The Notice Was a Promise

At 4:55 p.m. on Friday 9 October, government lawyers told a federal court in Washington that the National Park Service planned to remove “up to 529 trees” from East Potomac Golf Course, starting the next day. By the end of Saturday about 430 were down. On Tuesday 13 October Judge Ana C. Reyes barred the government from felling any more trees on the course through Monday 26 October, and ordered two senior officials to explain themselves under oath at a hearing on Monday 19 October.

The case is DC Preservation League v. Department of the Interior, No. 26-cv-477 in the District of Columbia, brought in February by a preservation group and two golfers who play the municipal course regularly. Its central fact, on the judge’s own account, is that the notice the court received on Friday was never something it had ordered. It was something the government had promised.

A promise in place of an order

NPR reported this week that Reyes ordered the administration in May to get court approval before cutting down more than ten trees. No written order of that kind appears on the docket, and the judge’s memorandum opinion of 13 October describes the reverse. “Instead of entering injunctive relief,” she wrote, “the Court agreed to accept the Government’s repeated assurances that it would notify Plaintiffs and the Court of any major developments at the Course outside of ordinary maintenance.”

The plaintiffs asked for more than that at least twice. At a hearing on 2 July, days after President Trump announced that work on a new course would begin on 1 September, they asked for an injunction or at least a formal order requiring notice. The judge declined, and the opinion quotes her reasons from the transcript: “The only reason I’m not making an injunction order is because I don’t want to put people through contempt proceedings. I want to trust that people are acting in good faith and have them acting in good faith until proven otherwise.” On 3 September, after the Park Service had removed what the government described as 77 invasive and 73 dead, dying or hazardous trees out of about 3,800, the plaintiffs asked again, and she declined again, taking the government at its word that no other criteria for removal existed.

That is the difference between a promise and an order. A broken order can be punished as contempt. A broken promise can only be answered with an order, after the fact, which is what the court has now issued.

Five days, then a Saturday

The opinion reconstructs the week from sworn testimony at an emergency hearing on Monday 12 October. On 5 October, Greg Wischer, deputy chief of staff to the Interior Secretary, directed Frank Lands, the Park Service’s deputy director of operations, to implement a 2019 cultural landscape report on the course “as soon as practical.” The same day Kevin Griess, superintendent of the National Mall and Memorial Parks, submitted a tree management plan, which the acting Park Service director, Jessica Bowron, authorised on 6 October. On 9 October Griess signed a categorical exclusion form declaring the work routine maintenance that needed no further environmental review. The notice to the court followed that afternoon, a week after Griess received the draft plan and, the judge found, four days after agency counsel first learned something was under way.

Cutting began around 8 a.m. on Saturday. The first form estimated 169 trees in the first zone; in a second form signed on Sunday, Griess recorded that “an additional 200 trees were identified and removed beyond the original estimate.” About 300 more were marked for removal. Asked at the hearing whether there was any urgency, Griess answered: “Not that I’m aware of, Your Honor.” He also withdrew his written statement that new budgetary resources had made the work possible.

The government says the plan implements the 2019 report and has nothing to do with the President’s redesign. “That asks rather a lot of coincidence,” Reyes wrote. On what she called a limited record, she concluded that officials raced to act “because President Trump demands haste on his redesign, and not because of some newfound zeal to implement a small part of a seven-year-old CLR.”

What the order now says

The restraining order rests on the National Environmental Policy Act. The judge found the plaintiffs likely to show that the tree plan is final agency action and that the Park Service skipped the “hard look” the statute requires. She noted the plaintiffs’ point that a similar project at Rock Creek Golf Course in 2023 went through an environmental assessment of more than 250 pages. As in most challenges of this kind, the case will turn on the record the agency built, and here the record was built in a week.

The docket shows the notice requirement has finally been written down. Through 26 October the government must give the court and the plaintiffs “three business days’ written advance notice prior to making any irreparable modification to any permanent form or feature” of the course. That is the order the plaintiffs asked for in July.

Monday

The plaintiffs moved for a preliminary injunction on Wednesday, and the government filed its opposition on Friday. The evidentiary hearing opens at 10 a.m. on Monday in Courtroom 12, in person. Wischer and Bowron are ordered to appear; Lands and Griess must be available to testify. At the 12 October hearing, NPR reported, the judge said that “what has happened has cost the government all of its credibility with me in this case,” and that her questions “go to whether or not I’ve been lied to” about the plans, the timing and the notice the court would receive. Those were remarks from the bench, not findings. The hearing on 19 October is where she starts making them.