San Diego will seek lifting of seal removal order

July 21, 2009 6:14:22 PM PDT
The city of San Diego said Tuesday it will go to court to ask a state judge to lift an order requiring the immediate removal of a colony of federally protected harbor seals from a La Jolla cove.

The announcement by City Attorney Jan Goldsmith is the latest development in an emotional and yearslong battle over who should have exclusive use of the protected cove - children or seals - in the posh seaside neighborhood of La Jolla.

On Monday, a San Diego Superior Court judge ordered the city to begin chasing away the creatures from the cove, called the Children's Pool, by Thursday or face heavy fines in order to comply with a 2005 ruling in a lawsuit brought by a disgruntled swimmer.

The city said it would blast recordings of barking dogs to scare away the pesky pinnipeds at the cost of $688,000 a year. San Diego cannot use force because the seals are a federally protected marine species.

But just hours later, Gov. Arnold Schwarzenegger signed a bill that added a marine mammal park to the list of permissible uses for the Children's Pool - giving the city a legal tool that could allow the seals to stay put.

Goldsmith said the city will go to court on the matter on Thursday. The seals can no longer be considered a nuisance for lounging on the beach or in the cove because the trust now says the area can be used as a marine mammal park, he said.

"It's like saying the seals in the zoo are a nuisance," he said.

Goldsmith said litigation over the cove's use has cost San Diego millions of dollars and could drag on for many more years unless the newly worded bill is allowed take precedent.

But the attorney who represents the swimmer said Senate Bill 428 does not absolve the city of its responsibility to maintain the cove exclusively for the use of children. Attorney Paul Kennerson said the governor's action also flies in the face of a legal promise made by the state attorney general to abide by the court's ruling in the matter.

"There are rights in this country that are not subject to the whim of any political wind that blows .... and they do not rely on the consent of the majority," Kennerson said.

"You've got to use it for the purpose that the trust designates. If we can't depend on that, we can't depend on anything and this was dedicated from the beginning of time as a bathing pool for children. The city knew ... they had obligations to maintain it for that purpose and they never did - and now they're crying foul."

Goldsmith said he was hopeful Superior Court Judge Yuri Hofmann would overturn his seal removal order at a hearing set for 8:30 a.m. Thursday - just 90 minutes before the city's deadline to begin chasing the pinnipeds away.

If Hofmann refuses to overturn the order, Goldsmith said, the city will be ready to begin removing the seals while simultaneously filing an emergency writ with California 4th District Court of Appeal.

Attorneys representing pro-seal groups have also filed emergency legal papers in both federal and state courts.

Children's Pool was created by a sea wall built in 1931 through a gift by La Jolla philanthropist Ellen Browning Scripps. The state, which owns the cove, subsequently placed the beach in a trust and granted the trust to the city of San Diego. The trust lists several possible public uses for it, including a children's beach and a park.

Seals began showing up in increasing numbers during the 1990s. In 1997, the city posted a warning that the pool shouldn't be used because it was contaminated with high levels of bacteria from seal waste.

In 2004, a disgruntled swimmer filed suit, alleging that a seal sanctuary was not one of the permissible uses for the cove and that the city was violating the state trust by not maintaining the cove in its original condition.

The following year, a state court judge ruled in the swimmer's favor and ordered the city to remove the seals, clean up the contaminated sand and reconfigure the cove to its original state. An appeals court upheld the ruling.

Because of the new bill, however, the city plans to ask the court to dismiss the 2005 ruling, as well as the city obligations that come with it.

"It is our job to try to end this litigation. Costs are enormous, the cost of the dredging, the cost of reconfiguration of the sand and the beach alone are in the millions," Goldsmith said. "This is the midst of a recession. We just can't afford doing that."