Friends of the Children's Pool v. City of San Diego

FRIENDS OF THE CHILDREN'S POOL, Plaintiff and Respondent, v. CITY OF SAN DIEGO et al., Defendants and Appellants.

G053709

G053725

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE

June 7, 2018

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super. Ct. No. 30-2015-00778153)

OPINION

Appeal from a judgment of the Superior Court of Orange County, Frederick Paul Horn, Judge. Request for judicial notice granted. Judgment reversed.

Mara W. Elliott, City Attorney, David J. Karlin and George F. Schaefer, Assistant City Attorneys and Jenny K. Goodman, Deputy City Attorney, for Defendant and Appellant City of San Diego.

Kathleen A. Kenealy, Acting Attorney General, Xavier Becerra, Attorney General, John A. Saurenman, Assistant Attorney General, Andrew M. Vogel, Jennifer W. Rosenfeld and Baine P. Kerr, Deputy Attorneys General, for Defendant and Appellant California Coastal Commission.

JW Howard/Attorneys and John W. Howard for The Seal Conservancy as Amicus Curiae on behalf of Defendants and Appellants.

Law Offices of Bernard F. King III and Bernard F. King III for Plaintiff and Respondent.

* * *

This appeal concerns regulation of access to a seal rookery located at Children's Pool Beach in San Diego County. Children's Pool Beach is public trust land granted by the State of California to defendant City of San Diego (City). During several months of the year seals reside on the beach to breed, give birth, and nurse and wean seal pups.

Since the late 1990's to early 2000's disputes have arisen between people who want the seals removed and people who want to protect Children's Pool Beach for the seals. This has led to numerous calls to police to control violence. In addition, often visitors to Children's Pool Beach, either negligently or intentionally, disturbed the seals. Such disturbances can result in a variety of negative consequences, including abandonment of pups, premature births or abortions, and stampeding adults that kill pups. Further, when disturbed seals nipped at humans.

City introduced a variety of measures to attempt to mitigate against these problems. Ultimately, with the approval of defendant California Coastal Commission (Commission; collectively with City, defendants), City enacted an ordinance (Ordinance) closing access to Children's Pool Beach for five-and-a-half months a year during pupping season. Subsequently Commission issued a permit allowing that action.

Plaintiff Friends of the Children's Pool (plaintiff) filed an action for a writ of mandate to overturn the Ordinance claiming it violated the California Constitution and Coastal Act (Pub. Resources Code, § 30000 et seq.; Coastal Act; all further statutoryreferences are to this code unless otherwise stated) and the Marine Mammal Protection Act (16 U.S.C. § 1361 et seq.; MMPA). The trial court set aside the Ordinance, finding it was preempted by the provisions of the MMPA and violated the Coastal Act.

Defendants appeal, arguing the Ordinance is not expressly preempted by the MMPA nor is it preempted by field preemption or conflict preemption. It is a land use regulation authorized by the state police power. They further contend the Ordinance was allowed by and does not violate the Coastal Act. We agree with defendants and reverse the judgment, concluding there is substantial evidence to support defendants' actions.

We grant Commission's unopposed request for judicial notice of a report from the United States House of Representatives, which is part of the legislative history of the MMPA and relevant to the issues on appeal.

FACTS AND PROCEDURAL HISTORY

Children's Pool is located in a cove in La Jolla bordering on the .07 acre Children's Pool Beach.¹ There are several other nearby beaches, accessible to the public, surrounding Children's Pool Beach. In 1931 a curved breakwater was constructed around the cove to protect it from waves. Since that time Children's Pool Beach has been used for swimming, diving, sunbathing, and fishing.

In 1931 the State of California granted the Children's Pool Beach to City in trust to be "devoted exclusively to public park, bathing pool for children, parkway, highway, playground and recreational purposes, and to such other uses as may be incident to, or convenient for the full enjoyment of such purposes." (Stats. 1931, ch. 937, §1; Trust.)

