New lines being drawn over the harbor seals

The rope separating humans from harbor seals at Children’s Pool has been removed, but deep divisions remain over the pinnipeds’ presence on the beach in the wake of a recent 5-3 City Council vote in favor of dredging 3,000 cubic yards of sand there.

The intent of dredging is to clean the sand and thus the water and make the beach smaller so that fewer seals will haul out, hopefully allowing humans and pinnipeds to co-exist.

Back in 1931, La Jolla matriarch Ellen Browning Scripps gave $60,000 to create a crescent-shaped breakwater so youngsters could swim at Children’s Pool. Today, as many as 200 harbor seals call the beach home.

Proponents of returning Children’s Pool to shared use between humans and marine mammals say the two species co-existed without incident until recent times, when the seal population swelled and their waste polluted the pool and closed it to human contact.

The pool has since been reopened to human contact, but signs warn that bacterial levels remain unsafe.

Seal advocates argue the dredging plan is a thinly veiled attempt to evict the seals from the beach, a land grab destroying their rookery, forcing them elsewhere and, ultimately, establishing a humans-only enclave.

The rules of the game governing terms of co-existence between humans and seals at Children’s Pool have changed.

Harassment of seals is forbidden under the federal Marine Mammal Protection Act of 1972. But the definition of harassment, once read as any action alarming the animals or altering their behavior, has since been relaxed.

“The prohibition against harassing the animals is still there,” said Jim Lecky, assistant regional admistrator for protected resources for the National Marine Fisheries Service. “But harassment depends on the very facts of the specific situation.

Lawyers and judges review violations of the Marine Mammal Protection Act depending on a specific set of facts. Therefore, it’s hard to say if a certain thing is harassment or not. But generally, harassment is trying to do something that overtly antagonizes the animals.”

The federal Fisheries Service has an enforcement officer presently assigned to Children’s Pool to prevent close human contact with seals.

Along with the removal of the rope barrier, five new signs have been strategically placed by the city to redefine appropriate species interaction.

John Hudkins, the city’s district manager of shoreline parks and beaches, said the altered language of the signs suggests visitors should watch seals from a distance and avoid disturbing them. The signs specifically state that harassment of marine mammals is against the law.

Signs also warn that contact with the ocean water at Children’s Pool may cause serious illness, since bacterial levels exceed health standards. At the bottom of each sign appears the warning that swimming is allowed but not recommended.

It didn’t take long before new signs were in place after the City Council’s pro-dredging decision.

“We did a 48-hour turnaround,” said. Hudkins. “The City Council voted on Tuesday, and the signs were installed by Friday evening.”

Meanwhile, a lawsuit is pending against the city over the beach. Valerie O'Sullivan’s suit charges the city has breached its trust status over the pool by failing to “make use of available remedies to deter marine mammals from remaining in the trust property (pool).”

Sullivan is one of the La Jolla Nine, a group of nine swimmers who swam from Scripps Pier to Children’s Pool beach in March 2003 to prove shared use of the pool was possible. They were cited by federal officials for disturbing seals after coming ashore at Children’s Pool.

Attorney Paul Kennerson said a conference with a judge is being held Friday, Oct. 1, to set a trial date for the suit. He added it’s unlikely the suit will go to trial before the end of this year.

“When you have a trust,” said Kennerson, “that’s a sacred and very serious obligation to use that money only for that purpose, and for nothing else. The state gave this money in trust to the city for the purpose of a bathing pool for children at Children’s Pool. ... The lawsuit seeks to compel the city to do something to get rid of the seals.”

Concerning the City Council’s Sept. 14 decision in favor of dredging the pool, Kennerson is pleased the rope has been taken down, but he’s not happy with the new signs.

“The most important thing that happened on the 14th is that Jim Lecky from the National Marine Fisheries Service stood up in front of the city and said the seals were a local issue, and that they were not going to get in the way of what you need to do to satisfy your obligation under the trust,” Kennerson said. “That removes the last obstacle, removes any problem threat or any difficulty with the city getting rid of the seals because Lecky, in effect, said they should get rid of them.”

Deputy City Attorney Leslie Fitzgerald said O'Sullivan’s suit is complex.

“The city’s position is that we’re in compliance with the terms of the trust,” she said. “The language of the trust is broad enough to cover the current use of La Jolla Children’s Pool. The law is deferential to the trustee under a public trust, giving discretion to the City Council, in broad terms, on how to manage the property.”