Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

La Jolla Friends of the Seals v. National Oceanic and Atmospheric Administration National Marine Fisheries Service

December 18, 2008

LA JOLLA FRIENDS OF THE SEALS, A NONPROFIT ORGANIZATION; AND JAMES H.N. HUDNALL, JR., AN INDIVIDUAL, PLAINTIFFS,
v.
NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION NATIONAL MARINE FISHERIES SERVICE ("NMFS"), AN AGENCY OF THE U.S. DEPT. OF COMMERCE; CARLOS M. GUTIERREZ, SECRETARY OF COMMERCE; JAMES W. BALSIGER, ACTING DIRECTOR OF NMFS; RODNEY MCINNIS, ACTING REGIONAL ADMINISTRATOR OF NMFS; JAMES LECKY, DIRECTOR OF OFFICE OF PROTECTED RESOURCES AT NMFS; CITY OF SAN DIEGO; AND DOES 1 TO 100, DEFENDANTS.



The opinion of the court was delivered by: Hayes, Judge

ORDER

The matter before the Court is Plaintiffs' application for a temporary restraining order requiring the Defendant City of San Diego to follow two resolutions of its City Council by placing a guideline pupping season rope at the Children's Pool beach in La Jolla, California. (Doc. # 27).

PROCEDURAL BACKGROUND

On October 9, 2008, Plaintiffs filed a Complaint against the Defendant City of San Diego, and Defendants National Oceanic and Atmospheric Administration National Fisheries Service (NOAA) and other federal officials ("Federal Defendants"). The Complaint asserts jurisdiction over this action pursuant to 28 U.S.C. § 1331 and alleges the following two claims for relief: 1) writ of mandate against Defendant City of San Diego requiring resolution of a substantial question of federal law; and 2) judicial review of agency action under 5 USC § 702 to prevent NOAA from ceding its authority to the City to interpret and apply the Marine Mammal Protection Act ("MMPA"). The Complaint seek a judgment from this Court: 1) for injunctive relief requiring an MMPA permit to be issued prior to NMFS officials allowing the disturbance of seals at Children's Pool Beach; 2) for injunctive relief requiring Defendant City of San Diego to carry out the ordinance of its City Council and erect a pupping season rope this year as usual from December 1 through May 30; and 3) for a declaration of the rights and duties of Plaintiffs and Defendants. (Complaint, Doc. # 1 at 18).

On October 10, 2008, Plaintiffs filed an application for a temporary restraining order and a preliminary injunction which included the following two requests: 1) "prevent [National Marine Fisheries Service] and its officials from allowing the City of San Diego to be forced . . . by a state court to destroy a harbor seal rookery, where approximately 200 seals rest, give birth, and nurse their young, without obtaining a permit under the Marine Mammal Protection Act, 16 USCS §§ 1361-1407" and 2) "require the City of San Diego to comply with two resolutions of its City Council requiring installation of a pupping season guideline rope at the rookery to prevent nursing seal pups from being separated from their mothers and to protect the public from being bitten by a seal protecting her young." (Application for a Temporary Restraining Order, Doc. # 3 at 2).

On October 22, 2008, this Court held a hearing with all parties present in order to set a briefing schedule and hearing date on Plaintiffs' application for temporary restraining order and preliminary injunction. The Court set a hearing date of November 25, 2008 on Plaintiffs' pending motion for a preliminary injunction and Plaintiffs requested that the Court enter a temporary restraining order to require the Defendant City of San Diego to prevent the imminent destruction of the harbor seal rookery at the Children's Pool beach and to require compliance with a City Council resolution to place a guideline rope barrier at the Children's Pool beach until the date set for the hearing on Plaintiffs' motion for a preliminary injunction.

Defendant City of San Diego represented to this Court at this hearing that Plaintiffs were likely to succeed on the merits of the claim that a permit under the MMPA is required before the seals can be dispersed, and that the City of San Diego was likely to be required by the state court to immediately remove the seals constituting irreparable injury. Counsel for the Defendant City of San Diego stated at the hearing "Plaintiff is likely to succeed in Plaintiff's argument that the City would need a permit, certainly, right before pupping season is scheduled to occur at Children's Pool and, certainly, during the pupping season because we're dealing with an entire colony of seals. And for that reason, ... it is the City's position that there is no opposition to the request for a temporary restraining order." (Transcript page 16). Counsel for the Defendant City of San Diego stated at the hearing "we don't see how there is any irreparable harm to any of the parties if there is a temporary restraining order preserving the status quo because it's just a matter of giving the court an opportunity to look into the merits; whereas, if the seals were immediately removed, there would be irreparable harm. And we know that based on the declaration from the biologist from NOAA about how these seals at this particular juncture, the pregnant ones would likely have miscarriages." (Transcript at page 7-8). Defendant City of San Diego stated that the "part of the request that deals with the rope area . . . is premature." (Transcript page 12).

In an order filed on October 22, 2008, the Court found that "serious questions going to the merits are raised and the balance of hardships tips sharply in favor of the moving party." (Doc. #11 at 2). This Court entered an order "to preserve the status quo and prevent irreparable harm before a preliminary injunction hearing may be held." Id. The Court ordered "that Defendant City of San Diego, its agents, servants, employees, and representatives, and all persons acting in concert or participating with them, are hereby enjoined and restrained through the hearing date of November 25, 2008 from engaging in, committing, or performing, directly or indirectly, any and all of the following acts: harassing or dispersing the colony of harbor seals at Children's Pool Beach in La Jolla, California." Id.

