After years of litigation, Valerie O’Sullivan’s fight against the city over the condition of the Children’s Pool in La Jolla is over now that the California Supreme Court has upheld a previous decision to return the pool to its original 1941 condition.
“That decision becomes final,” said La Jollan Paul Kennerson, attorney for O’Sullivan. “Judge Pate’s decision was affirmed. The Children’s Pool must be restored to its initial 1941 condition, and sand and water have to be cleaned out so it’s safe for human use.”
The Nov. 28 decision by the California Supreme Court to deny the city attorney’s petition for review of the O’Sullivan case puts an end to the court rulings, Kennerson said.
“This has been a long, tortured road,” Kennerson said. “It’s been really a long hassle and difficult, with opposition all along the way.
“There were 10 amicus letters sent to the court asking them to take the case, including one from Susan Davis. I wrote responses to them saying they were political and not legal. The court denied the petition and that is the end of the case.”
According to Kennerson, there was major political motivation to pursue the case. The city attorney said he received “scores of letters from school kids wanting to keep the seals.”
Kennerson said he offered the city attorney’s office many deals to refrain from pressing forward, including an offer to forgive all attorneys’ fees awarded.
“When people start talking about what children want, that’s not the best basis for deciding public policy,” Kennerson said. “Why is that an argument?”
Now the city must dredge the pool unless someone comes up with another case. But opponents said the decision is based on removal of the seals, and many residents say they want the seals to remain at the Children’s Pool.
“Nobody’s out to hurt the seals,” Kennerson said. “The main point is that the property is a trust property. It’s in trust as a children’s pool. That’s as sacred as if I gave someone money to use as a trust. They must use it for the purpose of the trust.”
Kennerson originally filed the suit on behalf of O’Sullivan, one of several swimmers who swam into the cove, causing the seals to flee, in March 2003. O’Sullivan and the nine other swimmers wanted to demonstrate that humans and seals can share the beach.
The city first applied for a permit to excavate the sand after the City Council ruled on Sept. 14, 2004 to return Children’s Pool to its original purpose as a beach for children. The city removed the rope separating the public from the seals and posted a sign that permits public use of the beach. Last year, the city voted to reinstate the rope during pupping season to protect the mother seals and their pups.
The following history of Children’s Pool was reported in the Tentative Statement of Decision issued by Judge William C. Pate following the hearing on Aug. 26, 2005:
“¢ In 1930, the city gave Ellen Browning Scripps permission to construct the breakwater to create a pool for children.
“¢ In 1993, the city council unanimously agreed to create a Marine Mammal Reserve approximately 100 yards from Children’s Pool to accommodate an increasing number of harbor seals. The rookery was temporarily established for a five-year trial period and was off-limits to swimmers, divers and tourists. Divers were still able to swim in and out of Children’s Pool, however.
“¢ Between 1995 and ’96, lifeguards began to erect boundaries to protect beachgoers from the increasing number of seals on the beach. In 1997, the City Manager issued a report stating that the pool had been closed due to high fecal coliform counts from the seals. In 1999, the city council voted to permanently erect a rope barrier to separate humans and seals.
“¢ In October 1999, the National Marine Fisheries Service advised the city that it did not agree with closing the beach for the expanding seal population, and that the city should decide whether Children’s Pool should be used by seals or by humans, but not by both.
“¢ One month later, the city manager recommended that the city terminate the seal haul-out after its five-year trial ended. The city council rejected the proposal and voted to make the reserve permanent with a five-year review.
“¢ In February 2000, the NMFS notified the city that it had decided to manage the Children’s Pool as a natural seal haul-out and rookery. The NMFS told the city that it could temporarily displace the seals by dredging the sand but that the city could not harass the seals. A month later, the U.S. Fish & Wildlife Service advised the city that it did not have the authority to create a seal reserve on public trust tidelands, partly because it violated the pool’s 1933 trust.
“¢ In June 2004, the city manager issued a comprehensive report for dredging Children’s Pool to reduce the level of contamination to acceptable levels and return the pool to its original status.
The city council approved the dredging and directed that the rope barriers and signposts be removed to allow public access.
Three years ago, the court recognized that the city had breached the 1931 trust by not maintaining the beach as a children’s pool, and by taking no steps to prevent it from becoming a seal haul-out.
The city further ignored the 1999 legislation that mandated “closed” signs only be posted due to human pollution, and that Children’s Pool was polluted from non-human causes and should have received an “advisory” sign instead.
Finally, the court contended that the city ignored recommendations by the city manager and NMFS to return the pool to its original status without harassing the seals.
” Reporter Adriane Tillman contributed to this story.