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Appellate Court overturns Children’s Pool decision

Proponents of returning La Jolla’s Children’s Pool to shared use by humans and harbor seals were elated by news the U.S. Court of Appeals, Ninth District, has rejected an appeal brought by an animal rights group, non-profit Animal Protection and Rescue League, which sought to have a rope barrier reinstalled at the pool during the marine mammals’ pupping season from December through May.

The judicial ruling dismissing the case issued by Chief Judge Kozinski last week was brief.

“Appellants challenge the application of a state law that was interpreted by a state court to require the dispersal of a colony of harbor seals,” states the ruling. “Appellants contend that the state law conflicts with the local government’s obligations under the federal Marine Mammal Protection Act.(MMPA) ... We lack federal question jurisdiction over this matter. Appellants are not challenging the grant or denial of a permit application under the MMPA. This court does not otherwise have jurisdiction to consider appellants’ suit seeking to enforce the terms of the MMPA. ... The MMPA does not provide for citizens to sue to enforce the statute.”

The latest court ruling also upholds the legal rationale presented by attorney Paul Kennerson, representing La Jolla swimmer Valerie O’Sullivan, who has contended the pool’s trust status is inviolate. The courts have found in favor of O’Sullivan’s suit against the city of San Diego and has mandated that Children’s Pool must now be sand dredged to return it to the condition it was in in 1941 when it was a safe wading area for children.

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“It finally puts the case to rest,” said Kennerson, “and gives renewed vitality to the state court’s judgment. This was set aside as a trust for a children’s pool, and there’s very little in the law more sacred than the observing of a trusted property. The principle of the thing is huge.”

Bryan Pease, the attorney representing the Animal Protection & Rescue League, said the Ninth District’s decision in no way kills the case being made for harbor seals deserving protection at Children’s Pool. “What we are seeking is to get a permit for the city to put a rope up at Children’s Pool,” said Pease. “The city, in cooperation with the National Oceanic and Atmospheric Administration (NOAA) can put up a pupping season rope despite the state court’s order.”

The rope barrier in the past has been erected at Children’s Pool during the seals’ May to December pupping season to discourage humans from getting too close to seal mothers and their pups and disturbing them, which can lead to them being abandoned and their deaths.

Pease and the Animal Protection League have been challenging legal attempts which could result in harbor seals being displaced from Children’s Pool, which has become a rookery for them the past several years.

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“It means there will be no pupping season rope next December,” said Pease of the Ninth District’s recent decision, “unless some other action is taken or the state court changes its ruling. It doesn’t affect the (sand) dredging at all. Before even one grain of sand is removed from that beach, the city has to get a whole host of (environmental) permits. That’s always been the case, and it’s costing the city a lot of money.”

La Jolla benefactress Ellen Browning Scripps created Children’s Pool as a pool for children back in the 1930s.

Council President Scott Peters of the First District, who proposed returning La Jolla’s Children’s Pool to shared use fulfilling an election promise he made during his 2000 campaign, suggested it’s time now for the city to begin obeying the law.

“The city should be prepared to comply with the court order (to dredge Children’s Pool),” said Peters. “That’s what the trust provides. I’m sorry we had to go through all the trouble of the ups and downs of litigation in the hundreds of thousands of dollars. If we’d complied with the law from the beginning, we could have avoided all that. It could have just been done by now.”

Laying the groundwork and getting the permitting necessary to dredge sand from Children’s Pool won’t be accomplished quickly, said Samir Mahmalji, project officer with the city’s Engineering and Capital Projects Department.

“We have a consultant, Jones and Stokes, who started at the end of May, who are proceeding to do an Environmental Impact Report (EIR),” said Mahmalji. “It will take one year just to get a draft EIR. Then after that there’s a public review process before the draft goes to the various (environmental) agencies involved.”

The public agencies that must ultimately sign-off on Children’s Pool sand dredging include the California Coastal Commission (CCC), the Army Corps of Engineers, the Regional Water Quality Control Board (RWQCB), Fish & Game Department and Fish & Wildlife Service.

“The ones we’re required to get permits from are the CCC, the Army Corps and RWQCB,” said Mahmalji. “The others we just need to get input from during the (EIR) draft.”

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Mahmalji said it could take another six months, if there are no problems with the EIR draft, for those agencies to approve it and send it on, ultimately, for approval by the City Council.