A federal judge on June 29 lifted a temporary restraining order dismissing an ongoing federal case that involves the harbor seal colony at La Jolla’s Children’s Pool, sending the case to state court. United States District Judge William Q. Hayes ruled last Monday that the city of San Diego, along with La Jolla Friends of the Seals — an animal rights group — must continue their litigation, battling in state court. Hayes dismissed the federal lawsuit and a restraining order protecting the colony. Paul Kennerson, attorney for swimmer Valerie O’Sullivan, who sued and won her case against the city of San Diego 2004 after authorities cited her and others for “flushing” the Children’s Pool seal colony, said he called Judge Yuri Hoffman and wrote a letter to deputy city attorney George Schaefer in an effort to set a court date sooner than an upcoming July 20 hearing. “The federal case is now dismissed,” Kennerson said, reading the June 30 electronic letter sent to Schaefer. “There is now no legal impediment to your dispersal of the seals. It is our demand that you do so, [disperse the seals] if you will not do so, please let me know and we will set an Ex Parte date as soon as we can.” Schaefer said the city hired consultants to evaluate two seal dispersal plans — including Kennerson’s “scarecrow” that shoots water at the colony — and will report the results to Hoffman during the July 20 hearing. “The city stands by everything it did in that case… We’re spending tax dollars [on consultants],” Schaefer said. “We’ll report back about the [seal dispersal] plans.” Meanwhile, Brian Pease, attorney for the Animal Protection and Rescue League (APRL), said he planned to file an emergency motion with the 9th Circuit Court of Appeal in an effort to stop Kennerson from forcing the city to disperse the seals. “[The seals will be safe] if I get a stay for the 9th Circuit,” Pease said. Pease’s federal restraining order protecting the colony, mainly during its pupping season, effectively overrode previous state rulings. Hoffman’s July 20 hearing was scheduled to hear results from two seal dispersal plans, the scarecrow plan and a plan that would play barking dog sounds. But Schaefer said state legislators may sign a bill adding “marine mammal viewing area” to the area’s state tidelands grant. “If the legislation does pass, the court does have the discretion to vacate the injunction,” Schaefer said, in a previous interview. “It doesn’t make much sense to dredge the beach.” FEDERAL COURT TIMELINE: • On 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. • On 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. • However, on 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. • On 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.’” 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 letters National Oceanic and Atmospheric Administration (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 requested a barrier rope and a restraining order in an October 2008 APRL lawsuit against the city of San Diego, NOAA agents and the National Marine Fisheries Service (NMFS), Pease said. At this stage, the record supports that federal interest is substantial enough to support the question of federal jurisdiction, Hayes 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.senate.ca.gov/kehoe, www.childrenspool.org or www.friendsoftheseals.com www.aprl.org www.aprl.org/seals.html.