction Pending Appeal. Because we conclude that Appellants have
failed to show a likelihood of success on the merits, we DENY the Emergency
Motion.
I. Factual and Procedural History
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
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 their 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
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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
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
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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
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.
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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-
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
_____________________
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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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
to “reevaluate the Bond Project to develop alternative plans that will
accommodate [their] religious beliefs.”
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C. The District Court’s Decision
After holding a four-day preliminary injunction hearing, the district
court adopted the parties’ stipulated facts3 and found 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 found that the bird deterrent operation was in the realm of
public health and safety. 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 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
_____________________
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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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 have 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
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. STANDARD OF REVIEW
“We review a preliminary injunction for abuse of discretion,
reviewing findings of fact for clear error and conclusions of law de novo.” Tex.
All. for Retired Ams. v. Scott, 28 F.4th 669, 671(5th Cir. 2022) (citation omitted). To obtain the “extraordinary remedy” of a preliminary injunction, the movant must show he is likely to prevail on the merits and also “demonstrate a substantial threat of irreparable injury if the injunction is not granted; the threatened injury outweighs any harm that will result to the non- movant if the injunction is granted; and the injunction will not disserve the public interest.” Atchafalaya Basinkeeper v. U.S. Army Corps of Eng’rs,894 F.3d 692, 696
(5th Cir. 2018) (citation omitted).
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III. 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. Notably, Appellants argue that the City cannot show that
its tree-removal plan, rookery management measures, and fencing further a
compelling governmental interest and are the least restrictive means of
furthering that interest.
A. Access
The City contends that Appellants’ request for additional injunctive
relief to restore their access to the Sacred Area for routine personal worship
is moot. We agree. At the start of this suit, fencing prevented Appellants from
physically accessing the Sacred Area for religious exercise. But, immediately
following the injunction hearing, the district court held that Appellants were
entitled to access the Sacred Area for ceremonies on two specific astronomical
dates, November 17 and December 21, 2023, as prescribed by the hearing.5
To comply with the court order, the City was also ordered (1) to immediately
remove the hazardous broken limb posing risks to visitors of the Sacred Area
and (2) to ensure that the fencing was unlocked and accessible for Appellants
on the designated dates and any additional proposed dates of religious
_____________________
5
Torres testified at the hearing that November 17 and December 21, 2023 were the
forthcoming dates for which Appellants would need access for religious ceremonies.
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ceremonies. Even more, as of early November 2023, the City had removed
the fencing and broken limb ahead of Appellants’ scheduled ceremonies.
Thus, Appellants no longer have any personal interest in challenging
the City’s once fenced-off closure of the Project Area because the City has
since removed any fencing impeding their access. The mootness doctrine
requires that “litigants retain a personal interest in a dispute at its inception
and throughout the litigation.” Tex. Midstream Gas Servs., LLC v. City of
Grand Prairie, 608 F.3d 200, 204(5th Cir. 2010) (citation and internal quotation marks omitted). A claim is moot if it becomes “impossible for the court to grant any effectual relief whatever to a prevailing party.” Church of Scientology v. United States,506 U.S. 9, 12
(1992) (citation and internal quotation marks omitted); see Karaha Bodas Co., L.L.C. v. Perusahaan Pertambangan Minyak Dan Gas Bumi Negara,335 F.3d 357, 365
(5th Cir. 2003). When a claim becomes moot on appeal, as is the case here, the appeal must be dismissed. Church of Scientology,506 U.S. at 12
.
Still, Appellants urge this court to apply the voluntary cessation
exception to mootness. The Supreme Court has held that a party’s voluntary
cessation of an unlawful action will not moot an opponent’s challenge to that
practice. Already, LLC v. Nike, Inc., 568 U.S. 85, 91(2013) (“[A] defendant cannot automatically moot a case simply by ending its unlawful conduct once sued. Otherwise, a defendant could engage in unlawful conduct, stop when sued to have the case declared moot, then pick up where he left off, repeating this cycle until he achieves all his unlawful ends.” (internal citation omitted)). Regardless, an exception to the mootness doctrine declares that “[v]oluntary cessation of challenged conduct moots a case, however, only if it is ‘absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.’” Adarand Constructors, Inc. v. Slater,528 U.S. 216, 222
(2000) (per curiam) (quoting United States v. Concentrated Phosphate Export Ass’n,393 U.S. 199, 203
(1968)). “The ‘heavy burden of
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persua[ding]’ the court that the challenged conduct cannot reasonably be
expected to start up again lies with the party asserting mootness.” Friends of
the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189(2000) (quoting Concentrated Phosphate Export Ass’n,393 U.S. at 203
).
While this appeal was pending, the City removed the dangerous limb
that previously made the Sacred Area inaccessible. Moreover, the City
affirmed that it undertook several additional efforts “going beyond what the
district court ordered.” The City conceded that removing the limb allowed
it to reconfigure the construction fencing and it subsequently granted public
access to the entire area. Likewise, the City granted Appellants access to
conduct a religious ceremony at the Sacred Area from midnight to 4 a.m. on
November 18, 2023, during hours when the Park is normally closed.
Furthermore, on November 21, 2023, the City moved to dismiss its cross-
appeal in this action, deciding to no longer pursue the issue of access to the
Sacred Area. Based on these subsequent developments, “[i]t is therefore
clear that [the City officials] harbor no animosity toward [Appellants].” See
Preiser v. Newkirk, 422 U.S. 395, 402(1975). Appellants now have “no reasonable expectation that the wrong challenged by [them] would be repeated.” Seeid.
Thus, the voluntary cessation exception does not apply.
Hence, Appellants’ access claims are moot.
B. Tree-removal Plan and Rookery Management Measures
i. TRFRA
Turning to Appellants’ claims pertaining to the City’s tree-removal
plan and rookery management measures, “we begin by analyzing [their]
statutory claim under TRFRA, which, if successful, obviates the need to
discuss the constitutional questions.” Merced v. Kasson, 577 F.3d 578, 586(5th Cir. 2009); see, e.g., Nw. Austin Mun. Util. Dist. No. One v. Holder,557 U.S. 193, 205
(2009) (“It is a well-established principle governing the
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prudent exercise of this Court’s jurisdiction that normally the Court will not
decide a constitutional question if there is some other ground upon which to
dispose of the case.”). Appellants allege that the City prohibits and limits
their religious exercise by irreparably destroying the very aspects of the
Sacred Area that make it a living place of worship. For purposes of the Texas
Constitution, the Texas Supreme Court has not adopted Employment
Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872(1990) and its declaration that generally applicable and facially neutral laws are not subject to strict scrutiny with regard to free exercise claims. See Barr v. City of Sinton,295 S.W.3d 287, 296
(Tex. 2009) (“Smith’s construction of
the Free Exercise Clause does not preclude a state from requiring strict
scrutiny of infringements on religious freedom, either by statute or under the
state constitution, and many states have done just that, Texas among
them.”). Thus, the challenged government action is subject to strict scrutiny.
To succeed on their TRFRA claim, Appellants must demonstrate that
the City’s actions burden their free exercise of religion and that the burden is
substantial. If they manage that showing, the City can still prevail if it
establishes that its actions further a compelling governmental interest and
that the actions are the least restrictive means of furthering that interest.
Merced, 577 F.3d at 588(citing Barr,295 S.W.3d at 296
); see also Tex. Civ. Prac. & Rem. Code § 110.003(a)–(b); Barr,295 S.W.3d at 307
(“Although TRFRA places the burden of proving a substantial burden on the
claimant, it places the burden of proving a compelling state interest on the
government.”). Because the district court determined the existence of the
Appellants’ sincere religious beliefs and the City does not dispute this
finding, we first consider whether the City’s development plans substantially
burden their sincere religious practices.
