Judge denies request to shorten rope barrier at La Jolla Children’s Pool

San Diego Superior Court Judge Joel Pressman said he was inclined to maintain the "status quo," and keep the opening in the guideline rope at Children's Pool at three feet (as seen here). He has scheduled a preliminary injunction for 12:30 p.m., Friday, April 12. Pat Sherman photos

By Pat Sherman

A superior court judge has denied a request to shorten the seal guideline rope at La Jolla Children’s Pool (aka Casa Beach) via a temporary restraining order (TRO).

The lawsuit to obtain the TRO was filed last month by the Friends of the Children’s Pool (FoCP) organization. The beach access advocates claim Mayor Bob Filner violated “lawful land use planning procedures” when he ordered city staff to reduce the opening in the guideline rope from about 25 feet to three feet, without first issuing a public notice of his intent to do so.

The yellow nylon rope spanning the beach is up during the seals’ pupping season, Dec. 15 through May 15, and is intended to serve as a visual deterrent from people coming too close to pregnant seals and their pups.

Disagreement over how wide the gap should be remains a point of contention between seal advocates and beach access proponents. Though the rope was initially intended to be 152 feet long — with a three-foot opening for swimmers, divers and spear fishermen to access the shoreline — in 2010 city staff mistakenly approved coastal development and site development permits for a 130-foot rope barrier, which resulted in an opening of more than 20 feet.

Filner ordered city staff to extend the rope shortly after taking office in December, later amending existing permits to reflect the new three-foot gap.

Environmental law attorney Bryan Pease, who attended the FoCP’s March 7 hearing, told Judge Joel Pressman that his existing lawsuit to enforce the city council’s May 2010 resolution supporting a year-round guideline rope with a three-foot opening would render the FoCP’s lawsuit moot.

The city’s planning commission has twice denied a site development permit for the year-round rope. Pease successfully overturned the commission’s first denial of a year-round rope. In July of last year, the California Coastal Commission (CCC) approved a permit for the year-round rope, though the planning commission denied it again in September when it came before them a second time.

Pease argues that the San Diego City Council and CCC are both above the planning commission in the city’s land use hierarchy.

During last week’s hearing, Deputy City Attorney George Schaeffer agreed on this point, noting that City Attorney Jan Goldsmith recently issued a concession of error stating that the planning commission erred by not issuing a site development permit for a year-round rope barrier, based on the evidence before it.

“The planning commission is not a separate legal entity; it’s created under our land-use code — and there’s a priority under the land use code, with the city council being the highest decision maker … and the planning commission being in the middle,” Schaeffer said.

Representing FoCP, attorney Bernie King said the city attorney has a responsibility to protect public trust lands such as the Children’s Pool.

“There’s case law … that allows a member of the public (such as FoCP) to intervene to enforce rights on behalf of the public trust,”  he said. King produced a photo of the three-foot gap taken from the top of the steps leading down to the beach, which he said makes it appear as if it is completely roped off (though Judge Pressman said he could clearly see a “little gap” in the rope from the photo).

King argued that, without fully understanding the issues, the average citizen “understands (the shorter gap) as a prohibition to beach access.

“If you are a Friend of the Children’s Pool (member) and you know the law and you’re well-acquainted with it, you’re not going to be deterred,” King said. “But even the opponents of the Friends of the Children’s Pool concede that the extended rope barrier is denying access and is keeping the public away from the coast.”

King cited a La Jolla Light article in which La Jolla Friends of the Seals member, Jane Reldan is quoted as saying, “visitors are not confused and now automatically stay behind the rope.”

Deputy City Attorney Schaeffer argued that how the public perceives the guideline rope is speculative.

Visitors to Casa Beach (aka Children's Pool beach) delight at the sight of lounging harbor seals from behind the guideline rope, which beach access advocates argue serves as mental prohibition to people who might otherwise like to access the shoreline.

“The city has a responsibility to try to, legally, comport with federal law, in this case the Marine Mammal Protection Act, in terms of not encouraging people to inadvertently violate that law, and harass the seals,” Schaeffer said. “There has been no injury to this organization (FoCP), which is not even a person, by this guideline rope.”

King told Pressman that by extending the rope without public notice the city and Mayor Filner “acted in defiance” of City Attorney Jan Goldsmith, who in a Dec. 24 memo opined that the city could be subject to litigation and legal fees by not following proper land-use procedure.

“I understand the council’s concern about the Marine Mammal Protection Act,” King said. “We’re not saying take the rope down. We’re just saying put the rope back to the length it was and is in the only approved permit for that.”

Noting “a great deal of ambiguity” surrounding the issue, Pressman said he believed it prudent to keep the three-foot gap in place “until we have a full hearing of all the issues,” and denied the TRO to reduce the rope length, without prejudice.

Pressman scheduled a preliminary injunction on the case for 12:30 p.m. April 12, and urged both sides to consider “coordinating or consolidating” their suits during an ex parte hearing this week.

Related posts:

  1. Updated with Video: Police ordered to ‘keep the peace’ at La Jolla Children’s Pool
  2. UPDATED (Jan. 25): Webcam to monitor seals installed at La Jolla Children’s Pool
  3. Mayor extends length of pupping season rope at La Jolla Children’s Pool
  4. Congressman introduces largely symbolic bill to save La Jolla post office
  5. Free speech is latest battleground at Children’s Pool

Short URL: http://www.lajollalight.com/?p=103088

Posted by Pat Sherman on Mar 12, 2013. Filed under Featured Story, Seal Watch. You can follow any responses to this entry through the RSS 2.0. You can skip to the end and leave a response. Pinging is currently not allowed.

