Judge Gives Seals Reprieve

Update July 24: Just days after California Gov. Arnold Schwarzenegger signed S.B. 428 into law, Judge of the Superior Court of San Diego Yuri Hofmann set aside an order to disperse the seals of La Jolla. At least until a hearing set for October 6, 2009.

Under the new law, S.B. 428, the city of San Diego has the authority to create a marine mammal park that would allow the seals to stay at Casa Beach in La Jolla.

At the time the governor signed S.B. 428 into law, Judge Hofmann had already ordered the city to disperse the seals.  The plan was to use an audio recording of barking dogs to disperse the seals.  

City Attorney Jan Goldsmith had urged the judge to reconsider his order not only because of the new law, but also because of the expense to the city.  Goldsmith said the city cannot afford to pay people to "run up and down the beach" shooing away the seals and call police officers off their jobs to provide security against protesters. 

Goldsmith told the judge, "The expense is too much…It will drain our treasury." The dispersal plan is estimated to cost $689,000.

Even with the seals gone, the area is likely to remain contaminated and not available for swimming.  

Judge Hofmann agreed the matter should be deferred until he determines the effect of the new law.

For more on the seals’ ordeal and the new law that may save them, read Animal Law Coalition’s reports and watch the video below.

Update July 11: By a vote of 75-0 the California Assembly has passed this bill, S.B. 428. The Senate has already passed this legislation to save the La Jolla seals. 

Update June 23: The Assembly Natural Resources Committee unanimously passed S.B. 428!

Original report: Judge of the Superior Court of San Diego Yuri Hoffman seems determined to come up with a plan to push the seals from their home at Casa Beach in La Jolla, California. 

During a June 15 hearing, the debate focused on whether barking dogs or a sprinkler system called the "Scarecrow" should be used to force the seals to move from the beach area. 

The proponent of barking dogs, Assistant City Attorney for Civil Litigation Andrew Jones asked for more time to evaluate a plan by plaintiff Valerie O’Sullivan and her attorney, Paul Kennerson, to use the sprinkler system.  The judge has given the city one month to come up with a plan.

Once the seals are removed, per a superior court order entered in 2005, the city must proceed to spend hundreds of thousands of dollars to remove the seals and dredge the beach to restore it as it existed in 1931, as a "bathing" pool.  The area is also known as Children’s Pool.  

1931 Tidelands Grant 

In 1930 Ellen Scripps, a philanthropist, requested and received approval for the construction of a 300-foot concrete breakwater in the Pacific Ocean adjacent to La Jolla to create a bathing pool. 

The State of California granted the lands to the City in a statutorily created public trust known as the 1931 Tidelands Grant. One condition of the trust provided that City was to devote the land "exclusively to public park, bathing pool for children, parkway, highway, playground and recreational purposes, and to such other uses as may be incident to, or convenient for the full enjoyment of, such purposes. . . . "

The seals and sea lions allegedly made the area unpleasant for people to swim because of the excrement.  But the area had been known as a seal harbor long before Scripps came along.

State Court Lawsuit 

Valerie O’Sullivan, who apparently couldn’t find anywhere else to swim, decided to force the seals out. She filed the suit that resulted in the 2005 order.

In issuing that order Superior Court Judge William Pate found: (1) since 1997, the beach and water inside the breakwater are polluted and pose a health risk to humans because of high concentrations of seal feces; (2) in its present state, the beach is not suitable for the uses contemplated by the 1931 Tidelands Grant; (3) placement of a rope barrier at the beach further restricted public access and contributed to the increase in pollution; (4) the Marine Mammal Protection Act ("MMPA"), 16 U.S.C. §1361 permits the removal of the seal population because there are health and safety concerns; and (5) the harbor seals are not a threatened or endangered species.

The city appealed, to no avail. So now there are hearings on how to get rid of the seals.

Federal Court Lawsuits

Fortunately, a federal court has interceded.  Attorney Bryan Pease, acting pro bono, filed suit on October 9, 2008, in federal court on behalf of the La Jolla Friends of the Seals (LJFS) against National Oceanic and Atmospheric Administration (NOAA), National Marine Fisheries Service (NMFS), and the city of San Diego and their respective officials.  LJFS contends the city must comply with the Marine Mammal Protection Act, 16 USCS § 1361 which they contend applies to limit interference with the seals.  

LJFS sought a temporary restraining order to stop the city from complying with the state court order, basically preserving the status quo at the beach pending the lawsuit.  That was granted on October 22, 2008. On June 1, 2009, the Court continued the order pending resolution of the motion for preliminary injunction.  

So why is Judge Hoffman working on the how to part of eliminating the seals? He says he wants to be ready to get those seals out of there when the federal restriction is lifted.  Apparently the judge does not have a lot else going on.

In an earlier lawsuit the federal court denied Plaintiffs Animal Protection and Rescue League ("APRL") and Dorota Valli a temporary restraining order. They had asked the Court to order the City to comply with MMPA in any plan to remove the seals and also place a seasonal rope barrier at the beach to limit human interaction with the seals during pupping season.

Meanwhile, supporters of the seals have kept a 24/7 watch at the beach.  A Zogby polls says 80% of San Diegans and 91% of La Jollans want to protect the seals.

S.B. 428 

Instead of a faceoff between the state and federal courts, there may be another solution.

A bill in the California legislature, SB-428, would add "marine mammal park for the enjoyment and educational benefit of children" as an additional and legal use to the original 1931 Tidal Grant. This means the seals could stay!