CERF Fireworks – La Jolla Complaint, Temporary Restraining Order, and Media

Coastal Environmental Rights Foundation attorney Marco Gonzalez has a long history with fireworks in the San Diego area. As a longtime clean water activist, he has been informing regular fireworks dischargers, such as Sea World, that compliance with discharge laws, including permitting, implementation of best management practices (BMPs), and water column and sediment monitoring are required for any displays over ocean waters.

On behalf of San Diego Coastkeeper, Marco filed a lawsuit in 2007 against Sea World, which ultimately led to Sea World’s compliance with the permitting process and conditions placed upon their yearlong displays by the San Diego Regional Water Quality Control Board (RWQCB).

As a result of Sea World’s monitoring, elevated levels of perchlorate and other water-soluble chemicals known to exist in most pyrotechnics have been shown to exist in the vicinity waters, despite Sea World’s cleanup of an average of 21lbs of wet debris daily.

In Fall, 2009 CERF sought to enforce the requirement to obtain discharge permits, locally issued by the San Diego RWQCB, in advance of the New Year’s Eve fireworks planned on San Diego Bay. The Port of San Diego, the City of San Diego, and the Port Tenant’s Association refused to take leadership, and instead canceled the show despite CERF’s promise not to litigate as long as permits were sought for future shows, coupled with monitoring and cleanup.

Similarly, in advance of July 4, 2010, CERF sent Letters of Intent to Sue to the Port of San Diego and City of San Diego for the Big Bay Boom, the La Jolla Fireworks Foundation for the La Jolla Cove fireworks, and the 22nd Agricultural District for the Del Mar Fairgrounds display. CERF Notice Letter to La Jolla CERF, the San Diego Armed Services YMCA, and the Port of San Diego came to an amicable no-fee agreement of non-opposition to the show in exchange for cleanup and monitoring of the Big Bay Boom show. CERF decided not to pursue the 22nd Ag show, but put its resources toward fighting to prevent the La Jolla Cove display due to the highly sensitive natural resources in the immediate vicinity of the discharge area.

These efforts came to a head in June, 2010, when the Coastal Environmental Rights Foundation sued the City of San Diego, the La Jolla Community Fireworks Foundation, and Promote La Jolla. CERF sought to obtain a temporary restraining order to prohibit July 4 fireworks in the ecologically sensitive La Jolla Cove.

Despite the evidence of environmental and marine mammal harms caused by pyrotechnic displays, and the clear demonstration of the convoluted City permitting process, the Judge ruled that due to insufficient evidence of irreparable harm to La Jolla Cove, the fireworks would go forward. Documents filed in opposition cited free speech claims (despite attorney Marco Gonzalez’ argument that there is no Constitutional right to pollute). La Jolla Community Fireworks Foundation Opposition

In addition to the “irreparable harm” requirement for issuance of a temporary restraining order, CERF had to convince the Judge it would succeed in the underlying lawsuit. In opposition, the City argued CERF could not prove the City was wrong to issue fireworks promoters a Park Use Permit without CEQA (California Environmental Quality Act) review. The City submitted documents stating the fireworks show would not require road closures or restrict public access, one of the City’s “triggers” for requiring a Special Use Permit and CEQA review.

City Opposition to Temporary Restraining Order

Declaration of Kelly Broughton, DSD Director

However, the City’s own road closure signs told a different story. At the hearing for the temporary restraining order, CERF’s Attorney Marco Gonzalez showed the following photo, proving the City had misrepresented the impacts of the fJuly 4, 2010, 6-11 p.m.ireworks show on traffic.

Attorneys for the City, the La Jolla Community Fireworks Foundation, and Promote La Jolla then claimed that Coast Blvd. would only be closed on July 4th for beach use (from 6pm-11pm), not because of the fireworks show. Judge Quinn was skeptical of this explanation, as beach goers don’t typically flock to the beach from 6PM to 11 PM.

The City continued to claim that the City’s Park Use permit needed no further review, because the fireworks were not the driver for the crowds to the Cove the evening of July 4th. Although an interesting argument, it is completely untrue, especially because fireworks promoters concurrently argued that the area businesses would suffer from lack of crowds if the display was canceled.

Despite the Judge’s unwillingness to constrain the La Jolla Cove fireworks display, citing a statewide fireworks policy currently undergoing consideration and lack of evidence of site-specific irreparable environmental harms, additional claims remain in the active lawsuit. The City of San Diego still inappropriately opted to issue a ministerial permit to subvert CEQA review for the fireworks show, while the permit granted did not include elements of road closures or amplified music, and City employees apparently colluded with permit applicants and Fourth of July party promoters to subvert public process and the City’s own Municipal Code to pull off the event.

In furtherance of CERF’s efforts to bring clarity to large, potential environmental impacts-causing events in San Diego, a Public Records Act (PRA) request was submitted to the City and all City departments on July 8, 2010. City PRA 070810

CERF is currently working with the City to obtain the requested documents, though the City has maintained some requested documents will not be provided. City Response to PRA Request

Stay tuned for more news…

In the meantime, some media coverage includes:

10News: Group Threatens to Sue over La Jolla Cove Fireworks Show: http://www.10news.com/news/23998882/detail.html

KPBS, These Days interview: http://www.kpbs.org/news/2010/jun/29/lawsuit-filed-stop-la-jolla-fireworks/

KPBS article following trial: http://www.kpbs.org/news/2010/jun/30/judge-rules-la-jolla-fireworks-show-can-go/

San Diego Union Tribune: Suit to stop fireworks extinguished: http://www.signonsandiego.com/news/2010/jun/30/suit-stop-fireworks-extinguished/

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About CERF

Coastal Environmental Rights Foundation (CERF) is a nonprofit environmental organization founded by surfers at Coast Law Group LLP in North San Diego County and active throughout California’s coastal communities. CERF was established to aggressively advocate, including through litigation, for the protection and enhancement of coastal natural resources and the quality of life for coastal residents.
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