Judge delays seal permit ruling again
The seals at the Children’s Pool Beach in San Diego have gotten another temporary reprieve.
A judge on Friday afternoon delayed a decision on whether to make permanent a temporary order he issued in the morning that requires the city to continue to pursue permits needed to remove the harbor seals from the area, despite a conflicting ruling issued by a federal judge.
Meantime, City Attorney Michael Aguirre said that after receiving hundreds of letters from children who want the animals to stay, he will seek state legislation to make the beach a protected area for seals.
U.S. District Court Judge William Q. Hayes issued a temporary restraining order Wednesday that prohibits the city of San Diego from taking any action that results in the “harassing or dispersing the colony of harbor seals at Children’s Pool Beach.’' He scheduled another hearing for Nov. 25 to consider issuing a permanent injunction to protect the seals.
But San Diego Superior Court Judge Yuri Hofmann issued a temporary ruling Friday morning ordering the city to return the Children’s Pool back to its “pre-seal’’ condition, in compliance with a 1931 state law that ceded the area to the city if the beach was used as a bathing pool for children.
Hofmann’s ruling supports a 2005 ruling by Judge William Pate, who ordered the city to restore the area to its pre-seal condition within six months by removing sand buildup and cleaning up the water.
“The court is aware of the (federal) temporary restraining order ... which enjoins the city from ‘harassing or dispersing the colony of harbor seals at Children’s Pool Beach’ ... however, the reminder of (Pate’s) judgment is unaffected,’' Hofmann wrote in his order.
“Accordingly, the city is ordered to continue in its efforts to obtain all necessary permits to carry out the judgment and, once obtained, begin returning the Children’s Pool back to its
1931 condition. Further, the city is ordered to begin actively researching methods by which it intends to disperse the seals when the time comes.’'
On Friday afternooo, Hofmann delayed a hearing on whether to make the ruling permanent, saying he had not been able to read through the “five inches’’ of documents provided by the City Attorney’s Office.
The hearing will continue at 1:30 p.m. Nov. 14, when the judge is to review the city’s report of compliance on permits needed to dredge the area and remove the seals.
After arriving late, City Attorney Michael Aguirre told Hofmann the city is not opposed to the order.
“We understand we have to comply with your honor’s order,’' Aguirre said. `"We are not looking for a way to circumvent the order.’'
Aguirre told reporters after the hearing that although he intends to comply with the ruling, he has written a letter to Sen. Christine Kehoe, D-San Diego, asking her to sponsor legislation that would change the use of the area from a “swimming pool’’ to a protected area for seals.
Aguirre said he made the decision after he received “literally hundreds of letters’’ from San Diego-area children who want the seals to stay.
“It’s going to be a traumatic experience for the children of San Diego,’' Aguirre said.
Hofmann denied a request by Aguirre to remove Valerie O’Sullivan, who sued to have the seals removed, from the case.
Deputy City Attorney Ward Schaefer argued that because O’Sullivan now lives in New Zealand, she does not have the best interests of San Diego’s children at heart.
Her attorney, Paul Kennerson, said the case is final.
“The real client here is the people of the state of California, particularly the children,’' Kennerson said.
Kennerson has argued that no permits are needed to remove the seals.
Experts say removing the seals would best be accomplished before their pupping season, which begins Dec. 1, Kennerson said.
Whether the city needs a permit to remove the seals is the main issue in a federal lawsuit filed by the nonprofit group La Jolla Friends of the Seals.
The attorney for the non-profit group, Bryan Pease, said the federal Marine Mammal Protection Act preempts enforcement of state law.
“A city cannot be required by a state law to destroy a federally recognized seal rookery,’' Pease said.
“On Tuesday, Hofmann took under submission a decision on whether the city should be ordered immediately to remove the seals from the beach. Hofmann had earlier denied the city’s request for more time to comply with Pate’s 2005 ruling.
Aguirre told Hofmann Tuesday that Pate’s 2005 order did not “expressly provide’’ for the removal of the seals from the Children’s Pool area.
Aguirre said that if the judge ordered the city to remove the seals immediately, the city would have to have someone on the site 24 hours a day to “shoo the seals away.’'
He urged Hofmann to let the city get all of its permits in order before
trying to move the seals.