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a. Substantial Burden
As a threshold matter, the parties dispute whether the district court
held that the City’s actions—specifically its tree removal and rookery
management measures—substantially burden Appellants religious exercise.
In their opening brief, Appellants address the substantial burden element
only by stating that “there is no serious dispute that the City’s current and
intended actions substantially burden Appellants’ religious exercise.” The
City argues that “[Appellants] do not even brief the issue of substantial
burden and instead focus solely on the secondary question of whether the
City’s actions are narrowly-tailored to advance a compelling governmental
interest.” We agree.
A party forfeits arguments by inadequately briefing them on appeal.
Rollins v. Home Depot USA, 8 F.4th 393, 397 n.1 (5th Cir. 2021); see also Fed. R. App. P. 28(a)(8)(A). “Adequate briefing requires a party to raise an issue in its opening brief.” Guillot ex rel. T.A.G. v. Russell,59 F.4th 743, 751
(5th Cir. 2023) (citing United States v. Bowen,818 F.3d 179
, 192 n.8 (5th Cir. 2016)). “To be adequate, a brief must address the district court’s analysis and explain how it erred.” SEC v. Hallam,42 F.4th 316
, 327 (5th Cir. 2022)
(citation and internal quotation marks omitted). Appellants maintain on
appeal that “the district court found . . . that the City’s current and intended
measures substantially burden [their] religious exercise.” But contrary to
Appellants’ contentions, the record shows that the district court denied their
relief as to rookery management and tree removal plans because the court had
determined that these measures did not substantially burden their religious
exercise. The district court determined that “[Appellants] have not shown
that the City’s bird deterrence program [or] the removal and relocation of
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trees in the Project Area . . . place a substantial burden on their religious
exercise.” 6
However, Appellants do not attempt in their briefing to rebut the
district court’s judgment that they failed to show that either the City’s bird
deterrence program or its removal and relocation of trees in the Project Area
placed a substantial burden on their religious exercise. Appellants have the
initial burden of establishing a substantial burden upon religion. See Barr, 295
S.W.3d at 307. Only if a substantial burden is proven does it become necessary to consider whether the City’s interests served are compelling or whether the City has adopted the least burdensome method of achieving its goals.Id.
Instead, Appellants maintain that the City expressly waived any
argument that its actions do not substantially burden Appellants’ religious
exercise.7 It is in their reply brief that Appellants attempt to address the
substantial burden element. There, they argue that they did not fail to brief
substantial burden arguments and contend that “[t]he destruction of the tree
canopy [where] cormorants need to nest—and the driving away of the
cormorants themselves—will end Appellants’ ability to conduct religious
services.” Since establishing a substantial burden is an essential element of
which Appellants bear the burden to prove, any purported waiver of
_____________________
6
The district court was clear in its determination as to access for worship as well.
It concluded that “[b]y fencing off the southern bank of the Lambert Beach Area, the City
has substantially burdened Appellants’ religious exercise by prohibiting their exercise at
risk of criminal and civil punishment for entering the area.”
7
The City maintains that it did not waive its arguments disputing that its
development plan substantially burdens Appellants’ religious practices. In its response in
opposition to Appellants’ emergency motion for injunction pending appeal, the City stated
that it “does not believe Appellants have demonstrated a substantial burden on their
religious exercise,” but it “believes it can accommodate the district court’s requirement to
provide Appellants” access to the Sacred Area. The City’s response goes on to state
expressly that “[t]he City does not, however, waive the ‘substantial burden’ issue for
trial.”
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arguments by the City is inconsequential. And because these arguments were
first mentioned in their reply brief, Appellants have forfeited this argument.
See Guillot, 59 F.4th at 754. Still, we opt to consider Appellants’ substantial burden arguments submitted in reply because we have discretion to consider a forfeited issue if “it is a purely legal matter and failure to consider the issue will result in a miscarriage of justice.” Rollins,8 F.4th at 398
(quoting Essinger v. Liberty Mut. Fire Ins. Co.,534 F.3d 450, 453
(5th Cir. 2008)).
Nevertheless, even if we were to consider their arguments, Appellants
did not sufficiently establish a substantial burden. Appellants emphasize that
if the City were permitted to proceed with its tree removal and rookery
management procedures, the measures would irreversibly destroy the Sacred
Area and their ability to practice their religion there.8 To bolster these
contentions, they cite caselaw analyzing governmental actions that involve
complete bans or prohibition of religious exercise. As is the case here,
“[w]hen a restriction is not completely prohibitive, Texas law still considers
it substantial if ‘alternatives for the religious exercise are severely
restricted.’” A.A. ex rel. Betenbaugh v. Needville Indep. Sch. Dist., 611 F.3d
248, 265(5th Cir. 2010) (quoting Barr,295 S.W.3d at 305
). This court has held that according to Barr’s prescriptions, “that means a burden imposing a less-than-complete ban is nonetheless substantial if it curtails religious conduct and impacts religious expression to a ‘significant’ and ‘real’ degree.” Needville,611 F.3d at 265
.
The City contends that “[w]hen analyzing whether a governmental
body’s activities on its own land impose a substantial burden on a plaintiff’s
_____________________
8
Notably, these proffered arguments are Appellants’ pleas as to the irreparable
harm factor of the preliminary injunction inquiry. Because these assertions are as close to
an argument in support of the substantial burden element of the strict scrutiny inquiry for
which the briefing offers, we consider them here.
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religious beliefs, courts agree that the activity does not impose a substantial
burden where it affects only the subjective religious experience of the
plaintiff.” The City argues “that a government’s use of its own land does not
substantially burden religious beliefs if the conduct is not coercive and
impacts the subjective religious experience only.” The City is correct to
pinpoint that the proposed construction is indeed occurring on its own land.
Still, Appellants are not merely alleging subjective religious experiences here.
Moreover, because we are analyzing Appellants’ claims under TFRA, not the
Religious Freedom Restoration Act (“RFRA”), the correct standard for
evaluating substantial burden is not “coercion” but whether the burden is
“real” and “significant.” Compare Navajo Nation v. U.S. Forest Serv., 535
F.3d 1058, 1063(9th Cir. 2008) (“Where, as here, there is no showing the government has coerced the Appellants to act contrary to their religious beliefs under the threat of sanctions, or conditioned a governmental benefit upon conduct that would violate the Appellants’ religious beliefs, there is no ‘substantial burden’ on the exercise of their religion.”) and Lyng v. N.W. Indian Cemetery Protective Ass’n,485 U.S. 439, 450
(1988) (“It is true that this Court has repeatedly held that indirect coercion or penalties on the free exercise of religion, not just outright prohibitions, are subject to scrutiny under the First Amendment.”), with Barr,295 S.W.3d at 301
(“Thus
defined, ‘substantial’ has two basic components: real vs. merely perceived,
and significant vs. trivial. These limitations leave a broad range of things
covered.”).
In analyzing Appellants’ contention that the destruction of the tree
canopies, where cormorants nest, and the driving away of the cormorants
themselves will burden their religions, we consider whether the presupposed
burden is real and significant. Under TRFRA, a burden is substantial if it is
“real vs. merely perceived, and significant vs. trivial”—two limitations that
“leave a broad range of things covered.” Barr, 295 S.W.3d at 301. The focus
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of the inquiry is on “the degree to which a person’s religious conduct is
curtailed and the resulting impact on his religious expression,” as “measured
. . . from the person’s perspective, not from the government’s.” Id.This inquiry is “case-by-case” and “fact-specific” and must consider “individual circumstances.” Merced,577 F.3d at 588
; Barr,295 S.W.3d at 302, 308
. “Federal case law interpreting RFRA and [the Religious Land Use And Institutionalized Persons Act (“RLUIPA”)] is relevant.” Merced,577 F.3d at 588
(citing Barr,295 S.W.3d at 296
).
