Excavator gets jail time for clearing along creek - Atascadero Creek landowner must restore damaged land, may face fines, sanctions

September 17, 2003

By CAROL BENFELL
THE PRESS DEMOCRAT

Atascadero, CA - An excavator who illegally cleared trees and brush along Atascadero Creek near Mill Station Road in Sebastopol will spend six days in jail and pay $1,000 in penalties.

Martin Michael Kittel, 56, of Sebastopol pleaded no contest to the charge of polluting a creek, during a brief court hearing Tuesday morning prior to sentencing.

Judge Gary Nadler imposed the jail time because of the value of the destroyed natural resources and because Kittel had been warned before by state Department of Fish and Game officials to get permits before excavating along a creek, said Jeffrey Holtzman, the deputy district attorney prosecuting the case.

In this instance, neither Kittel nor the Mill Station Road landowner, John Tomich, obtained permits, Holtzman said.

"The person who puts the blade in the ground, the person who actually does the work that impacts the resources, is directly responsible," Holtzman said. "It's not enough to say, 'The property owner told me it was OK.'"

The illegal clearing occurred in December 2002, when Tomich asked Kittel to clear some land near Atascadero Creek so he could put in a fence and graze sheep.

Kittel destroyed a swath of vegetation some 200 to 250 feet wide, snapping trees in half and pushing them into 15-foot piles, tearing out bushes and running his heavy equipment through wetlands.

Tomich, 44, blamed the destruction on Kittel, saying the excavator went beyond the scope of work he had assigned.

Following a Fish and Game investigation, Tomich was held responsible for restoring the lost riparian corridor and wetlands at a cost expected to run into the tens of thousands of dollars.

He also may be ordered to pay fines and could face criminal sanctions as well.

"We will continue to monitor the situation and to assess the landowner's level of compliance with state and federal resource agencies' directives," Holtzman said.

A replanting regimen is planned, and the restoration should be finished by Oct. 31, said Andrew Jensen, an environmental scientist with the North Coast Regional Water Quality Control Board.

Tomich also will be required to compensate for the time during which the wetland and riparian corridor were out of operation, Jensen said.

The water board has recommended Tomich mitigate this temporal loss by restoring the riparian corridor he previously removed on the opposite side of the creek, Jensen said.

Tomich has offered to put a conservation easement on the corridor, which would allow him to be paid for the loss of his use of the land, Jensen said.

Tomich could not be reached Tuesday afternoon, but his restoration consultant, Marco Waaland, said the landowner was ready to do what the agencies asked.

"Mr. Tomich really doesn't want to see this drag on," Waaland said. "We just want to do what's right and make everybody happy."