SAN DIEGO (CN) — After a few years of relative calm, the legal fight over the Children's Pool in La Jolla Shores was revived Wednesday after a state judge ruled that a barrier put up to protect the seals during pupping season should be removed.
The issue dates back at least eight years, when the Animal Protection and Rescue League sued San Diego, demanding a rope be placed to protect the seals during pupping season. The City Council passed an ordinance, which was working "fine," the Rescue League says, until the Friends of the Children's Pool sued the city and the California Coastal Commission to block its enforcement.
The case was transferred from San Diego Superior Court to Orange County Superior Court, where Judge Frederick Horn ruled on Tuesday that the city ordinance is pre-empted by the Marine Mammal Protection Act, and cannot be enforced.
Horn ruled that the city of San Diego and the Coastal Commission should have sought approval National Oceanic and Atmospheric Administration, which must grant transfer of authority over the federally protected seals before amending a state ordinance.
Though the city and Coastal Commission have been managing the Children's Pool, federal law allows transfer of authority only to the state, Horn ruled.
The day after Horn ruled, the Animal Protection and Rescue League (APRL) sued the city and the Coastal Commission, with the Friends of the Children's Pool and Judge Horn as real parties in interest.
The APRL says the legislative history of the Marine Mammal Protection Act "makes clear it is not intended to preempt protective efforts such as sanctuaries."
The APRL's 5-page lawsuit, with 67 pages of exhibits, claims that a 2010 ruling from the Ninth Circuit preempts Horn's ruling. The APRL seek an injunction blocking enforcement of Horn's ruling.
Harbor seals began flocking to Children's Pool in the early 1990s, and their number increased every year. In 2006, the City Council installed a year-round rope barrier to protect the seals, which led to complaints from people who wanted access to the beach.
As the brouhaha brewed in 2009, the Legislature approved SB 428, amending conditions of the 1931 state trust for the Children's Pool for additional use as a "marine mammal park for the enjoyment and educational benefit of children."
A 2010 letter from the National Oceanic and Atmospheric Administration to the City Council said the amended trust provides San Diego "greater latitude in implementing management actions regarding the harbor seal colony."
That persuaded the City Council, whose May 2010 ordinance required protection of resting, pregnant and nursing harbor seals and their pups.
The seals continued flock to the Children's Pool — built in 1930 as a protected beach where children could learn to swim. As the seals and their beach became famous, people harassed them, touching them, sitting on them and sometimes kicking them.
Faced with this abuse, seals who used the beach as a place to "haul out," or rest and regulate their body temperature, would "flush out" and return to the water and swim away. The unattended pups then could be injured or killed in human stampedes, according to court documents.
The National Marine Fisheries Service, which enforces the Marine Mammal Protection Act, backed the City Council's efforts to protect the seals.
The Animal Protection League is represented by Bryan Pease, who did not immediately return phone and email requests for comment. Friends of the Children's Pool did not return an email request for comment.