First, the burden here is real. Unlike the Navajo Nation plaintiffs,
Appellants here argue that trees possessing religious significance will be
removed and cormorants of religious significance will be deterred from
nesting. As the Ninth Circuit posited, “the sole question [in Navajo Nation
was] whether a government action that affects only subjective spiritual
fulfillment substantially burdens the exercise of religion.” Navajo Nation, 535
F.3d at 1070n.12. The court explained that the project did not substantially burden the plaintiffs’ religious beliefs because the sole effect was on their subjective religious experience.Id. at 1063
. But, here, Appellants are arguing
that natural resources of religious significance will be destroyed or altered.
Nevertheless, the burden is not significant. The court in Needville
determined that the challenged exemptions placed a significant burden on the
plaintiff’s religious conduct because the burden was both indirect and direct.
Needville, 611 F.3d at 265. As the Needville court posited, “because the District’s exemptions directly regulate a part of [the plaintiff’s] body and not just a personal effect . . . the burden on [his] religious expression is arguably even more intrusive.”Id. at 266
. Here, the City’s development plan only
indirectly impacts Appellants’ religious conduct and expression. Appellants
continue to have virtually unlimited access to the Park for religious and
cultural purposes. Appellants’ reverence of the cormorants as sacred genesis
creatures from the Sacred Area is not implicated here because the City’s
17
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No. 23-50746
rookery management program does not directly dictate or regulate the
cormorants’ nesting habits, migration, or Park visitation. For example, the
record shows that, regardless of the rookery management program, no
cormorants, due to their migration patterns, inhabit the area for extended
periods of time each year.9 Moreover, the City’s rookery management
program does not substantially burden Appellants’ religious beliefs because
cormorants can still nest elsewhere in the 343-acre Park or nearby. The
deterrent activities are deployed only within the two-acre Project Area and
only to persuade the birds to nest elsewhere. 10
Equally, the Ninth Circuit’s analysis in Navajo Nation is persuasive
here as to the City’s development plan. The Ninth Circuit held that “a
government action that decreases the spirituality, the fervor, or the
satisfaction with which a believer practices his religion is not what [the
legislature] has labeled a ‘substantial burden’. . . on the free exercise of
religion.” Navajo Nation, 535 F.3d at 1063. The Ninth Circuit cautions that defining “substantial burden” otherwise would give “one religious sect a veto over the use of public park land” and “deprive others of the right to use what is, by definition, land that belongs to everyone.”Id.
at 1063–64. Thus, any, and all, government action, “including action on its own land, would be subject to the personalized oversight of millions of citizens” if each citizen could “hold an individual veto to prohibit the government action solely because it offends his religious beliefs, sensibilities, or tastes, or fails to satisfy his religious desires.”Id. at 1063
.
_____________________
9
See infra Section III.B.i.c (mentioning the double-crested cormorants’ typical
migration patterns to the City).
10
See infra Section III.B.i.b–c (discussing the goal of the City’s rookery
management program as dissuading the egret and heron rookeries not to nest in
“undesired” locations in favor of nesting in “more desirable” locations).
18
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No. 23-50746
We conclude that the City’s development plan for the Park does not
substantially burden Appellants’ religious exercise. In any event,
independent of the substantial burden inquiry, the development plan
advances a compelling interest through the least restrictive means. Because
Appellants maintain on appeal that the City “does not dispute that . . . the
tree-removal plan, and the anti-nesting measures all substantially burden
[their] religious exercise,” they immediately launch into their strict scrutiny
arguments condemning the City for never accommodating their religious
exercise and arguing that “so long as the government can achieve its interests
in a manner that does not burden religion, it must do so.” See Fulton v. City
of Philadelphia, 593 U.S. 522, 541 (2021). Thus, we conduct a thorough strict
scrutiny analysis and address those arguments below.
b. Compelling Interest
The City argues that it has a compelling governmental interest in
repairing the crumbling retaining walls on the northern bank of the riverbend,
and as a result tree removal and tree relocation are an integral part of that
repair plan. It further avers that the bird deterrence activities are necessary
to protect the health and safety of citizens who visit the Park. The City avers
that the purpose of the rookery management program is twofold: (1) to
mitigate the health and safety hazards arising from the bird guano11 that dense
bird colonies produce and (2) to ensure no migratory birds are nesting in trees
within the Project Area such that work can begin under the Migratory Bird
Treaty Act and the bond project improvements can proceed without delay.
In response to the City’s public safety arguments, Appellants
maintain that “the undisputed evidence is that the retaining walls in the
Sacred Area [on the southern bank] do not need repair.” Further, they aver
_____________________
11
Guano is the accumulated excrement of birds.
19
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No. 23-50746
that the City must prove that its “tree removal design is necessary in the
context of these Appellants’ religious practice” pursuant to TRFRA. Barr,
295 S.W.3d at 307. Likewise, Appellants contend that the City’s rookery
management plan fails strict scrutiny. They argue that preventing a pause in
construction is not a compelling governmental interest. They contend that
the City’s cursory assertions—such as its asserted interest in making the
Project Area safe for visitors in the Park—and other “public safety”
arguments are “the kinds of statements that the Texas Supreme Court has
held insufficient to establish a compelling governmental interest.”12 We
disagree.
The court in Barr determined that “the trial court’s brief finding—
that ‘[t]he ordinance was in furtherance of a compelling government
interest’—[fell] short of the required scrutiny.” Barr, 295 S.W.3d at 307–08.
Dissimilarly, the district court here, after holding a four-day preliminary
injunction hearing, published three separate orders evaluating the City’s
interests—(1) the October 2, 2023 “Partial Order,” (2) the October 11, 2023
“Memorandum Opinion and Order,” and (3) the October 25, 2023 Order.
Moreover, contrary to the instant case, the Barr court seemed to also
admonish the city council from merely reciting a published section of the
challenged ordinance when asserting that the law “serves a compelling
interest in advancing safety, preventing nuisance, and protecting children.”
Barr, 295 S.W.3d at 306–07. Specifically, the code there read that the “City
Council finds the requirements of this section are reasonably necessary to
preserve the public safety, morals, and general welfare.” Id. at 291. Rather,
_____________________
12
See Barr, 295 S.W.3d at 306 (reasoning that “[the City Council’s recitation that
the Ordinance’s requirements] ‘are reasonably necessary to preserve the public safety’ . . .
is the kind of ‘broadly formulated interest[]’ that does not satisfy the scrutiny mandated by
TRFRA”).
20
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No. 23-50746
the Barr court directed that “[c]ourts and litigants must focus on real and
serious burdens [], and not assume that [] codes inherently serve a compelling
interest, or that every incremental gain to city revenue (in commercial
zones), or incremental reduction of traffic (in residential zones), is
compelling.” Id. at 306.
Here, the district court complied with Barr’s directive. It did not
assume that the City’s bond project improvements inherently served a
compelling interest. Rather, it conducted an injunction hearing over several
days in which litigants interrogated the interests served by the Bond Project.
In its Memorandum Opinion and Order, the district court determined that
“[w]ith reference to [tree removal rookery management measures] of
[Appellants]’ requested relief, the court finds the City has met its burden of
proving a compelling government interest for public health and safety[.]”