8 Comments for “Judge denies request to shorten rope barrier at La Jolla Children’s Pool”

    • Jane Reldan, MD

      Justice was served.

      • David Pierce

        The fat lady hasn’t sung…

      • cyberKICK

        Nothing was decided yet, except that he is going to hear the case.

      • cyberKICK

        How exactly was justice served when the case hasn’t been heard yet?

        • Cheri Aspenleiter

          Yes it has been decided before the Mayor was elected, he has been taking donations to his election from the Friends of the Money/Seals. The Mayor did not even know that sharks eat seals. He has done NO research on the Trust or the resulting unbalance of the underwater ecology, that is now causing the seals and sea lions to starve; The beach to be polluted, and the Children prevented from their trusted area, and for disabled people to be prevented from safely entering the sea. Please think of the good of the whole.

      • Cheri Aspenleiter

        You claim to be a medical doctor? Whom do you treat? Did you take the vow to support the infirm and the disabled? Or did you skip that part? Children’s Pool was built for ” the infirm and for children’. When people can safely enter the sea and experience it as was the reason for the breakwater, then they come to appreciate and love the ocean and all its creatures, they then become stewards of them. You and the ill-informed Marine Mammal experts, who are not local it seems are causing the seals to become sick and starved. Have YOU done any research as to the seal’s food supply being depleted due to their over population? What would cause a sea lion to climb dozens of stairs cross a street and seek shelter in a human beach chair at a hotel? Starved creatures have strange behaviors. C.P. is clearly not a healthy environment for the seals and as a result for people. It is becoming a dead zone. You have caused me to have to crawl under the gate, and to have to drag a crippled man under it. There are many disabled people shut out of this experience built for them. And for an M.D to cause this terrible treatment to disabled is shameful. The seals like the disabled people, by the way and we love them, more than you do as we actually care for them and respect them far more than you do. You are in this for money not for protecting the environment. I do not consider you an environmentalist, in fact just the opposite. I am a true environmentalist as I am right in there with them and can see that the food source is devoured, and that disabled people are being excluded who would also become stewards for the ocean if allowed to experience it.

  1. Cheri Aspenleiter

    What the courts and the attorney for Friends of Money . hiding behind seals failed to consider and I am ashamed to write this: The Deputy City Attorney left out the importance of access for disabled people, especially wheelchair swimmers who have NO other safe access to enter the water, without surf, boards, and kayaks threatening their lives. C.P, was specifically designed for “the infirm”and of course for Children. Children have no spokesperson to protect their rights to Children’s Pool. I am ashamed of the courts and really of the way our country ignores Children’s rights. This wall took ten years to construct and had overwhelming support for its original uses as a bathing pool for humans. To amend a dead woman’s Trust and add the use of Marine Mammal Park with feces, urine and afterbirth to the legal and constructed use of a pool for children and the infirm who’s immunity may be strong was morally and ethically wrong, and is incredibly disrespectful to La Jolla’s major benefactor, Ellen Browning Scripps. And then to top it off the gate to the first ramp used for decades for the infirm and for parents with small children has been closed and locked. My good friend who is also disabled and must live in a wheelchair had to be carried down the steep staircase to the water, recently, where the Breakwater allowed him safe and protected entry to the water . He was not able to simply go through the gate as is legal and correct to the historic use of the Ramp already there!! And he asked politely for the 24 hour guards to please open the gate for him. They refused to a crippled gentleman! And he had to be taken out of his wheelchair and be dragged on an old tarp under the gate. Shameful for San Diego and for La Jolla and for Friends of Seals who have supported the over population of seals, to their detriment and pollution of this sacred human ocean swimming pool . The Seals are starting to starve, thanks to the efforts of Friends of Seals and the Courts, and the Marine Mammal Protection Act acting NOT in the best interests for the seals or people. The mussel population has depleted, fish are all but gone, lobsters gone, abs gone, the underwater ecosystem is so unbalanced due to improper management including Sea World’s interference in the natural life cycle of the sea and releasing seals here creating ,a terrible imbalance that taken its toll on the ocean, and all mammals, including crippled children and adults. It is shameful and I believe criminal as well to add a use to a Trust and the only ocean swimming pool in the Continental U.S. that was not and IS not compatible. Please support the complete restoration of Children’s Pool and the proper management of the seals and sea lions, that may just mean relocating them as was already set up a few years ago just across the way to a much safer and the original rookery – Seal Rock and Shell Beach . The rip tides there are unsafe for human entry and perfect for Seals. There has been no good faith at all , and no logic for the last many years of this breaking of the Trust. “TRUST” look up the word in the dictionary and remember what it means. The lifeguard tower and shower remodel must be suspended until ADA access is written into the blueprints “to the high water mark” as per current ADA Law. Please do not allow this important ADA law to be ignored as the City is doing. Yet another ethical and criminal mistake by The City of San Diego. This could be the best and possibly the only ADA Ocean Swimming Pool in the World!!! Think what that would do for the merchants and every single business in San Diego and especially the hotels and all the other businesses in La Jolla. Parents with crippled children and adults who live in wheelchairs would Flock to San Diego especially for swimming at Children’s Pool, not just one of the many attractions added to their vacations , a quick stop to look at the seals and people fighting. Disabled swimmers may even move to our city because they can swim in the ocean in safety. And the seals would always visit of course. The Marine Mammal Protection Act has failed the pinneped population in La JOlla and no studies were conducted this many years , which is also sham

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