Judge stays his order to disperse La Jolla’s seals

Harbor seals at La Jolla’s Children’s pool got a last-minute reprieve today as federal court judge Yuri Hofmann halted his Monday morning order to have them dispersed within 72 hours, just minutes before it was scheduled to take effect.

“I will not vacate my order to have the seals dispersed, simply stay it,” said Hofmann. “We need time to sort through and review the effects of the legislation.”

SB 428, a bill co-authored by State Sen. Christine Kehoe and State Assemblyman Nathan Fletcher amending the Tidelands trust governing Children’s Pool to make seal habitation there a permissible use, was signed into law Monday by Gov. Arnold Schwarzenegger.

City Attorney Jan Goldsmith successfully argued before Hofmann that SB 428’s passage gave him just cause to reconsider his decision to immediately disperse seals.

“That is a material change in the facts,” said Goldsmith in court. “The situation has now changed in that the beach will ultimately be used as a marine mammal park, therefore they (seals) cannot be considered a nuisance, just like seals in a zoo are not a nuisance.’

Attorney Paul Kennerson has been arguing for years that the terms of the trust for Children’s Pool setting it aside in perpetuity as a safe wading pool for youth, are inviolable. He argued unsuccessfully before Hofmann that the new law was inapplicable, unconstitutional and that, in any event, it doesn’t take effect until Jan. 1, 2010.

“There is no reason, good, bad or otherwise to abrogate the order of this court on Monday that seals should be dispersed in a lawful and humane fashion,” he said.

Hofmann also granted Goldsmith’s request to set an Oct. 6 court date at 9 a.m. At that time he will rule on whether SB 428 renders moot a 2005 judicial ruling that seals’ presence at Children’s Pool constitutes a violation of its trust terms and that the city must dredge the pool in order to clean it up and return it to its 1941 condition when there was much more pool and much less beach.

The city is in the process of doing an environmental impact report for dredging the pool, the objective of which is to cleanse its sands of seal contamination and restore it once again to a safe condition for human use.