In Perez v. City of San Antonio, (WD TX, Oct. 11, 2023), a Texas federal district court held that members of the Native American Church should be given access for religious services to a point on the San Antonio River which is a Sacred Site for them. Access is limited to 15 to 20 people for no more than an hour on astronomical dates that coincide with their spiritual beliefs. The court deferred ruling on whether access for all-night peyote ceremonies will be allowed. The court refused to grant plaintiffs' request that the proposed improvements to the park in which the Sacred Site is located be limited so that the spiritual ecology of the Sacred Area would be preserved by minimizing tree removal and allowing cormorants to nest. The court said in part:
The most important part of Plaintiffs’ spiritual ecology is the confluence of the shape of the Mother Waters at the bend of the San Antonio River with the shape of the Eridanus constellation of stars.
Given the current extended drought, the lack of water flow from the Blue Hole Springs and other natural sources, there would be no San Antonio River/Mother Waters but for the City artificially assisting the river by pumping recycled waste water, presumably from the sewer reclamation system.... This creates something of a secular/religious symbiotic relationship between Plaintiffs and Defendant until it rains, the springs come to life and until the reformation and resurrection of the Project Area is complete. Amen.
... [T]he Court heard credible testimony of thousands of egrets, herons, and cormorants and their excrement nesting in the Project Area during their migrations at different times of the year. Once nested, the Migratory Bird Treaty Act precludes removal. The Court finds the bird deterrent operation is in the realm of public health and safety....
... [T]he Court finds the City has met its burden of proving a compelling government interest for public health and safety....
Moreover, Plaintiffs desire possibly to save trees by ordering the City to “reevaluate the Bond Project to develop alternative plans” would, given the lengthy redesign and re-permitting processes, exponentially extend Plaintiffs’ and the public’s presently fettered ability to enjoy the area. The temporary closing becomes semi-permanent. Instead of months, access would likely remain limited for years, as is the case of the faithful who find the Notre Dame Cathedral to be their sacred place and who for several years will have to use alternative places of worship. By its Order, it is the Court’s intent to make the fettered unfettered as soon as reasonably possible. It will be up to the parties to decide how long they wish to delay the unfettered with continuing litigation.
UPDATE: On Oct. 25, 2023, the Texas federal district court denied plaintiffs' emergency motion for an injunction pending appeal. 2023 U.S. Dist. LEXIS 192796.
