1922

1922

Ms. Scripps and Harper invited Savage to determine the "practicality and feasibility of the accomplishment of a bathing pool for children in the Ocean at La Jolla, California."

1923

March 22, 1923

Mr. Savage submitted a report to Ms. Scripps. The report contained recommendations for constructing a bathing pool in the ocean in front of the location of the Casa de Mañana Hotel.

1930

May 1930

Ms. Scripps' representatives invited Mr. Savage’s “cooperation in the accomplishment of the projected splendid gratuity-bathing pool for children at La Jolla."

June 20, 1930

Ms. Scripps authorized construction of the pool as a gift to children. Savage's services on the project were also a gratuity to children. The next day, formal application was made to the War Department requesting permission to construct the breakwater feature of the pool.

June 21, 1930

Ellen Browning Scripps, through her Attorney in Pact, Dr. J. C. Harper wrote the Mayor and City Council of San Diego for permission to construct a "concrete breakwater in the Pacific Ocean at La Jolla." The stated purpose for the breakwater was to "create a Bathing Zone adjacent to the City of San Diego's La Jolla Park and City Streets."

June 26, 1930

Hydraulic engineer H. N. Savage (hereinafter. "Savage") also wrote the City (of San Diego (hereinafter "the City") on behalf of Ms. Scripps requesting permission to construct the breakwater. He enclosed with his letter plan drawings of the proposed breakwater. In this letter, Savage states the purpose of the breakwater "is to create a bathing pool" and the cost would be "in the vicinity of $50,000."

June 30, 1930

Permission from the City was granted. The City Park Department approved the construction on July 22, 1930. The War Department issued a construction permit on September 2, 1930.

September 15, 1930

With actual or tacit approvals in hand, Ms. Scripps awarded the construction contract to W.M. Ledbetter & Company. Two days later, equipment arrived on site and construction commenced. According to Savage, "([t]he purpose of the project was to create a safe bathing pool for children, sheltered from the ocean surf and winds." "The park area on the bluff adjoining the pool was improved by grading and the construction of parapet walls, and curbs. Shrubs have been planted and benches provided."

1931

June 1, 1931

Ms. Scripps gave the Children's Pool to the City of San Diego.

June 11, 1931

The Common Council of the City adopted Resolution 56609 whereby it ''express[ed] to this generous friend of humanity its most cordial thanks, on behalf of the children and citizens generally of the City of San Diego, for the unprecedented tidal bathing pool for the younger generation which has recently been constructed in ocean water on the shores of La Jolla, . . . ."

June 15, 1931

Governor of California signed Statute No. 937 of the laws of 1931, which granted to "the city of San Diego, ... all right, title and interest of the State of California, ... in and to all that portion of the tide and submerged lands bordering upon and situated below the ordinary high water mark of the Pacific ocean ……….. to be forever held by the city of San Diego and its successors in trust for the uses and purposes and upon the express conditions following, to wit:

(a) That said lands shall be devoted, 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;

(b) The absolute right to fish in the waters of the Pacific ocean over said tidelands or submerged lands, with the right of convenient access to said waters over said lands for said purpose is hereby reserved to the people of the State of California."

November 21, 1931

Operating Department of the City prepared a map depicting the land granted to the City by the State of California "for a swimming pool."

1933

1933

The Legislature passed and the Governor signed Statute No. 688 of the laws of 1933, that conveyed in trust all of the tidelands of the state bordering the City of San Diego. The more general grant of land described permissive uses of the tidelands, as contrasted with the 1931 grant, which provides for exclusive uses of the tidelands within the grant. Thereafter, for over sixty years, the Children's Pool remained open for the use and enjoyment of the people of San Diego and others.

1980

1980 and 1983

City of San Diego contracted for repairs to the Children's Pool breakwater. These repairs included replacing the handrail, improving lifeguard facilities and repairing the breakwater itself.

There is no evidence of any concern about or discussion of seals in the Children's Pool area until July, 1992. A representative of Sea World, Jim Antrim, discussed with Barbara Bamburger, a representative of "Friends of the Seals," the creation of a seal reserve in the vicinity of "the rock off Shell Beach (in front of 939 Coast Blvd)" as it was the "focal point of harbor seal activity concentrated between the months of January and, May."