Although there were probably harbor seals at Children's Pool Beach even before the breakwater was constructed, beginning in the early 1990's seals regularlybegan to "haul out" onto the Children's Pool Beach, establishing a rookery. A rookery is where seals breed. Hauling out describes seals leaving the water for a variety of essential activities, including sleep, rest, giving birth, and nursing and weaning pups. Haul out sites are essential for seals to engage in these activities. Seals need the most protection from harassment during the final months of pregnancy until weaning. Pups are generally born in early to mid-January and weaning, which lasts four to seven weeks, is completed by the end of May. When pups are present mother seals are more aggressive. During pupping season there are more seals on Children's Pool Beach and they remain there for longer periods of time than other times during the year

When interaction with humans disturbs seals they "flush" into the water, thereby losing the benefits of hauling out. Flushing is particularly harmful during pupping season. If mothers and pups do not bond for a sufficient period they may not recognize each other if separated, causing the mother to abandon the pup leading to its likely death. In addition flushing can cause a female to abort a fetus or give birth prematurely. When pups are on the beach, stampeding adult seals can kill them.

The haul out area and rookery at Children's Pool Beach is unique because it is located in an urban area and accessible by the public. This has resulted in unwanted contact between humans and seals with seals subject to disturbance and humans "at risk from defensive seal bites and nips when people attempt to interact too closely with the seals." There have been almost 150 "flush events" caused by human presence at Children's Pool Beach.

This situation created a dispute between people who wanted the seals removed to give the public unfettered access to Children's Pool Beach and those who wanted to protect Children's Pool Beach for the seals.

In 2005 a private citizen obtained a judgment ordering City to use "all reasonable means to restore the Pool to its 1941 condition by removing the sand build-up" and clean the Children's Pool Beach so the water was safe for humans. Effective2010 the Legislature amended the Trust (Trust Amendment) to add an additional use of the Children's Pool Beach for a "marine mammal park for the enjoyment and educational benefit of children." The judgment was then vacated.

The National Marine Fisheries Service (NMFS)² approved of the Trust Amendment because it gave City "greater latitude in implementing management actions regarding the harbor seal colony" at Children's Pool Beach. NMFS considers Children's Pool Beach to be a seal rookery and year-round haul-out site.

In an attempt to manage the ongoing dispute, in 2006 City installed a rope barrier just up from the mean high tide line during pupping season, December to May. One end was open to allow access to Children's Pool Beach. Signs were also erected directing the public to remain at a safe distance away from the hauled out seals.

In 2007 the NOAA's Office of Law Enforcement (OLE) sent a letter to City stating it "continue[d] to receive" reports of seal harassment and was concerned harassment would be ongoing. Although it noted the rope barrier gave some level of better protection for the seals and informed people to respect them, it had not deterred the "determined' individual(s) from approaching the seals." Therefore it "strongly recommend[ed]" City close the Children's Pool Beach from "December 15 through May 30." "[C]losing the beach would make a safer environment for the nursing seals." OLE stated it "look[ed] forward to a continued opportunity to work with [City] in assisting [it] achieving [its] goals as well as protecting the animals and citizens of our community."

Between February 2009 and January 2010 police responded 184 times to incidents at Children's Pool Beach, including 37 disturbing the peace calls and four reports of battery. In order to address public safety issues, in 2010 City adopted a Seasonal Shared Use Policy (Policy) containing five elements: 1) establishing a year-round rope barrier; 2) erecting clear signs to explain the rules; 3) prohibiting dogs; 4) hiring a full-time lifeguard or ranger; and 5) prohibiting public access to the Children's Pool Beach during pupping season, December 15 through May 15 (Closure).

The NMFS supported a year-round rope barrier but acknowledged it did "not guarantee that a person will not violate the MMPA." It also supported the prohibition on public access during pupping season, noting this was the most crucial time to protect seals. The NMFS stated that even traffic noise, slamming car doors, and people laughing and shouting disturbed the seals. The presence of people at Children's Pool Beach close to the hauled out seals or at the edge of the water usually caused "large numbers of seals [to] flush[]." The NMFS also had reports of premature seal births and abortions at Children's Pool Beach.

The NMFS opined that although it had enforcement authority under the MMPA and despite the MMPA's preemption provision, "States and local governments are free to implement and enforce ordinances, such as the closure of a beach, which may have a side benefit of...