substantiating documents    JUDGE C. WILLIAM PATE DECISION
    National Oceanic & Atmospheric Agency Document (Freedom of Information Act)

                ASSERTION

SB428 codifies the confusion of the present situation. It classifies a beach both a marine mammal park and a children’s pool. Though both would be in the same Trust, both cannot exist in the same pool per County Health standards and Superior Court Judge Pate’s Decision. In SB428 the city continues to present a platform with no plan and no specifics. Only animal activist special interest groups come out ahead. SB428 will be inherently a contradiction in purposes, allowing for many years of continued litigation, but now with State involvement.

After reviewing the accompanying letter and Superior Court Decision
you will see;

SB428 gives the City of San Diego, with its history of lies and misconduct,
        carte blanche to convert
            this public ocean pool
                into a mismanaged marine park
                                    cesspool.


                CONCLUSION

“. . . the City                                     Pate Decision:
        has taken no steps to manage the property . . .”    page 27 line 27
                       
Let municipal and state laws stand
in order to:
        ●    maintain coherence with the courts
        ●    ensure clarity rather than confusion




May 7, 2009

Letter Template sent to Sacramento
Prior to the passing of SB428


Subject:    SB428 antagonistic to MLPA

SB428 will be the template with which the animal rights extremist industry will replicate more seal sanctuaries up and down the California Coast.

Please note, in my Pate Decision packet, how the City of San Diego and the animal extremists have been working together both at the beach site and in the courts.

The activists have had control over this small San Diego beach for around 10 years.
They want more beaches because the controversy at such sites brings them local, national and  international publicity.

The animal rights extremists presented a proposal with the same intent contained within SB428 before the MLPA. Their submission was rejected.

The activists have had close to a 7 day a week, 24 hour a day presence at the Children’s Pool for 10 years. This is because:

1. It is a major goal, to obtain the first coastal beach under their control.
2. It is a major source of contributions.

Rejecting SB428 will take away the toe hold which the extremists seek to be the template/precedent upon which they will procure more California beaches.

Seal sanctuaries produce the predator with the most voracious appetite for aquatic creatures. There is no more counterproductive measure to a healthy aquatic ecosystem than to move seal sanctuaries onto our very coastal beaches. Wild Harbor Seals will avoid contact with humans while beach born seals from the Children’s Pool lose their natural fear of humans. The higher population of acclimated seals along our coastal shore line will only further decimate the aquatic creatures we are attempting to restore.  There will be no protecting the MLPA sites from these predators as the loss of aquatic life will not be observable.

Reject SB428 as it will empower interests antagonistic to the goals of the majority of those whose livelihood and enjoyment comes from a healthy ocean ecosystem.

Sincerely,


David T. Johnson
May 27, 2009

Letter Template sent to Sacramento
Prior to the passing of SB428

Subject:    Reject SB428: Assertions supporting the bill are misrepresentations

 “The City’s position is refuted by its own evidence.” wrote Judge Pate. ( Page 25 line 11)

The enclosed order written by Judge Pate gives insight into the weaknesses of the City’s actions and goals that are foundational to SB428. The City of San Diego’s assertions did not stand up in court and their veracity deserves to be doubted in this matter as well.

San Diego Council member Sherri Lightner voted against SB428. Reviewing the enclosed Superior Court document will reveal why the rest of the city council should have voted as did the council woman representing the district for which SB428 was written and why it should be rejected as a piece of bad legislation.

This document reflects a quality of writing and thorough review that comes only from a judge of Judge Pate’s caliber. (The San Diego Bar Association Honors Judge William C. Pate:  http://www.jamsadr.com/press/show_release.asp?id=241 ) (Web page no longer available)

Sincerely,




David T. Johnson
Ocean Swimmer
4222 Wightman Street
San Diego, CA 92105-2618
619 284-4537

P.S. The attached topical phrases and page/line locator along with words high lighted are all to help you make the best use of your time.



Page/Line
 17/26 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 “they are causing problems . . . up and down the coast in terms of invading harbors, causing property damage . . . He then told the Council: “The tools that are available to the City . . . really reside in the Marine Mammal Protection Act.” He said the “animals can be moved out of an area if they are either presenting a public nuisance or they’re causing a public health hazard.”

