Judge puts off ruling on ‘evicting’ seals

With city attorney Michael Aguirre and plaintiff’s attorney Paul Kennerson trading jibes, Superior Court Judge Yuri Hoffman stopped just short today of ordering an “eviction notice” for seals at La Jolla’s Children’s Pool.

Instead, he told the attorneys he will see them in court on Friday when city officials are set to detail what environmental permits are needed to dredge sand from Children’s Pool and to give timelines involved in implementing those permits.

Aguirre, who is running for re-election, paid a surprise visit to court to argue on the city’s behalf against a motion brought by Kennerson to require the city to immediately disperse harbor seals which have taken up residence at Casa Beach. The beach was first closed in 1997 due to high bacterial content. Several years ago the posting was changed to warn people about the conditions.

It is Kennerson’s position that now-retired Judge Pate’s October 2005 ruling requiring Children’s Pool to be returned to its 1941 condition to make it safe for human contact by “any and all means” includes immediately dispersing the seals through non-harmful means. He said a permit to do so is not required.

Aguirre insisted Pate’s original order did not expressly order immediate removal of the seals, and argued the burden of proof lies with Kennerson to demonstrate that a permit is not needed. He claimed Kennerson failed to produce such proof.

Kennerson accused Aguirre of political grandstanding. He also contended the city is using “delaying tactics” in complying with Pate’s court order requiring the area to be dredged to return it to use as a children’s wading pool, the purpose for which it was created and is being held in trust.

Following the brief court appearance, Kennerson and Aguirre fielded questions from the media, each articulating their positions regarding removing seals at Children’s Pool.

“Aguirre’s claim there was ambiguity in that (Pate’s) order was … nonsense,” said Kennerson. “The point that’s absolutely paramount is this is property is a trust property put in trust for the purpose of being used by the people.

“To avert the purpose of the trust would be like my giving you a million dollars and telling you to do something specific with it, like educating my children. And you decide, on your own holding that sacred money in trust, that you’d rather spend it elsewhere,” he said. “That is illegal and that is the principle that is at stake in this case.”

Aguirre challenged the status of the plaintiff, Valerie O’Sullivan, a former La Jolla resident who has lived in New Zealand since 2006.

“I want everyone to know Kennerson’s client doesn’t even live in the United States anymore,” he said. “Kennerson presented no evidence today that a permit isn’t necessary to remove the seals. The seals are in fact protected under federal law.”

Aguirre said a court order to immediately remove the seals would require the city to hire someone, on a 24-hour basis, to shoo the seals away.

“That is going to create a huge conflict within our community.,” he said. “It will have no effect on the pollution. The seals will continuously remove themselves and then come back. It will be enormously disruptive to our community, and it will serve no purpose.”

The city is due in court before Hoffman again this Friday to detail what environmental permits are needed to dredge sand from Children’s Pool and to give timelines involved in implementing those permits.