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Last round in seal wars at Children’s Pool?

It’s now up to three Appellate Court judges to decide if sand should be removed at La Jolla’s Children’s Pool to attempt to return it to use as a children’s wading pool.

On July 11, Justices Alex McDonald, Richard Huffman and Joan Irion listened to attorneys’ arguments in an appeal of the case of O’Sullivan vs. the city of San Diego. The O’Sullivan lawsuit charges the city with breaching its trust status over Children’s Pool by “failing to deter harbor seals from remaining in the trust property (pool).”

In August 2005, Superior Court Judge Michael Pate ordered the city of San Diego to return Children’s Pool beach to its previous condition in 1941 when it was a safe wading pool for children. In March 2006 the City Council voted 5-1 to appeal the court order.

La Jolla matriarch Ellen Browning Scripps donated $50,000 to the city of San Diego in 1931 for construction of a crescent-shaped breakwater to make Children’s Pool shallower and safer for young swimmers. Seals and humans co-existed at the pool for many years. However, the seal population continued to grow there and, on Sept. 4, 1997, Children’s Pool was officially closed to human contact due to high bacteria coliform counts caused by seal waste buildup in the pool.

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George F. Schaefer, deputy city attorney, argued at the July 11 hearing that the terms of the trust document deeding the pool over to the city allows for multiple uses including a public park, a bathing pool for children, a parkway, a highway, a playground, and other recreational purposes.

Schaefer contended Judge Pate overstepped his bounds in 2005 when he ordered sand removal at Children’s Pool. “The purpose of the lawsuit was to get rid of the seals,” said Schaefer. “If we dredge Children’s Pool, that would result in the loss of the colony of seals there. The city of San Diego appreciates the generous gift of Ellen Browning Scripps providing the breakwater for Children’s Pool. But there are a number of alternative uses.”

Adding the city of San Diego has taken a cautious approach to administering its trust status of Children’s Pool, Schaefer noted harbor seals are protected by the Marine Mammal Protection Act, which forbids their being harmed or harassed. “The trial court exceeded its authority in ordering the city to take certain actions, including sand removal,” Schaefer said. " For the court to order the city to adopt a particular policy on how the Children’s Pool beach should be used by the public is a violation.”

Attorney Paul Kennerson representing the plaintiff, Valerie O’Sullivan, testified the city is obligated to observe the terms of the Children’s Pool trust. “The terms of the trust to maintain it as a safe place for children has been ignored in a wholesale fashion,” said Kennerson. “The beach now doesn’t stop until deep water. Sand dredging is the only viable alternative to returning Children’s Pool back to use as a wading pool.”

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Kennerson pointed out Children’s Pool has been closed to the children for the last 10 years. “It’s a cesspool,” he said. “It’s a danger to the public’s health and safety.”

The appellate court now must render a verdict on the city’s appeal of Judge Pate’s previous order to remove sand at the pool and return it to its 1941 configuration. If the judgment goes against the city, sluiceways in the crescent-shaped pool would likely be opened to allow natural tidal flushing and cleansing of the pool. Sand removal is also likely.

Samir Mahmalji, with the city’s Engineering Capital Projects division, said the groundwork has already been laid to acquire permitting for sand removal at Children’s Pool, should the city lose its appeal. “The real issue is going to be the environmental dealings with the Coastal Commission, the Army Corps of Engineers and the Regional Water Quality Control Board, each of which has their own (review) process,” said Mahmalji. “All three agencies would have three separate hearings on the issue, then each one of them would give their own decision. We (city) will also have to do an environmental impact report, which usually takes between eight months and a year to complete.”

Either side could petition the California Supreme Court to hear the O’Sullivan case. However, only a small percentage, less than five percent, of such petitions are granted by the state Supreme Court.

Plaintiff’s attorney Kennerson said the Appellate Court’s decision on the appeal of the O’Sullivan lawsuit is likely to be the final say on the matter. “If we (O’Sullivan) lose,” he said, “I think the case is over.”