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Wednesday, Oct. 22, 2008 | If things continue to go in Superior Court Judge Yuri Hofmann’s courtroom as they have been, a confrontation between the city of San Diego and the Children’s Pool Harbor seals is imminent.
Hofmann on Tuesday told a full courtroom that the city is obligated immediately to shoo the colony of seals that for more than a decade has used the manmade cove as a birthing ground, and consequently fouled the water with their waste to the point where it is unsafe for humans.
Hofmann said the trust governing the cove “does not permit joint use between humans and seals, [and] does not permit use by seals of the beach as a habitat.” He is referring to the trust established in the 1930s after La Jolla matriarch Ellen Browning Scripps donated $50,000 to build the crescent-shaped seawall that created the pool.
“That means the city must disperse the seals from the La Jolla Children’s Pool,” he said.
Hofmann’s emphatic statement — which backed up an order he issued in September — indicates the city is at the end of its legal rope in the long-running court battle over the seals’ presence at the beach, and within days could have to take an action that will ignite tensions between animal rights activists and others who want the seals left alone, and those who want the cove to again be a safe place for people to swim.
For decades humans and pinnipeds co-existed peacefully at the cove at the foot of Jenner Street. But in the early 1990s, the seals began showing up in larger numbers and by the end of the decade the cove was a full-fledged seal rookery. It was also heavily contaminated with bacteria from the seal feces.
In 2005, Judge William Pate ruled that the city had to clean up the cove and return it to its original condition, which in essence meant that the seals would have to go. The case was brought by Valerie O’Sullivan, a now former La Jolla resident who sued the city after federal authorities ticketed her for harassing the seals after she went swimming in the cove.
All along, the city has read Pate’s original ruling to mean that the cove must be dredged, which would result in the eventual removal of the seals. Once the cove is dredged, the beach will be much smaller and not attractive to seals.
After losing an appeal of Pate’s decision, the city begun the process of completing an environmental impact report and getting the proper permits for the dredging, a process that officials say will take as long as three years.
Paul Kennerson, lawyer for O’Sullivan (who in recent years has moved to New Zealand), has accused the city of dragging its feet on complying with Pate’s orders. This year he filed a motion in Hofmann’s court to compel the city to remove the seals before beginning the dredging.
In September, Hofmann ruled in favor of Kennerson, stating: “Any and all portions of the judgment that can be accomplished without a permit shall begin forthwith.”
Kennerson followed up Hofmann’s order with a request that the judge levy sanctions against the city, including fines of $10,000 for every day that the city does not comply with the order, and the imprisonment of Mayor Jerry Sanders if the city does not comply.
In court Tuesday, City Attorney Michael Aguirre argued that the city is complying with Pate’s ruling by moving ahead with dredging plans, and that Hofmann’s order did not expressly require the city to shoo the seals.
“The order says nothing specific concerning the removal of the seals,” said Aguirre, who later vowed to appeal a final order from Hofmann that seems inevitable.
Kennerson called Aguirre’s assertion “wrong and false,” adding that the city’s time is up and it has no options but to remove the seals.
“The buck stops here,” Kennerson said. “The order must be implemented.”
Aguirre implored the judge to consider the ramifications of such an order. An action by the city to harass the seals will infuriate animal rights activists here and elsewhere and exacerbate the already tense relations between pro and anti-seal groups in the community. And, Aguirre said, experts have told the city that any attempts to shoo the seals that do not violate the Marine Mammal Protection Act probably won’t work.
“I get the sense from your honor that there is a settled point of view,” Aguirre said. He then laid out for the judge what is likely to happen: “We will go out to initiate some sort of aggressive behavior toward the seals, and it will be a chaotic situation. There will be a very negative reaction (from the community) and nothing will be accomplished.”
Hofmann was not swayed. “Mr. Aguirre refers to this court’s seemingly settled position, or feeling on the case. It’s not a matter of this court’s feeling. The law in this case has been settled.”
However, Hofmann did not make any demands of the city at the hearing. He said he would take Kennerson’s motion “under submission for further consideration,” meaning that he will likely issue a written order between now and Friday, when there is a separate hearing scheduled to address the city’s dredging plans.
Jay Goldstone, the city’s chief operating officer, said city officials have come up with a plan to shoo the seals if it comes to that, but would not offer any details.
Meanwhile, Bryan Pease, a lawyer representing the La Jolla-based Friends of the Seals in a case against the National Marine Fisheries Service, will be in U.S. District Court on Wednesday trying to get Judge William Hayes to issue a temporary restraining order to prevent the seals from being dispersed without a permit from the federal agency.
The prevailing assumption throughout the O’Sullivan case has been that a loophole in the Marine Mammal Protection Act allows the city to disperse the seals without a permit for “the protection of the public health and welfare.”
During a 2004 San Diego City Council hearing on the Children’s Pool, a National Marine Fisheries service official said marine mammals can be “moved out of an area if they are either presenting a public nuisance or they’re causing a public health hazard.”
Pease said he will argue that the seals have never been officially declared a nuisance. “It is short-circuiting the process,” he said. “There has never been any finding by the city that these are nuisance animals.”