The City has not undertaken any meaningful steps to return the Children’s Pool to an unpolluted, safe and usable state since the meeting of September 14, 2004.

20/3 The City contends . . .
    Other than the bald assertion, the City provides no evidence in support of its contention.

20/25 The use by the City of the Children’s Pool as a habitat, animal sanctuary, zoo or seal watching facility that precludes its being used as a bathing pool for children would be outside of the scope of the Trust.

21/23 “Plaintiff (. . . use of the Children’s Pool) argues this use by the public has been thwarted by the City’s conduct . . .  Plaintiff’s position is supported by the facts and the law.”

22/4 “. . . since at least 1997 . . . Sea World in San Diego, . . . (released) harbor seals . . . immediately outside the Children’s Pool. . . .  The City took no steps to protect the Pool from becoming a haul-out for such seals.

23/10 In 1999, the Legislature enacted AB411. . . . Despite the fact . . . the “Closed” signs remained up until 2003. (Against State law AB411)

The County has classified the Children’s Pool as being polluted 365 days per year, from 1997 to the present.”

24/5 “On March 29, 1999, the City Council rejected the City Manager’s recommendation to dredge the Pool and restore the Pool to the uses set forth in the Grant, and instead voted to rope off the Pool. . . . the City bared the use of the Children’s Pool as a “public park”, . . .

“ . . . all served to deer the public, . . ., from using the beach.
“. . . the beach has been denied to the intended beneficiaries of the trust grant, including children, swimmers, fishermen and the public generally.”

25/11 “The City’s position is refuted by its own evidence. . . . The City can take appropriate action to remediate the safety and health situation at the Children’s Pool without violating the MMPA.

25/27 “. . . Administrator of NOAA, James Lecky, wrote Terry Williams at the City, . . . that provisions existed in the federal law that permitted the City to address human helath and safety issues posed by marine mammals. Mr. Lecky repeated this advice to the City on numerous subsequent occasions.

26/7 “Plaintiff also contends that “Pro-seal activists” have been permitted by the City to conduct themselves in a manner that effectively denies access to the Children’s Pool . . . They have stalked intended users of the Pool with cameras . . . to heckle and harass them. There have been instances of verbal and physical abuse and violence.”
“It is clear that these activities do discourage people from using the Children’s Pool.”

27/6 “The City knew of the release of harbor seals near the Children’s Pool by Hubbs-Sea World and did nothing . . . The City violated the right of the public to have access to the beach by roping off the beach to the public.  The City kept the rope in place from 1999 until late 2004. The City failed to prosecute violations of its own municipal codes, ordinances and regulations that would regulate the presence and activities of activists at the beach, including use and placement of signs, harassment of the public . . . “

“The City assured the County in 2003 it would incorporate the required wordage . . . the sign created by the City did not contain the warning information required by the County. The County had to personally install the correct signs at the Children’s Pool.
“The City responds to Plaintiff’s contentions . . .
“To the contrary, the evidence is that the City has taken no steps to manage the property . . . “

28/16 “As to the City’s contention that it has taken “all reasonable steps” to manage the Trust, this contention is not supported by the evidence. . . .The City has failed to preserve and protec the tidelands subject to the 1931 grant, . . .”

29/2 “. . . since . . . 1997, the City has taken no steps to eliminate the pollution in the Pool.
“To the contrary, the City Manager has recommended on numerous occasion tha the City undertake these very steps of reasonable management, which the City has failed to do.”

“The Pool has not been available for such uses since 1997. The City . . . has had the means and ability to do so.”

30/13 “Although the City has approved requests to study the removal of the sand, even as recently as September of 2004, it has consistently failed to remove the sand that has been building-up for the last 70 years.”

“The creation of the Reserve in close proximity to the Children’s Pool and the release by Sea World of rehabilitated harbor seals in the kelp beds off-shore of the Pool, seem to have contributed to an increasing number of seals using portions of the Children’s Pool in the mid-1990's. . . . and then closing off the Pool to humans, likewise appears to have encouraged the seals to occupy more and more of the beach with ever increasing numbers.”

“Therefore, in order to protect the rights of the people of California to the full use and enjoyment of a unique asset, . . . the City as trustee . . . is hereby 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 County of San Diego as being safe for humans.
Nothing 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. The court will maintain jurisdiction to oversee compliance with this order.”  Judge William C. Pate August 25, 2005