Trial Called Crucial to Environment : Engineer Guilty of Bulldozing Stream, Wildlife Habitat

In a case environmental officials consider crucial to protecting vanishing bird habitat in San Diego County, a Carlsbad engineer was found guilty in Municipal Court Friday of violating state law when he changed the course of Buena Vista Creek by bulldozing about five acres of land along the stream.

Following the jury verdict Friday, Municipal Judge Luther Leeger set sentencing for Paul Southers for March 26 and ordered Deputy Dist. Atty. Rich Sachs to prepare a recommendation on possible restitution by Southers for damage done to the property and the creek. The misdemeanor charge of which Southers was found guilty carries a maximum six-month jail sentence and $500 fine.

The case, brought against Southers by the state Department of Fish and Game, was deemed important by wildlife and environmental authorities because it goes directly to the point of protection of wildlife habitat in rapidly urbanizing areas.

Lt. Ron Hess of the fish and game department said the agency would study the matter to determine whether to file a civil suit against Southers to seek funds to not only restore the creekbed to its original condition but also to mitigate damage to fish and wildlife habitat downstream in Buena Vista Lagoon.

Hess, a North County game warden, said the guilty verdict sent a warning to other violators that the state agency was enforcing notification requirements to protect wildlife habitat and to prevent development that results in erosion and siltation of sensitive wetlands areas.

State wildlife officials said the outcome of the case is a key to protecting rapidly vanishing bird habitat in San Diego County, where development has steadily encroached on nesting areas and lagoons used as resting spots by migratory waterfowl.

Southers was manager of the project in which about 800 feet of the Buena Vista Creek was filled in, the stream’s course diverted and a stand of willow trees removed on the property located alongside California 78 west of College Boulevard, about four miles upstream from Buena Vista Lagoon.

The district attorney charged that Southers violated a section of the fish and game code that prohibits diverting or obstructing the natural flow of a stream, changing its bed, bank and channel or using material from a water course without first notifying the state Department of Fish and Game.

Bulldozers deployed by Southers on the property last summer uprooted willow trees and destroyed nearly five acres of vegetation along the creek. That vegetation had helped prevent the erosion of soil into Buena Vista Lagoon, prosecutors charged.

Its destruction produced an increase in siltation that “severely degraded” the habitat of the endangered least Bell’s vireo, a tiny gray songbird that nests just downstream, according to fish and game biologist Denyse Racine, who testified during the trial.

In his defense of Southers, Los Angeles attorney Bernard Talmas argued that his client’s work on the creek represented an effort to prevent flooding. He argued that Southers filled in what he described as an offshoot of the creek and used the bulldozers to erect dikes in an effort to contain the water and protect the land.

Talmas contended that the creek work was an emergency measure, taken after a June storm that deposited four one-hundreths of an inch of rain was said to have caused flooding on the property. Under the fish and game code, a landowner need not notify officials if the work is necessary to protect life or property.

Talmas said Friday he had not yet consulted with his client on whether to appeal the jury decision. He added that he felt that the matter “should not have been tried as a criminal matter,” because it was purely a civil case of seeking restitution for alleged damages.

Earlier in the week, a water district official testified there was no measurable amount of rainfall recorded in June. But the official also noted that the rainfall gauge, located on Palomar Airport Road, was well outside of the property at issue in the trial.

Another defense witness, Howard Chang, a professor of engineering at San Diego State University and a hydrology specialist, testified that the Sherman property is located in a so-called “alluvial fan,” meaning that water from the creek tends to fan out along several different courses depending on seasonal conditions and other forces.

Chang said that the course of the stream was likely to shift periodically of its own accord. He also contended that the stretch of creek on the Sherman property did not substantially contribute to sedimentation downstream.

In presenting their cases, both the district attorney and the defense relied on dozens of photographs of the property taken before and after work was done on the creek. The two sides frequently used the same photograph to make conflicting points in the case.

Last week, the judge and jury visited the site, poking about the streambed in an effort to visualize the creek’s former condition and assess the damage inflicted by the bulldozers.

Earlier in the trial, the court dismissed charges against property owner Joseph Sherman of Los Angeles. Talmas argued that Sherman had no prior knowledge of work being done on the creek.

Hess said a conviction in the case paves the way for the state Department of Fish and Game to ask the state attorney general to file a civil suit against Southers. He could be assessed for punitive damages amounting to the total value of the habitat destroyed by the bulldozers. Awards in similar cases have topped $250,000.