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seals in the court room

the latest legal skirmish in the battle between humans and seals at Children’s Pool was won by man.

The city of San Diego is now scrambling to comply with an Aug. 25 Superior Court judge’s order giving it six months to return the beach to its previous condition as a children’s wading pool, prior to its takeover as a de facto harbor seal rookery.

“The city, as trustee of Children’s Pool, was told to employ all reasonable means to restore the pool to its 1941 condition by removing the sand buildup,” said Paul Kennerson, attorney for Valerie O’Sullivan, the plaintiff in the breech of trust suit brought against the city. “And furthermore, the city was told to reduce the level of water contamination in the pool to levels certified by the county of San Diego as being safe for humans.”

How to achieve that end result may prove more difficult - and more elusive - than first thought. How will sand removal be accomplished without disturbing or harming the harbor seals? What will it cost? Who’s going to pay for it? Will it be effective?

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These are a few of the salient questions churning through the minds of all parties concerned as they grapple with how best to deal with this small beachhead in La Jolla.

Created with the installation of a seawall, which was paid for from a donation from La Jollan Ellen Browning Scripps in 1930, and deeded to the city as a public trust in 1931, La Jollans used Children’s Pool as a sheltered wading beach to teach children how to swim until it was closed to human contact in 1997. At that time, high bacterial counts from accumulated seal waste caused the beach to be deemed unsafe by the county Environmental Health Department.

Many longtime La Jollans began clamoring for a return to shared use of Children’s Pool by humans and seals. Following his election, City Councilman Scott Peters took up their cause, advocating shared use.

In September 2004, Peters persuaded his council colleagues to vote 5-3 in favor of studying a plan to dredge the pool in order to flush it out and restore it to shared use. At that time, the the City Council also directed that a rope barrier, which had served as a guide cautioning beachgoers not to get too close to marine mammals, be removed. The prohibition against human contact with the ocean at Children’s Pool was also dropped and was replaced with signs warning swimmers of the danger of contamination.

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April Penera, deputy director of the Park Planning and Development Division of the city’s Park and Recreation Department, is coordinating the city’s response to the judicial order to make the water there habitable to humans.

“We have to come back in 60 days, on Oct. 27, with a plan and schedule for how we’re going to accomplish return of it in six months,” said Penera.

The task of complying with the judge’s order to return the beach to its earlier state has been simplified, said Penera, because much of the preliminary groundwork to do so has already been done. Since September 2004 when the City Council directed a return to joint use at Children’s Pool, Penera said city staff has waded through the red tape to set the sand removal process in motion.

Before sand removal at the beach can begin, the city was told the project will require a site development permit, a coastal development permit and environmental certification under the California Environmental Quality Act.

It’s the responsibility of Cathy Campbell, fishery biologist with the National Oceanic and Atmospheric Administration Fisheries Service, to ensure that whatever is done by the city complies with the judicial order, follows all the rules and, most importantly, does not harm or harass the animals.

Admittedly, she said, that’s open to interpretation.

“In terms of the law, when we talk about harassment we talk about the potential to injure mammals in the wild or cause a disruption of their behavior patterns,” said Campbell. “We have a direct role in implementing the Marine Mammal Protection Act, in this case, to inform the city of what their obligations and responsibilities are under the act, what authority they have. The idea is to try to protect the animals from a level of harassment that’s going to disrupt their activities and cause problems with the population and their health.”

Undaunted by the recent reversal in the courts, seal advocate groups like Friends of La Jolla Seals and Save The Seals Coalition are lobbying to keep the seals at Children’s Pool.

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James Hudnall, an outspoken seal proponent, doubts those wanting to change the pool’s status will be able to clear the considerable environmental hurdles in their way.

“My take is the city is never going to be able to obtain the permits it needs to do what the judge has ordered,” said Hudnall. “The magnitude of the effort will be such that the harbor seal rookery will be displaced, at least temporarily, during the work period, and perhaps permanently because of the remaining small beach. The judge’s order says that everything must be done legally. The dredging project should require an environmental impact report. There will be a lawsuit over that matter if they (don’t).”

One of the biggest arguments seal proponents are advancing is that seal watching is a big tourist attraction, drawing as many as 116,000 people a month, according to the lifeguards. Those visitors spend money elsewhere in La Jolla’s downtown Village. The impact of seal watching on the local economy, however, has never been formally quantified.

Donna Calvao of Save The Seals Coalition has sought to rectify that.

“I have collected signatures from 223 business owners and managers in La Jolla saying the seals are good for tourism and help their businesses,” said Calvao, who works in a La Jolla art gallery. “People tell me all the time their children love going to see the seals. It seems logical to me that people that go to a beach to swim probably aren’t going to keep their pocketbooks with them. But when they go seal watching, they’re all dry and afterwards they go up and eat at one of the restaurants.”

Seal advocates suffered another defeat in court recently when a lawsuit seeking to restore the rope barrier keeping people at a safe distance from pinnipeds was denied. That decision is now under

appeal.

“We just filed the appeal two weeks ago,” said Patricia Lane, an attorney representing the U.S. Humane Society in the suit. “The rope barrier is still down. The seals are still being flushed into the water. We still have a harassment situation going on.”

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Lane said their lawsuit was dismissed in San Diego Superior Court in mid-July on the grounds that the city’s removal of the rope barrier did not constitute a violation of the Marine Mammal Protection Act.

“We are saying that even though the rope was advisory,” said Lane, “it did act as a shield and as a notice to inform people not to approach the seals and to stay back.”

That appeal will not likely be decided until after the first of the year.

Penera of the Parks Department said the city will apply for a dredging permit on the basis that the project, which is likely to take six weeks, will only cause incidental harassment to marine mammals. Incidental harassment is allowed under the terms of the Marine Mammal Protection Act.

Campbell of the federal Fisheries Service said a request for such a permit has a good chance of being granted, as long as conditions of the permit are met. The most important condition is that work will not be done during the harbor seals pupping season, which begins shortly after the first of the year and lasts through April.

How much sand removal will cost won’t be known until the city has received all permits to do the work, which will determine the scope of the project.

“Then,” Penera said, “we’ll talk to a contractor about the means and methods.”

Penera said the project has inappropriately been described as dredging.

“We’ll be looking to build up a berm along the water’s edge,” she said, “and remove sand on the clean part of the beach and put the sand on the other side of the breakwater, where it will be redistributed by the tides. The goal is to keep the balance of the sand in the region at an equilibrium. What we’ll be doing is excavating and hauling sand from the beach, not using an auger and pumping it through hoses, as you would do during a dredging operation.”

Douglas Inman, a research professor at Scripps Institution of Oceanography, opposes the sand removal operation as proposed. He believes that altering the beach will have negative consequences on the local ecosystem elsewhere.

“The sand that’s in Children’s Pool is sand that has eroded directly, almost cubic meter by cubic meter, from those cliffs between there and Boomer Beach,” Inman said. “Since the pool is a sand trap, the amount trapped represents an equal amount of sand loss from the beaches to the north.”

Acording to Inman, the presence of sand on a beach is a protection from cliff erosion, and the volume of sand lost from the beach will eventually result in cliff erosion of an equal amount of sand generated through cliff erosion and retreat. “What you’ll end up with if you dredge is cliff erosion, one way or another. This is just a lose-lose situation, because you’re going to cause erosion all along that (Scripps) park, and loss of small pocket beaches between the Children’s Pool and Boomer Beach.”