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Seal supporters undaunted by supreme court snub

A recent state Supreme Court decision ended the city of San Diego’s appeal of a lower court ruling that sand must be dredged from Children’s Pool. But incredulous pro-seal advocates remain undaunted, vowing to continue their fight to protect the harbor seals and their La Jolla rookery.

“It just baffles us the city doesn’t see what the value of these seals is,” said Linda Kelson, president of San Diego Animal Advocates. “The seals are such a huge financial resource for the city. Once they’re gone, if the people fighting to get them off the beach get their way, the city will realize what they’ve lost. The foresight is just missing. That is the trouble with our city leaders.”

To prove her point, Kelson pointed to lifeguard statistics, which indicate more than 80,000 visitors view the seals at Children’s Pool each month, and to results of a Zogby poll showing widespread pubic support for protecting the seal colony. She added that 300 business owners near Casa Beach have also signed a petition asking for a rope barrier to be erected year-round to separate people from pinnipeds there.

Recently, the California Supreme Court declined to hear an appeal of O’Sullivan vs. the city of San Diego, a case the Court of Appeal, Fourth Appelate District ruled on in September. That court concluded San Diego violated its trust status over La Jolla’s Children’s Pool by allowing it to be used for purposes other than as “a public park and children’s pool,” as stated in the 1931 trust deeding the pool over from the state to the city.

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La Jolla matriarch Ellen Browning Scripps donated $50,000 to the city of San Diego in 1931 for construction of a breakwater, a crescent-shaped walkway jutting out into the pool effectively isolating it and making it shallower and safer for young swimmers. Seals and humans co-existed at the pool largely without incident until about 1994, when seals, which had previously hauled out at Seal Rock immediately north-northeast of Children’s Pool, began increasingly to occupy the pool and the beach.

On Sept. 4, 1997, Children’s Pool was officially closed to human contact due to high bacteria coliform counts caused by seal waste building up in the pool. That restriction has since been lifted, but signs have been posted warning people they enter the pool at their own risk. In the recent past, a rope barrier has been up during the seals’ winter pupping season at Children’s Pool to discourage people from coming too close to the animals.

Patrick Lee Hord, founder of La Jolla Friends of the Seals and a member of San Diego Animal Advocates, doubts the status quo of Children’s Pool will ever change. “That beach will never be dredged,” said Hord, “not one shovelful of sand will be taken. This entire thing is a charade, the entire (O’Sullivan) lawsuit. They have now opened themselves up for so many lawsuits that will be forthcoming. People will sue the city. People will sue the state. A municipality is asking permission to remove a beach from the state of California.”

Hord criticized the city for lack of leadership on environmental issues. “The Council, except for Donna Frye, and especially the mayor’s office, have been totally remiss in their job of responsible environmental leadership,” Hord said. “It’s appalling. We will not disenfranchise 1.5 million people a year who want to come down and see the seals, for making this a little play pool for the rich elite of La Jolla. That’s exactly what this is.”

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Jim Hudnall, an advisor to La Jolla Friends of the Seals, a volunteer pro-seal group, also finds it hard to believe seals will ultimately be displaced by people at Children’s Pool. “There will be forces at work which will allow the seals to stay,” he said, “allowing recreational seal watching to take the place of swimming. I’m confident the beach will not be dredged and the seal rookery will not be touched.”

Hudnall said something important about the seals presence at Children’s Pool is being overlooked: their ecological benefit. “There is evidence of seals contributing to the diversity of fish in the kelp beds because of an increase of nutrients in the water,” he said, “which contributes to the richness of the ocean ecosystem.”

Dredging Children’s Pool in an attempt to “resolve” the seal issue there is not a new idea. It’s been considered, off and on, for several years. In September 2004, the City Council voted 5-3 to study the feasibility of spending as much as $500,000 to dredge sand contaminated by seal waste at Children’s Pool in an attempt to restore the pool to shared use by humans and harbor seals.

It has been estimated that 3,000 cubic yards of sand would need to be removed to increase tidal flushing and, in theory, restore water quality at Children’s Pool. The dredging, which would cost between $250,000 and $500,000 initially, would require numerous environmental permits. An additional $50,000 would likely have to be set aside each year to pay for maintenance dredging every three to five years to remove sand redeposited at Children’s Pool. There is no city funding available for the sand dredging project. Grants or donations would be necessary to pay for it.

One thing is for certain with Children’s Pool, if sand is to be dredged there, the permitting process the city needs to go through to accomplish that task would be both voluminous and time consuming. There are lots of regulatory hoops the city will have to jump through before dredging can commence, said Lee McEachern, district regulatory supervisor for the San Diego office of the Coastal Commission.

“The city (of San Diego) has had an application pending with us for a couple of years,” McEachern said. “There is an environmental document they have to prepare which contains all the necessary studies and impact analyses. They have to get a site development permit. That process could take the city six to 10 months.”

