Commentary by Paul Watson
Sea Shepherd Conservation Society  

This editorial is posted with the permission of Henry Mark Holzer and the San Diego Union Tribune. It is an important article because intervention by the Sea Shepherd Conservation Society in this issue has been motivated by our concern that the San Diego City Council will be in violation of Federal law, specifically the Marine Mammal Protection Act. Some critics have argued that this is a local issue. Our position is that it is a national issue. The Sea Shepherd Conservation Society is committed to defending the integrity of the Federal Marine Mammal Protection Act. 

  The Children's Pool and the Law 

By Henry Mark Holzer 
October 19, 2004 

Posted at: 
www.signonsandiego.com/uniontrib/20041019/news_lz1e19holzer.html

1931 - State of California grants the land at the Children's Pool "to be devoted exclusively to public park, bathing pool for children." 
          - Web site of Councilman Scott Peters, San Diego District 1 

It is this erroneous statement - by an "environmental" lawyer who has misquoted a state statute - that is at the core of a new lawsuit seeking to save the La Jolla seals and habitat from destruction by this city. 

In virtually every discussion about the controversy, reference is made to a "Children's Pool." This mischaracterization has been used to create the impression Ellen Browning Scripps wanted Casa Beach used exclusively for children. 

But Scripps did not give the city any property to create a "children's pool." On the contrary, it was the state, not Scripps, that conveyed beach property to the city - but not for the sole purpose of creating a pool for children. 

Chapter 937 of the Laws of 1931 is entitled: "An act granting certain tide and submerged lands of the state of California to the city of San Diego, San Diego County, in said state, upon certain trusts and conditions."

Section 1(a) of the statute states in full: "That said lands shall be devoted exclusively to (1) public park, (2) bathing pool for children, (3) parkway, (4) highway, (5) playground and (6) recreational purposes and (7) to such other uses as may be incident to, or convenient for the full enjoyment of, such purposes."

Of the six specifically enumerated uses, at least three are extremely broad: (3) parkway, (4) highway and (6) recreational purposes. Certainly, the latter could mean almost anything, from amusement parks to movie theaters to athletic fields - or, surely, as has been the case for decades, seal-watching.

It is No. 7 - "such other uses" - that even more belies the anti-seal propaganda that has labeled Casa Beach as a "Children's Pool." The meaning and scope of the "such other uses" power is left entirely up to the city under its home-rule power, granted by the state constitution. 

Thus, no matter what Peters, other anti-seal partisans, or the uninformed, may call Casa Beach, it was never intended to be exclusively a "Children's Pool." It has not been exclusively a "Children's Pool." It is not now. And there is nothing in history, law or public policy that mandates it should be.

It was only after the statutory conveyance of Casa Beach from the state to the city that Scripps donated the sea wall. Her wishes then - even if clearly expressed, and well intentioned - could no more amend Chapter 937 of the laws of 1931 than can the constant and erroneous mantra-like mischaracterization of Casa Beach as the "Children's Pool." 

The time has long passed to lay this dangerous mischaracterization to rest, and to prevent the supposedly animal-friendly city of San Diego from using the "Children's Pool" label as an excuse to dredge Casa Beach - and to destroy the only seal rookery between Carpenteria and Mexico (one recognized but unprotected by the federal government). This is why our Save The San Diego Seals Coalition has challenged the city's dredging decision.

Essentially, we make two claims. 

The first is that the city of San Diego has failed, and even refused, to enforce Municipal Code Section 63.0102(b)(10), which makes it "unlawful" for anyone "within any public ... beach areas within the city of San Diego" to "disturb, or maltreat any bird or animal, either wild or domesticated. ... "

Testament to the city's egregious disregard of its own ordinance is the fact that at least two seals were knifed to death at Casa Beach during the past two weeks alone. 

Our second claim is that the dredging of Casa Beach will violate California Code of Civil Procedure Section 526(a), providing that a judgment may be sought "restraining and preventing any illegal expenditure of, waste of, or injury to, the ... funds ... of a . .. city. ... "

As to Section 526(a)'s "expenditure" requirement, the city has estimated that its dredging plan will cost hundreds of thousands of dollars. Ultimately, however, as with all municipal projects, it will cost considerably more - especially since the city has not been dissuaded from its folly by one of the world's leading experts on beach erosion. 

n 1999, Douglas Inman informed the city that moving the sand will not only fail to cure the purported problems at Casa Beach, but will cause serious additional problems - including undermining the cliffs and the property that sits atop them.

As to Section 526(a)'s requirement that the expenditure be "illegal," it is a violation of the city's own ordinance to harm the seals at Casa Beach. Further, it is a crime under the federal Marine Mammal Protection Act for anyone - including the city of San Diego - to "harass" any marine mammal. The Marine Mammal Protection Act defines "harass" to include any act of pursuit or annoyance having the potential to injure or disturb a marine mammal by causing disruption of behavioral patterns, including but not limited to migration, breathing, nursing, breeding, feeding or sheltering. One need not be an expert to know that when the city moves onto Casa Beach with its bulldozers, dump trucks, diesel engines, jackhammers and other heavy equipment required to excavate hundreds of tons of sand, the seals will, at the very least, be "harassed." 

In the name of what, then, does the city of San Diego propose - illegally, and in violation of its own animal protection ordinance - to destroy the habitat of a federally recognized, and supposedly protected, marine mammal rookery? 

In the name of an alleged "Children's Pool," the city of San Diego sees no contradiction between encouraging tourists to view the La Jolla seals, while simultaneously revealing a calculated indifference to their suffering.

Holzer, professor emeritus at Brooklyn Law School, is a consultant to the lawyers for Save The San Diego Seals Coalition. He can be reached via e-mail at hank@henrymarkholzer.com. 

Form more information, including the complete lawsuit with exhibits visit:
www.savethesandiegoseals.com