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Thursday, Oct. 23, 2008 | At the heart of the arguments on Wednesday to temporarily allow the colony of harbor seals to remain at the La Jolla Children’s Pool was the nightmare scenario that an action by the city of San Diego would cause a mother seal to miscarry.

“I think that a really catastrophic situation has been avoided here by keeping things the way they are,” said Bryan Pease, attorney for the La Jolla Friends of Seals, who obtained a temporary restraining order against removing the seals from U.S. District Judge William Hayes on Wednesday.

“What we were looking at was an imminent state order to destroy a seal rookery where pregnant seals are about to start giving birth and nursing their young.”

Hayes’ order, which runs until Nov. 25, trumps a pending order by Superior Court Judge Yuri Hofmann, who said Tuesday that the city must immediately remove the seals so the manmade cove, which has been fouled by waste from the seals, can be cleaned up.

Pease successfully argued that the city would be violating federal law if it acted immediately to disperse the more than 100 seals without a federal permit, and cause irreparable harm to the colony because pupping season is fast approaching in December.

Sarah Wilkin, a biologist with National Marine Fisheries Service, said stress from an immediate traumatic event can cause a female mammal to prematurely deliver a baby. However, she said, there have been no specific studies of how pregnant seals react under stress.

“We have no data, and no understanding of what would go on in a seal,” said Wilkin, who was not at the court hearing.

In 2004, there were three reports of seals suffering miscarriages at the Children’s Pool. But Wilkin said the miscarriages were just as likely caused by disease or a congenital defect as a traumatic event.

Pease is scheduled to present arguments on Nov. 25 in the case he filed weeks ago against the National Oceanic and Atmospheric Administration. The suit demands that the federal agency require permits for the dispersal of seals, and that the city put up a rope barrier to keep people away during pupping season.

Deputy City Attorney George Schaefer said there remains confusion as to whether the Marine Mammal Protection Act gives the city authority to remove the seals without a permit. But he said it is clear that the city could be prosecuted by federal authorities if it caused the death of a seal.

“We are very concerned that if we were required to disperse the seal colony that there would be miscarriages by the pregnant females,” Schaefer said. “Obviously we think that would be very inhumane and would violate federal law.”

Hayes’ order gave city officials an out they have been desperately looking for in recent days as Hofmann has become increasingly insistent that the city take immediate action against the seals.

Jay Goldstone, the city’s chief operation officer, acknowledged this week that city officials had developed a plan to shoo the seals in the event they were forced to do so. But he would not give any details of the plan.

For decades humans and pinnipeds co-existed peacefully at the cove at the foot of Jenner Street, which was created in the 1930s after La Jolla matriarch Ellen Browning Scripps donated $50,000 to build a seawall that would allow for a safe place for children to swim. 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.

Because the restraining order runs right up to the start of pupping season, the seals will likely be safe at least until pupping season ends in May. However, it is almost certain that the seals will eventually have to go because of a 2005 state court ruling requiring the city to clean up the cove and return it to its original condition.

The city has already 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.

Hofmann took over the case from Judge William Pate, who issued the ruling against the city in 2005. 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.

Tuesday, in the most recent hearing in the long-running case, 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

“That means the city must disperse the seals from the La Jolla Children’s Pool,” he said.

Hofmann was responding to a motion filed earlier this year by O’Sullivan’s lawyer, Paul Kennerson, demanding that the city be forced to remove the seals immediately, regardless of the dredging schedule.

At the heart of the battles in both state and federal court is a loophole in the federal law that allows governments to harass marine mammals that are considered a nuisance for “the protection of the public health and welfare.”

During a 2004 San Diego City Council hearing on the Children’s Pool, James Lecky, 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.”

The health hazard in this case is the high level of bacteria in the cove due to the seal feces. Kennerson cited Lecky’s testimony as basis for Hofmann’s order that the seals be removed immediately.

But, Schaefer said, NOAA hasn’t always been so clear on the issue. He cites a 2003 letter written by Lecky that states the city cannot disperse seals without a permit. And both he and Pease seem to agree that the purpose of that section of the law is to deal with isolated instances of animals creating a nuisance.

“We are very skeptical that Congress intended that an entire colony of seals would be removed under this exception,” Schaefer said.

Applying that section of the law to the seals at the Children’s Pool would “turn the [protection act] on its head,” Pease said. “The section was meant for emergency actions, not to destroy an entire rookery.”

Please contact David Washburn directly at david.washburn@voiceofsandiego.org with your thoughts, ideas, personal stories or tips. Or set the tone of the debate with a letter to the editor.

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