150 F.4th 430
5th Cir.2025Background
- Plaintiffs (Gary Perez and Matilde Torres), members/leaders of the Lipan‑Apache Native American Church, identify a 20×30 ft riverbend in Brackenridge Park as a sacred site whose spiritual ecology depends on specific trees and nesting double‑crested cormorants.
- The City of San Antonio’s Bond Project to repair historic retaining walls and related infrastructure would remove/relocate dozens of trees in the Project Area and implement bird‑deterrence (rookery management) measures to avoid migratory‑bird nesting obstacles to construction and public‑health issues linked to guano.
- The City coordinated with federal and state wildlife agencies and complied with permitting and historic‑preservation processes; the project team considered multiple engineering alternatives and reduced planned removals after public input.
- The district court found Plaintiffs’ beliefs sincere, granted limited, scheduled group access for ceremonies and ordered removal of a hazardous limb, but denied injunctive relief preventing tree removal and rookery measures.
- The Fifth Circuit certified a question to the Supreme Court of Texas about the scope of the Texas Constitution’s religious‑service‑protections clause; the Texas court held that clause does not cover governmental preservation/management of public lands.
- With that guidance and review of the record, the Fifth Circuit affirmed the district court, dismissed the access claim as moot, and denied Plaintiffs’ emergency injunction pending appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Mootness of access claim | City’s prior fencing and temporary exclusion deprived Plaintiffs of worship access; relief still needed | City reopened the area, removed limb, granted specified ceremony access and dismissed cross‑appeal | Access claim is moot; voluntary‑cessation exception inapplicable because City showed conduct unlikely to recur |
| TRFRA challenge to tree removal & rookery measures (substantial burden & strict scrutiny) | Project will irreversibly destroy sacred site and spiritual ecology (trees + cormorants), substantially burdening religion; City failed to pursue least‑restrictive alternatives | City’s plan furthers compelling interests (public safety, historic preservation, compliance with MBTA, water quality, zoonotic risk) and considered/rejected less‑restrictive engineering and timing alternatives | Plaintiffs failed to show likelihood of success: burden not proven likely "real and significant" on record, and City met strict scrutiny (compelling interest + least restrictive means) |
| First Amendment Free Exercise (standard & application) | City’s actions are not neutral/generally applicable and must face strict scrutiny | City’s plans are neutral and subject to rational‑basis; even under strict scrutiny, City prevails | Assuming strict scrutiny applies, City’s interests are compelling and measures are narrowly tailored; Free Exercise claim fails |
| Texas religious‑service‑protections clause (Art. I, §6‑a) | Clause bars governmental prohibitions/limitations on religious services and thus prohibits the Project’s interference with worship | Clause does not reach government actions that preserve/manage public lands | Texas Supreme Court answered certified question: clause forbids prohibitions/limitations on religious services when applicable but does not extend to preservation/management of public lands; Plaintiffs’ §6‑a claim fails |
Key Cases Cited
- Atchafalaya Basinkeeper v. U.S. Army Corps of Eng’rs, 894 F.3d 692 (5th Cir. 2018) (preliminary injunction standards and burdens for environmental/administrative claims)
- Merced v. Kasson, 577 F.3d 578 (5th Cir. 2009) (TRFRA analysis and strict‑scrutiny framework applied to municipal actions)
- A.A. ex rel. Betenbaugh v. Needville Indep. Sch. Dist., 611 F.3d 248 (5th Cir. 2010) (substantial‑burden inquiry under Texas law: "real and significant" and perspective‑of‑the‑claimant focus)
- Barr v. City of Sinton, 295 S.W.3d 287 (Tex. 2009) (Texas Supreme Court interpreting TRFRA and requiring meaningful judicial scrutiny of burden and compelling interest)
- Fulton v. City of Philadelphia, 593 U.S. 522 (2021) (strict‑scrutiny/narrow‑tailoring principle: government must pursue means that do not burden religion if available)
- Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993) (strict‑scrutiny standard for laws that target or substantially burden religious exercise)
- Lyng v. N.W. Indian Cemetery Protective Ass’n, 485 U.S. 439 (1988) (limits on claims based on government land management and noncoercive government actions)
- McCullen v. Coakley, 573 U.S. 464 (2014) (narrow‑tailoring requirement and government’s obligation to consider less intrusive means)
- Holt v. Hobbs, 574 U.S. 352 (2015) (narrowing inquiry to the marginal interest in enforcing a law against a particular claimant)
- Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., 528 U.S. 167 (2000) (voluntary cessation and mootness: heavy burden to show challenged behavior cannot reasonably be expected to recur)