BILL ANALYSIS
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| SENATE COMMITTEE ON NATURAL RESOURCES AND WATER |
| Senator Fran Pavley, Chair |
| 2009-2010 Regular Session |
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BILL NO: SB 428 HEARING DATE: April 14, 2009
AUTHOR: Kehoe URGENCY: No
VERSION: As Introduced CONSULTANT: Bill Craven
DUAL REFERRAL: No FISCAL: No
SUBJECT: Tide and submerged lands: San Diego.
BACKGROUND AND EXISTING LAW
In 1931, the City of San Diego was granted, in trust, tidelands
that were to be used exclusively for a public park and
children's pool. The property is known as the "Children's Pool
Beach" and was, in fact, used as such for many decades. However,
in the 1990's, a group of harbor seals adopted the site, and the
ongoing controversy is whether the site should be reclaimed for
its original purpose or dedicated to seals. Seals had
historically been in the vicinity of the pool, but not at the
pool, for many years.
The exclusive use of the site as a children's pool was ratified
in a Superior Court decision in 2005 that determined that the
Children's Pool could no longer serve as habitat for harbor
seals. The court ordered the site dredged (to eliminate
sedimentation and waste from seals and improve water quality)
and to restore the site to its previous condition. This decision
was upheld on appeal in 2007.
However, in 2008, a federal district court enjoined the city
from removing the seals pending a decision on whether the seals
are protected by the Marine Mammal Protection Act of 1972. The
court order noted that San Diego, under the public trust
doctrine and as a trustee of public lands, may be obligated to
protect undomesticated wildlife.
By all accounts, the pool is contaminated, although it is still
accessible by the public. The dueling passions for children's
swimming and seal protection are on full display in San Diego
with frequent and unfortunate encounters between the two sides.
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The San Diego City Council requested the author to pursue this
legislation.
PROPOSED LAW
This bill would amend the 1931 grant to San Diego by adding a
provision that would allow the lands to be used as a "marine
mammal park for the enjoyment and educational benefit of
children." The bill also corrects typographical errors from the
1931 statute.
ARGUMENTS IN SUPPORT
According to the author, relying on a legal opinion from the
City of San Diego, the Legislature has the authority to amend or
revoke a grant of tidelands. This bill would allow San Diego, as
trustee, to determine which activities would be allowed at the
Children's Pool.
The Humane Society of the United States notes that the seals
attract visitors to the area and that polling data indicates
support for continued use of the area as seal habitat. WildCoast
contends that a pro-seal decision will save the funds that would
otherwise be spent on dredging and further legal fees. The
Natural Resources Defense Council observes that, since long
before 1931, seals have used the area as a rookery.
Several of these conservation organizations believe that the
bill will result in a decision that the seals will be allowed to
inhabit the pool.
The City of San Diego is clear that it considers itself to be in
an untenable position: It faces a state court order to remove
the seals and a possible federal injunction prohibiting it from
doing so. It supports this bill that will allow San Diego to
control its own fate instead of leaving that determination to a
court.
ARGUMENTS IN OPPOSITION
None received
COMMENTS
The unavoidable pun is that this bill does not seal the fate of
the Children's Pool.
It does not require the removal of the seals; it does not
require the restoration, dredging, or continuance of the
Children's Pool, pool restoration, or any other activity by the
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San Diego City Council.
Simply put, the bill terminates some of the potential liability
to San Diego and would allow the city, and not a court, to
determine a future course of action at least with respect to the
tidelands issue. Even if this bill becomes law, the city will
need to determine if the Coastal Commission would approve
dredging, or if the federal government would require a permit to
remove the seals, which has not been decided by the Obama
administration and the current National Marine Fisheries
Service. (In 2004, NMFS stated that a MMPA permit would not be
required and that seals could be removed if they were found to
be a public nuisance.) Litigation on those matters is still
possible. However, this bill, when effective, would conclusively
end the debate whether San Diego is or is not in compliance with
its public trustee status over the grant of state tidelands.
SUPPORT
The City of San Diego (Sponsor)
Humane Society of United
Natural Resources Defense Council
PawPac
San Diego Animal Advocates
San Diego Coastkeeper
Sierra Club San Diego Chapter
OPPOSITION
None Received
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