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Rope barrier removed; seal advocates want it back up

Now that the rope barrier at Children’s Pool has been taken down, seal advocates are petitioning the city to get it put back up.

“We are in the process of looking at a proposal that both sides seem to be in agreement with, and the issue will be brought back to the Natural Resources and Culture Commitee of the City Council within a month,” said Councilwoman Donna Frye, chair of that committee.

The rope barrier at La Jolla’s Children’s Pool, visually separating pinnipeds from humans during the marine mammals’ pupping season, is now in place annually from Dec. 15 through May 15.

“We haven’t worked out the details yet,” said Kath Rogers, volunteer co-director of the Animal Protection and Rescue League. “We’re working on something both sides can live with, and we’re going to bring that before the City Council and hope they can stop the fighting between the two sides. We think it’s crucial to protect the seals, especially at night and during some of the most vulnerable times.”

Pro-seal advocates point to a Zogby International Poll of San Diego residents recently which found more than 80 percent of those polled believe the rope barrier at Children’s Pool should be kept up year-round to protect the seals. That same poll claims support is even stronger in favor of seals in La Jolla, where 91 percent of residents believe the rope should be up year-round. The Zogby poll claims a margin of error of plus or minus 4 percent.

The Animal Protection and Rescue League added that it has declarationsfrom nighttime security guards that the group has employed for the past two years observing seals at night, testifying that incidents of harassment and disturbance of the seals markedly decrease when the rope barrier is up at night.

Anne Cleveland, president of La Jolla Town Council, said her group’s view of the situation with harbor seals at Children’s Pool remains unchanged. “The town council’s position on Children’s Pool has always been that of shared use, plain and simple,” said Cleveland.

Meanwhile, the city of San Diego’s appeal of a lawsuit filed against it by plaintiff’s attorney Paul Kennerson on behalf of Valerie O’Sullivan, alleging the city is in violation of its trust status over Children’s Pool because it has allowed the pool to be taken over by seals to the exclusion of people, which was its intended use, continues and will likely be decided sometime this summer.

The lawsuit argues the city of San Diego is in violation of its trust status governing Children’s Pool, because it has allowed, unchecked, a colony of harbor seals to take up residence there which has led to a fouling of the water caused by their fecal coliform waste, which has made the pool dangerous for human contact.

“Pro-seal advocates, with the city’s sufferance, if not active assistance, have warded off legal users from the beach by practices that clearly bar the beach to human use,” claims the lawsuit. “The city is ordered to reconfigure the beach and return it to human use.”

Recently, the Court of Appeals denied permission by seven pro-seal groups, including the Sierra Club and the California Coastal Commission, which had sought to present friend of the court briefs in favor of the cityin its appeal of the Children’s Pool lawsuit.

“That is very unusual in my experience,” said Kennerson. “These were not passers-by but hefty players whose permission was denied.”

Asked to speculate on why the environmental groups were denied, Kennerson replied: “I think it’s because the various grounds differed from one group to the other, and because they’re trying to make a political case out of a law case, just using the briefing as a pulpit to hawk their political wares.”

George Schaefer, deputy city attorney, said it was fully within the discretion of the appeals court to deny the applications brought by the seven different groups on behalf of the city of San Diego. In the previous court case lost by the city, San Diego was ordered to dredge the beach in an attempt to cleanse it, deepen it and return it to shared use by humans and seals.

Schaefer said dredging was considered by the city, but that decision was postponed pending the outcome of the appeal of the O’Sullivan lawsuit. “This litigation sort of aborted the whole process,” said Schaefer. “We’re now waiting for the appeal court’s decision.”

Schaefer said a three-judge panel will hear the appeal of the O’Sullivan case.

Kennerson said he’s waiting for a court date to present oral arguments in the Children’s Pool appeal. “I expect the (court) notice any day now,” he said, “at which time they will set a date within 30 days. We’re looking at something on the order of 60 days out for a decision.”