A Superior Court judge today ordered the city of San Diego to continue to pursue permits needed to remove harbor seals from the Children’s Pool in La Jolla, despite a conflicting ruling issued by a federal judge.
Another hearing is set for 1:30 p.m. to hear arguments on his temporary ruling.
U.S. District Court Judge William Q. Hayes issued a temporary restraining order Wednesday that prohibits the city of San Diego from doing anything to remove the harbor seals.
But San Diego Superior Court Judge Yuri Hofmann issued a temporary ruling today ordering the city to return the Children’s Pool back to its “pre-seal’’ condition, when a 1931 state law granted the area to the city if it 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.’'
Hofmann also tentatively denied a request by City Attorney Michael Aguirre to remove Valerie O’Sullivan, sued to have the seals removed, from the case.
Aguirre argued that the woman’s attorney, Paul Kennerson, has no client because O’Sullivan no longer lives in San Diego.
Hofmann said the city attorney’s argument was irrelevant because the case is post-judgment.
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.
Hayes scheduled a further hearing on Nov. 25, when he’ll consider
issuing a permanent injunction.
Whether the city needs a permit to remove the seals is the main question in the 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, Superior Court Judge Yuri Hofmann took under submission a decision on whether the city should be ordered immediately to remove the seals from the Children’s Pool 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.