The City advanced specific public health and safety considerations,
which the district court acknowledged and adopted, including that (1)
removing dead and dying trees prevents them from falling and injuring
visitors to the Park; (2) removing or relocating some trees is necessary
because of the likelihood of their future failure; and (3) failing retaining walls
pose a substantial risk to safety. The goal of repairing walls and removing
trees, which pose dangers to visitors in a public park, is a compelling interest.
As it relates to the bird excrement, the City raised well-founded concerns that
large populations of migratory birds in highly urbanized areas of the Park have
an adverse impact on the water quality in the San Antonio River and
contribute to unsanitary conditions in the Park, which can pose a risk of
disease to humans and animals. Moreover, the record provides vivid,
descriptive, photographic details pertaining to the quantity of excrement and
the dangers associated with human contact with the excrement.
21
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The record indicates that various areas of the Park “become nearly
unusable for 10 months of the year due to the bird density/habitat.” The
resulting feces causes damage to various park amenities, including picnic
tables, water fountains, playground equipment, restrooms, and
sidewalks. The record provides a variety of pictures illustrating the volume
of excrement affecting these facilities. The record also indicates that the
excrement could harm humans and other wildlife. The 2022 Draft Rookery
Management Plan noted: “When rookeries establish near playgrounds,
infrastructure, or other recreational areas, the risk of zoonotic disease
transmission (i.e., histoplasmosis, psittacosis, and salmonellosis) increases
substantially.” The Draft Rookery Management Plan further observed that
“the magnitude of fecal contamination, high likelihood of human contact
with fecal matter, and limited ability to perform effective environmental
decontamination make rookery management crucial to disease risk mitigation
in urban areas.”
Moreover, breathing problems can occur from avian diseases linked to
the uric acid produced by bird feces. The high concentrations of bird fecal
matter also affect the Park’s water quality. The City measured elevated levels
of Escherichia coli (“E. coli”) and other substances harmful to human health
due to fecal bacteria from the birds. The San Antonio River Authority
conducted bacterial source tracking throughout the Park and determined that
the largest contributors to E. coli contamination is “non-avian and avian
wildlife.” Those two classifications make up around 50-60% of the total E.
coli in the water.
The record also includes the expert opinions of Dr. J. Hunter Reed, a
state wildlife veterinarian and health specialist, and Jessica Alderson, an
22
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No. 23-50746
urban wildlife biologist. Alderson13 provided technical guidance to the City
related to the egret and heron rookery located at the Park and provided
recommendations on how to deter these birds from “an undesired location
[i.e., areas that are high use to the public, such as playgrounds or picnic tables,
or where there’s lots of human activity and potential encounters with wildlife
and humans] and encourage them to go to an area where they would be more
desirable.” And, in providing technical guidance to the City about its rookery
management efforts, Alderson testified that she also relied on “a letter from
[the TPWD] state wildlife biologist, Dr. Hunter Reed” as to the “public
health and safety regarding the rookery and the birds being in a highly used
area of the Park.”
Dr. Reed 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.” He
maintained that “well-coordinated and human response to manage the
rookery . . . will support the persistence of nesting birds.” Accordingly,
mitigating these dangers, posed by amassed bird guano in highly urbanized
areas of the Park, is a compelling interest. Likewise, because repairing the
retaining walls is a compelling interest—which the litigants agree requires
the relocation or removal of even one, single tree—then it logically follows
that complying with the demands of the Migratory Bird Treaty Act—which
_____________________
13
Alderson is the urban wildlife technical guidance program leader for TPWD. Her
background and knowledge are in wildlife and natural resource management.
23
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No. 23-50746
prohibits interference with or disturbance of nests already present in trees—
is equally a compelling interest.
c. Least Restrictive Means
On appeal, Appellants repeatedly argue that, according to Fulton, the
City must accommodate their religious exercise in crafting the bird
deterrence measures and tree-removal plans. They plainly state that “[the
City’s] intolerant view is forbidden under the Supreme Court’s command
that, if [the] government can accommodate religious exercise, it must.” But
recall that the Fulton Court did not declare that “if [the] government can
accommodate, it must”—rather it stated that “so long as the government can
achieve its interests in a manner that does not burden religion, it must do so.”
This is simply a rewording of the strict scrutiny standard, not a command to
commence all or even any of the proposed measures. See Church of Lukumi
Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 531–32 (1993) (holding that to survive strict scrutiny, a challenged action must be “justified by a compelling governmental interest and . . . narrowly tailored to advance that interest”); McCullen v. Coakley,573 U.S. 464
, 493–94 (2014) (“The point is not that [the state] must enact all or even any of the proposed measures discussed[.] The point is instead that the [state] has available to it a variety of approaches that appear capable of serving its interests, without excluding individuals [exercising their First Amendment rights].”). In Fulton, the Court’s full quote reads as follows: “A government policy can survive strict scrutiny only if it advances ‘interests of the highest order’ and is narrowly tailored to achieve those interests . . . Put another way, so long as the government can achieve its interests in a manner that does not burden religion, it must do so.” Fulton,593 U.S. at 541
. Thus, the Fulton Court
proclaimed that a government action subject to strict scrutiny must achieve
its interests in a narrowly tailored manner that would not burden religion. We
continue this analysis here.
24
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At the injunction hearing and on appeal, Appellants rely heavily on the
City’s answer to their complaint to bolster their argument that “the City
never commissioned a study that aims to achieve its governmental purposes
while accommodating [our] religious exercise.” This contention requires us
to unpack Appellants’ complaint and the City’s answer. In their complaint,
Appellants alleged that “the City has refused to commission a design firm
tasked with creating a plan that would preserve the walls and the double-
crested cormorant’s presence and habitat.” Using the Appellants’ proffered
language as articulated in their complaint,14 the City (1) admitted that it did
not commission the studies as characterized by Appellants and (2) denied
that any such studies were needed. In its answer, the City declared that:
The City denies [the Complaint’s allegations], including
without limitation the following: (a) [Appellants’]
characterization or summary of the “study” to determine the
impact of the Bond Project on [Appellants’] religious beliefs;
(b) that the City was required to “commission a design firm”
to “creat[e] a plan to preserve the walls and the double-crested
cormorant’s presence and habitat”; and (c) that the Bond
Project, as proposed, does not sufficiently address tree
preservation, wildlife protection, and safe access to the Park.
And, while the City admitted that it did not commission the studies as
described by the Appellants, it averred that “the City did, however, study
viable alternatives to design the Bond Project to achieve the governmental
goals of public health and safety with the least adverse impact.” When
_____________________
14
Paragraph 59 of Appellants’ complaint alleges that “the City has never
commissioned a study to determine if the Bond Project could be completed if the priority
was ensuring the double-crested cormorant could inhabit the Park afterwards.” Paragraph
59 continues that “the City has never commissioned a study that aims to achieve its
governmental purposes while accommodating [Appellants’] religious exercise.”
25
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questioned about the City’s answer to the complaint, Shanon Miller15
testified that “the City did look at viable alternatives.” She further clarified
that “the City received feedback from many stakeholders, and considered all
of it. It wasn’t just one particular interest or stakeholder interest that was
examined.” According to Miller, considering the many interests and
stakeholders prompted the City to “change[] the project as a result.”
