Judge denies request to shorten seal rope at La Jolla Children’s Pool

By Pat Sherman

A judge has denied requests by beach access proponents to shorten the seal guideline rope at La Jolla Children’s Pool, and to end a temporary nighttime beach closure there ordered by Mayor Bob Filner.

On April 19, Superior Court Judge Joel Pressman held to the tentative ruling he’d issued the day before, saying he could not rule on the beach closure because it hadn’t been introduced to the court previously.

Filner ordered the beach closure at Children’s Pool March 19, following ‘Seal Cam’ footage that shows two women harassing seals (reportedly recorded by a woman in Australia using her cell phone camera to capture the live footage streaming on her computer).

Pressman ruled the week before in favor of keeping the seal rope up year-round. Thus far it has only been up during the seals’ pupping season, Dec. 15-May 15, to keep people a safe distance from pregnant seals and their pups.

A three-foot gap in the 152-foot rope is provided for members of the public to legally access the beach, though posted signs warn people that the beach is contaminated with bacteria from seal feces, and that harassing seals violates federal law.

Attorney Bernie King filed the April 19 preliminary injunction on behalf of La Jolla’s pro-beach access group, Friends of the Children’s Pool (FoCP). The group sought to shorten the rope from 152 feet to 130 feet, claiming the mayor and city council had lengthened the rope earlier this year without following proper procedure and offering a chance for a public hearing and appeals.

Though Pressman agreed with two key points raised by FoCP in his tentative ruling, he said his previous week’s ruling in favor of a 152-foot, year-round rope (favored by both the city council and California Coastal Commission) allowed the rope to remain up.

“My question is when did the city council make a decision to install a 152-foot rope?” King asked the court, suggesting that it may have happened when the city council met in closed session to agree that the San Diego Planning Commission erred last fall by denying a permit for the year- round rope.

Deputy City Attorney George Schaeffer refuted the FoCP’s claim that the 152-foot rope blocked beach access in a way that violated California Coastal Act law. (Judge Pressman agreed with FoCP on this point in his tentative ruling, stating that it appears “the city violated the Coast Act and land development code by unilaterally installing a 152-foot rope barrier without a coastal or site development permit.”)

Schaeffer said his reading of the Coastal Act suggests human access to the beach must be consistent with the law’s mandate for the protection of wildlife and natural resources. “The evidence you have, your honor, shows that this 22-foot extension of the thin guideline rope in no way is inconsistent with that intent and mandate,” Schaeffer said, noting the testimony of a marine biologist who contends that shortening the rope increases the risk of confrontation and violence, as well as the risk of visitors violating federal law.

He said FoCP members are already aware that they are legally permitted to go under or around the rope. “They’ve been doing it for years,” Schaeffer said, adding that protecting the seals increases recreational opportunities in San Diego, drawing more than a million seal-gazers to the city each year.

Responding via e-mail, FoCP President Ken Hunrichs said the April 19 ruling on the rope length is “not as harmful to our goals as it may seem on first glance.

“We came away with the acknowledgement from the court that the city, and Mayor Filner in particular, violated the Coastal Act and San Diego land development codes by undertaking a development on the beach, by extending the rope barrier without a permit to do so.

“It was pretty clear from the beginning that the mayor’s actions were not proper and legal. What is troubling was the judge’s reluctance to order the development be brought back into compliance immediately, especially since it would be a relatively harmless move to do so. Returning the barrier rope to the permitted length until the city gets all the required permits approved or modified was what we were seeking. ...

“Also of concern is the judge stating the city council had resolved for there to be a 152-foot rope on the beach. Of course, the city council never had that length (of) rope in any consideration before them in a public council meeting. All references to the rope were at 130 feet in documents and diagrams relied on by the council. Our attorney, Bernard King, brought that fact before the court today and was ignored. A ruling in closed session where that issue may or may not have been considered for adoption is not the way an open and transparent governmental body should be allowed to operate.”