The opinion of the court was delivered by: Hon. Jeffrey T. Miller United States District Judge
ORDER DENYING MOTION FOR TEMPORARY RESTRAINING ORDER; SCHEDULING ORDER; CONTINUANCE OF PENDING
Plaintiffs Animal Protection and Rescue League ("APRL") and Dorota Valli move for a temporary restraining order ("TRO") to compel defendant City of San Diego ("City") to place a seasonal rope barrier at the La Jolla Children's Pool Beach ("CPB") to limit human interaction with harbor seals during pupping season. Defendants City and Mayor Jerry Sanders oppose the motion, defendant State of California did not file a response to the TRO application, and prospective Intervenor, Valerie O'Sullivan, opposes the motion. For the reasons set forth below, the TRO application is denied.
In 1930 Ellen Scripps requested and received approval for the construction of a 300-foot concrete breakwater in the Pacific Ocean adjacent to La Jolla to create a bathing pool.*fn1 The State of California granted lands, including the lands encompassing CPB to the City in trust. One condition of the trust provided that City was to devote the land "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. . . ." By 1997, CPB was no longer usable as a bathing beach because of contamination caused by the presence of harbor seals and sea lions.
On March 12, 2004, Prospective Intervenor, Valerie O'Sullivan, commenced an action in San Diego alleging City violated the 1931 statutorily-created public trust for the area known as CPB. O'Sullivan v. City of San Diego, No. GIC 826918, (S.D. Sup.Ct. 2004) (Intervenor's Exh. 1). Among other things, Superior Court Judge William Pate concluded: (1) since 1997, the beach and water inside the breakwater are polluted and pose a health risk to humans because of high concentrations of seal feces; (2) in its present state, CPB is not suitable for the uses enumerated in the 1931 land grant; (3) placement of a rope barrier at CPB further restricted public access to CPB and contributed to the increase in pollution; (4) the Marine Mammal Protection Act ("MMPA") §109(h) permits the removal of the seal population from CPB; and (5) James Lecky, West Coast Administrator of NOAA advised the City that §109(h) of MMPA permitted the city to address the health and safety issues presented at CPB and that the harbor seals are not threatened or endangered species. In light of the legal and factual findings of the Superior Court, the City was "ordered to employ all reasonable means to restore the Pool to its 1941 condition by removing the sand build-up and further to reduce the level of water contamination in the Pool to levels certified by the Court of San Diego as being safe for humans." The order, entered on August 26, 2005, required the City to comply with the court's order within six months. The City has yet to comply with the court's order.
The City appealed and the Court of Appeal affirmed the judgment of the Superior Court. The appellate court discussed the applicability of §109(h) of MMPA to the CPB, noting that the exception applied under the circumstances:
Because feces from the substantial number of seals at the Children's Pool result in high levels of water pollution, it can reasonably be concluded there is damage to public property and danger to the health and safety of persons at the children's Pool within the meaning of those exceptions. Considering those circumstances, the trial court could reasonably conclude those exceptions to the MMPA applied and did not preclude its injunction against City requiring City to, in effect, remediate those problems by restoring the Children's Pool to its 1941 condition. (Intervenor's Exh. 2, pp. 45-46).
After the California Supreme Court denied review, City filed a "Motion to Clarify the Court's Injunction" which requested the court to reconsider the "rope issue" and permit the City to place a rope barrier on the shore of CPB thereby limiting public access to the beach. (Intervenor's Exh. 4). Judge Hofmann declined to reconsider the "rope issue" stating:
Specifically, the 'rope issue' was discussed in both this Court's and the Court of Appeal's final rulings in favor of Plaintiff and against the City. Ultimately, both Courts found that the placement of a 'rope barrier cutting off public access to the Pool' . . . resulted in the City's breach of its obligations as trustee under the subject Trust.
Id. Further, the court noted that "the relevant issue has been considered and decided, and the Court's directives to the City are clear and unambiguous." Id.
On December 11, 2007 Plaintiffs commenced the present action seeking injunctive relief to compel Defendants (1) to obtain a MMPA permit prior to "attempting to scare the seals away," (Comp. ¶26); and (2) to place a rope barrier at CPB during pupping season. Plaintiff now moves for a temporary restraining order to compel Defendants to install a rope barrier at CPB during seal pupping season which began on December 15, 2007. Defendants oppose the motion.
The Ninth Circuit has not articulated a specific test for temporary restraining orders but applies the same standards applicable for preliminary injunctions. See Superior Servs., Inc. v. Dalton, 851 F. Supp. 381, 384 (S.D. Cal. 1994). Preliminary injunctive relief is available if the party meets one of two tests: (1) a combination of probable success and the possibility of irreparable harm, or (2) the party raises serious questions and the balance of hardship tips in its favor. Arcamuzi v. Continental Air Lines, Inc., 819 F.2d 935, 937 (9th Cir. 1987). "These two formulations represent two points on a sliding scale in which the required degree of irreparable harm increases as the probability of success decreases." Id. Under both formulations, however, the party must demonstrate a "fair chance of success on the merits" and a ...