Animal-rights activists are aghast at news that a colony of harbor seals could be forced to vacate Children's Pool beach in La Jolla, now that the federal agency tasked with protecting marine mammals has backed the city of San Diego's plan "to intentionally harass" the seals.
That ruling came last week via a letter from Rodney McInnis, a regional administrator of the National Marine Fisheries Service (NMFS), who advised city officials that, although the Marine Mammal Protection Act explicitly protects seals from human harassment, a provision exempts the city from needing permits to use harassment to permanently remove the seals from the beach.
McInnis' letter says that the law allows governments to intentionally "take" or displace a marine mammal in a humane manner for the purpose of protecting the mammal, protecting the public health or intentionally removing a nuisance animal.
City officials claim the seals pose a public-health risk because bacteria found in seal excrement, which may pose a risk to humans who use the pool, have contaminated the sand and surrounding water.
McInnis recommended city officials begin harassing the seals before November to ensure the seals vacate the beach prior to the January pupping season. But seal experts say any harassment could negatively impact already pregnant seals.
"It's likely that this reproductive season would be lost for these animals," said Naomi Rose, a marine mammal biologist with the Humane Society of the United States. "They are likely to try to find another pupping area, but they aren't likely to succeed."
Other advocates say the NMFS opinion, the first of its kind, is an affront to the Marine Mammal Protection Act and circumvents an established process that would require the city to apply for a permit, force NMFS to study the environmental impact of granting that permit and allow the public to comment.
Patricia Lane, an attorney with the Humane Society, responded to McInnis' letter last week with one of her own, charging that the Humane Society "believes this action to be in violation of federal environmental laws and regulations and urges you to rescind this decision immediately."
The Humane Society previously sued the city in an unsuccessful attempt to re-establish a rope barrier that separated onlookers from the seals. Lane told CityBeat she hopes NMFS and the city can find an alternative to harassing the seals but said several conservation groups are considering filing suits in federal and state courts.
"The NMFS handbook and their own administrative order says that when the federal agency participates with other governments... they are not exempt from completing environmental documentation," Lane said. "Under the National Environmental Policy Act they have to complete the type of environmental review necessary to educate the agency's decision makers before they make that decision."
Representatives from NMFS did not respond to CityBeat's requests for comment.
McInnis' letter is the latest development in a decade-long saga pitting environmental conservationists against a contingent of citizens who want the seals removed and Children's Pool restored to its 1941 condition and use as a public swimming site.
In response to a lawsuit filed by a restoration proponent, Superior Court Judge William C. Pate in August gave the city six months to complete the restoration, which would require removal of the seals, but stressed that the city must abide by all state and federal laws.
On Thursday, the city is scheduled to present Pate with a progress report detailing its efforts to consult seven state and federal agencies with jurisdiction over Children's Pool and secure as many as eight permits. The city has asked for additional time to implement the judge's order. The NMFS opinion was offered as a result of those efforts.
April Penera, a deputy director in the city's Park and Recreation Department, told CityBeat the city is waiting to hear from the judge before making its next move. However, pending an unexpected decision, she said she doesn't expect the city to begin "shooing away" the seals until September of next year.
In the meantime, the city plans to appeal Pate's initial decision. City Attorney Mike Aguirre filed a notice of appeal on Thursday after the City Council, with the exception of Scott Peters, whose district includes the beach, voted last month to reverse its previous decision and appeal Pate's ruling."Before the court order, we had this project moving forward already under City Council direction and we had already intended to do it in September" of 2006, she said. "There is nothing currently in the works to go harass the seals at this point."