Point Dume’s Wild Peafowl Get a Reprieve of Sorts

• County Agencies Say They’ve Closed the Book on Legal Action Against Longtime Resident

BY BILL KOENEKER

A spokesperson for the Los Angeles County Department of Animal Care and Control indicated on Tuesday that the agency has closed the books on the rapidly escalating peafowl issue on Point Dume.

“We tried to take the case to the DA. But they told us it is unenforceable. We can’t do anything. It is out of our hands,” said Brenda Sanchez, a Long Beach-based spokesperson for the department. The complainants only recourse is take civil action, according to Sanchez.

A spokesperson for the DA’s office indicated that no charges will be filed and the matter is no longer in their hands. “It is up to [Los Angeles County] Animal Control. We do not have the authority to tell Animal Control what to do,” said DA spokesperson Jane Robison. “We are not going to press charges against [the person alleged by peafowl critics to be harboring the birds].”

The DA got involved after longtime Point resident Charlene Kabrin was accused by neighbors Danny and Vera Erico and Animal Control, which was brought in by the Ericos, of disturbing the peace.

The reaction in the community has been swift and vocal since last week’s report in the Malibu Surfside News that the Los Angeles County District Attorney’s office made a recommendation to have the feral peafowl removed because the couple had complained to authorities.

The Point Dume Community Association began pondering a position on the matter last week and a petition started circulating that has already been signed by hundreds of bird lovers.

The petition reads, “I support the protection of the wild peacocks that live in Point Dume, Malibu. I believe that their presence adds to the quality of life in Malibu. I support the peacocks living safely on the Point under the full protection of the law.”

The e-mail urges the signer to forward the wording to friends, family and neighbors.

A bird lover who has helped get signatures said she thought the matter was important not just for the peafowl, but all wildlife in Malibu because of the precedent setting nature of the issue. “It is about all wildlife in Malibu,” she said.

Malibu municipal officials remain adamant about the city’s policy. “We don’t want the birds harmed or removed,” said Mayor Jeff Jennings, who indicated the matter is in the hands of the city attorney.

Repeated calls to City Attorney Christi Hogin were not returned. Hogin had said at last week’s city council meeting that she did not believe the action taken by the DA’s office was a final determination.

The issue of the peafowl, which can sound off in the spring and early summer during mating season, is not a new one to Malibu or the Southland.

Some bird lovers are pointing to an appellate court case when a similar fight broke out about the feral peafowl in the City of Palos Verdes Estates.

Though the issues are not completely analogous, the matter had several hearings in court including a 2005 appellate decision, which concluded the peafowl “are feral rather than domesticated creatures.”

The issue in Palos Verdes was more complicated because it dealt with the city’s peacock management program in parklands and canyons in the city.

The dispute arose in response to complaints from a resident and a number of other peafowl opponents who then sued the city, alleging public and private nuisance, trespass, negligence and intentional infliction of emotional distress.

In addition, the city had made the trapping of the peafowl unlawful and the plaintiffs alleged the ordinance was invalid.

Other issues were involved, including the city allowing, “nonindigenous feral peafowl population to proliferate on and over city owned lots,” which allegedly violated the deed restrictions by which the city obtained title.

The lower court found the deed restrictions were applicable to the city and that the municipality did not have permission to keep peafowl on its property and also opined that the peafowl were not wild animals, but rather domesticated animals living in a feral state, therefore subject to control, possession and ownership.

However, the appellate court disagreed on both counts. It ruled the trial court erred as a matter of law in determining that the deed restrictions prevented the city from operating its nearly 20-year-old program.

The appellate court also disagreed with the lower court’s opinion about the status of the birds.

“The Palos Verdes Estates peafowl are not, in any ordinary and popular sense of the word, the ‘domesticated fowl’ that an [expert] said can be ‘kept,’ by ranging. The peafowl are indisputably feral creatures as [the opponent] expresses in her complaint. While the definitions of ‘feral’ are numerous, no definition suggests that the term ‘feral’ may be applied to a domesticated creature. To the contrary, ‘feral’ means ‘being characteristic of or suggesting an animal in the state of nature,’ or existing in a state of nature; not ‘domesticated or cultivated,’ or having escaped from domestication and become wild.

“The Palos Verdes Estates peafowl are not provided with food, are not protected from their enemies and are not selectively bred by the city or by anyone else. Nonetheless in the face of these commonly understood meanings of ‘feral’ and ‘domesticated,’ the trial court relied on [an expert’s] testimony that ‘once an animal has been domesticated, neither it or any of its offspring can ever be considered wild again.’ While this view may be correct, in a technical, scientific sense (although the city’s expert testified to the contrary) a court construing contractual restrictions is obliged to use words in their ordinary understood sense. In other words, the question is not how feral peafowl are classified by the scientific community; it is whether the city is keeping domesticated peafowl on its property in violation of deed restrictions. To the point, however, is that the peafowl inhabiting Palo Verdes Estates have not been domesticated or subjected to the city’s ‘control, possession and ownership’ in the usual, ordinary or generally accepted sense of those terms.”

The appellate court ruled in favor of the city and the peafowl have flourished.

CAPTION 1. Photo credit, MSN/Frank Lamonea

ALL EYES—One of the Point Dume peacocks, resplendent in summer plumage, enjoys a fence-top perch. In ancient Greece, the peacock was protected by the goddess Hera. The birds in Malibu have to rely on intervention by their human friends, of which there are many.