POINT 1 >>> Our San Diego leaders are asking the CCC to approve violations of the 1931 Children’s Pool land grant trust, the Marine Mammal Protection Act (109a) and key sections of the Coastal Act and the California State Constitution.  (Art 1, Sec 25)  ( Art X,Sec 4) Approval seeks to shift liability to the CCC.

a) The 1931 trust clearly requires public access. San Diego could not defend its violations in 2004 when a suit against the City to provide full public access prevailed. The suit survived appeals court and State Supreme Court review intact.

b) Arguments the City could choose which trust stipulations it would abide by had failed in court. A trustee can choose between 2 CONFLICTING stipulations of a trust, but a judge may have to agree with the choice.

c) In 2009 the City requested the Legislature amend the trust to allow discretion to allow seals or not, as an additional term in the stipulations.    The amendment did not add “discretion” of any kind and critically, did not add “or” to the list of acceptable uses.   It added a “marine mammal park” without defining the term. There is a legal definition.

d) Judge Taylor used the new provision to stay a court order requiring the City restore the Children’s Pool to full public access by removing the sand that had ruined the Pool, and making the water clean enough to pass public health standards. There is no defined marine mammal park to this day.

e) The court also noted the other decisions in the prevailing case of O’Sullivan vs San Diego had been correct.  Not that public access was undoable, but that one could not establish a marine mammal park without seals.  The City never defined, declared, posted, or even discussed a “marine mammal park”.  The amendment never went into effect.   The defacto unfulfilled compromise remains; the Pool is a public park. There often are marine mammals in it.  

f) When the National Oceanographic and Atmospheric Administration (NOAA) clarified its policies in a letter to San Diego 1/2/2014, the last line directed the City to review section 109(a) of the Marine Mammal Protection Act (MMPA).  “No state shall enforce or attempt to enforce any law concerning the take of Marine Mammals”.  It even forbids state action in a reserve.   San Diego seeks to get the Coastal Commission to defy federal law on San Diego’s behalf.

g) The Coastal Act cites “ACCESS” 132 times.  It has 12 articles devoted to public access and recreation.  The City claims oblique reference to seals under “…healthy populations of all species of marine organisms adequate for long-term commercial, recreational, scientific, and educational purposes” in 30230.  That does not apply because the seals actually limit biological diversity by being sheltered in an abnormal concentration.

h) State Constitution Article X, Section 4 strongly requires public access to tidal lands, “always attainable for the people thereof”.   The California Bill of Rights, Section 25 states “The people shall have the right to fish upon and from the public lands of the State and in the waters thereof,

i) The Trust contains a Section (b) reserving the right to access the beach and water for fishing in order to conform to the State Constitution.   It does not conflict with Section (a) because Section (a) does not allow any restriction of public access either.

j) CCC local staff maintains it should not include analysis of any statutes outside the Coastal Act.  That should be a WARNING.  Staff is not versed in all legal matters or qualified to give legal advice.  The Commissioners have to know State laws themselves, or avail themselves of legal counsel.   Especially if you have read this far and so are informed.

k) The Public Trust Doctrine that empowers the CCC states tidelands shall be held in trust for the people of California.  Not just for the wealthy or connected, not for an elite enlightened few, not for big corporations; be it General Motors or San Diego, not awarded to the litigious and vociferous, but all the people.