LaJollaLight.com | Judge dismisses seal case

Judge dismisses seal case

Jun 30, 2009
By Dave Schwab - La Jolla Light

Pro-seal advocates lost a round in court Monday when U.S. District Judge William Q. Hayes dismissed a case that would have required federal permits before the seals could be removed from the Children's Pool beach.

La Jolla Friends of Seals and James Hudnall Jr. sued the National Oceanic and Atmospheric Administration (NOAA) and the city of San Diego claiming "a permit under the Marine Mammal Protection Act (MMPA) is required before the seals can be dispersed as there would be irreparable harm if they were removed immediately."

Hayes' ruling states, "This court grants the motion to dismiss ... The court found no grounds for the exercise of federal jurisdiction requiring a MMPA permit to be issued prior to allowing the disturbance of seals at the Children's Pool Beach."

Both sides had an immediate reaction to Hayes' decision.

"There is now no legal impediment to your (city's) immediate dispersal of the seals," attorney Paul Kennerson, who's been arguing for the Children's Pool trust, wrote in an e-mail sent to Deputy City Attorney George Schaefer.

"The court has not adopted a seal dispersal plan," said Schaefer. "They (court) wants us to appear on July 20 to evaluate competing seal dispersal plans. We see no reason for there to be any court hearing before July 20."

Pro-seal attorney Bryan Pease said he would appeal Hayes' decision.

Meanwhile, a bill, SB 428 co-sponsored by State Sen. Christine Kehoe that would amend the trust governing Children's Pool to allow seal habitation there, is awaiting a vote by the full Assembly that could come at any time.

Last week, at a public forum on the possibility of turning Children's Pool into a marine mammal park called by First District Councilwoman Sherri Lightner, La Jollans urged her to form an expert panel to study the ramifications of turning Children's Pool into a marine mammal park.

At that meeting, Bird Rock resident Mike Costello asked, "Will they spread elsewhere? What will be the effect on fish stocks? Will it bring in dangerous predators? What other effects would it have on our local coastline?"

Costello was one of about 50 people who took advantage of the opportunity to address the councilwoman giving their concerns.

Several speakers complained about the fecal waste in the pool and called for the city to clean it up. Divers talked about maintaining public access to the beach. Fishermen complained about the amount of fish being consumed by seals.

Lightner reiterated she was soliciting public comment to involve residents in the process of coming up with solutions to solve problems presented by seals at the pool.

The State Assembly Natural Resources Committee voted unanimously on June 22 in favor of Kehoe's bill. Noting the summer recess starts July 17, Kehoe said, should the bill be passed, hat the governor would have 12 days to sign it.

Kennerson contends the seals' presence violates the terms of the trust that established Children's Pool. He questioned the content - and intent - of SB 428. "Legally, it will be challenged," he said.

La Jolla CPA member Tom Brady testified in the committee hearing against the measure.

"The state agreed to be bound by the decision of the Superior Court, whichever way the decision went," he said. "And the decision said Children's Pool had to be made habitable to children and to dredge the sand."

The next seal court date is on July 20 when the city of San Diego will return before Judge Yuri Hofmann with its revised plans for dispersing seals at the pool.

Dave Schwab
Dave Schwab is a reporter with the La Jolla Light. Contact Dave at (858) 875-5951 or daves@lajollalight.com.

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