On November 4, 2008, the Defendant City of San Diego filed a "Statement of Non- Opposition to Plaintiffs' Motion for a Preliminary Injunction." (Doc. # 18). Defendant City of San Diego stated: "Based upon the [Marine Mammal Protection Act's] text and legislative history, the Plaintiffs are likely to succeed on the merits." (Doc. # 18 at 4). Defendant City of San Diego stated that "the primary issue is: Are the Plaintiffs likely to succeed on the merits in their argument that the City must obtain an incidental harassment permit in compliance with the Marine Mammal Protection Act of 1972, 16 U.S.C. §§ 1361-1407 ("MMPA") before removing the seal colony from the Children's Pool?" (Doc # 18 at 2). Defendant City of San Diego stated that "the fact that the Children's Pool is a seal rookery removes all doubt that a permit is required" and that "Plaintiffs are likely to succeed on the merits." (Doc. # 18 at 4). Defendant City of San Diego further represented that there "is sufficient evidence of a threat of irreparable injury sufficient to authorize a preliminary injunction to preserve the status quo." (Doc. # 18 at 5).

On November 13, 2008, all parties filed a "Joint motion to continue the hearing date of November 25, 2008 on the Plaintiffs' motion for temporary restraining order/preliminary injunction." (Doc. # 25). The parties stated that "the purpose of the continuance is to allow the parties to explore the possibility of settlement of this matter . . . Plaintiffs and the City are in agreement that this Court's temporary restraining order of October 22, 2008 should remain in effect . . . [and] this joint motion is without prejudice to Plaintiffs filing a motion to amend the TRO or seeking other relief against the City so that the City is ordered to install a rope barrier at the Children's Pool in La Jolla during the upcoming harbor seal pupping season." (Doc. # 25 at 2). Plaintiffs' motion for preliminary injunction was reset to February 13, 2009.

On December 2, 2008, Plaintiffs filed the application now before this Court for a temporary restraining order requiring the Defendant City of San Diego to enforce its existing resolutions and install a pupping season guideline rope at the Children's Pool Beach by December 15 to prevent nursing seal pups from being separated from their mothers and to protect the public from being bitten by a seal protecting her young. (Doc. # 27).

On December 8, 2008, Defendant City of San Diego filed a response to Plaintiffs' application for a temporary restraining order stating that state court has entered a judgment finding that the "city violated the Trust by constructively closing the beach to the public by placement of a rope at the Children's Pool" and that "[t]he City is [] obligated to comply with the Superior Court's order by not installing a rope barrier during the pupping season notwithstanding the two San Diego City Council resolutions in question." (Doc. # 30 at 2-3).

On December 8, 2008, the Federal Defendants filed a response to Plaintiffs' application for a temporary restraining order stating in part: "On several occasions, NMFS has advised the City to install a guideline rope barrier at Children's Pool Beach during the pupping season to discourage members of the public from harassing seals in violation of the MMPA. . . . NMFS's recommendation remains valid and applies to the 2008-2009 pupping season. However, because Plaintiffs TRO Application does not seek any relief against NMFS, nor is it premised on any claims against NMFS, NMFS takes no position on whether the Plaintiffs have stated a claim against the City for 'a writ of mandate under Cal. Code Civ. Proc. § 1085(a),' . . . that is justiciable in federal court." (Doc. # 29 at 1).

On December 12, 2008, this Court held a hearing on Plaintiffs' application for temporary restraining order. All parties appeared.

BACKGROUND FACTS

State Court Action

On March 12, 2004, Valerie O'Sullivan, a private citizen, filed an action in Superior Court of San Diego County against the City of San Diego alleging causes of action for breach of trust and breach of fiduciary duties. O'Sullivan v. City of San Diego, No. GIC 826918 (Cal. Sup. Ct.). O'Sullivan sought declaratory relief that the City had breached its trust and fiduciary obligations under its grant of trust to maintain the Children's Pool beach in La Jolla, California in a manner suitable for its intended uses and purposes as a public park and bathing pool for children.

On August 26, 2005, Superior Court Judge William C. Pate entered a "Final Statement of Decision" finding in favor of O'Sullivan and against the Defendant City of San Diego on her claim of breach of trust and her claim for breach of fiduciary duty. The state court decision concluded that Children's Pool beach is a "man-made, artificial condition, which was entrusted to the City for specific uses and purposes" and that "the City has knowingly declined to remove sand from the Pool, even though the sand has reached the point where the Pool in reality cannot be used for its intended purpose." (Doc. #30, Final Statement of Decision, Exhibit 2 at 30). The state court decision stated that the City breached its obligations under the Trust by its "decision to erect a rope barrier cutting off public access to the Pool." Id. at 24.The state court decision ordered the City to employ all reasonable means to restore the Children's 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 County of San Diego as being safe for humans. The state court decision further stated that "[n]othing contained in this order shall be construed as requiring the City to violate any law, rule or regulation of any federal, state or county government." Id. at 31.

On October 4, 2005, the state court entered a Judgment in part as follows: "Defendant City of San Diego is ordered to employ all reasonable means to restore the Children's Pool to its 1941 condition by removing the sand build-up and further to reduce the level of water contamination in the Children's Pool to levels certified by the County of San Diego as being safe for humans." (Doc. # 30, ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.