BILL ANALYSIS
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|SENATE RULES COMMITTEE | SB 428|
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THIRD READING
Bill No: SB 428
Author: Kehoe (D), et al
Amended: As introduced
Vote: 21
SENATE NATURAL RES. & WATER COMM : 10-1, 4/14/09
AYES: Pavley, Cogdill, Benoit, Huff, Kehoe, Leno, Padilla,
Simitian, Wiggins, Wolk
NOES: Hollingsworth
SUBJECT : Tide and submerged lands: San Diego
SOURCE : City of San Diego
DIGEST : This bill amends the 1931 Tidelands Trust by
adding "marine mammal park for the enjoyment and
educational benefit of children" to the list of allowable
uses for the Children's Pool.
ANALYSIS : Existing law grants to the City of San Diego
all of the right, title, and interest of the state in and
to a specified portion of the tide and submerged lands
bordering on and situated below the ordinary high water
mark of the Pacific Ocean, to be held by the City of San
Diego and its successors in trust for specified uses and
purposes pursuant to specified conditions, including that
those tide and submerged lands are required to be devoted
exclusively to public park, bathing pool for children,
parkway, highway, playground, and recreational purposes,
and for other uses that may be incidental to, or convenient
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for, the full enjoyment of those purposes.
This bill amends the 1931 Tidelands Trust by adding "marine
mammal park for the enjoyment and educational benefit of
children" to the list of allowable uses for the Children's
Pool.
Background
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.
FISCAL EFFECT : Appropriation: No Fiscal Com.: No
Local: No
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SUPPORT : (Verified 4/15/09)
City of San Diego (source)
Humane Society of the United States
La Jolla Friends of the Seals
Natural Resources Defense Council
San Diego Animal Advocates
San Diego Coastkeeper
Sierra Club, San Diego Chapter
WILDCOAST
PawPAC
League of Conservation Voters, San Diego County
OPPOSITION : (Verified 4/15/09)
San Diego Council of Divers
Friends of the Children's Pool
ARGUMENTS IN SUPPORT : According to the author's office,
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 allows 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
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leaving that determination to a court.
ARGUMENTS IN OPPOSITION : Opponents of the bill state the
following, "The central issue surrounding the Children's
Pool controversy is the conscious decision by the City to
exploit harbor seals at the expense of illegally denying
public access to a dedicated children's swimming beach.
There is no excuse for San Diego, and the nationally based
animal activist groups, to gain financially from flagrantly
flaunting California law. California needs a comprehensive
marine animal management policy and not piecemeal action
such as SB 428. Animal activist groups drive marine mammal
issues that legally should be handled at the local level."
CTW:nl 4/15/09 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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