This is a far cry from an overt admission by the City that “it has not
considered—and it refuses to consider—[Appellants’] religious exercise” as
Appellants allege. Rather, the City’s answer declares that “[t]he City denies
that it has not attempted ‘to accommodate [Appellants’] constitutional and
statutory religious freedom rights’ . . . [and] also denies that it ‘is willing to
adjust its plans under its favored causes . . . but not to protect the rights of its
citizens.’” The City’s answer continues that “[t]he City admits that
[Appellants] requested access to Lambert Beach to perform a religious
ceremony on August 12, 2023 . . . [and] the City offered various reasonable
accommodations that balanced the [Appellants’] asserted religious interest
with the governmental goal of public safety (including the safety of
[Appellants] and any other participants in the ceremony), but the
[Appellants] declined those accommodations.”
The record does not support Appellants’ allegations that the City has
refused to try to accommodate [Appellants’] religious exercise. Rather, the
record illustrates that many entities were involved in approving the bond
project improvements, and at various stages in the public comment and
meeting process, stakeholder interests were considered and incorporated in
the development plan’s design. Moreover, Appellants participated in many
_____________________
15
Miller is the director of the Office of Historic Preservation and the City’s historic
preservation officer.
26
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private and public meetings with the City’s employees related to the Bond
Project.16
Relevant here, the City’s Public Works Department operates as the
project manager for bond projects and facilitates with the Bond Project
owner, Homer Garcia III.17 In 2022, the Public Works Department applied
for a certificate of appropriateness, related to tree removal, with the Office of
Historic Preservation (“OHP”).18 The Historic and Design Review
Commission (“HDRC”), whose volunteer members are appointed by the
mayor and each councilmember to represent their district, is the
recommending body responsible for design review cases. HDRC officials
dedicate a significant amount of time to their volunteer roles as
commissioners, including attending public hearings, site visits, and
committee meetings. After reviewing applications, HDRC makes
recommendations to OHP, and Miller, as historic preservation officer and
director of OHP, issues the final decision on the certificates of
appropriateness. In February 2022, HDRC held its first hearing concerning
the Bond Project. However, HDRC did not initially approve the Public
Works Department’s application but tabled it because it required additional
information. Hence, the bond project design team circled back to gather
additional public input at public meetings from March 2022 through summer
_____________________
16
Namely, Perez spoke and gave a presentation to the Parks and Recreation
Department on July 29, 2022. Perez was invited by the Brackenridge Park Conservancy to
give a presentation about concerns with the Bond Project at its January 10, 2023 meeting.
17
Garcia is the City’s Parks and Recreation director.
18
OHP staff members help applicants (i.e., the Public Works Department)
assemble application materials to provide to the Historic and Design Review Commission
(“HDRC”). OHP staff members also prepare staff recommendations to accompany the
applications submitted to HDRC. In the instant case, the application was prepared by the
bond project design team and the OHP staff recommendation was prepared by OHP staff
member, Cory Edwards.
27
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2022. A number of City councilmembers, commissions, and departments
were involved in the public meetings, including the Public Works
Department, the Parks and Recreation Department, the Development
Services Department,19 the City manager’s office, the City attorney’s office,
the Planning Commission,20 OHP, and HDRC. After conducting the 2022
public meetings, the bond project design team returned to its application for
a certificate of appropriateness in 2023, specifically taking into account the
public input related to the bond project design, which pertains to the Project
Area. Miller testified that the additional information “made it easier for the
commissioners and the public to understand the tree removal request and the
context of the larger design.”
To approve the Bond Project, the Planning Commission first
approved the variance that the Public Works Department requested from the
City UDC. Next, after receiving the updated Bond Project application in
2023, HDRC convened a hearing on April 19, 2023 and unanimously
recommended to approve the application with three stipulations.21 Then, on
April 27, 2023, the OHP issued the certificate of appropriateness consistent
with the HDRC recommendation to move forward with improvements to the
_____________________
19
The Development Services Department reviews applications for permitting and
arboreal standards.
20
The Planning Commission, whose volunteer members are appointed by the
mayor and each councilmember to represent their district, approved the variance the Public
Works Department requested from the City UDC provision that requires 80% significant
tree preservation and 100% heritage tree preservation for projects within the 100-year
floodplain.
21
The stipulations were that (1) work would not occur until approvals were
complete pursuant to Section 106 of the National Historic Preservation Act, 54 U.S.C. §
300101 et seq., (2) any additional tree removals would return to HDRC for approval,
consistent with the UDC, and (3) the City would monitor and maintain the heritage and
significant trees during and after construction.
28
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Lambert Beach area in the Park. At each level of the application process—
the Planning Commission approval, HDRC recommendation, and the OHP
issuance of the certificate—public meetings were held to solicit comments in
either opposition or in favor of the project. Appellants acknowledge that they
testified at the March 3, 2023 Texas Historical Commission meeting, the
April 19, 2023 HDRC hearing, and the August 3, 2023 City Council hearing.
The City took these public comments, including Appellants’, under
consideration, evaluated whether more trees could be preserved in place in
the Project Area, and revised its plan for the work in the Project Area. Miller
testified that the City decided to change the original design so as to preserve
or relocate more trees as a result of the public debate and meetings. The
original design would have removed 70 trees in the Project Area, and that
number has been reduced to 48 trees, with 21 of those trees being relocated,
as a result of the public input process.
The City contends that it cannot accomplish its compelling
governmental interest in making the Project Area safe for visitors, preserving
historic structures, and making Park amenities accessible and available to the
public by any less restrictive means than the bird deterrence program and the
removal and relocation of the designated trees in the Project Area. Foremost,
the City maintains that it analyzed engineering options and selected the
method to repair the retaining walls that it determined would save the
greatest number of large trees. From an engineering standpoint, the City
contends that the pier-and-spandrel method,22 submitted by Appellants, did
not entail a “markedly reduced amount of excavation required”—a
necessary condition in order to save additional trees. Moreover, the City
_____________________
22
The pier-and-spandrel method requires piers to be drilled approximately 15 to
20 feet into the ground directly behind an existing retaining wall and pins to be drilled from
the outside of the existing retaining walls (i.e., from the river) into the piers.
29
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argues that the bird deterrence activities are limited in scope as they do not
harm or prevent birds, including the double-crested cormorants, from
entering the Park or the Project Area. Since the implementation of the bird
deterrence measures, the City avers that double-crested cormorants have
been observed in the Park, including in the Project Area.
Appellants contend that “the City [] has an insurmountable narrow-
tailoring problem: Its witnesses candidly testified that the City selected the
cantilever plan requiring tree removal ‘without any consideration’ of [their]
religious exercise.” Citing Fulton, they maintain that the City must pursue
“viable, less-restrictive alternatives [to repair the retaining walls] that would
save more trees” because “so long as the government can achieve its
interests in a manner that does not burden religion, it must do so.”
Appellants also argue that “the City runs into a similar narrow-tailoring
problem,” in regard to the rookery management program, because there are
a “number of [alternative] less-restrictive means that the City easily could
have considered.” They argue that rookery management measures are not
narrowly tailored because the City has not tried to accommodate Appellants’
religious exercise in crafting the bird deterrence plan. They pinpoint that the
City proffered no testimony addressing narrowly tailored alternatives to the
planned bird deterrence measures. We disagree.
The City has demonstrated that it “seriously undertook
[consideration] to address the problem with less intrusive tools readily
available to it” and “that it considered different methods that other
jurisdictions have found effective.” See McCullen, 573 U.S. at 494. The City
commissioned a team of various professionals, which ultimately decided on
the cantilevered design after considering the proposed pier-and-spandrel
method and analyzing its potential efficacy to save more trees. At the
injunction hearing, the City articulated that, during the course of the bond
project design, City personnel, engineers, and arborists, met to examine “the
30
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alternatives and to figure out whether or not what was being proposed was
the best solution moving forward, [and] that [it was] saving as many trees as
possible.”
