Sentence Protested in Creek Damage Case

A Superior Court judge Thursday placed a Carlsbad man on three years’ probation and fined him $500 for filling in an 800-foot-long stretch of Buena Vista Creek and using a bulldozer to rechannel its waters.

Paul Southers, who also was ordered to perform five days of community service work, immediately appealed the sentence by Judge Luther Leeger, calling it “far too harsh” and “way out of line.”

Bernard Talmas, Southers’ attorney, also objected to the judge’s requirement that his client be fingerprinted, claiming that “this unfairly gives my client a record. He is not a criminal.”

The appeal will postpone the sentence until after the appeal hearing, Talmas said.

Southers was convicted Feb. 14 of violating state law that prohibits diverting or obstructing the natural flow of a stream without first notifying the state Department of Fish and Game. The misdemeanor charge carried a maximum penalty of a $500 fine and 6 months in jail.

Last summer, bulldozers deployed by Southers on property he manages along Carlsbad’s Buena Vista Creek uprooted willow trees and obliterated about 5 acres of vegetation. Workers also filled in a stretch of the creek and plowed a new channel, prosecutors charged.

The vegetation destroyed was considered critical to preventing the erosion of soil into Buena Vista Lagoon, about four miles downstream. Biologists testifying during Southers’ trial said the work also damaged habitat used by more than a dozen kinds of birds, including the endangered least Bell’s vireo, a tiny gray songbird that nests just west of the site.

Southers’ lawyer maintained that the creek work was done to prevent flooding on the property, which is alongside California 78 west of College Boulevard. Talmas argued that Southers merely filled in an offshoot of the creek and used the bulldozers to erect dikes along a channel that already existed.

Talmas said the creek work represented an emergency measure taken after a June storm that deposited 0.04 of an inch of rain and 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.

In sentencing Southers, Leeger declined to require that Southers pay damages to cover the cost of the lost habitat, although he had authority to do so. Leeger said the issues surrounding the environmental damage are complex and that he was in no position to decide matters of civil liability.

However, the Department of Fish and Game is reviewing the Southers case and may ask the state attorney general’s office to file a civil suit against him. Bruce Eliason, the department’s environmental services supervisor, said Thursday that he plans to recommend that such legal action be taken to finance replanting and other measures at the creek site.

Court awards for environmental damage in past cases have totaled upwards of $300,000, Eliason said.

Southers and his wife, Beverly, decried the judge’s sentence and the guilty verdict as unfair and vowed to continue their appeal of the case until Southers is proven innocent.

“We feel that in merely defending our property the best way we know how we’ve been treated like common criminals,” Beverly Southers said. “The judge has tried to throw the book at Paul, giving him three years probation. Some murderers get less than that.”

Mrs. Southers also charged that her husband had been made “a scapegoat” by Department of Fish and Game officials, who she claimed were “attempting to make an example of us to scare everyone from going against these laws.”