The Volokh Conspiracy - Saying Goodbye to the Seals of San Diego:

La Jolla features an absolutely exquisite coastline. Featuring small beaches interspersed with rocks and outcroppings the area is often used as a backdrop for wedding pictures and other events. One relatively recent -- and apparently controversial -- attraction in the area is a beach known as the "children's pool," that has been taken over by a community of seals. For a decade or so, the marine mammals have congregated on the sheltered beach to bask in the sun, and give birth to their young. This past weekend I saw several newborn pups on the beach, acclimating to the outside world and learning to swim. This may all come to an end, however, as a consequence of recent litigation to force the seals' eviction and restore the children's pool area to human use.

The area in question is a small sheltered beach with a bathing pool that was created in 1931 by the construction of a concrete breakwater by Ellen Browning Scripps. The breakwater shields a small bathing area from the turbulent ocean surf. Intending to devote the pool to public use, Scripps donated the breakwater and pool to the city of San Diego, and the state legislature granted the adjacent state lands, including the submerged tide lands, to the city in trust, on the condition that the area "shall be devoted exclusively" to use as a public park, bathing, and recreational area -- and so it was for several decades.

In 1993 the San Diego city council created a marine mammal reserve for local harbor seal population at "Seal Rock," an outcropping approximately 100 yards from the pool, barring swimmers, divers, and tourists. The harbor seals apparently took to the reserve, to the detriment of the children's pool. As the harbor seal population grew, so did the bacteria levels in the water due to seal feces. Eventually, city officials were forced to close the pool to swimmers due to the high bacteria count. Around this time, the harbor seals began using the children's pool beach for hauling out of the water with greater frequency, apparently preferring the sheltered beach to the local preserve. This led local officials to erect barriers that would separate seals from onlookers and sunbathers, effectively closing the bulk of the small beach to public use.

In 1998 the city began investigating ways to reduce the bacterial contamination of the children's pool so people could swim there again. Among other things this would require dredging the beach. The city wanted to facilitate human use, but was not eager to wholly evict the seals. Because the local seal population was thriving, the National Marine Fisheries Service saw no problem with eliminating the reserve or dredging the area. In NMFS' view, however, the pool should be devoted either to use by humans or seals, disfavoring the city's "shared-use" plan for health and environmental reasons.

Plans to dredge the pool stayed in something of a holding pattern for several years until 2004, when a local resident filed suit in state court, alleging that the failure to maintain the children's pool for human use and recreation violated the terms of the trust. The trial court agreed, finding that the city had breached its fiduciary obligations, and was required to take all reasonable steps to dredge the pool and reduce the bacteria count to safe levels, even if this would mean displacing the seals. Last fall, the court's judgment was upheld on appeal. (See O'Sullivan v. City of San Diego, ; 2007 WL 2570783 (Cal.App. 4 Dist.).

As I understand the current situation, the dredging may soon begin and the seals will have to find a new home. This is a shame, as I have enjoyed visiting the children's pool and watching the seals on my occasional visits to La Jolla. Yet as a legal matter, it seems to me the state courts reached the correct result. So long as the pool is held in trust for human recreational use, including as a "bathing pool for children" and "playground," the city would seem to have an obligation to maintain it as such. I suppose seal watching could be considered a public "use" of the beach -- dozens of visitors use it as such on a daily basis -- if only the trust document were not so specific. Were the seal population not thriving, federal law might also intercede. The Marine Mammal Protection Act could be used to prevent local action that would threaten the seals, but federal officials maintain the seals will do just fine with or without the use of this area as a rookery. The seals are alright, they will just need a new place to call home. So it seems I may have visited the seals of San Diego for the last time.

	[Jonathan Adler, March 2, 2008 at 4:41pm] Trackbacks Saying Goodbye to the Seals of San Diego: La Jolla features an absolutely exquisite coastline. Featuring small beaches interspersed with rocks and outcroppings the area is often used as a backdrop for wedding pictures and other events. One relatively recent -- and apparently controversial -- attraction in the area is a beach known as the "children's pool," that has been taken over by a community of seals. For a decade or so, the marine mammals have congregated on the sheltered beach to bask in the sun, and give birth to their young. This past weekend I saw several newborn pups on the beach, acclimating to the outside world and learning to swim. This may all come to an end, however, as a consequence of recent litigation to force the seals' eviction and restore the children's pool area to human use. The area in question is a small sheltered beach with a bathing pool that was created in 1931 by the construction of a concrete breakwater by Ellen Browning Scripps. The breakwater shields a small bathing area from the turbulent ocean surf. Intending to devote the pool to public use, Scripps donated the breakwater and pool to the city of San Diego, and the state legislature granted the adjacent state lands, including the submerged tide lands, to the city in trust, on the condition that the area "shall be devoted exclusively" to use as a public park, bathing, and recreational area -- and so it was for several decades. In 1993 the San Diego city council created a marine mammal reserve for local harbor seal population at "Seal Rock," an outcropping approximately 100 yards from the pool, barring swimmers, divers, and tourists. The harbor seals apparently took to the reserve, to the detriment of the children's pool. As the harbor seal population grew, so did the bacteria levels in the water due to seal feces. Eventually, city officials were forced to close the pool to swimmers due to the high bacteria count. Around this time, the harbor seals began using the children's pool beach for hauling out of the water with greater frequency, apparently preferring the sheltered beach to the local preserve. This led local officials to erect barriers that would separate seals from onlookers and sunbathers, effectively closing the bulk of the small beach to public use. In 1998 the city began investigating ways to reduce the bacterial contamination of the children's pool so people could swim there again. Among other things this would require dredging the beach. The city wanted to facilitate human use, but was not eager to wholly evict the seals. Because the local seal population was thriving, the National Marine Fisheries Service saw no problem with eliminating the reserve or dredging the area. In NMFS' view, however, the pool should be devoted either to use by humans or seals, disfavoring the city's "shared-use" plan for health and environmental reasons. Plans to dredge the pool stayed in something of a holding pattern for several years until 2004, when a local resident filed suit in state court, alleging that the failure to maintain the children's pool for human use and recreation violated the terms of the trust. The trial court agreed, finding that the city had breached its fiduciary obligations, and was required to take all reasonable steps to dredge the pool and reduce the bacteria count to safe levels, even if this would mean displacing the seals. Last fall, the court's judgment was upheld on appeal. (See O'Sullivan v. City of San Diego, ; 2007 WL 2570783 (Cal.App. 4 Dist.). As I understand the current situation, the dredging may soon begin and the seals will have to find a new home. This is a shame, as I have enjoyed visiting the children's pool and watching the seals on my occasional visits to La Jolla. Yet as a legal matter, it seems to me the state courts reached the correct result. So long as the pool is held in trust for human recreational use, including as a "bathing pool for children" and "playground," the city would seem to have an obligation to maintain it as such. I suppose seal watching could be considered a public "use" of the beach -- dozens of visitors use it as such on a daily basis -- if only the trust document were not so specific. Were the seal population not thriving, federal law might also intercede. The Marine Mammal Protection Act could be used to prevent local action that would threaten the seals, but federal officials maintain the seals will do just fine with or without the use of this area as a rookery. The seals are alright, they will just need a new place to call home. So it seems I may have visited the seals of San Diego for the last time.