Coastal Commission approves permit for year-round seal rope

By Pat Sherman

The California Coastal Commission has given its unanimous — albeit reluctant — backing to a year-round rope barrier separating humans and seals at the Children’s Pool in La Jolla.

At its meeting in Chula Vista council chambers on Wednesday, July 11, the commission voted to approve the City of San Diego’s request for a coastal development permit to install a year-round rope to keep humans a safe distance from seals. The approval is for for an initial three-year period with several stipulations, such as implementation of a program to monitor the rope’s efficacy and a clause that would indemnify the Coastal Commission from legal liability.

Despite acting on the recommendation of its staff to approve the rope permit, the commissioners conveyed little faith that it would solve what they view as the overarching problem — the decade-long acrimony at Children’s Pool between those who want the beach reserved for seals and those favoring greater human access to the shoreline, as there was before the seals formed a colony there in the early 1990s.

“I don’t know if there’s a person on this diocese who believes that a rope is a solution to this problem,” said commissioner William Burke. “I don’t know how the city can send this forward and say this is the best we can do. … It’s like an imaginary line. Why use a rope? Why not just draw a line in the sand?”

During public comment, people on both sides of the issue used video of Children’s Pool to drive home their points, which captured moments of bad behavior on both sides, including seal advocates’ use of bullhorns and intimidation to keep people away from seals, and divers and those favoring beach access repeatedly breaching the current rope barrier (which is up during the seals’ pupping season, from Dec. 15 to May 15).

“I like reality TV, so I enjoy watching you all fight,” Burke said. “The seals are going to be fine. It’s the people that have the problem.”

The polarization Burke spoke of was evident during the meeting, as seal advocates and beach access advocates sat on opposite sides of the room, eyeing each other with circumspection.

“I’m really concerned that we have a monitoring program for harassment of the seals, but there’s no way for us to implement a monitoring program to look at the conditions of harassment of people on people,” Commissioner Jana Zimmer said.

The commissioners also reserved a measure of reproach for city officials, which they said had not conducted a proper environmental analysis of the seal colony and the seawall built by philanthropist Ellen Browning Scripps in the 1930s. The commissioners said the wall created an unnatural environment that served as a welcome sanctuary for seals and trapped levels of bacteria from seal feces that make the beach unsafe for human use.

“I want to support a temporary rope to keep people away from the seals but I want to find a real solution, rather than an arbitrary one (because) some council people sat around and didn’t do the analysis,” said Commissioner Martha McClure of Crescent City, a coastal community in Northern California. “I’m stymied as to why there wasn’t a full environmental assessment made and alternatives presented. ... I live in a community that has lots of seal rookeries and their activity varies throughout the year. To have a permanent rope may not be necessary throughout the year.”

McClure also questioned whether the city had examined opening sluiceways built into the wall, but never utilized — a possible solution for cleaning the sand that was proposed during the public comment session by community member Melinda Merryweather.

The commissioners also asked if city officials had studied removing the seawall.

“You’re going to get the rope today,” Burke said, “but as long as I’m here, I’m never going to vote for one improvement on that wall, because that wall is the problem. It’s caused the division in your community of people that should not be there — good people on both sides, not acting like it.”

A compromise plan for Children’s Pool involving moveable boulders instead of a rope garnered some interest from commissioners. The plan, presented by lifeguard union representative Ed Harris, would include dredging the sand and dumping it over the seawall or further down the beach to let the ocean waters clean it and wash it back to shore, as occurs naturally at beaches not protected from the swell.

Patrick Ahern, president of La Jolla Parks and Beaches, Inc., one of the community advisory groups favoring the lifeguards’ compromise over the rope barrier, suggested the city give advisory groups six months to work with the lifeguards union, community groups and Park and Recreation to fine-tune the compromise.

Commissioner Zimmer called the compromise “intriguing,” and said she would like to see the city report back to the commission after evaluating the feasibility of the proposal.

Stacey LoMedico, the city’s park and recreation director, said the first she had heard of the lifeguard’s proposal was several weeks ago.

“I’m not disputing it in any way, that it may or may not work,” LoMedico said, noting that the addition of boulders and dredging of sand would require permits and approval from the Army Corps of Engineers, San Diego’s Regional Water Quality Control Board and several other regulatory groups.

“All of that has not been vetted,” she said.

Several divers and spear fishers also spoke in favor of increased beach access, and against the rope.

Justin Schlaefli, president of the San Diego Freedivers, noted that La Jolla Cove is not available for spear fishing anymore, and that more than 70 percent of the coastline has been closed to spear fishers due to the Marine Life Protection Act. The Children’s Pool is the only beach in La Jolla that is open to spearfishing, and is monitored by lifeguards, which keep divers and spear fishers safe in the choppy surf, he said.

“This beach is very important to us,” he said, adding that California Senate Bill 428 “guarantees the right to fish in the Children’s Pool with convenient access,” and that giving divers and spear fishers only three feet along the east wall in which to access the water (as proposed with the year-round rope) is not enough.

John Leek, secretary of the San Diego Council of Divers, argued that the California Constitution states that the beach “shall always be obtainable for fishers and recreation.”

“If you ratify limiting access to an artificial beach with tame animals on it, then any boat or pier where a sea lion manages to stay is a natural habitat,” he said. “This is to be a state interpretation of the law today. Please be careful with it, because it affects every beach in California.”

Hope Schmeltzer, the Coastal Commission’s chief legal counsel, argued that the California Supreme Court’s ruling in

State of California v. the San Luis Obispo Sportsman’s Association

does not give divers carte blanche access at Children’s Pool and other beaches where fishing is incompatible with stated governmental use--in this case, as a marine mammal park.

“The stated purpose for the Children’s Pool is as a marine mammal park in the 2009 statute that was adopted,” she said. “Public fishing is incompatible with this purpose, as there is a substantial risk of violating the Marine Mammal Protection Act when disturbing the seals. It is the State Lands Commission’s position that there is no constitutionally protected right to fish (at Children’s Pool).”

Following the commission’s vote to approve the year-round rope, Schlaefli expressed disappointment, though said the approval process at the city would likely be lengthy, buying beach access advocates more time.

“They’re at least a year away from even putting the rope up, even if they wanted to,” he said. “It’s not the end and it’s not going to solve the problem.”

LoMedico said the year-round rope next goes before the San Diego Planning Commission for approval of a site development permit.

“We’re going to regroup with development services this week, but right now we just don’t have (a timeline),” she said.

Richard Belesky, a ranger hired to monitor the current shared use policy at Children’s Pool, said the year-round rope would only make his job easier in the absence of “instigators” on both sides of the issue.

“It will be useful at times … when it’s just the visitors and the rope and the seals,” he said.