La Jolla Friends of The Seals et al v. National Oceanic and Atomspheric Administration National Marine Fisheries Service (NMFS) et al

Filing 67

ORDER: Defendant City of San Diego's motion to confirm the continuation of the Court's order prohibiting harassment or dispersal of the seal colony at the Children's Pool (Doc. 56 ) is granted. Signed by Judge William Q. Hayes on 6/1/2009. (mdc) (jrl).

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LA JOLLA FRIENDS OF THE SEALS, a nonprofit organization; and JAMES H.N. HUDNALL, JR., an individual, Plaintiffs, vs. 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. CASE NO. 08cv1847 WQH (POR) ORDER

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

HAYES, Judge: The matter before the Court is Defendant City of San Diego's motion to confirm the continuation of the Court's order prohibiting harassment or dispersal of the seal colony at the Children's Pool (Doc. # 56). 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
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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. On October 22, 2008, this Court entered an order ruling upon "Plaintiff's motion for a temporary restraining order requiring the Defendant City of San Diego to maintain the status quo regarding the colony of harbor seals at Children's Pool until the date set for the hearing on Plaintiff's motion for a preliminary injunction. (Doc # 3)." (Doc. # 11). This Court stated: "[S]erious questions going to the merits are raised and the balance of hardships tips sharply in favor of the moving party. This Court will enter an order to preserve the status quo and prevent irreparable harm before a preliminary injunction hearing may be held." Id. The Order stated: IT IS HEREBY ORDERED that the 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. IT IS FURTHER ORDERED that Defendants, and each of them, shall appear in Courtroom 4 of this Court, located at 940 Front Street, San Diego, California, on November 25, 2008 at 9:30 a.m., to show cause, if any, why this order should not maintain in effect during the pendency of this action. (Doc. # 11 at 2). On November 13, 2008, Plaintiffs and Defendant City of San Diego jointly moved this Court to continue the hearing on Plaintiffs' motion for preliminary injunction and the Federal Defendant's motion to dismiss in order "to allow the parties to explore the possibility of settlement before expending additional resources in litigating this case." (Doc. # 25 at 2). The joint motion signed by counsel for all parties in this litigation stated that "Plaintiffs and the City are in agreement that this Court's temporary restraining order . . . of October 22, 2008 should remain in effect until the postponed hearing on the [Plaintiffs' motion for preliminary injunction and the Federal Defendant's motion to dismiss]." Id. On April 28, 2009, this Court entered an order granting the motion to dismiss filed by
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the Federal Defendants on the grounds that this federal court lacked subject matter jurisdiction. The Court further ordered Plaintiffs and Defendant City of San Diego "to file briefs addressing the jurisdiction of this Court to proceed on the merits of the first claim within 30 days of the date of this order." (Doc. # 53 at 14). On May 14, 2009, Defendant City of San Diego filed the motion before this Court to clarify "whether this Court's order forbidding seal harassment and dispersal remains in effect." (Doc. # 56-2 at 5). Defendant City of San Diego contends that the temporary restraining order entered on October 22, 2008 remains in effect by agreement of the Defendant until this Court considers the Plaintiffs' pending motion for a preliminary injunction. Plaintiffs state that they "have no opposition to the Defendant City's Motion to Confirm the Continuation of the Court's Order Prohibiting Harassment or Dispersal of the Seal Colony at the Children's Pool." (Doc. # 63). On May 26, 2009, Defendant City of San Diego requested an extension of time and will file supplemental briefing in support of continued jurisdiction addressing the first claim for relief on June 9, 2009. This Court ordered that no further extensions of time will be granted. On May 28, 2009, Plaintiffs filed supplemental briefing in support of continued jurisdiction addressing the first claim for relief against the Defendant City of San Diego. RULING OF THE COURT Consent to extend a temporary restraining order until hearing upon the motion for preliminary injunction is authorized by Rule 65(b)(2) of the Federal Rules of Civil Procedure. The joint motion signed by counsel for all parties in this litigation stated that "Plaintiffs and the City are in agreement that this Court's temporary restraining order . . . of October 22, 2008 should remain in effect until the postponed hearing on the [Plaintiff's motion for preliminary injunction and the Federal Defendant's motion to dismiss]." (Doc. # 25 at 2). Defendant City of San Diego has agreed that the temporary restraining order of October 22, 2008 remains in effect until the motion for preliminary injunction is resolved. Plaintiff's motion for

preliminary injunction against Defendant City of San Diego remains pending before this Court. This Court has ordered the parties to brief the issue of jurisdiction over the first claim for relief
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in this federal court. The issue of jurisdiction must be decided prior to any determination on the merits of Plaintiff's motion for preliminary injunction. The temporary restraining order of October 22, 2008 remains in effect until further order of this Court. IT IS HEREBY ORDERED that Defendant City of San Diego's motion to confirm the continuation of the Court's order prohibiting harassment or dispersal of the seal colony at the Children's Pool (Doc. # 56) is granted. DATED: June 1, 2009 WILLIAM Q. HAYES United States District Judge

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08cv1847 WQH (POR)