Summary
The Fifth Circuit, treating a petition for rehearing en banc as a petition for panel rehearing, granted rehearing, withdrew its prior opinion, and substituted this opinion. The court affirmed the district court’s judgment and denied the appellants’ emergency motion for an injunction pending appeal in a dispute involving religious exercise, access to a public park, tree removal, and cormorant-management measures. The court concluded that the access claims were moot and that the appellants had not shown a substantial burden under the Texas Religious Freedom Restoration Act.
Topics
Practice areas
Questions Presented
- Whether Appellants' request for additional relief restoring routine personal access to the sacred area became moot after the City removed the fencing and dangerous tree limb and allowed access.
- Whether Appellants were likely to succeed on their claim that the City's tree-removal plan and rookery-management measures substantially burdened religious exercise under the Texas Religious Freedom Restoration Act.
- Whether the City's tree-removal and bird-deterrence plans satisfied strict scrutiny under the Texas Religious Freedom Restoration Act by furthering compelling governmental interests through the least restrictive means.
- Whether the City's plans violated the First Amendment Free Exercise Clause.
- Whether the City's plans violated the freedom-to-worship provision of the Texas Constitution.
- Whether the Texas Constitution's religious-services-protections provision applied to the City's preservation and management of public park lands.
- Whether Appellants were entitled to an injunction pending appeal.
Holdings
- Appellants' challenge to the City's former restriction on access to the sacred area was moot because the City removed the fencing and dangerous limb, granted public access, allowed a religious ceremony during otherwise closed hours, and abandoned its cross-appeal concerning access.
- Appellants failed to establish a likelihood of success on their claim that the City's tree-removal plan and rookery-management measures imposed a substantial burden on their religious exercise.
- Even assuming the City's plans substantially burdened Appellants' religious exercise, the plans satisfied strict scrutiny because they furthered compelling governmental interests through the least restrictive means.
- Assuming strict scrutiny applied, Appellants failed to establish a likelihood of success on their First Amendment Free Exercise claim because the City's plans were supported by compelling interests and were narrowly tailored.
- The Texas Constitution's religious-services-protections provision did not apply to the City's preservation and management of public park lands, so Appellants could not show a likelihood of success on that claim.
- Appellants were not entitled to an injunction pending appeal because they failed to demonstrate a likelihood of success on the merits.
Key quotations
“Appellants now have “no reasonable expectation that the wrong challenged by [them] would be repeated.”” (p. 11)
“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.”” (p. 14)
“Consequently, the City’s tree removal and bird deterrence plans—which deter only to the extent required to dissuade the targeted species from nesting and remove minimal trees necessary to excavate—are the least restrictive means.” (p. 33)
Factual background
Gary Perez and Matilde Torres, members of the Lipan-Apache Native American Church, performed or participated in religious ceremonies at a sacred area of Brackenridge Park. The City planned to repair historic retaining walls, construct an accessible ramp, remove or relocate trees, and deter migratory birds from nesting in a roughly two-acre project area. Appellants contended that the trees, cormorants, and other natural features were part of the area's spiritual ecology and sought access, preservation of trees, and permission for cormorants to nest. The district court found their beliefs sincere but determined that the City’s plans did not substantially burden their religious exercise and were supported by compelling public-health and safety interests.
Procedural history
Appellants sued the City of San Antonio over a development project at Brackenridge Park, alleging that tree removal, bird-deterrence measures, and temporary fencing burdened their religious exercise. After a four-day preliminary-injunction hearing, the district court granted limited access for scheduled religious ceremonies and ordered removal of a dangerous tree limb, but declined to enjoin tree removal or rookery-management measures and denied unscheduled individual access. During the appeal, the Fifth Circuit certified a Texas constitutional question to the Supreme Court of Texas, which held that the Texas religious-services provision does not extend to governmental preservation and management of public lands. The Fifth Circuit affirmed the district court, dismissed the access appeal as moot, and denied an injunction pending appeal.