Miller and Bill Pennell23 both testified that they met with the Tree
Assessment Committee24 in March 2023 in anticipation of the HDRC
approval process. Specifically, Miller testified that City personnel, including
herself and Garcia, “were asked to really look at the alternatives and to figure
out whether or not what was being proposed was the best solution moving
forward, that we were saving as many trees as possible.” As a result, Jamaal
Moreno,25 Ross Hosea,26 Shawn Franke,27 three independent arborists, who
were involved in the Tree Assessment Committee, Moises Cruz,28 Pennell,
and Miller examined alternatives. Cruz had recommended the pier-and-
spandrel design, and the meetings’ attendees discussed the design in great
detail—including how it works, how it would be installed, and how it differs
from alternative designs. Miller testified that the team discussed “with the
arborists and with our design engineer that afternoon” whether using the
pier-and-spandrel method would allow for additional trees to be saved.
_____________________
23
Pennell is the City’s assistant capital programs manager, overseeing the project
management of trail projects managed by the San Antonio River Authority and the City’s
Public Works Department.
24
The Tree Assessment Committee was tasked with evaluating trees scheduled for
removal in the Park and prepared a tree assessment report, authored on May 16, 2022, for
the City. The committee comprised of certified volunteer arborists, David Vaughan,
Michael Nentwich, Mark Kroeze, and Mark Duff.
25
Moreno is the project manager of the City’s bond project design team and a
licensed Texas landscape architect.
26
Hosea is the City’s forester in the Parks and Recreation Department.
27
Franke is the structural engineer who designed and provided engineering support
for the bond project design team.
28
Cruz is a volunteer engineer.
31
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Following the meeting, City personnel accompanied Cruz to the Project Area
“to talk specifically about specific trees.” Still, according to Miller, “[t]he
consensus in the meeting with the arborists was that no additional trees
would be saved because they would still be impacted by the construction,
regardless of the methodology.” The City maintains, and presented evidence
at the hearing, that in evaluating the alternative engineering methods it
sufficiently balanced engineering challenges and safety considerations.
Although Appellants would prefer that the City consider either
repairing the retaining walls in place or using a pier-and-spandrel system, the
City’s tree removal plan is narrowly tailored to achieve the City’s compelling
governmental interest of making the Project Area safe for visitors to the Park,
including Appellants. Moreno testified that the City’s informed position is
that it cannot save any additional trees in the Project Area under the current
engineering design plan, and alternatively, if the City were to choose an
alternate design (i.e., the pier-and-spandrel method) no additional trees
would be saved compared to what the City is able to achieve as presently
designed. The record shows that the City considered, but ultimately rejected,
the pier-and-spandrel system in part because it (1) required drilling through
the face of the historic walls, in violation of applicable standards promulgated
by the Secretary of the Interior, (2) would not allow for the preservation of
significantly more trees, and (3) would cost two to three times as much as the
cantilevered wall solution, exceeding the budget for the Bond Project. The
record also shows that the City even considered moving the walls further into
the River to distance them from the trees, but that solution was rejected
because it would have required a floodplain mitigation project.
As it relates to the City’s bird deterrence measures, Appellants
primarily rely on Merced to argue that the City has not pursued the least
restrictive means. Notably, the Merced panel acknowledged that:
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[The plaintiff] propose[d] no fewer than three less restrictive
alternatives to [the City’s scheme] . . . [And the City did] not
rebut any of [the plaintiff’s] alternatives; it [did] not even try.
Thus . . . we hold that the [City’s] ordinances that burden [the
plaintiff’s] religious free exercise are not the least restrictive
means of advancing the city’s interests.
Merced, 577 F.3d at 595. So, too, Appellants here attempt to enumerate a list
of possibly less restrictive alternatives to the City’s current scheme.
Appellants outline several alternatives that the City could have pursued or
investigated instead of its presently planned bird deterrence measures such
as (1) conducting rookery management measures that exclude cormorants,
(2) completing construction within the four-month period between mid- to
late-October and February when no migratory birds are present, (3) starting
construction within that same four-month period, pausing while migratory
birds nest, and resuming when the migratory birds leave; (4) completing
construction within the six-month period between mid- to late-October and
March or April before the cormorants begin to arrive;29 or (5) conducting
rookery management measures and completing the construction within the
eight-month period between mid- to late-October and June, when
cormorants may still arrive and nest. However, the proposed means must not
only be conceivable but must be (1) in the context of the compelling
governmental interest and (2) be the least restrictive of the proffered choices
to achieve that governmental interest. See Tex. Civ. Prac. & Rem.
Code § 110.003(a)–(b).
In the instant case, the City rebuts all of Appellants’ proposed
alternatives. See Merced, 577 F.3d at 595. The record indicates that no other
_____________________
29
Alderson testified that double-crested cormorants typically arrive to San Antonio
around April and May “or oftentimes later into the season.”
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No. 23-50746
means exists to deploy deterrent efforts aimed only at egrets and herons but
not cormorants. As discussed, Alderson provided technical guidance to the
City related to the egret and heron rookery located at the Park and offered
recommendations on how to deter birds from “an undesired location and
encourage them to go to an area where they would be more desirable.” She
testified that, in her experience as an urban wildlife biologist and working
with urban rookeries, there is no way (1) to sequence deterrence efforts to
deter egrets and herons from nesting in a site but not deter double-crested
cormorants or (2) to utilize noise deterrents that would deter egrets and
herons but not cormorants. Essentially based on her experience and
expertise, she testified that she is not aware of any kind of deterrent measure
that would work on egrets and herons but not disturb cormorants because
“the deterrent techniques are going to impact other species than the ones
that you’re specifically targeting.” She testified that the difficulty lies in
these species being colonial nesting birds.30
In evaluating the relative restrictiveness of the bird deterrence plans,
the record shows that the City’s activities are the least restrictive means to
advance the compelling governmental interests presented. Limited by the
predictability of migration and habitat patterns of colonial nesting birds, start
and stoppage periods of construction at four-month, six-month, or eight-
month intervals, as suggested by Appellants, would not achieve the
compelling goals of adhering to the Migratory Bird Treaty Act. Moreover,
they certainly would not achieve the goal of mitigating bird excrement.
Alderson maintained that she “bas[ed] [her] technical guidance [related to
bird deterrence] on the biology behind everything.” Since the deterrent
methods are targeted at nesting and not a species, at times birds of any species
_____________________
30
A colonial nesting bird is a bird that nests in large colonies or with large numbers
of birds in a given area as a way of protecting their young and their resources.
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can—despite the deterrent efforts and unbeknownst to the program
managers—enter the deterrence area and nest. Once any species nests, the
program administrators must stop work in that area and notify the respective
regulatory agencies. Once deterrent efforts have been halted, this invites all
different migratory birds to enter and nest in the area. As such, the district
court posited, and we agree that the record shows that there could not be an
eight-month window of opportunity to accomplish the bond project
improvements. Even more, given this credible testimony regarding the
different species’ migration patterns and coverage of the Migratory Bird
Treaty Act, Appellants’ arguments that the bond project improvements
could have been completed during various periods when migratory birds are
not present do not sufficiently refute that the City’s bird deterrence satisfies
the least restrictive means to advance its compelling governmental interests.
Similarly, Pennell testified that based on his knowledge of the area and
the birds’ migratory patterns, the double-crested cormorants arrive around
the same time, or within the same period, as the cattle egrets and snow egrets.