McEachern said many issues will have to be considered by the city in its environmental assessment of sand dredging at Children’s Pool. “They’ll have to consider how it affects the seals,” he said, “what the alternatives are, where they’re going to be placing the sand. There are a number of issues that have to be reviewed and analyzed.”

How long will the city’s environmental review of Children’s Pool take? “My guess is we’re looking at October or November of next year,” said McEachern.

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Joe Cordaro, a wildlife biologist with the National Marine Fisheries Service in Long Beach, said Marine Fisheries will likely grant a permit for the city of San Diego to dredge sand at Children’s Pool. “The Marine Mammal Protection Act does allow local municipalities to apply for an incidental harassment permit to do projects when marine mammals are in the area,” said Cordaro. “Under the law, we do have to issue them that permit. You need to monitor the seals and mitigate any damages to the seals. It’s really a confusing situation under the law.”

But not all governmental agencies with jurisdiction over La Jolla’s Children’s Pool are as likely to sign off on sand dredging there. Before sand dredging can begin, the city will have to obtain permits from several organizations - the State Lands Commission, the U.S. Army Corps of Engineers, the National Marine Fisheries Services and the California Coastal Commission - at least one of which supported the city’s challenge of the O’Sullivan ruling.

“The California Coastal Commission, filed an amicus brief with the Court of Appeal (in support of the City of San Diego) seeking reversal of the Pate decision (on O’Sulluvan),” noted La Jolla attorney Kristina Hancock, who has been involved with animal rights issues. “Amicus briefs were also filed in support of the city by the League of California Cities, the Sierra Club, the Humane Society of the United States, and several other prominent nonprofit organizations. It is significant (and highly unusual) that the Court of Appeal refused to admit any of these briefs filed by concerned entities whose interests were directly affected by the outcome of this case.”

Hancock contends the judicial thinking behind the court’s decision supporting the O’Sullivan case is flawed.

“Although the public trust doctrine would have permitted the state to narrowly limit the use of the beach to a children’s pool, the state - with full knowledge of the Scripps gift - significantly included numerous other enumerated uses in the land grant,” said Hancock. " Judge Pate’s ruling, in interpreting the statute to require the city to use the beach exclusively for a public park and children’s pool, interprets out of the statute the city’s constitutionally-granted municipal power to use the beach for any of the other specifically enumerated purposes. This interpretation is contrary to the plain language of the statute.”

Hancock pointed out the earliest known maps of La Jolla refer to the rock underneath the sea wall as “seal rock,” suggesting that Children’s Pool beach is likely the ancestral habitat of harbor seals, who are known to have high site fidelity and will return to an established rookery for generations. The beach has been federally recognized as a rookery since at least February 2000.

Ellen Stanton, former acting executive director of La Jolla Friends of the seals, a non-profit group that runs a year-round docent program at Children’s Pool, noted that human disturbance, which could include sand dredging, has been shown to have a negative impact on harbor seals’ usage of a haul-out site.”

Stanton added habor seals are site-specific, meaning they like their home turf and are not apt to want to find another spot. She pointed out fears are also misguided that Children’s Pool habor seals will begin colonizing other beaches nearby. “They have not been seen to colonize La Jolla Shores or the Cove,” she said. “They’re pretty loyal to their home turf.”

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The wisdom of dredging Children’s Pool has been challenged for reasons other than the welfare of seals. Dr. Douglas L. Inman, a professor emeritus at Scripps Institution of Oceanography, has gone on record as concluding that dredging of sand from Children’s Pool will ultimately return sand to the pool, as well as hasten erosion of nearby coastal cliffs.

“Because the Children’s Pool-Boomer Beach salient juts northwest of the rest of the pocket beaches, very little sand is transported into this salient from the north or south,” said Inman. “Thus, the source of sand is from erosion of the cliffs in that reach. Sand from Children’s Pool that is placed to the west or southwest of the breakwater will stay to the south and may move farther south. Sand that is placed northeast of the pool will participate in the northeast/southwest seasonal cycle described above, and provide beach nourishment to the pocket beaches of the salient until it is eventually trapped again in the Children’s Pool.

“The pool sand is an integral part of the sand budget of that area. Although the sand volume to be removed (3,000 cubic yards) would not be large for a continuous beach such as that north of La Jolla Shores, it is very large for the small pocket beaches along the Children’s Pool-Boomer Beach salient. These beaches derive their sand from local cliff erosion, and 3,000 cubic yards is a significant amount of cliff erosion.”

Last year, the City Council took emergency action to erect a rope barrier at Children’s Pool to separate humans from harbor seals during their Dec. 15 to May 15 pupping season. Will the recent legal decisions regarding Children’s Pool have any effect on the rope going back up again this year?

“That is the million-dollar question,” said Bryan Pease, an attorney representing the Animal Protection & Rescue League. “We have not been able to get a straight answer from anybody at the city. We’ve been told the city applied for the initial permit, but they apparently didn’t follow through. We may have to file a lawsuit to get that rope up.”