State Sen. Christine Kehoe introduced a bill Thursday to make seal habitation a permissible use at La Jolla’s Children’s Pool.
She made the Feb. 27 deadline for introducing new legislation. Her bill came in response to San Diego City Council’s 7-1 vote Feb. 17 to enlist the support of the legislature in shifting the battlefront in the skirmish over the presence of harbor seals from local courts to Sacramento.
District 1 Councilwoman Sherri Lightner cast the lone dissenting vote.
“We understand the City Council’s desire to seek legislation that will allow them a little more flexibility in deciding how to treat Children’s Pool and the seals that are beaching there,” Kehoe said after the council’s vote. “We want bipartisan support.’'
Kehoe’s bill, SB 428, is coauthored by Assemblywoman Lori Saldana of the 76th District and Assemblyman Nathan Fletcher of the 75hth District representing La Jolla.
An excerpt of SB 428:
” … those tide and submerged lands are required to be devoted exclusively to public park, bathing pool for children, parkway, highway, playground, and recreational purposes, and for other uses that may be incidental to, or convenient for, the full enjoyment of those purposes. This bill would include in that list of uses and purposes a marine mammal park for the enjoyment and educational benefit of children.”
Amending the trustAttorney Paul Kennerson - who represents Valerie O’Sullivan in her lawsuit against the city claiming the seals’ presence violates the trust’s terms - wasn’t happy with the city’s action and filed a motion attempting to block it.
“There’s a lot of legal authority that a public entity trustee of a public trust cannot attempt to change a public trust,” he argued. “The courts say the act of even attempting it is beyond their powers.”
Kennerson’s motion was denied Feb. 20.
“The judge did not agree with his idea that a trust cannot be changed by the legislature,” City Attorney Jan Goldsmith said following the hearing.
The tide in the courts had clearly been turning against seal advocates and in favor of Kennerson and his client, with judges holding for the sanctity and inviolability of the trust.
On other frontsMeanwhile, the city has been making substantial progress under a court order to do an environmental impact report and obtain other necessary permits to ultimately dredge sand from the pool, which has been fouled by seal waste, to clean and restore it for human use.
Goldsmith, a former state assemblyman, said after the council’s vote that legislation for Children’s Pool is being sought, not to decide how the beach should be used, but to avoid further costly litigation by the city.
“I wanted it to get out of the courts and lawyer’s fees and endless litigation that kept going on,” he said, “and get it into the hands of the legislators who have the power to end all this.”
Costs still risingGoldsmith noted the city ‘s costs for litigation and environmental permitting for Children’s Pool well exceed $1 million and are rising. He added it could take as little as six months for legislation on the pool to be passed in Sacramento.
The net effect of its passage, he said, would be to “change the terms of the trust to render the current lawsuits moot.”
At the Council hearing on seals, Lightner expressed uncertainty over the appropriateness - and wisdom - of pursuing a legislative remedy for Children’s Pool.
“Do we know the risks of this course of action?” she asked. “My concern is that the attempt to make the litigation go away will be more costly than completing the EIR and abiding by the court order.”