Chula Vista Cleared : Least Tern Fence War Is Resolved

The U.S. attorney’s office has quietly folded its investigation of charges that Chula Vista officials might have violated the federal Endangered Species Act when they put up a fence in a bird nesting ground near the bayfront area the city wants to develop.

Meanwhile, city officials have agreed to repair and reconstruct the fence in a manner acceptable to federal wildlife officials, and to make the area hospitable for the least terns that nest there every spring.

Both sides say the two decisions are not related. The U.S. attorney’s office in San Diego says it found insufficient evidence of deliberate wrongdoing, and city officials say they had wanted all along to protect the endangered birds.

“The last thing the City of Chula Vista wants is for these least terns to fly in this year and get slaughtered by motorcycles because the fence is in disarray,” William Grauer, the lawyer who counseled the city on the grand jury investigation, said Monday.

The federal grand jury investigation, which apparently began in February, centered on a 6-foot chain-link fence erected in 1984 and 1985 on the so-called D Street fill, initially at the request of state and federal wildlife officials.

Some wildlife officials accused the city of putting the fence in an inappropriate place and harming least tern chicks. Some suggested that the city hoped to limit the amount of land set aside for the birds; others accused the city of bungling.

But city officials countered that they had no obligation to put up the fence and that they acted only to protect the birds. They said they even got permits to put the fence where they put it and said federal officials never officially objected until half of the fence was up.

“The circumstances clearly warranted some type of criminal investigation,” Assistant U.S. Atty. Charles S. Crandall said Monday, confirming that the probe had ended. “But we found no deliberate conduct on behalf of any city officials toward the terns.”

Grauer said: “We’re gratified that the U.S. attorney’s office has recognized that there was no basis for an investigation.”

Chula Vista Mayor Greg Cox could not be reached for comment.

At the same time, the city and the U.S. attorney’s office agreed earlier this month that the city would repair the fence, install a gate with a lock on it and cut back any high brush that would provide cover for predators that prey on least tern eggs.

The work, which city officials hope to complete this week, is being overseen by a staffer from the U.S. Fish and Wildlife Service. Then the service and the city will monitor the effectiveness of the fence in protecting the birds in the coming nesting season.

The fence agreement applies only to this season, which officials say lasts from late April into summer.

City officials say they have other ideas for a long-term tern nesting area set aside in their bayfront plan.

Under the bayfront plan--Chula Vista’s controversial, 12-year-old proposal for a $500-million residential, commercial and industrial development--the city has proposed a 10-acre tern area with a 10-acre buffer, surrounded by a tidal moat.

The least tern, a species that once thrived in Southern California, has been reduced to an estimated 1,100 breeding pairs, and is on the federal and state endangered species lists. Under federal law, killing or “harassing” an endangered species is a misdemeanor punishable by a year in jail.

Prosecution under the Endangered Species Act is relatively rare, wildlife officials say. However, a federal investigator said grand juries tend to be used to investigate potential violations. He said many such cases are settled through plea bargains.