1983

1980 and 1983

City of San Diego contracted for repairs to the Children's Pool breakwater. These repairs included replacing the handrail, improving lifeguard facilities and repairing the breakwater itself.

There is no evidence of any concern about or discussion of seals in the Children's Pool area until July, 1992. A representative of Sea World, Jim Antrim, discussed with Barbara Bamburger, a representative of "Friends of the Seals," the creation of a seal reserve in the vicinity of "the rock off Shell Beach (in front of 939 Coast Blvd)" as it was the "focal point of harbor seal activity concentrated between the months of January and, May."

1992

November 25, 1992

A recommendation by the City Manager to essentially adopt the Park and Recreation Board recommendations, with the exception that the Reserve be established for a five-year period. The City Manager's recommendations were adopted. The water and land within the reserve would be "off-limits to human and pet intrusion." In making these recommendations, the City recognized that marine mammal populations in the area of Seal Rock, and harbor seals in particular, had increased during the prior ten years.

1993

February 1, 1993

City Attorney approved a request recommending a reserve with a fixed boundary beginning 200 feet east of the seaward entrance to the Children's Pool. It passed unanimously after an amendment that extended the boundaries "to include the compromise area that goes practically to the beach that was presented by Barbara Bamburger. This discreet area shall be in effect for five years on a trial basis and is off limits to swimmers, divers and tourists. Access to the riptide is not affected because the divers can come in and go out through the Children's Pool."

October 25, 1993

Jane Sekelsky, Chief, Division of Land Management, State Lands Commission (hereinafter "SLC"), sent a letter to Carl Lind, a private citizen, copied to Robin Stribley, Natural Resources Manager, Park and Recreation District, City of San Diego. The letter concerned the creation of a marine mammal preserve within an area encompassed within a statutory trust grant. The SLC, on behalf of the State of California, expressed its concern that the Reserve may prohibit activities specifically reserved to the people of the State of California. Such activities include "the absolute right to the public use of said tidelands and to fish in the waters thereof, with the right of access to said waters over tidelands for said purpose." The Legislature has vested in the SLC: "All jurisdiction and authority remaining in the State as to tidelands and submerged lands as to which grants have been or may be made," and has given the commission exclusive administration and control of such lands. (Pub. Resources Code § 6301.)

November 15, 1993

SLC sends a clarifying letter addressed to Ms. Stribley and Barbara Bamburger. In which SLC more thoroughly advised the City of its rights and obligations in regard to lands over which it is the trustee. The State stated that "[t]he proposed ordinance is clearly inconsistent with the provisions of Chapter 937, Statutes of 1931. To ban public recreational uses as proposed would violate the specific provisions of the statute and the City's responsibility as Trustee." The court recognizes that the Reserve is situated within the broader tidelands grant of 1933 and not the much more narrowly and specifically worded grant of 1931.

That letter from the SLC placed the City on notice, as of November 1993, of its legal obligations under the 1931 statutory grant of public trust land.

November 18, 1993

California Coastal Commission approved the establishment of the Reserve in the vicinity of Seal Rock. The approval was conditioned on the City obtaining approval of the SLC and the boundaries of the Reserve not including any "sandy beach area."

1994

March 30, 1994

Fish and Game cautioned the City about interfering with "the public's right to fish in State waters."

July 25, 1994

City Council amended the ordinance establishing the Reserve to comply with the requirements of the Coastal Commission and to permit fishing pursuant to the request of Fish and Game.

1997

February 1997

City Manager updated Natural Resources on the Children's Pool closure. The report confirmed that the contamination was the result of "a seal excrement overload for Children's Pool." For fifteen years before 1994, the water quality in the Children's Pool met safe standards except on rare occasions. The report seemed to reasonably reject scaring away the seals from the beach or Pool, relocating them or physically preventing their entering Children's Pool. The "action plan" proposed was to discontinue placing barricades on the beach in the hope the seals will use the beach less if there were more human interaction and to hire a consultant to develop a plan for opening the sluiceways in the breakwater. It was believed the open sluiceways would increase the amount of water in the Pool and reduce the size of the beach. The increase in water would further dilute the concentration of feces in the water and a smaller beach might discourage some of the seals from hauling out at Children's Pool and thereby reduce the number of seals at the Pool. The Committee approved the Report recommending the hiring of a consultant in regard to re-opening the sluiceways.

