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Deadline passes to appeal ruling on seals

The deadline for appealing Superior Court Judge Timothy Taylor’s mid-November ruling that SB 428’s passage amending the Children’s Pool trust effectively stifles opposition to the presence of harbor seals there has passed quietly.

“It’s been a very hard decision for me, but the prospects of success are not great enough to justify it (appealing),” said Paul Kennerson, the attorney representing Valerie O’Sullivan in arguing the presence of the seals at Children’s Pool violates the terms of the pool’s trust providing that it be kept as a safe wading area for children.

Kennerson said fighting SB 428 — which gives the City Council the ability to establish a marine mammal park at the La Jolla beach — would have been too steep a climb.

“If the Legislature says this is going to be a place for seals ... it’s going to be a long look to find a court that disagrees with it.”

Kennerson, however, noted there may be a couple of other legal avenues that could be pursued should someone want to continue the fight to keep shared use between humans and pinnipeds at the popular pool.

“There may be another way to come at this besides a blunt attack,” he said. “If the city mandates a marine mammal park there, that may well be creating a nuisance, especially to Casa de Manana (senior center). They may be exposing themselves to damages from adjoining property owners or other people for creating a nuisance.”

Kennerson added a case for inverse condemnation, wherein a property owner contends government condemnation of their property has deprived them of fair market value and sues for damages in the amount equal “to the highest and best use of the land,” might also be made.

He said he “would certainly talk with them” if someone approached him about continuing the legal battle.

Meanwhile, the La Jolla attorney’s decision not to appeal Taylor’s ruling leaves the door open for pro-seal advocates to follow through in asking the City Council to designate the pool as a marine mammal park.

That process will begin with the City Council’s Natural Resources and Culture Committee chaired by Councilwoman Donna Frye, which had not as of the Light’s press time on Tuesday, docketed the Children’s Pool for discussion.

Bryan Pease, an attorney representing the La Jolla Friends of the Seals and the Animal Protection and Rescue League, is also advocating the end of the policy of shared use at Children’s Pool — but with a different end goal.

“The shared use policy doesn’t work,” he said. “It’s too small an area for humans and seals to share. It should be a seal rookery. As a matter of policy, the legally preferred use should be seal watching.”

Pease added that seal advocates would like to see the rope barrier separating humans from seals during the mammals’ mid-December to mid-May pupping season “up year-round.”

“All we want really is just to have the seals protected,” he said, adding violators who cross the rope barrier should be cited by authorities, something which he said hasn’t been happening for some time largely due to the dire financial situation of both state and local government.