Judge: City of San Diego not liable for La Jolla Cove odor

Town Council president Steve Haskins, second vice-president Yolanda de Riquer and immediate past-president Cindy Greatrex view sea lions resting at the top the La Jolla Cove bluff by the public access gate.
Town Council president Steve Haskins, second vice-president Yolanda de Riquer and immediate past-president Cindy Greatrex view sea lions resting at the top the La Jolla Cove bluff by the public access gate.
(Pat Sherman)

Group who sued City of San Diego over stench vows to appeal, keep pressure on officials

A Superior Court judge has rejected claims against the City of San Diego contained in a lawsuit filed by La Jolla business owners and citizens who sued the city for what they view as public officials’ failure to rid La Jolla Cove of its pervasive odor from bird and marine mammal waste.

Confirming his previous tentative ruling, Judge Timothy Taylor granted the city’s motion for summary judgment on March 27 in the lawsuit filed two years ago by Citizens for Odor Nuisance Abatement (CONA).

The city argued that the odor was among the risks and benefits of being located adjacent a marine environment. The judge ruled the city doesn’t have a duty to control any nuisance caused by wild animals, and that the city isn’t the cause of the odor.

CONA’s pro-bono lawyer, Norm Blumenthal, told La Jolla Light he plans to appeal the decision.

A Blue Eagle worker, hired by the City of San Diego, sprays a layer of cleaning agent on the La Jolla Cove bluffs in 2013. The "Cove Stench" or continuing foul odor at La Jolla Cove is caused by sea lion and bird waste, according to city officials. For years, sea lions have made the natural habitat of the Cove as their year-round home.
(Ashley Mackin)

Blumenthal maintains the city took on the duty to clean the rocks when former Mayor Bob Filner signed a May 2013 executive order to the city’s then Park & Recreation director. In the document, Filner states that the buildup of animal waste is a threat to human health and constitutes a “public health and welfare emergency,” calling for guano left by cormorants and sea lions to be cleaned up.

“It was an order to Park & Rec to scoop the poop from the rocks — not only of the birds, but of all animal waste, including sea lion animal waste,” Blumenthal said, adding he believes Judge Taylor’s ruling to be “erroneous” because a judge cannot rule on disputed evidence during a summary judgment.

“The judge did what he was not supposed to — interpret that order in a light most favorable to the entity seeking summary judgment. The judge is putting his own personal opinion in a place where it doesn’t belong. Mayor Filner’s order trumps everything else,” Blumenthal said. “The judge is responsible to order the city to follow its own orders, until the current Mayor changes those orders.”

The city’s lawyer, Glenn Spitzer, told Judge Taylor the document from Filner wasn’t an executive order, but a memo, and that the issue should be addressed by the Mayor and City Council, not the courts.

“This belongs in the political realm,” Taylor said. “The courts don’t run society.”

City Attorney Jan Goldsmith added, “Sea lions are proliferating throughout California, and that is neither the fault nor the responsibility of San Diego. The city can address the pooping habits of wild animals as a policy matter, but it cannot be compelled to do so by the courts.”

Blumenthal said it could take 12 months to get an appellate ruling.

In the meantime, he and CONA are taking the issue to the next meeting of the La Jolla Town Council, 5 p.m. Thursday, April 9 at La Jolla Rec Center.

“We’re going to ask that the Town Council and other La Jolla organizations join forces to demand Mayor Kevin Faulconer and Councilwoman Sherri Lightner comply with Mayor Filner’s order and have people out there with shovels each day scooping the poop,” Blumenthal said. “In this regard, there’s no issue with the sea lions because you’re not touching the sea lions. All you’re doing is removing the poop.”

Plan that backfired

CONA’s December 2013 lawsuit initially demanded the city remove a fence installed above La Jolla Cove that prevented human access to the bluff (CONA argued at one time humans on the bluff deterred sea lions from congregating there). However, in response to pressure from La Jolla residents, the city added a gate in the fence of its own volition to facilitate that human access.

Ironically, Blumenthal concedes, people are now on the bluff daily and the sea lions have become acclimated to their presence.

“The city has the authority to be there and it can legally disturb the sea lions, as long as it’s not using lethal force under the Marine Mammal Protection Act,” Blumenthal said, noting that CONA has abandoned its attempt to use a marine mammal behaviorist to coax the sea lions from the area.

He said the city is already following Filner’s directive, in part, by regularly applying microbial foam to the bluff that digests the bird guano (although it has little to no effect on sea lion waste and urine). “They’re halfway there, so the time has come for the City Council and the Mayor to complete the task as ordered,” Blumenthal said. “That’s going to be our appeal. I told the judge we will dismiss this case tomorrow (if the sea lion waste is removed). We don’t want a penny from the city, just a commitment to scoop the poop.”

— Sea Lion Forum —

What: La Jolla Town Council meeting to discuss sea lions and their business-deterring odor

When: 5 p.m. Thursday, April 9, 2015

Where: La Jolla Rec Center, 615 Prospect St. Meeting is open to the public.


• La Jolla Light’s POLL OF THE WEEK: