Seal Wars: the return of the lawsuits

The seal wars at La Jolla’s Children’s Pool are continuing.

Seal sympathizers have filed a lawsuit in U.S. District Court seeking to block recent judicial decisions which narrowly interpreted the 1931 Tidelands Grant deeding Children’s Pool Beach to the city of San Diego in trust, allowing the pool to be used only for wading by youth and other marine recreational activities such as fishing and scuba diving.

Filed by plaintiffs’ attorney Bryan W. Pease on behalf of the Animal Protection & Rescue League (APRL), a nonprofit corporation, and one of its members, Dorota Valli, the lawsuit names a number of defendants including the state of California, the city of San Diego Department of Parks and Recreation, and Mayor Jerry Sanders.

The lawsuit claims the 1931 Tidelands Grant violates the federal Marine Mammal Protection Act (MMPA) of 1972, which prohibits acts that have “the potential to disturb a marine mammal in the wild by causing a disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding or sheltering.”

The suit also seeks to reestablish a rope barrier separating humans from habor seals at Children’s Pool, which the City Council last year voted to put up between Dec. 15 and May 15 to protect the mammals and their young during pupping season. The lawsuit contends that the Tidelands Grant requiring Children’s Pool Beach to be open to swimming during the harbor seals’ pupping season is a direct contradiction of the MMPA, and therefore should be struck down as violating federal law.

Plaintiffs’ attorney Pease noted the city wants to put the rope barrier up, but Superior Court Judge Hoffman implied that a pupping season rope is not permitted. “The judge has left the city in a situation where they feel they would be in contempt of court if they put the rope up,” Pease said.

Pease added there is confusion in the public’s mind as to what Children’s Pool trust actually is.

“All the trust is, is a state law from 1931,” he said. “Many people believe, wrongly, that the trust is from Ellen Browning Scripps. It’s not. Scripps paid to build the sea wall, but she never owned the beach. The beach was owned by the state and the state passed a law in 1931 transferring it to the city in trust.

“The courts have been interpreting the language of that trust to mean the city has to dredge the beach, and can’t protect the seals. We are seeking to strike down that state trust or grant. We’re saying that it is a state legislative act that lays out the terms for how this land can be used. We are seeking to strike that law down as violating the MMPA, because it requires dredging the beach, forcing the city to spend a lot of money to get rid of the seals.”

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. Now-retired Judge Pate had previously 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.

Paul Kennerson, a La Jolla attorney representing O’Sullivan, said the lower court’s ruling should stand and the rope barrier should not be put back up. “The judge denied their (plaintiff’s) request, said Judge Pate’s decision was clear and unambiguous and the final word,” said Kennerson. “The Animal Protection & Rescue League wants to overturn the trust and put up a rope. My reaction to that is those issues were dealt with in these state courts, and the federal action should be in effect.”

Kennerson added he was miffed that his client, O’Sullivan, was not named as a co-defendant in the Animal Protection & Rescue League’s recently filed lawsuit challenging the legality of Judge Pate’s ruling regarding the trust status of Children’s Pool. “Clearly, we have a stake in the outcome,” Kennerson said.

Dorota Valli is a full-time employee of APRL in charge of the group’s harbor seal protection program, spending 35 to 60 hours a week at Children’s Pool protecting the animals and educating the public about them. She said the lawsuit is necessary, beyond just humanitarian concern for the welfare of marine mammals. “We know the public is for the seals and seal watching,” Valli said. “If you read the trust, there are six reasons, other than bathing, for building the wall (breakwater) and transfering the land to the city. It pretty much should be left up to the discretion of the city what that land should be used for.

“When the trust went into effect in 1931, there was no MMPA. The state is ordering the city to violate the MMPA by dredging sand from the beach. In order to do that, you have to remove marine mammals.”

Last November, The National Marine Fisheries Service asked the city of San Diego to temporarily close Children’s Pool beach or reinstall a rope barrier to protect the seals during their birthing season, which typically runs from mid-January to May.

A Jan. 24 court date has been set in the APRL case, at which time plaintiffs will ask the court to allow the Children’s Pool rope barrier to be restored. Said Pease: “We’re asking for an initial ruling that the rope can go up while the issue of whether the trust should be struck down is litigated.”