October 1, 1997

Natural Resources and Culture Committee (hereinafter "Natural Resources received an informational report from the City Manager about the "Closure of Children's Pool.” The report noted that the Pool had been closed to "water contact since September 4, 1997 due to continuously high fecal coliform counts." Obvious forms of contamination had been ruled out and it was believed that the source was harbor seal feces. This had riot yet been confirmed, but laboratory tests were being conducted.

The City Manager then discussed the City's lack of understanding of the reasons for "this unusual contamination level." The City did know that "[h]arbor seal populations have steadily increased off the west coast over recent years. This is evidenced at Children's Pool by an increased number of seals using the area." The City noted that a potential cause of the increase in the number of harbor seals at the Children's Pool was the nearby Reserve, which was three years into its five-year trial. Another potential cause was that "for the last year and a half, [City] lifeguards have erected barriers between seals hauled-out on the sand at Children's pool and the public." The barrier was to protect the public "from being bitten by a wild animal" or being fined for disturbing the seals.

The City Manager took the position that "[i]f the high contamination level both proves to be due to seals, and continues, it is the City's intent to find a solution which allows the peaceful co-existence of humans and seals at Children's Pool, to the extent the public health can be protected." He also recognized "[s]ince public health is potentially at risk, the federal Marine Mammal Act allows the City to take non-injurious actions which would reduce or eliminate seal usageof Children's Pool"

December 10, 1997

NMFS, an agency of the United States Department of Commerce, advised the City that "[w]hen Seal Rock was designated as a temporary reserve in 1994, a small number of harbor seals were utilizing the rock as a haul-out, while no animals were hauling out at Children's Pool Beach (CPB). According to [a] report, in 1996 the maximum number (62) of animals observed hauling out, on the rock occurred in April, while the maximum number (120) of animals observed hauling out at CPB occurred in June. Based on these data it appears that animals are preferring CPB over Seal Rock as their major haul-out site. This trend will most likely continue into the near future as the local seal population continues to increase in size."

NMFS also concluded that the seals at Children's Pool appear to be acclimating to humans and the effectiveness of the Reserve as a seal sanctuary is questionable. "Because, the harbor seal population both locally and statewide is healthy and increasing," removing Seal Rock as a Reserve will have no adverse effect on the seals.

1998

January 1998

Hubbs-Sea World Research Institute published a report of seal activity at the Reserve and Children's Pool. The report was based on photographs taken of each location every 30 minutes from November 1995 through September 1997. In most months, the peak count was significantly higher for the Children's Pool than the Reserve.

May 6, 1998

Natural Resources meets, with another report from the City Manager.

This time the City Manager recommended returning the barricades to separate the seals from the public. The removal of the barricades did not have the desired effect of reducing the seal population at the Pool. Also, complaints by public members of interactions between humans and seals were distracting the lifeguards from their public safety duties. For these reasons, the City Manager recommended the barricades be returned to the Pool. The report also concludes that re-opening the sluiceways was feasible, but three-quarters of the sand on the beach would need to be removed, in order to return the beachto its 1931 configuration. The City Manager recommended the sand removal. [ Id.] The Committee's action was to recommend that the City Council direct the City Manager to apply for a Coastal Development Permit to remove the sand and re-open the sluiceways.

August, 1998

The City was advised by the Center for Disease Control that seals can transmit diseases to humans. "Some seals can carry tuberculosis and Giardia. Fecal contaminant bacteria and viruses would also be a potential concern.”

