Members of the City of San Diego Planning Commission denied an appeal for permits allowing city officials to erect a controversial rope that protects harbor seals at the Children’s Pool during pupping season, while a panel of federal judges at the 9th Circuit Court dismissed the Animal Protection Rescue League’s (APRL) ongoing appeal against the City of San Diego, the State of California and Mayor Jerry Sanders.
While the City of San Diego established the legality of permits for rope erected to protect Children’s Pool harbor seals ” and denied an activist’s appeal ” APRL lost its federal appeal June 16, when the 9th Circuit Court of Appeals ruled the nonprofit animal rights group can’t successfully sue the city for mismanagement of the Children’s Pool, said La Jolla attorney Tom Sauer.
“The 9th Circuit heard this appeal from APRL’s case in district court and they decided they weren’t going to exercise jurisdiction,” said Paul Kennerson, attorney for Valerie O’ Sullivan, the swimmer who successfully sued the city after she was arrested for flushing the seals. “They dismissed it and that’s pretty much the end of the line. They could petition the Supreme Court, or … a panel of more judges, but it’s not likely.”
In September, Kennerson said he has another court date against the city regarding a previous ruling by Judge William Pate. Pate ruled the city needed to reduce bacteria levels from the seal feces-infected waters to allow swimming at the Children’s Pool. Kennerson said the city had six months to comply with the ruling.
“I oppose them. I’m opposed to giving them any leeway and I think they’ve got all their eggs in the wrong basket,” Kennerson said.
Sauer said the city’s decision regarding the rope took a back seat to the court’s decision; the planning group’s vote was the antithesis of the court’s.
“Somebody appealed the hearing officer’s decision about the rope,” Planning Commissioner Tim Golba said.
Although officials removed the rope May 30, after seal pupping season concluded, the planning commission agreed to listen to the appeal.
“This guy’s point was that it would be precedent setting for the future,” Golba said.
La Jollan John Leek sought to appeal an April 23 hearing that approved two permits allowing officials to erect a rope barrier to maintain distance between the harbor seals and humans during winter months on the Children’s Pool beach. But the planning commission passed a motion to deny the appeal unanimously, Golba said. Next December, officials will again need to seek permits for a rope to protect the seal pups.
“At this time, the decision of the planning commission is final, except if somebody appeals the coastal permit that follows this,” Leek said. “Then, it does not become legitimate until the coastal commission signs off on it.”
According to Leek, although the rope at the Children’s Pool beach has already been removed and the planning commission voted to stand behind the hearing officer’s decision to approve two permanent permits ” the city previously issued emergency permits to protect the baby seals ” he has one more try at shooting down the rope, through an appeal with the coastal commission.
“I’m planning on doing that,” Leek said.
The rope protecting Children’s Pool Beach seals about five months a year symbolizes more for the community. An ongoing debate has fueled controversy in La Jolla, spurring lawsuits that advanced through the court system. The latest ruling is forcing the city to clean the water and remove the sand build-up, but harbor seals are protected by the Marine Mammal Protection Act, making it a federal offense to harass the animals.
“The city is under a court order to do two things: move sand out of the Children’s Pool and remove contamination that prevents it from being a public beach,” Leek said.
Leek said he was concerned that the permanent permits for the rope barriers would set a precedent that would not help the city’s cause.
“The city is saying it is stopped from moving sand but there’s nothing stopping it from moving seals,” Leek said. “The city would have to declare the animals are a nuisance animal. The city being in contempt of court would make them a nuisance.”