City Parrots

Ken Dixon - Connecticut Post

NEW HAVEN A Superior Court judge on Wednesday reluctantly rejected an attempt to stop the United Illuminating Co. from capturing and killing monk parakeets that nest in utility poles near Long Island Sound.

The Darien-based Friends of Animals Inc. immediately said it would appeal the ruling, which was issued less than an hour into the third day of a civil trial before Judge Trial Referee Anthony V. DeMayo.

Shortly after FOA attorney Danielle B. Omasta rested her case against the utility, DeMayo accepted a motion for summary judgment from UI attorney Jonathan M. Freiman. Later in the day, Anita Steeves, a UI spokeswoman, said that the company had no immediate plans to resume the controversial capture program, but it expects a nest tear-down strategy in the fall and will monitor the rebuilding of parakeet colonies not scared away by the nest destruction.

Another UI spokesman, Al Carbone, said the company is currently awaiting a proposal from the U.S. Department of Agriculture on a field test of possible deterrents to prevent parakeets nesting in the poles. He said the testing could begin over the summer.

The judge admitted that the case was a “delicate public issue” and wished he could provide for an expanded hearing, including a full defense from UI.

But he rejected the admission of excerpted transcripts of sworn testimony from UI officials who had supervised the catch-and-kill program and later talked about it during pretrial depositions.

The judge said it was one of the most-unique cases he’s had in 27 years on the bench.

“It involves a lot of the public, it affects varied interests and people’s feelings are at stake,” DeMayo said. “The main aspect is these poor creatures look to us for protection and survival and I wanted to hear what this was all about.” He questioned FOA’s legal strategy, which depended on the admission of the sworn depositions into evidence, rather than the direct questioning, of UI officials in the witness box.

“I will be very candid in telling you I feel disappointed and let down by the way this case has been put on,” said the 84-year-old DeMayo, a former Superior Court judge whose senior status gives him the trial-referee title. “I don’t think I have any alternative but to dismiss the action,” he said. “I dismiss the action with reluctance because I don’t feel I’ve heard the whole story.”

He agreed with Freiman that the UI officials were in the courtroom and available for questioning.

“As counsel has pointed out, deposition testimony is a lame excuse for not putting people on,” DeMayo said. “They’re here, they would have been under the gun. They would have been before the court.”

“We had the evidence in front of the court and the judge wouldn’t let us,” Omasta, of the Manchester law firm of Beck & Eldergill, said after the case was adjourned. She said the legal strategy hinged on portions of the UI officials’ depositions. “We felt that the deposition transcripts would have shown that United Illuminating had other options” than catching and killing the birds, Omasta said.

Priscilla Feral, president of FOA, said outside the courtroom that the legal confrontation was a classic “David and Goliath” issue.

“This is a company that is soulless, heartless and greedy and they are keen on eliminating these beautiful birds from this environment,” Feral said. “I hope we can get before some judges that will allow us to present the case that these birds are owed.” Freiman, a lawyer with the New Haven law firm of Wiggin & Dana, said the birds, which can make large stick nests in trees and utility poles throughout southwestern Connecticut, create public health and safety hazards.

He said the FOA failed to prove there are any viable alternatives to scare bird colonies away from the utility poles to which some birds return time and again even when their nests are torn down by UI crews.

The latest tear-down effort was this month. The company says the nests are responsible for fires and power outages, but FOA claimed that squirrels cause more damage to UI property.

“The plaintiff has to prove that there is no threat to public health and public safety,” Freiman said.

He said that FOA witness Dwight Smith, a Southern Connecticut State University professor who has studied the parrots for years, admitted that capturing the birds is the best way to keep them from renesting in poles after their nests are torn down.

“They failed to meet the burden of showing that there is no public health or public safety hazard,” Freiman said. “And on the affirmative defense, they have met our burden of showing that there is no feasible and prudent alternative.”

Omasta told DeMayo that Freiman “misrepresented” many of the facts from FOA witnesses. “Further, there is no sufficient evidence that the monk parakeets are threats to public health or safety,” she said. United Illuminating caught about 185 of the colorful parrots during the fall of 2005, in raids on nests in West Haven, Milford and Stratford, turning them over to waiting employees of the federal Department of Agriculture for immediate asphyxiation.

That program, which was reported around the world, focused criticism against UI and resulted in at least one arrest when a West Haven resident confronted UI crews. Feral blamed the General Assembly for failing to follow through on promises in 2006 to strip monk parakeets from a state law on invasive species that may be eradicated when they present public health or safety threats.