December 22, 1998

The City requested authorization from the NMFS to remove sand from the beach. Dredging sand from the beach could constitute an "incidental harassment" of the seals. In justifying its request, the City represented that the breakwater was constructed to provide a sheltered swimming area for children; that the Pool has consistently been a popular attraction with a broad range of users who have come to rely on the Pool for beach recreation and water access; that skin and SCUBA divers depend on the Pool in order to safely enter and exit the water; that the beach behind the breakwater has gradually widened as sand accumulated in the Pool. By 1998, the shoreline at the Pool had advanced to near the end of the breakwater, at the mouth of the Pool. This resulted in very little protected area for recreational swimming. In addition, the swimming area had moved to within a close proximity to dangerous rip currents and their attendant safety concerns. Lifeguard rescues had increased because of this dangerous condition.

The City stated that it could restore the Pool as "a safe swimming area and [achieve] acceptable water quality [at] the Pool by reducing the beach width." The requested excavation would return the Pool to its early 1940's condition, with an enlarged area "available for recreational swimming and a safe region for the public to enjoy away from the dangerous rip currents."

1999

March 29, 1999

The recommendation of Natural Resources to remove sand from the Children's Pool came before the City Council which voted "to not dredge, not shoo the seals, instead put up a barrier to protect the humans from the seals and the seals from the humans and send it back to the Natural Resources Committee for an indepth (sic) review of all the issues including the legality and how it was left in the will." 1 Following the vote, the City withdrew its request for a coastal development permit from the California Coastal Commission. The next day, the rope barrier went up

August 4, 1999

Natural Resources considered the issue of letting the Reserve designation lapse. The City Manager, in his July 26 report, recommended letting the Reserve lapse as of its sunset date of September 16, 1999.

In his report, the City Manager discussed the potential impact on Children's Pool. He noted that the NMFS was considering whether to declare Children's Pool a "natural haul-out and rookery." Such a designation would impose a no-human-interference policy at the Children's Pool beach. NMFS had held off on such a designation because the City was pursuing a "shared-use-by-people-and-seals policy" and was working on a proposal to "address the pollution at the Pool by reducing the size of the beach and thus the available haul-out space for the seals." Since the City had "abandoned the shared use concept and did not pursue the project to address the pollution, (NMFSj assumes the City plans to maintain Children's Pool beach as a seals-only beach. Therefore, the Service believes the next logical step would be to manage Children's Pool beach as a permanent harbor seal haul-out and rookery." The net effect would be that the public could not use the beach set aside for the seals, nor could fishing occur in that area.

Natural Resources rejected the City Manager's recommendation and voted to recommend the Reserve be continued for another five-year term. On November 1, 1999, the City Council voted to make the Reserve permanent with a five-year review.

October 19, 1999

NMFS advised the City that it did not favor public beaches being closed to the general public due to harbor seals expanding their range and colonizing mainland beaches. Further, NMFS did not agree with a shared-use of Children's Pool by humans and seals. NMFS believed the City should decide if the Children's Pool is to be used by humans or seals, not both.

November 4, 1999

City Attorney wrote the SLC inquiring whether the SLC considered the closure of the Children's Pool, or usage of the Pool for viewing seals, a violation of the 1931 Grant of Public Trust over the area of the Children's Pool.

2000

February 2000

NMFS notified the City that it had decided to manage the Children's Pool as a harbor seal natural haulout and rookery. NMFS based this decision on their understanding that harbor seals first began hauling-out at Children's Pool in 1995, with ever increasing numbers and the fact that in 1999, for the first time, seal pup births were documented at the Pool.

March 15, 2000

Fish and Game advised the City that the City did not have the authority to create a seal reserve on public trust tidelands. Fish and Game cited several bases for this opinion, including violation of the State Constitution, preemption by Federal law and State law, and violation of the 1933 trust itself.

August 15, 2000

SLC responded to the City's request for an opinion. The SLC stood by their 1994 opinion that a small temporary seal reserve would not violate the 1933 trust and urged the City "to exercise its responsibilities in a flexible, balanced and thoughtful manner." However, the SLCdid not address the City's inquiry concerning seals at the Children's Pool.

2003

February 11, 2003

NMFS advised the City that it could not intentionally harass the seals at Children's Pool in order to remove them. However, it could undertake activities that might temporarily displace the seals. An example would be a dredging project intended to improve the water quality at Children's Pool.

