Attorneys representing the landowner and developer of a site of a heron nesting colony on the planned subdivision say the nests no longer need court protection.

The rookery containing up to 50 great blue heron nests in Rochester Township was the reason Olmsted County District Court Judge Pamela King issued a temporary restraining order March 20 pausing development.

Wildlife experts testified that the site is unique and should be preserved and studied.

RELATED: Restraining order pauses development through heron nesting site in southern Minnesota

King convened a hearing Wednesday to hear arguments in a request to lift the restriction.

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Steve Connelly, owner of the approximately 30 acres of land, and developer International Properties LLC have submitted plans to Rochester Township to build a road and 10 homes. The plan calls for extending Boulder Creek Lane Southwest north toward Cascade Creek.

The road would pass through the rookery.

Citing potential “irreparable harm,” Travis Ohly, representing neighboring property owners, filed for a restraining order, which King granted.

Attorney Daniel Heuel argued the nesting site is now protected under the Migratory Bird Treaty Act of 1918, which the U.S. Fish and Wildlife Service enforces. Disturbing heron nests while pairs are nesting is illegal under the act.

Herons generally nest from April through July.

He argued that herons are common and resilient, and would find a new site to nest.

“There’s no imminent harm to be protected,” he said.

Great blue herons sit among their nests in Rochester Township Thursday, March 25. (John Molseed / jmolseed@postbulletin.com)
Great blue herons sit among their nests in Rochester Township Thursday, March 25. (John Molseed / jmolseed@postbulletin.com)

Bonnie Ploger, a professor in the biology department at Hamline University, testified remotely from her home in St. Paul that development at and near the site would cause the birds to abandon the site.

“I’d expect them to abandon it,” she said.

Ploger did say herons would relocate if their nesting site was disturbed.

“If something were to happen to the rookery, the herons wouldn’t die, correct?” Heuel asked.

“Correct,” Ploger said.

Attorneys representing the plaintiffs argued their concern wasn’t about bird survival, but site conservation.

Ploger and Carroll Henderson, who headed the Minnesota Department of Natural Resources non-game wildlife division for about 41 years before retiring in 2018, testified there are no known heron rookeries in upland forest sites.

“They’ve somehow adapted to that area and learned to forage the nearby streams,” he said.

Herons typically hunt on larger bodies of water, he said.

“This would be an incredible project for a research biologist to find out what’s going on,” Henderson said, adding the site could provide an opportunity to advance scientific knowledge about the herons.

A proposed housing development that extends Boulder Creek Lane Southwest could interrupt a Great Blue Heron Rookery in Rochester. Photo taken Thursday, March 25, 2021. (Andrew Link / alink@postbulletin.com)
A proposed housing development that extends Boulder Creek Lane Southwest could interrupt a Great Blue Heron Rookery in Rochester. Photo taken Thursday, March 25, 2021. (Andrew Link / alink@postbulletin.com)

Henderson said the area could become a scientific natural area if it was acquired from Connelly or Connelly granted an easement.

Heuel noted the state didn’t have legal authority to use the land as a natural or scientific area.

“This is something special, and we should be proud of it,” Henderson said. “It’s that simple.”

“It’s simple for you, but you’re not involved in developing private property,” Heuel said.

Leal Segura, who retained Ohly to file the suit, testified that she had been aware of the birds since she was a teen, when her parents owned the property. The development would be built on the east border of her property. Segura said she filed the suit out of concern for the wildlife.

“When you see (the herons) fly over you, you feel responsible for them,” Segura said.

Heuel pointed out an early draft of a letter she sent to the township in opposition of the development didn’t mention the heron nests.

“You want the privacy afforded to you by having the land next to you undeveloped,” he said.

Testimony in the case is set to continue Friday.

As long as herons are nesting, it is illegal to disturb or remove nests. Generally, herons finish nesting when fledglings leave the nest by the end of July.

After that, the Migratory Bird Treaty Act doesn’t protect empty nest sites.