Chula Vista Facing Penalties in Threat to Endangered Birds

A federal environmental agency has proposed fining the City of Chula Vista and three city officials as much as $10,000 apiece for allegedly violating the Endangered Species Act by erecting a fence in a threatened bird’s nesting area.

An attorney who represents the city confirmed Thursday that he had received a “notice of alleged violation” from the U.S. Fish and Wildlife Service earlier this week, but he declined to name the officials targeted or elaborate on details of the possible penalties.

The western regional director of the Fish and Wildlife Service confirmed that the agency did have “penalty proceedings under way” against Chula Vista but would provide no details, saying he did not believe all of those facing potential fines had been notified.

“We do have something in the works but it’s improper to discuss it at this point,” Rolf Wallenstrom said from his office in Portland.

According to other Fish and Wildlife Service sources, the action caps a lengthy investigation into charges that Chula Vista officials disturbed a colony of endangered California least terns when they had a chain-link fence constructed around a nesting area near a bayfront site that the city wants to develop.

The 6-foot fence, erected in 1984 and 1985 on a sandy strip of terrain known as the D Street fill, initially was built to satisfy the requests of wildlife officials who sought to protect the terns’ springtime nesting area. Some biologists, however, accused the city of putting the fence in the wrong place, thereby harming and causing the death of some least tern chicks. Several sources suggested that the city had hoped to limit the amount of land set aside as a nesting area, while others merely said Chula Vista officials had bungled the job.

Wrongdoing Denied

City officials hotly denied any wrongdoing and argued that Chula Vista deserved credit for installing a fence when the city was under no legal obligation to do so.

The allegations triggered an investigation by a federal grand jury into charges that officials may have committed criminal violations of the federal Endangered Species Act. That investigation fizzled in April, 1986, when the U.S. attorney’s office in San Diego concluded there was insufficient evidence of deliberate wrongdoing. At the same time, the city agreed to rebuild the fence in a manner acceptable to federal wildlife officials and make the area hospitable for the least terns.

Nancy Kaufman, field office supervisor for the Fish and Wildlife Service in the agency’s regional office in Laguna Niguel, said a separate investigation into the possibility of imposing civil penalties against the city commenced when the U.S. attorney’s office bowed out of the picture.

“At that point, we turned over all of our files to our law enforcement division, and they began looking at whether there had been a violation and what sort of penalties would be appropriate,” said Kaufman, who was unaware the notice of violation had been issued this week but “was not surprised and had been anticipating it.”

Kaufman said Chula Vista was accused of violating a section of the act that prohibits the “taking” of an endangered species, a term that includes killing, harming, wounding or harassing the species, among other things.

John Burke, an attorney with the U.S. Department of the Interior who reviewed the notice of violation against Chula Vista, said the act allows for civil penalties of up to $10,000 for each person or municipality found to have committed a violation. Burke declined to disclose what amount had been proposed in the Chula Vista case.

Kaufman said the imposition of civil penalties under the Endangered Species Act is relatively rare. There have been no such cases in San Diego County in recent years, she said.

Notice of Violation

Under the act, Chula Vista will have 45 days to respond to the notice of violation in one of several ways, Kaufman said. The officials may agree to pay the fine, initiate negotiations with the agency or contest the fine. In the latter case, a hearing would be convened to determine whether the violation was committed and if the proposed fine is commensurate with the offense.

William Grauer, an attorney who represented the city during the grand jury investigation, said he was surprised by the federal government’s action, which comes more than three years after the fence was first put up.

“We only received the notice of alleged violation yesterday and it’s premature to make any comment except to say that we’re very disappointed that the fish and wildlife department would consider reopening this matter after reaching a good-faith settlement over a year ago,” Grauer said.

Chula Vista Mayor Greg Cox, who was targeted in the probe of possible criminal misconduct, agreed and expressed exasperation that the issue has continued to haunt his city.

“It seems like this is another effort at harassment on the part of the Fish and Wildlife Service, which I don’t think is going to lead anywhere,” Cox said. “Everything we’ve done with regard to the D Street fill has been predicated on putting up a fence to protect the least terns . . .

“What have they done for the least tern? Absolutely nothing. If we hadn’t put our fence up, the feral dogs and off-road vehicles would have gone in there and there wouldn’t be one least tern left.”

Cox said there was “no question” the city would contest the “ludicrous” action by the Fish and Wild Service and predicted no fines would ultimately be imposed.

The least tern, a species that once thrived in Southern California, has dwindled precipitously in recent years and is on both the federal and state endangered species lists. Kaufman estimated that there are 900 breeding pairs of terns remaining in the state.

In San Diego County, least terns nest and reproduce in flat, sandy areas around Mission Bay, on North Island and in the coastal lagoons of North County. They are also partial to the Chula Vista bayfront, which has put them in the path of city officials seeking to develop the now-degraded area into a $500-million commercial and tourist-serving complex.

The South Bay city has fought for nearly 14 years to build the project. To protect the terns, Chula Vista plans to create a 10-acre buffer and moat around the development. A 10-acre nesting area also is planned. Although it has won the blessing of the state Coastal Commission, the project has been stalled by litigation and squabbling between the city and the developer.