For those not closely following the court cases regarding the Student Athlete High Performance Center (SAHPC), there may be some confusion as to why there is so little activity around the Oak Grove and Memorial Stadium these days. Wasn't the final ruling entered on July 22nd? Didn't that clear the way for the trees to be cut on August 18th after the injunctions expired?

To understand why there has been so little activity requires some background:

When the judgment and the order to remove the temporary injunction seven days thereafter were made, Judge Barbara Miller left open one activity. She allowed 30 days for the University to submit data on how much Memorial Stadium was worth and that she would modify her ruling if anything interesting came from that valuation data. Since the University had no intention of taking advantage of that opportunity, everyone pretty much discarded that information.

Everyone, as it turns out, beside the appellate judge.

After the ruling, Stephen Volker, lawyer for the tree-sitters, and the Panoramic Hills Association (PHA) appealed the case. That appeal extended the injunction for another 20 days, resulting in the injunction expiring on August 18th, the date that everyone remembers. What many forget is that in addition to appealing the case, the lawyers also made a motion to Judge Miller to have a re-trial because they felt that the plans for the SAHPC had changed enough during the course of the trial that they would have presented their case differently had the design presented a year ago been the final design. Judge Miller set a date of August 12th to hear that petition for a re-trial.

With now both the re-trial hearing pending and the 30-day timer allowing the University to submit valuation data to Judge Miller, the appellate judge concluded that the trial case was not in fact wrapped up. Since it was not wrapped up, he could not hear the appeal. Additionally, since the case was not wrapped up, the injunction was still in place, since the language in the order removing the injunction indicated that the injunction would be removed seven days after everything wrapped up (in legalese, after a "final judgment was entered").

The appellate judge made this decision on August 7th and it was the watershed moment that stalled everything from that point. Things were further delayed when Judge Miller pushed back the hearing for the re-trial motion from August 12th to August 25th due to scheduling conflicts meaning that the earliest the final judgment would be made would likely be delayed until at least that date.

Late last week, the latest bombshell dropped in regards to this case. Volker and the PHA decided to withdraw their motion for a re-trail. Why they have done this is not clear, although they stated altruistic reasons in their court filing that "it is in the interest of the Court, the parties and judicial economy to withdraw the motion". However, despite the motivations for the move being unclear, it is not, as many have speculated, the final nail in the coffin of this case. Volker and the PHA fully intend to continue with a new appeal once the trial case is wrapped up by Judge Miller.

Finally, yesterday both sides submitted a "show cause" document to the court detailing their legal arguments for whether and how judge Miller should submit a final judgment in this case, one that would satisfy the appellate judge as indeed final. Volker and the PHA submitted a one-page document stating that they stand by their previous legal arguments and would like to see a ruling more to their liking. The University, however, was far more aggressive.

The University argued that the exact same ruling should be made with one exception. The seven day injunction extension to allow for an appeal should be dropped. The University had previously promised in court documents not to start cutting down trees until two days after a ruling. Since they are bound to that two day promise, there is no need for the judge to put her own seven day extension, particularly because the appeal has already been filed once and it is merely a matter of re-filing the same appeal once the case is wrapped up.

Why is the University concerned about 5 days? Because those 5 days are really 25 days. Since there is an automatic 20 day extension on an in-place injunction once an appeal is filed, the University would like to avoid that 20 day penalty. If, however the injunction has already expired, there's no injunction to extend, therefore Volker and the PHA would have all of two days to both get the appeal filed and get an appellate judge to issue their own injunction. If the seven day injunction was in place, the 20 day extension gives Volker and the PHA 27 days to get an appellate judge to issue their own injunction.

Finally, the University reminded Judge Miller that she need not wait until after the hearing on the 25th to make her judgment. She can enter it right now since the re-trial motion has been dropped.

Of course the question on the minds of every Bear fan is "so when does this mean the trees get cut down"? The answer of course is more complicated than we desire. In theory, if Judge Miller follows the guidance of the University, there could be the smell of chainsaws around Memorial Stadium as soon as this weekend. When looking at Judge Miller's cautious approach to date however, that seems unlikely.

What is more likely is that she will wait at least until after the hearing on the 25th to update her judgment, which means the absolute earliest the trees will come down is the 28th, and that assumes she fully follows the University's recommendation and that no appellate judge adds a new injunction within those two days.

In any case, even in the best scenario, considering the University still has to get the tree-sitters out, the likelihood the Oak Grove is cleared out before the MSU game is looking pretty small. What is more likely is that, whatever Judge Miller rules, the trees will get cut down before the 2nd home game at the end of September, although that too could be cut close if Judge Miller keeps the 7 day injunction in place. When one adds the 27 day delay between Judge Miller's ruling that is likely to come out near the end of August, will be cutting it awful close to the September 27th game versus Colorado State.

Finally, it bears repeating that all of these timelines assume that no appellate judge puts in place a new injunction while an appeal is heard. If that happens, Bear fans should expect another full season of tree-sitters and the associated inconveniences. While most observers think it is unlikely for that to occur, this case has already proven time and time again that it is wise to expect the unexpected.