On Wednesday, May 27, Judge Yuri Hoffman ordered La Jolla’s harbor seal colony must leave the Children’s Pool and that the city must clean the water. He added, however, that city staff’s previous plan to play barking dog noises wasn’t cost efficient. Hoffman’s order sent seal lovers and marine mammal opponents scrambling until June 15 at 9 a.m., when the state judge will see new plans for seal dispersal.
In the meantime, the seals may be safe, according to attorney Paul Kennerson, with whom Hoffman sided, and Brian Pease, attorney for Animal Protection and Rescue League’s (APRL) SealWatch.
“I believe that I currently have a stay [to save the seals] and the city thinks so, too,” said Pease, regarding his previous federal temporary restraining order (TRO) protecting the colony. Hoffman ruled the TRO was not relevant, according to the attorneys.
“If the federal TRO is lifted, then I’ll file an emergency motion for a stay with the 9th Circuit,” Pease said.
In addition to Pease’s federal restraining order — which protected the seal colony during pupping season, December through May 15 — state Sen. Christine Kehoe is shepherding legislation through Sacramento to change the area’s tidelands grant, which would save the city money dispersing seals.
But Hoffman said the tidelands grant legislation — which would activate around January of 2010 — wasn’t relevant, according to the attorneys.
“It’s unconstitutional… I disagreed and the judge did, too,” Kennerson said. “I said these arguments are financial and political. The city’s remedy is to have an audio box of barking dogs, but that’s just to generate public sympathy.”
Kennerson said barking dog sound effects playing around the clock would disturb nursing home residents across the street from the Children’s Pool.
“We’ll return to court with a revised plan June 15,” Kennerson said. “I’ve got access to some [seal] experts; I have some people in mind.”
Kennerson said he plans to create a seal dispersal plan.
“One of the world’s leading experts says, for instance, the best way is to have a lap dog at the beach,” Kennerson said.
Meanwhile, Pease said the city will attend a federal hearing June 22 that will confirm the restraining order.
City Attorney Jan Goldsmith has weighed in with a recommendation that all parties delay action until the change in the terms of the beach’s state trust is passed by the State Assembly.
“While we respect the Court and will obey its orders, we believe the costs and disruption of attempting to remove the seals at this point is unnecessary,” according to a statement from Goldsmith’s office.
District 1 San Diego City Councilwoman Sherri Lightner will hold a community forum today, May 28 at 6 p.m. at La Jolla Recreation Center, 615 Prospect St., to discuss seal dispersal plans.
FEDERAL COURT TIMELINE:
• Dec. 11, 2007, Pease filed a federal lawsuit on behalf of APRL — in U.S. district court — against the city and state, asking for the rope’s issuance. Pease lost. But he said he focused on the Marine Mammal Protection Act (MMPA), not the rope.
• Dec. 18, 2007, Pease and APRL moved for a temporary restraining order regarding the barrier rope, but the district court denied the request in a Feb. 4, 2008 ruling.
• Feb. 27, 2008, the district court issued an order “abstaining from exercising subject matter,” court documents stated. Furthermore, the federal court said, the (federal) MMPA “does not preempt the state law at issue in this action,” the court stated. So Pease immediately filed an appeal in the U.S. Court of Appeals for the 9th Circuit.
• March 10, 2008, the court of appeals granted an “emergency motion for injunctive relief pending disposition of the appeal staying ‘application of state law or any state court order to prevent placement of a guideline rope in the La Jolla Children’s Pool Beach.’” And then the court of appeals for the 9th Circuit dismissed APRL’s lawsuit June 17, 2008, saying the court lacked federal jurisdiction, documents stated.
• Pease said he filed another federal lawsuit for the 2008-09 pupping season with official letters NOAA officials sent to the city, requesting the rope. Pease focused on the city council’s previous motions allowing a pupping season rope barrier.
• Pease said he requested a barrier rope and a restraining order in an October 2008 APRL lawsuit against the city of San Diego, and agents of the National Oceanic and Atmospheric Administration (NOAA) and the National Marine Fisheries Service (NMFS).
Regarding the city complying with its resolutions, at this stage, the record supports that federal interest is substantial enough to support the question of federal jurisdiction, federal Judge William Q. Hayes of the Southern District Court said. At this point the MMPA “does not provide for citizens to enforce the statute but expressly preempts state laws which conflict with the provisions of the act,” Hayes wrote.
All issues regarding marine mammals revert to federal law, Hayes said.
“Consistent with his conclusion… filed on August 26, 2005 by Superior Court Judge William C. Pate which the city is obligated to follow specifically states that ‘nothing contained in this order shall be construed as requiring the city to violate any law, rule or regulation of any federal, state or county government,’” Hayes wrote. “At this stage in the proceedings, the state law claim for writ of mandate… involves a dispute or controversy respecting the validity, construction, or effect of federal law.”
Hayes granted Pease’s application for a temporary restraining order in the Dec. 18 electronic ruling, “…requiring the city of San Diego to follow two resolutions of its City Council by placing a guideline pupping season rope at the Children’s Pool beach in La Jolla, California.”
For more information, visit www.childrenspool.org or www.friendsofthe
seals.com, www.aprl.org www.aprl.org/seals.html.