Oil spill trial testimony focuses on bird damage

SANTA BARBARA -- In a criminal negligence trial, a veterinarian testified Tuesday about the damage to wildlife allegedly caused by the 140,000-gallon oil spill at Refugio State Beach in 2015.

After the spill was reported, the California Department of Fish and Wildlife assigned the UC Davis Oiled Wildlife Care Network to collect more than 128 live birds and animals and more than 300 dead ones at beaches near Refugio to determine the scope of the possible damage.

Of the 46 criminal charges facing Plains All American Pipeline in the trial that began in May for alleged negligence in handling the spill, 39 relate to the death or unlawful taking of birds, mammals, fish or reptiles. People v. Plains All American Pipeline LP, 1495091 (Santa Barbara Super. Ct., filed May 16, 2016). Christine Fiorello, who acted as the care and processing group supervisor and clinical veterinarian during the animal collection process, told the jury that marine birds are especially vulnerable during oil spills.

"Oil is bad for birds in a more rapid way than it is for any other living thing because birds rely very heavily on their plumage for not only buoyancy and thermal regulation but foraging, swimming, diving, flying, et cetera," Fiorello said. "When oil clogs their feathers, they are almost instantaneously rendered helpless."

Much of the defense team's examination of Fiorella revolved around the notion that the cause of death of many of the animals was not technically known because either a necropsy was not performed or the death of the animal was not actually observed.

Plains is represented by three firms: Munger, Tolles & Olson LLP; Bird, Marella, Boxer, Wolpert, Nessim, Drooks, Lincenberg & Rhow PC; and Fell, Marking, Abkin, Montgomery, Granet & Raney LLP.

After displaying a photo of a dead loon covered in oil, defense attorney Naeun Rim of Bird Marella pointed out what she referred to as fishing wire wrapped around the bird's beak.

"A bird can die if its beak gets tangled in fishing wire, correct?" Rim asked.

Fiorella admitted that a bird can be killed by tangled fishing wire, but during Deputy District Attorney Kevin Weichbrod's cross-examination, the veterinarian testified she couldn't tell from the photo if it was fishing wire or seaweed wrapped around the bird's beak.

Rim went on to ask Fiorella about intricate discrepancies in the labeling of the collected animals from incorrect dates to improper categorization of scavenged birds.

Fiorella testified that many of the personnel responsible for collecting the animals were mostly trained in how to properly use safety gear and animal collection techniques, not on how to identify animals. She said that the identification of the animals was done by a processing team in a rehabilitation facility.

After Rim asked Fiorella if determining the cause of death was part of the Oiled Wildlife Care Network's purview during the survey of the dead animals, she told the jury it was not.

"As a veterinarian, to know cause of death is a pretty challenging thing," Fiorello said. "I think most veterinarians would be comfortable saying, 'This bird appears to be normal except for the fact that it's covered in oil and likely died of these external issues of the oil.'"

Rim responded by asking, "When a bird comes to you dead already, those are just assumptions you made, not what you personally observed?"

Fiorella answered, "... If the bird appears to be externally normal but it's covered with oil, oftentimes we're pretty comfortable saying this bird was fine until it was covered in oil."

The trial, prosecuted jointly by the state attorney general and Santa Barbara County district attorney, continues Thursday. Superior Court Judge James Herman is presiding.