Thus, he too confirmed there is not a way to time the bird deterrence
activities so that only double-crested cormorants can nest in the deterrent
zone but not allow egrets and herons to nest there. Additionally, Pennell
confirmed that no separate or additional study needed to be commissioned to
answer the question of whether it is possible to utilize deterrent methods that
are effective only against egrets and herons but do not disturb cormorants.
Furthermore, he confirmed that no additional or separate study needed to be
commissioned to understand the migratory and habitat patterns of these
birds. These conditions have been uniformly observed and widely accepted.
Likewise, the record shows that the City applies deterrence efforts
only to the extent required to achieve the goal of relocating the targeted
species—and no further. As the City avers, “[the] bird deterrence policy
does not prohibit migratory birds from visiting, roosting, or foraging in the
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No. 23-50746
Project Area,” and the deterrent activities are deployed only within the two-
acre Project Area and only to persuade the birds to nest elsewhere.
As it relates to the bird excrement, the record provides information
pertaining to the remedial measures the City has previously instituted in the
Park to curtail human exposure. The record indicates that the City has
implemented various bird deterrent techniques to prevent mass congregation
of birds and limit the accumulation of the excrement. At times, the City has
closed the playground areas and restricted access to other facilities due to the
excrement. Other times, these amenities are simply “removed.” Still,
Pennell noted that the Park’s ability to clean the amenities depends on the
material that the excrement is on. For example, fecal matter can absorb into
plastic and “eat away” at metal paint. As such, the record shows that the
rookery management program is the least restrictive means to advance the
City’s interest in mitigating the hazardous effects of bird guano to make the
Park safe for visitors. Throughout the record, Pennell reiterates the City’s
stance: bird mitigation is important for the safety of park-goers. In his
opinion, the bird deterrence policies have been effective to reduce and more
effectively manage the migratory bird rookeries in the Park.
The record establishes that the studies requested by Appellants31 were
not needed to ascertain the least restrictive means. Moreover, the record
shows that the City considered viable alternatives and “different methods
that other jurisdictions have found effective” before ultimately deciding on
the “less intrusive tools readily available to it.” McCullen, 573 U.S. at 494.
Consequently, the City’s tree removal and bird deterrence plans—which
deter only to the extent required to dissuade the targeted species from nesting
_____________________
31
Supra note 14.
36
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No. 23-50746
and remove minimal trees necessary to excavate—are the least restrictive
means.
As stressed, the burden is on the City to establish that its proposed
measures advance a compelling governmental interest and is the least
restrictive means of furthering that interest. Barr, 295 S.W.3d at 299. We
conclude that the City’s construction plan serves two compelling interests:
(1) public health and safety and (2) compliance with federal law to serve the
interests underlying the construction project. We also conclude that the
City’s tree removal plan and rookery management program do not violate
TRFRA because they are the least restrictive means to advance the City’s
compelling governmental interests. On this record, the government has met
its burden.
ii. First Amendment Free Exercise and Texas freedom-to-worship provision
The parties’ dispute under the Free Exercise Clause centers on which
standard of constitutional review applies to the instant case, rational basis or
strict scrutiny. Appellants argue that the City’s plans for tree removal and
rookery management measures are not neutral and generally applicable and,
therefore, must be analyzed under the more exacting strict scrutiny standard.
The City contends that its planned Park improvements are neutral and
generally applicable and that the more deferential rational basis standard of
review applies. Applying strict scrutiny, we conclude that the challenged
government action in this case withstands Appellants’ Free Exercise
challenge, as illustrated infra in the TRFRA claim analysis.
The Free Exercise Clause of the First Amendment states that
“Congress shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof.” U.S. Const. amend. I. The Free
Exercise Clause has been applied to the States through the Fourteenth
Amendment. Lukumi, 508 U.S. at 531. Although the freedom to believe is
37
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No. 23-50746
absolute, the freedom to act on one’s religious beliefs “remains subject to
regulation for the protection of society.” Cantwell v. Connecticut, 310 U.S.
296, 304(1940). Under strict scrutiny review, a challenged government action will be deemed invalid unless it is (1) justified by a compelling governmental interest and (2) is narrowly tailored to advance that interest. Lukumi,508 U.S. at 533
. “[N]arrow tailoring requires the government to show that measures less restrictive of the First Amendment activity could not address its interest[.]” Tandon v. Newsom,593 U.S. 61, 63
(2021) (per
curiam). The government must also demonstrate that it “seriously
undertook [consideration] to address the problem with less intrusive tools
readily available to it” and “that it considered different methods that other
jurisdictions have found effective.” McCullen, 573 U.S. at 494. The City has
provided ample support demonstrating that it has compelling interests for its
adoption of the tree-removal and bird deterrence plans and that it has
pursued the least burdensome method of achieving its goals. Therefore,
Appellants have failed to establish a likelihood of success on the merits of
their Free Exercise claim.
Additionally, Appellants argue that the City’s plan violates their
freedom of worship under the Texas Constitution.32 Because Appellants
incorporate by reference their arguments on the Free Exercise and TRFRA
claims, they similarly fail to establish a likelihood of success on the merits of
their claims under Article I, § 6 of the Texas Constitution.33
_____________________
32
The Freedom of Worship provision of the Texas Constitution states that “[n]o
human authority ought . . . to control or interfere with the rights of conscience in matters
of religion, and no preference shall ever be given by law to any religious society or mode of
worship.” Tex. Const. art. I, § 6.
33
Appellants declare that they “incorporate by reference their arguments on the
TRFRA, Free Exercise Clause, and Article I, Section 6-a claims” to establish the likelihood
of success on their claim under Texas’s freedom-to-worship provision (§ 6).
38
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No. 23-50746
iii. Texas religious-service-protections provision
Appellants assert that the City’s plan violates the religious-service-
protections provision of the Texas Constitution.34 Appellants further argue
that § 6-a of Article I of the Texas Constitution “does not even allow the City
to try to satisfy strict scrutiny; it is a categorical bar on what the City seeks to
do,” but do not cite caselaw or other persuasive authorities to support this
assertion. Appellants aver that their § 6-a claim plainly alleges that the City’s
tree-removal and rookery management measures independently35 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 this provision of the Texas Constitution imposes a complete
bar on all restrictions to religious services or invokes a strict scrutiny inquiry
is a determination best left to the Texas Supreme Court to decide,36 and a
determination we need not reach in the instant case. Even accepting that the
“relatively new provision bars any government action that prohibits or limits
religious services,” Appellants do not sufficiently brief the question of
whether a compelled “preservation of spiritual ecology” was envisioned in
_____________________
34
This 2021 enacted provision of the Texas Constitution, titled “Religious Service
Protections,” provides that the state of Texas “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.
35
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.”
36
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”).
39
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No. 23-50746
the statute’s definition of a “religious service” protected from state-
sanctioned prohibitions or limitations. See Tex. Const. art. I, § 6-a.
Appellants contend that the City’s planned changes to the Sacred Area’s
spiritual ecology amounts to a limitation of their religious services.37 They
have not sufficiently established that this statute compels the relief that they
seek. By 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.
Accordingly, the likelihood of success on Appellants’ claims—or lack
thereof—controls for purposes of determining whether they are entitled to
injunctive relief. We conclude that the district court did not abuse its
discretion in determining that Appellants failed to show a likelihood of
success on the merits on any of their four claims—the TRFRA claim, the
First Amendment Free Exercise claim, the claim under the freedom-to-
worship provision of the Texas Constitution, or the claim under the religious-
service-protections provision of the Texas Constitution. See Scott, 28 F.4th
at 671. Thus, no additional analysis is required. Where appellants fail to meet their burden to show a likelihood of success on the merits, “failure to show a likelihood of success alone is sufficient to justify a denial.” CAE Integrated, L.L.C. v. Moov Techs., Inc.,44 F.4th 257
, 264 n.22 (5th Cir. 2022).
