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Animal Protection and Rescue League v. State


February 1, 2008


The opinion of the court was delivered by: Hon. Jeffrey T. Miller United States District Judge


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.


Legal Standards

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 "significant threat of irreparable injury." Id. The court also considers the relative balance of harm to the parties and the public interest at stake. Alaska v. Native Village of Venetie, 856 F.2d 1384, 1388 (9th Cir. 1988).

Likelihood of Success on the Merits

Plaintiffs generally argue that the 1931 Tidelands Grant to the City with the condition that CPB is to be used as a bathing pool is preempted by the MMPA and therefore they are entitled to injunctive relief. However, Plaintiffs fail to explain how that is so. Plaintiffs, as the party seeking injunctive relief, bear the burden of showing a likelihood of success on the merits. Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 429 (2006). Here, Plaintiffs fail to articulate any basis for the court to conclude that the 1931 Tidelands grant is preempted. Plaintiffs cite no authorities nor provide any preemption analysis. The entire focus of Plaintiffs argument is that a barrier rope must be placed at CPB to prevent harassment of the seals during pupping season. This is an insufficient basis to establish the requisite showing of success on the merits.

The court notes that federal law preempts state law under three different circumstances: express, conflict, or field preemption. Express preemption occurs when a federal statute expressly preempts state law. See Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 95-98 (1983). Under conflict preemption, state law is preempted to the extent it actually conflicts with federal law. Barnett Bank of Marion County, N.A. v. Nelson, 517 U.S. 25, 31 (1996). Conflict preemption is found where it is "impossible for a private party to comply with both state and federal requirements" or where state law "stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." Freightliner Corp. v. Muyrick, 514 U.S. 280, 287 (1995). Finally, under the third type of preemption, field preemption occurs when Congress regulates in an area intended to be occupied exclusively by the federal government. Id. State laws may be impliedly preempted where Congress has so comprehensively legislated in an area the federal law occupies the field, leaving no room for state regulation. Pacific Gas Elec. Co. v. State Energy Resources Conservation & Develp. Comm'n, 461 U.S. 190, 204 (1983). The Supreme Court has determined that there are only three statutory schemes that completely occupy the field: cases arising under the Labor Management Act and ERISA and usury claims under the National Bank Act. Beneficial Nat. Bank v. Anderson, 539 U.S. 1, 8 (2003).

Here, Plaintiffs have completely failed to demonstrate, or even address, express, conflict, or field preemption. As Plaintiffs have made no showing of the likelihood of success on the merits, at this preliminary stage of the litigation, the court denies the TRO. [[JUDGE: Your order need not go beyond this point. However, the court's subject matter jurisdiction to entertain this action is questioned. Therefore, as set forth below, I recommend that you request briefing on the Rooker-Feldman doctrine.]]

Possibility of Harm and Balance of Hardships

Plaintiffs argue that they will suffer irreparable harm because "there have been harassment incidents that a rope would have prevented and that were only prevented by plaintiffs' presence." (Reply at p.7:22-23). Plaintiff Valli declares that she spends about six hours per day at CPB and that people come close to the pregnant seals, scaring them into the water, and that some individuals throw objects at the seals. (Valli Decl. ¶2). Ms. Valli also declares that a seasonal rope is effective in preventing the public from getting too close to the seals. She also declares that there have been miscarriages in the past due to the disturbances at the CPB. Id. ¶3.

This evidence fails to establish irreparable harm. As noted by prospective Intervenor O'Sullivan, the pupping season began on December 15, 2007 and Plaintiffs fail to identify a single incident of harm or harassment occurring during this period of time. As there is not currently a rope barrier at CPB nor any identifiable present harm the seals, Defendants conclude that injunctive relief is not warranted to maintain the status quo. An injunction "may only be granted when the moving party has demonstrated a significant [and immediate] threat of irreparable injury, irrespective of the magnitude of the injury." Simula, Inc. v. Autoliv, Inc., 175 F.3d 716, 725 (9th Cir. 1999); Caribbean Marine Serv. Co., Inc. v. Baldridge, 844 F.2d 668, 674 (9th Cir. 1988) (plaintiff "must demonstrate immediate threatened harm"). Here, Plaintiffs fail to carry their burden of demonstrating a significant threat of immediate irreparable harm. Plaintiff Valli declares that there have been past instances of harassment at CPB but fails to identify a single incident of harassment occurring since December 15, 2007. (Valli Decl.) Moreover, Plaintiffs fail to establish that frightening seals such that they retreat into the water causes irreparable harm. Plaintiff Valli also declares, in conclusory fashion, that miscarriages in seals are attributable to people walking "right up to the seals and distrub[ing] them." (Valli Decl. ¶2). Plaintiff Valli fails to identify any causal nexus between miscarriages and people walking up to the seals. Such speculative injury fails to "demonstrate immediate threatened harm." Caribbean Marine Serv., 844 F.2d at 674.

Other Considerations

In light of the extensive state court proceedings concerning the CPB, the court is concerned that it lacks subject matter jurisdiction to entertain this action. The Rooker-Feldman doctrine deprives district courts of jurisdiction over claims "inextricably intertwined" with claims adjudicated in state courts. See Rooker v. Fidelity Trust Co., 263 U.S. 413, 415 (1923); District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 483 (1983). The rationale for this doctrine is that 28 U.S.C. §1257 vests jurisdiction to review state court judgments exclusively with the United States Supreme Court, and not the district court. Exxon Mobil Corp. v. Saudi Basic Industries Corp, 544 U.S. 280, 292-93 (2005).

To determine whether the court possesses subject matter jurisdiction over the present action, the court requests further briefing. Defendants and prospective Intervenor are instructed to file a response to the court's request no later than by February 15, 2008. Plaintiffs shall file and serve a response no later than by February 22, 2008. Oral argument is calendared for February 29, 2008 at 2:30 p.m. The court also vacates the hearing date on Plaintiffs's motion for a preliminary injunction, currently calendared for February 1, 2008. This motion will be recalendared, if appropriate, once the court determines the scope of its subject matter jurisdiction. The court also continues oral argument on prospective Intervenor's motion to intervene from February 22, 2008 to February 29, 2008 at 2:30 p.m.

In sum, the court denies the motion for a TRO, requests briefing on the applicability of the Rooker-Feldman doctrine to the present case, vacates the hearing date on Plaintiffs' motion for a preliminary injunction, and continues the hearing date on the motion to intervene to February 29, 2008 at 2:30 p.m.


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