A 2nd District judge lifted a temporary restraining order Tuesday to allow a tree - the object of an emotional standoff - to be cut down because it has already been heavily damaged by cuts made by a firm that wanted to fell the tree.

A Riverdale family was granted the temporary restraining order last month in an attempt to save the 40-foot tree that is located partly on their property and partly on the site of construction for a Walmart shopping center.Elizabeth Carlin was seeking a permanent injunction to stop Big D Construction Co. and developer Hermes Associates from cutting down the tree.

But Judge Stanton Taylor lifted the order Tuesday when Carlin's attorney, Steven Bailey, told the judge that the tree would not survive because of two cuts torn into the tree on Sept. 21 by Big D employees.

"By June or July, that tree will die," said Bailey.

The controversy started about two weeks ago when Carlin saw the construction workers cut into the tree with chain saws. She scrambled up the tree to prevent them from inflicting further damage. Since then, she and her family have taken turns sitting in and sleeping by the tree to stop further destruction.

The construction company wanted to tear out the tree so it could build the shopping center parking lot.

Carlin was in court walking on crutches from injuries she received after she fell out of the tree last week.

"I'll go home and cry," she said when she learned the black walnut tree couldn't be saved. "But it was worth the fight. Bailey said he had an expert examine the tree. Retired forester William Klein determined that the tree would not survive the two 6-inch-deep gashes.

Bailey also said he wanted the tree cut down because the weakened trunk might cause the tree to topple on Carlin's house.

"This whole fight is over two parking spots," Bailey told reporters after the hearing. "This lady (Carlin) has fought a long strong battle. If that tree hadn't died, we would have gotten the restraining order."

The Ogden attorney said he plans to file a civil lawsuit on Carlin's behalf to recover damages.

Carlin's other attorney, Olga Bruno, said she was especially upset over the ordeal because she had notified Dave Coats of Hermes Associates that there was a dispute over the tree's ownership. But she said the company went ahead and put gashes in the tree in an attempt to cut it down.