March 13, 2003

California Coastal Commission advised the City that the rope barrier the City had erected closing off most of the beach at Children's Pool and access to the water at the Pool, needed a Coastal Permit. The Commission was concerned that a supposed temporary situation had been in place for four years and appeared to be permanent.

March 21, 2003

County of San Diego informed the City that with the adoption of AB 411 by the Legislature, the status of the Children's Pool had changed from "closed" to "advisory", since the water contamination was not due to a sewage spill.

April 1, 2003

The City Council considered the request of the Coastal Commission to modify the permanent status of the Reserve. The City Manager recommended that the City accept the permit with the special conditions. The City Council declined to follow the recommendation and did not accept the coastal permit with its special conditions. The Council directed that the signage and the docent program continue and further directed the City Manager to make a presentation before California's Marine Life Protection Working Group, seeking advice on the "appropriate status for the area." Also, the City Manager was directed to once again return to Natural Resources with a report on "how, in compliance with federal law, to reduce pollution levels and to return the Children's Pool to recreational use for children."

July 29, 2003

the Children's Pool Technical Advisory Committee met to discuss ways to Accomplish the directive of the City Council, for an unpolluted Children's Pool and a joint use of the beach at the Pool. The members of the Committee included, representatives from the NMFS, Coastal Commission, Fish and Game, County Environmental Health, Hubbs-Sea World, Park and Recreation, lifeguards and other City representatives. They went over most of the proposed "solutions" that had been enumerated over the years. They concluded the most viable options were "I. Dredge the beach in conjunction with floating platforms; 2. Close beach to public use; and 3. Create a new Children's Pool and leave current Children's Pool for seal use."

2004

June 17, 2004

City Manager provided Natural Resources with another report on seals at Children's Pool. This report laid out a comprehensive plan for restoring the Children's Pool to an unpolluted and safe condition. The plan was centered on dredging a substantial portion of the sand at the Pool. It was believed this would restore the water quality in the Pool to an acceptable level and relocate the water in the Pool further into the breakwater area away from the open sea and dangerous rip currents. The estimated cost of dredging the Pool ranged from $250,000 to $500,000. Another $50,000 would need to be budgeted annually to pay for anticipated dredging every three to five years.

June 23, 2004

Natural Resources considered the recommendations of the City Manager. The Committee voted to refer the matter to the full City Council "with no recommendation."

On or about August 13, 2004

The City posted new signsat the Pool explaining that the rope was a "guideline to avoid disturbing the seals" and that swimming was "not recommended" because of excessive bacteria levels.

September 14, 2004

City Council once again held hearings on the Children's Pool. Addressing the Council that day was James Lecky of the NMFS. He advised the Council that harbor seals are a healthy species which are growing in population and not in anyway endangered or threatened as a species. In fact, as the population of harbor seals expands "[t]hey are causing problems ... up. and down the coast in terms of invading harbors, causing property damage and limiting access to beaches that are important for other " public uses." He then told the Council: "The tools that are available to the City and other local governments agencies really reside in [Marine Mammal Protection Act] §109(h)." He said "animals can be moved out of an area if they are either presenting a public nuisance or they're causing a public health hazard." It was his position that the seals at Children's Pool were a local issue for the City to resolve. At the end of the meeting, the Council voted "to design and permit the sand removal project and open the pool for year-round use. Direct that the opening of the sluiceways in the Children's Pool be evaluated as an alternative method to obtain the sand removal and tidal flushing as part of this effort. Direct that the rope barriers and sign posts be immediately removed to restore public access to the area and that new signs be placed."

2005

Aug 25, 2005

Superior Court William C. Pate rules against the city in a lawsuit brought by a private citizen contending the City had abandoned its fiduciary duties regarding the trust by which it received Children’s pool and the breakwater. The city is directed to carry out the dredging of accumulated sand and restore the area to match photos of its condition in 1941, the earliest photos available.

http://www.friendsofthechildrenspool.com/legal_la_jolla_seals/Childrens_082505.pdf

The City mounts an appeal and the order is stayed.

2007

Sept 10,2007

A 3 judge appeal panel unanimously rejected every argument the City Attorney had presented, and let stand the orignal decision.