Bulldozer vs. Birds Plows New Ground for Wildlife Code

In an unusual case that state wildlife officials consider a key to preserving rapidly vanishing bird habitat, a jury is expected to decide today whether a Carlsbad man broke the law when he filled in an 800-foot-long stretch of Buena Vista Creek and used a bulldozer to rechannel its waters.

Prosecutors allege that Paul Southers, who manages a piece of Carlsbad property divided by the creek, violated the state Fish and Game Code in July when he neglected to contact the California Department of Fish and Game before ordering workers to divert the stream’s flow. The land is alongside California 78 and west of College Avenue.

The bulldozer uprooted willow trees and obliterated nearly five acres of vegetation considered critical to prevent erosion of soil into Buena Vista Lagoon, about four miles downstream, prosecutors charge.

It also damaged habitat used by a dozen or more birds, including the endangered least Bell’s vireo, a tiny gray songbird that nests just west of the site, according to Denyse Racine, a DFG biologist who testified in court this week.

Bernard Talmas, a Los Angeles attorney representing Southers, argues that his client did not bulldoze a new creek channel, but filled in what he calls an offshoot of the creek and attempted to erect earthen dikes to redirect the water’s flow “back where it had always been.”

Talmas further contends that Southers conducted the work as an “emergency measure” to prevent flooding on the property, which he said he plans to farm. Under the Fish and Game Code, a landowner need not notify officials of creek alterations if they are in response to an emergency situation.

“We had a minor thunderstorm in the latter part of June . . . and (the creek) did jump the banks,” Southers testified Tuesday. “The National Weather Service said there was no measurable rainfall . . . but we had flooding.”

The court dismissed charges against property owner Joseph Sherman of Los Angeles after Talmas argued that Sherman had no knowledge of work on the creek.

Southers said he used the bulldozers to modify the channel in the summer because “we found, in the wet season, it’s almost impossible to do it.”

If Southers is convicted of the misdemeanor charge, he could face six months in jail or a $500 fine. Municipal Court Judge Luther Leeger also has the authority to order Southers to replant the creek banks and take other measures toward restoring the environment.

Moreover, a conviction in the case would pave the way for the DFG to ask the state attorney general to file a civil lawsuit against Southers, seeking punitive damages amounting to the total value of the habitat destroyed by the bulldozers. Bruce Eliason, chief of the DFG’s environmental services division, said such suits are common and can fetch court awards of more than $250,000.

On Tuesday, the judge, jury, bailiffs and interested observers visited the scene of the alleged crime.

Deputy Dist. Atty. Rich Sachs wore a pinstriped suit and hiking boots. Judge Leeger puffed a pipe and wore ankle-high waders. And the jurors sported attire suitable for poking about in mucky streambeds like so many ecological detectives.

At the site, evidence of the bulldozing was clear. The channel carved by Southers last summer has steep banks that have been eroded by high water produced by recent rains. The channel that prosecutors contend is the creek’s natural path lies under several feet of dirt scraped from an adjoining hillside; tree stumps, some two feet in diameter, are visible along its banks.

Tree branches and dead vegetation are scattered across the site. On its western border, a dense glade of pale-green willow trees stands as a memory of what fell to the bulldozers’ blade last summer.

According to biologist Racine, the bulldozing eliminated “green vegetation necessary to trap sediment before it reaches Buena Vista Lagoon,” the object of a $3-million dredging project to remove silt in 1983. Eliminating plants on the creek’s banks allows silt from erosion and development upstream to wash into the lagoon, where it clouds the water and hinders birds’ ability to spot fish.

In addition, silt from the Southers site “severely degraded” habitat for the least Bell’s vireo by smothering low shrubs that the bird uses for protection while nesting, Racine testified.

Talmas, however, disputes the source of the silt, attributing it to the overall urbanization of the Buena Vista Creek watershed.

DFG officials say a conviction in the Buena Vista Creek case could have ramifications throughout San Diego County, where illegal alterations of creekbeds for the convenience of development and other purposes occur frequently.

“In the past, the court has been reluctant to prosecute because they feel the (Fish and Game Code) section is vague,” said Lt. Ronald Hess, a state game warden in North County. “If we win this one, it will set a precedent and send a message that we’re not going to tolerate unauthorized and uncontrolled meddling along these creeks.”

The case against Southers marks the second time he has tangled with the DFG over actions taken on the Carlsbad property. In the summer of 1984, about eight acres of trees and vegetation bordering the creek were bulldozed, the department reported.

On that occasion, Southers was warned, but not charged. He said he cleared the site in response to a letter from the Carlsbad Fire Department ordering him to remove weeds and other debris.