_____________________
37
As the district court articulated, “the area does not look the same as it did
thousands of years ago . . . Nor does it look the same as 100 years ago . . . Nor will it look
the same 100 years from now.” The landscape is perpetually changing. Whether trees die,
are damaged, or sprout by natural causes or human-manufactured sources, or whether birds
decide to migrate and nest in the Park based on natural occurrences or designed
measures—is a thing of chance and neither chance occurrence seems to be as definite or
permanent as Appellants allege.
40
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No. 23-50746
C. Injunction Pending Appeal
To obtain an injunction pending appeal, Appellants must satisfy each
of the injunction elements. Janvey v. Alguire, 647 F.3d 585, 595(5th Cir. 2011). To determine whether to grant an injunction pending appeal, we consider the four elements typically used to determine whether to grant injunctive relief: (1) the likelihood that the moving party will ultimately prevail on the merits of the appeal; (2) the extent to which the moving party would be irreparably harmed by denial of the injunction; (3) the potential harm to opposing parties if the injunction is issued; and (4) the public interest. See Fla. Businessmen for Free Enter. v. City of Hollywood,648 F.2d 956, 957
(5th Cir. Unit B 1981); Exxon Corp. v. Berwick Bay Real Estate Partners,748 F.2d 937, 939
(5th Cir. 1984) (per curiam). As the parties seeking the injunction, Appellants bear the burden of showing that they satisfy each of these elements. See Ruiz v. Estelle,666 F.2d 854, 856
(5th Cir.
1982).
We begin and end with the first factor: likelihood of success on the
merits. Appellants claim that they are likely to succeed on the merits of their
appeal, arguing that the City’s actions—specifically its tree-removal plan and
rookery management plan—fail strict scrutiny because these plans (1) lack
any compelling governmental interest and (2) are not narrowly tailored.
Specifically, Appellants argue that the City 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.
We have considered Appellants’ arguments based on the parties’
filings, the district court’s opinion, and the relevant caselaw, and conclude
that Appellants have failed to establish a likelihood of success on the merits
of their claims that the City violated their rights under the federal Free
Exercise Clause, the Texas Constitution, or TRFRA. The record evidence
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No. 23-50746
establishes that the City has compelling interests. And, in evaluating the
relative restrictiveness of the tree-removal and rookery management plans,
the record indicates that the City’s activities are the least restrictive means
to advance the compelling governmental interests presented. The evidence
supports that the City’s design of the project was a thorough,
comprehensive, and complex process involving experts in many disciplines,
including arborists, civil engineers, architects, landscape architects, wildlife
biologists, and scientists. The City (1) solicited the opinions of experts and
others expressing concerns about the Park’s trees and wildlife and (2)
adjusted its plans regarding the trees so that the number of trees now
scheduled for removal has been reduced from 70 to 48, with another 20 trees
scheduled for relocation. The City appointed a committee of highly qualified
independent arborists to evaluate which trees in the Project Area needed to
be removed because of construction restrictions imposed by the bond project
construction plans. Moreover, the City’s bird deterrence measures are aimed
at nesting, not preventing their presence. The migratory birds are still
allowed to forage, feed, and rest in the Project Area. Likewise, Appellants’
bird deterrence alternatives are not as effective as the current design. The
City and its bond project design team theorize that the project will take eight
months. To the contrary, Appellants’ suggestions—offering a four-month
alternative, a six-month alternative, or the prospect of deterring one type of
bird and not another—are not the least restrictive means as to the City’s
compelling interests.
Based on our review, we conclude that Appellants have not
demonstrated that they are likely to prevail on their claim that the district
court abused its discretion in only partially granting their motion for a
42
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No. 23-50746
preliminary injunction.38 Because we have concluded that Appellants’ have
not made the requisite showing of the likelihood of success on the merits,
they are not entitled to an injunction pending appeal. Janvey, 647 F.3d at 595.
Thus, we do not analyze the other injunction elements here.
IV. Conclusion
For the foregoing reasons, we AFFIRM the district court’s
judgment. Correspondingly, the appeal as to Appellants’ access to the
Project Area within the Park is DISMISSED AS MOOT. Accordingly,
because Appellants have failed to show a likelihood of success on the merits,
we DENY their Emergency Motion for Injunction Pending Appeal. Further,
the temporary administrative stay issued by this court on October 27, 2023,
is VACATED.
_____________________
38
Appellants sought injunctive relief to require the City to grant them unfettered
access to the fenced Project Area for religious worship, minimize tree removal in the
Project Area, and allow cormorants to nest in the Project Area. The district court granted
injunctive relief as to scheduled group access to the area for religious ceremonies. The court
also ordered the City to repair a large broken limb in the Project Area that the City
maintained “pose[d] a risk of injury or death.” The district court however declined to
enjoin the City’s planned tree removal and rookery management measures and denied
Appellants access for unscheduled individual worship, while the Project Area fencing was
actively erected and any dangerous tree limbs posed safety risks to Park visitors. On
November 13, 2023, the City affirmed that it had removed the dangerous limb that had
previously made the Project Area inaccessible, as ordered by the district court. The City
avowed that removing the limb allowed it to reconfigure the construction fencing to grant
public access to the entire area.
43
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No. 23-50746
Stephen A. Higginson, Circuit Judge, concurring in part and
dissenting in part:
I fully agree with the majority that Plaintiffs’ core access claim is moot
and the voluntary-cessation exception is inapplicable. And despite my
respect for the majority’s comprehensive further analysis, I am compelled to
write narrowly that the City of San Antonio (“the City”) ought to have done
more to accommodate Plaintiffs’ religious beliefs across the two remaining
“items of relief”: the City’s tree-removal (“Item 2”) and anti-nesting
(“Item 3”) measures.
I appreciate that in its succinct order, the district court tried to broker
a compromise between the City and these religious Plaintiffs, but I still
conclude that it abused its discretion by denying Plaintiffs’ request for a
preliminary injunction as to Items 2 and 3. Plaintiffs have demonstrated a
likely violation of their rights under the Texas Religious Freedom Restoration
Act, which “prevents the state and local Texas governments from
substantially burdening a person’s free exercise of religion unless the
government can demonstrate that doing so furthers a compelling
governmental interest in the least restrictive manner.” Merced v. Kasson, 577
F.3d 578, 581 (5th Cir. 2009).
Plaintiffs contend that “the City never tried to accommodate”
Plaintiffs’ religious exercise, and the record—which includes concessions
from City officials that (1) they could have sought an exemption from U.S.
Department of the Interior guidelines as to the retaining walls but instead
obtained a zoning variance to remove more trees; (2) their engineering design
“was chosen without any consideration of [P]laintiffs’ free exercise request”
because “[i]t would take time and money” to try to accommodate Plaintiffs’
requests and “[the City] would like to proceed with the project”; and (3)
“the City never actually investigated whether it could alter the timing of its
44
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No. 23-50746
bird deterrence specifically to accommodate [P]laintiffs’ religious
exercise”—on the whole bears out Plaintiffs’ assertion.
Accordingly, I would GRANT the preliminary injunction as to Issues
2 and 3, directing the City to consider Plaintiffs’ accommodation requests,
while also avoiding indefinite delay of the project.
45
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