San Diego can ban humans from beach to protect seals, court says

A state appeals court has ruled that a San Diego ordinance closing Children’s Pool during the pupping season for seals is legal, reversing a lower court decision that said the city had overstepped its authority.

The ruling by the 4th District Court of Appeal on Thursday is the latest round in the ongoing, years-long battle among seal advocates, pool-access proponents and the city over the small crescent-shaped La Jolla beach that served as a swimming spot for decades and, since the 1990s has been a favorite haul-out spot and rookery for harbor seals.

The case centered on an ordinance adopted by the city in 2014 that closed the artificial cove from Dec. 15 to May 15 every year. Violators faced misdemeanor penalties of up to $1,000 in fines or six months in jail.

Seal advocates said human activity on the beach caused the animals to “flush,” or flee, into the ocean — with some mother seals leaving pups that were too young to swim while others were trampled on the sand.

The appeals court said that in a 12-month period in 2013-14, 250 such flushing incidents at the cove occurred.

After the ordinance was adopted, a group called Friends of the Children’s Pool sued the city and the state Coastal Commission. The suit contended that the ordinance violated the state Coastal Act and the federal Marine Mammal Protection Act, which gives the federal government control over protection of species like the seals. In May 2016, an Orange County Superior Court judge agreed and struck down the ordinance.

The appellate court, however, said that the city had acted properly, concluding the ordinance was an exercise of San Diego’s inherent power to regulate use of its property.

Associate Justice David Thompson, writing for a unanimous three-judge panel, said the law “is not directed to conservation or taking of seals. Rather, it is a land use regulation, which falls within a traditional state police power.”

A spokesman for the San Diego city attorney praised the ruling.

“The issue of the seals at Children’s Pool Beach has been debated for many years and the City has worked hard to implement an effective policy that balances the interests of everyone involved, “ Deputy City Atty. Michael Giorgino said in an email. “We’re pleased that the Court of Appeal agreed that the city’s decision to close the Children’s Pool Beach during pupping season was appropriate. Notably, the Court of Appeal ‘commended’ the city “for its measured response to the problems at Children’s Pool Beach.”

The battle over the ordinance may not be over, however.

“We strongly disagree with the court’s ruling and we will petition the California Supreme Court to have this decision reversed,” attorney Bernard F. King II said in an email Friday. “The public’s right to access beaches, especially man made beaches like the Children’s Pool, must be preserved.”

Moran writes for the San Diego Union-Tribune.

UPDATES:

7:30 p.m.: This article was updated throughout.

This article originally published at 2 p.m.