A federal grand jury in San Diego is attempting to determine whether Chula Vista officials committed criminal violations of the Endangered Species Act when they erected a fence in a bird nesting ground near the bayfront area the city wants to develop.
The grand jury has subpoenaed all city records concerning the least tern and the Chula Vista bayfront extending back to 1980, City Atty. Tom Harron said Monday. Chula Vista's community development director is to appear before the grand jury Friday, and two former officials have also been subpoenaed.
The investigation apparently arose out of a disagreement between city officials and federal and state wildlife authorities over the location and length of a chain-link fence put up in 1984 and 1985 to protect springtime nesting areas of the least tern.
The wildlife officials have accused the city of erecting the fence in an inappropriate place, harming and possibly causing the deaths of some least tern chicks. Some sources suggest that the city intended to limit the amount of land set aside for the birds.
But city officials counter that they had no obligation to put up any fence at all and that they were only trying to help the least tern. They say that regulatory officials, if anyone, are responsible for any harm that has come to the birds.
"I find it beyond my comprehension that a city that had no obligation to do anything willingly took it upon itself to provide a protected area for the least tern, and we now find we're the subject of a criminal investigation which could lead to an indictment," Mayor Greg Cox said Monday.
Prosecution under the Endangered Species Act is relatively rare, according to wildlife officials. However, some said grand juries are often used to investigate potential violations. They said many of the cases have been settled through plea bargains.
The least tern, a species that once thrived in Southern California and has been reduced to about 1,100 breeding pairs, is listed on both the state and federal endangered species lists. Under federal law, killing or "harassing" an endangered species is a misdemeanor punishable by up to one year in jail.
In San Diego County, least terns nest and reproduce in flat, sandy areas around Mission Bay, on North Island and in the coastal lagoons, said Earl Lauppe of the California Department of Fish and Game. They also nest on Chula Vista's D Street fill, near the area long proposed for a large hotel, retail and commercial complex.
"Over the years, we have tried to protect that D Street fill by posting signs and putting up barricades," said Lauppe, a wildlife management supervisor. "It's a very difficult area, because of off-road vehicles that can get in there."
Lauppe and others in his agency and in the U.S. Fish and Wildlife Service said they had been told to refer all questions about the investigation to the U.S. attorney's office. Charles S. Crandall, the assistant U.S. attorney who handles environmental matters, declined to comment on the case or say whether his office is investigating.
According to Cox, a contractor for the city put up the first fence in 1984 at the urging of either federal or state wildlife officials. Cox said the wildlife agencies objected that the fence enclosed too small an area, so the city moved it in order to comply.
In the process, Cox recalled, there were allegations that some eggs had been crushed.
The following year, Cox said, a consulting firm for the city developed a plan to clear the area, bring in sand and fence 20 acres--creating the kind of barren, sandy environment that least terns use for nesting.
Cox said the California Coastal Commission approved the project as part of a broader coastal plan. But the commission said a state biologist and a least tern specialist would have to approve the fence before it could be built.
The two sides never reached an agreement, Cox said: The biologists wanted a larger area, and Chula Vista felt that the scope of the project was already set. So the city's contractor began building the fence, with what Cox said was other wildlife officials' approval.
But least terns began settling on either side of the fence before it was completed, Cox said. Once again, federal officials ordered a halt to construction. According to Cox, the city obliged by moving the fence.
"The irony of all of this is the fact that this last year there were 22 chicks that were hatched on the D Street fill, and there were 22 chicks that were killed," Cox said. "Most of (those) were killed as a result of predators that were roosting on the tobacco plants and other vegetation that would have been cleared out as a result of our plans."
Now the city has retained special counsel for advice in responding to the subpoenas, Cox said. The lawyer is William Grauer, who until April was an assistant U.S. attorney in the fraud section of the U.S. attorney's office in San Diego.