2 Men to Be Charged in Deaths of Nesting Herons

A Solana Beach landlord who allegedly destroyed a rookery of herons last month and dumped a trash bag full of the birds, some still alive, into a nearby Dumpster will be charged with 37 misdemeanor violations, a deputy district attorney said Wednesday.

The landlord, Bruce Berend, ignored the warning of neighbors on the 300 block of North Sierra that cutting back a 50-foot eucalyptus tree would destroy the black-crowned night herons’ nesting site, according to Deputy Dist. Atty. Kelly Rand.

The case received widespread publicity after a videotape shot by a neighbor, which showed a young bird falling to its death, aired on television. Angry neighbors told of dozens of scared and injured herons scurrying around the neighborhood and mother herons frantically searching for their hatchlings.

Under the state Fish and Game code, it is a misdemeanor to harm the nest or eggs of any bird, and it is unlawful to capture or harm any non-game bird. Each misdemeanor count carries a maximum $500 fine and/or six months in prison, Rand said.

“Never before in my career have I seen this many nests destroyed at one time, involving this many birds,” said Lt. Robert Turner, a 17-year veteran of the state Department of Fish and Game.

Robert Grimes, Berend’s attorney, said his client was operating under “conflicting legal requirements.” As a landlord, he felt compelled to clean up the birds in the tree, which created an unsanitary situation with their droppings, he said.

“It smelled bad, it was a health hazard and they are very noisy,” Grimes said, adding that the intent was not to harm the birds.

William Kincaid, owner of Superior Tree Service, also will be charged with 37 misdemeanor counts, Rand said.

“The owner of the property said that he had checked it out and the baby birds were old enough to fly away,” Kincaid said Wednesday. “He said he had talked to the bird people and Fish and Game and everything was OK.”

All the nests he found in the tree were lowered in buckets, Kincaid said.

“We did everything we could to save those birds,” he said.

Most of the counts stem from 17 dead birds and four found alive in a Dumpster the next day by a neighborhood boy. Even though no one actually saw who dumped the birds into the trash bin, Rand said eucalyptus leaves found in the bag with the birds and a brick, apparently put in the bag to weigh it down, will help connect the birds to Berend.

“It’s too coincidental” that the birds were found the next day, she said.

Kincaid said he had “nothing to do” with the birds in the Dumpster.

“Any birds that died during the whole event, it was inadvertent,” Grimes said. “No one intended to kill birds. Perhaps there was not enough knowledge on how to care for the birds, but there was no intent to hurt them.”

Berend had attempted to cut back the tree a few weeks earlier, but stopped after protests from neighbors. Grimes said that Berend believed that in the interim the baby herons had grown enough to fly away.

When Berend moved to trim the tree, several of his neighbors gathered to try to stop him. Some rounded up stranded birds and took them to area wildlife shelters.

“It was obvious from the accounts of witnesses that (Berend) knew the nests were not clear,” Rand said. “Mr. Berend even put up a No Trespassing sign. Apparently he anticipated some problems from neighbors.”

Neighbor Tracy Leddy said Wednesday that he is “very pleased” that Berend will be prosecuted.

“I feel compassion for him, but he did it to himself and he deserves what he gets,” Leddy said. “He was well aware of what he was getting himself involved in.”