BILL ANALYSIS
SB 428
Page A
Date of Hearing: June 22, 2009
ASSEMBLY COMMITTEE ON NATURAL RESOURCES
Nancy Skinner, Chair
SB 428 (Kehoe) - As Introduced: February 26, 2009
SENATE VOTE : 30-4
SUBJECT : Tidelands and submerged lands: San Diego
SUMMARY : Amends a 1931 grant of tidelands and submerged lands
to the City of San Diego by authorizing the lands to be used as
a "marine mammal park for the enjoyment and educational benefit
of children" in addition to a bathing pool for children,
parkway, and playground, among other things.
EXISTING LAW : Chapter 937, Statutes of 1931 grants to the City
of San Diego all the right, title, and interest of the state to
specified tidelands and submerged lands along the Pacific Ocean
(known as the Children's Pool) to be used exclusively for a
public park, children's bathing pool, parkway, highway,
playground, for recreational purposes, and "to such other uses
as may be incident to, or convenient for the full enjoyment of
such purposes."
FISCAL EFFECT : Non-fiscal
COMMENTS :
1)Background :
In 1930, concerns about the safety of ocean swimming led to the
construction of a 300-foot concrete breakwater on the west side
of what is now known as the "Children's Pool" in La Jolla, a
community of the City of San Diego (City). This breakwater,
creating a sheltered area for swimming, was a gift to the City
by Ellen Browning Scripps, sister of the famed E.W. Scripps, and
devotee of children's welfare. Though the City did not have
state authorization to build the breakwater on adjacent
tidelands, which the state held in trust, the Legislature
granted this authorization in 1931 and designated the City as
the trustee of the Children's Pool.
After about 60 years of placid swimming, a colony of harbor
seals decided to inhabit the Children's Pool and its
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surroundings in the mid-1990s. The water quality impacts
associated with these seals led the city to deny or restrict
access to the beach. In 2004, the colony attracted about one
million admirers and visitors, according to the National Marine
Fisheries Service (NMFS). Supporters of this bill contend that
the positive economic impact of these visitors should not be
ignored. The City Council attempted to balance these seemingly
incompatible uses by adopting a "joint use" policy in 2004,
allowing the public to recreate at the pool but not to harass
the seals. It also directed the City Manager to dredge
accumulated sand-sand has effectively filled in most of the
pool-in order to enhance tidal flushing and lower excessive
bacteria levels. Court documents indicate that the City has yet
to excavate any sand.
In 2005, a Superior Court Judge ruled in the case of Valerie
O'Sullivan v. City of San Diego that the tidelands grant does
not permit the Children's Pool to be used as habitat, or for a
marine sanctuary, zoo or seal watching facility. As affirmed by
the State Court of Appeals in September 2007, the City is under
court order to restore the Children's Pool to its 1941 condition
by dredging accumulated sand and to reduce bacterial
concentrations to levels safe for human use. However, in
November 2008, a federal court granted plaintiff La Jolla
Friends of the Seals a temporary restraining order preventing
the City from removing or harassing the seals until the
plaintiff's motion for preliminary injunction can be heard. On
June 1, 2009, the federal court affirmed its ruling.
Regardless of this legal standoff, the City has prepared a draft
environmental impact report analyzing the impacts of excavating
and transferring 3000 cubic yards of sand to return the
Children's Pool to its 1941 condition, consistent with the state
court order.
2)Purpose of the bill
The City is clearly in a bind. Obeying the state court ruling
may cause it to violate a federal court order and federal law.
Should the City decide to remove the seals, it is unclear
whether it must seek approval to do so pursuant to the Marine
Mammal Protection Act (MMPA). In a letter to the City Attorney
dated June 4, 2009, NFMS wrote that the MMPA authorizes a
government official to "take" (e.g., harass) non-listed marine
mammals in a humane manner if such taking is to protect the
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mammal, protect public health, or remove nuisance mammals in a
nonlethal manner. Responding to a City inquiry regarding the
use of unleashed dogs owned by members of the public to deter
the seals, NFMS stated that this would be a violation of the
law.
This bill would amend the Legislature's original tideland grant
by authorizing the trust lands to be used as a "marine mammal
park for the enjoyment and educational benefit of children" in
addition to the other enumerated uses. In effect, it would
allow the City, and not a court, to determine the fate of the
Children's Pool.
3)The public trust is "sufficiently flexible"
In an October 2008 letter to the Animal Protection Rescue
League, the State Lands Commission (Commission) stated that it
"does not involve itself in a local municipality's decision to
choose one trust consistent use over another as long as the use
comports with the language of the granting statute and common
law public trust doctrine. Use of the Children's Pool as either
swimming beach or a habitat for harbor seals is equally
consistent with the common law public trust doctrine."
While the City, as a tidelands grantee, must manage its trust
lands consistent with its grant and the public trust doctrine,
the Legislature, subject to judicial review, "may create, alter,
amend, modify, or revoke a trust grant so that the tidelands are
administered in a manner most suitable to the needs of the
people of the state."<1> The Legislature is also the "ultimate
arbiter" of what constitutes a permissible use of the trust.
According to the Commission, "[the public trust] is sufficiently
flexible to encompass changing public needs, such as the
preservation of the lands in their natural state for scientific
study, as open space and as wildlife habitat."
The Commission recognizes that public trust uses may and often
do conflict with one another. Industrial port uses, for
example, may not be compatible with recreational uses. Piers,
wharves, and warehouses that previously served commercial
navigation may have to be removed or converted to serve a more
---------------------------
<1> California State Lands Commission. "The Public Trust
Doctrine." Sacramento, CA. Accessed on June 17, 2009 at
http://www.slc.ca.gov/Policy_Statements/Public_Trust/Public_Trust
_Doctrine.pdf.
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productive use if they are unable to serve more modern container
shipping. As indicated by the Commission, "The state and local
tidelands grantees, as administrators of their respective public
trust lands, are charged with choosing among these conflicting
uses, with the Legislature as the ultimate arbiter of their
choices."
In this case, by adding a specific use to its tidelands grant,
the Legislature is giving the City more flexibility to choose
among potentially conflicting uses of the trust. It is
appropriate for the Legislature to do so given our evolving
understanding of what uses may be consistent with the public
trust.
REGISTERED SUPPORT / OPPOSITION :
Support
City of San Diego (sponsor)
Humane Society of the United States
La Jolla Friends of the Seals
League of Conservation Voters, San Diego County
Natural Resources Defense Council
Paw PAC
San Diego Animal Advocates
San Diego Coastkeeper
Sierra Club, San Diego Chapter
Surfrider Foundation, San Diego County Chapter
WiLDCOAST
38 individuals
Opposition
40 individuals
Analysis Prepared by : Dan Chia / NAT. RES. / (916) 319-2092