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

June 29, 2009

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: William Q. Hayes United States District Judge

ORDER

HAYES, Judge

The matter before the Court is the exercise of jurisdiction to proceed on the merits of Plaintiffs' state law claim against the Defendant City of San Diego.

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 asserted jurisdiction over this action pursuant to 28 U.S.C. § 1331 and alleged 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 against the Federal Defendants to prevent NOAA from ceding its authority to the City to interpret and apply the Marine Mammal Protection Act ("MMPA").

On October 10, 2008, Plaintiffs filed an application for a temporary restraining order and a preliminary injunction. (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 on Plaintiffs' pending motion for a preliminary injunction. Plaintiffs requested that the Court immediately enter a temporary restraining order to enjoin the Defendant City of San Diego from dispersing the harbor seals at the Children's Pool beach. Defendant City of San Diego represented to this Court at this hearing that Plaintiffs were likely to succeed on the merits of their 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 that "Plaintiff is likely to succeed in Plaintiff's argument that the City would need a permit ... 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 further stated 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." (Doc. # 25 at 2). Based upon the joint request of all parties, Plaintiffs' motion for preliminary injunction and the Federal Defendants' motion to dismiss were reset to February 13, 2009.

On December 2, 2008, Plaintiffs filed an application for a temporary restraining order to require 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). Defendant City of San Diego represented to the Court that Plaintiffs were likely to prevail on the merits of the claim against the City and agreed that a temporary restraining order was necessary in order to avoid irreparable injury.

On December 18, 2008, this Court granted Plaintiffs' unopposed motion for a temporary restraining order. (Doc. # 34). In order to avoid serious and irreparable injury, including physical harm to the public and marine mammals, this Court granted a temporary restraining order "requiring the Defendant City of San Diego to follow its two resolutions of its City Council by placing a guideline pupping season rope at the Children's Pool beach in order to maintain the status quo until the issues presented in this case can be fully addressed in the Plaintiffs' motion for preliminary injunction." (Doc. # 34 at 15). The Court specifically found jurisdiction "at this stage in the proceedings" for this limited relief reserving the issue of jurisdiction to resolve the merits of the cause of action. Id.

On April 28, 2009, this Court granted the motion to dismiss filed by Federal Defendants. (Doc. # 53 ). The Court found no grounds for the exercise of federal jurisdiction over the second claim for relief against the Federal Defendants. The Court examined relevant provisions of the MMPA and found that the "[n]o provision of the MMPA sets substantive priorities or otherwise circumscribes the power of the Secretary to determine how and when to enforce the [MMPA]." (Id. at 8). The Court concluded that under the facts alleged in the Complaint, no provision of the MMPA or the Administrative Procedures Act authorized an action by Plaintiffs against the Federal Defendants "requiring a MMPA permit to be issued prior to NMFS allowing the disturbance of seals at the Children's Pool Beach." (Id. at 3). The Court concluded that it had no jurisdiction to proceed against the Federal Defendants and ...


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