Wildlife Smells Are No Public Nuisance, Says Court of Appeal

A public nuisance? Sea lions on the La Jolla bluffs
A public nuisance? Sea lions on the La Jolla bluffs. Photo credit La Jolla Light

Residents and business owners near the lovely La Jolla Cove were disappointed to receive the Court of Appeal’s decision this month in Citizens for Odor Nuisance Abatement v. City of San Diego, 2017 WL 526503, holding the city was not responsible in public-nuisance theory for the surge in the local sea-lion population, and all their offensive, foul, noxious, malodorous, and downright stinky droppings littered about the bluffs.

Locals began experiencing droves of sea lions on the La Jolla bluffs after the city installed fencing to keep the public out, making it more welcoming for wildlife. The locals and business owners formed a group, Citizens for Odor Nuisance Abatement — regrettably abbreviated on the court’s docket as Citizens Odor.
The city, moving for summary judgment, produced an expert who pointed out the surge in sea lions had more to do with biological factors than the city’s fence. The court accepted this evidence and found the locals’ countervailing evidence was not enough to create a triable issue to send to a jury.
Namely, the court rejected the bald fact that the sea lions surged after the fence was installed as “a classic post hoc, ergo propter hoc logical fallacy” — i.e., the fallacy that suggests that just because it happened after a thing, it must have happened because of that thing.
The court also devalued the locals’ expert because he was not specifically a sea lion expert.
Interestingly, the court declined to directly answer whether the city’s failure to act could establish causation of the public nuisance. The court instead found the city did act. In a footnote, the court pointed out that “it is California policy to ‘alleviate economic losses or public health or safety problems caused by wildlife to the people of the state.'” (Fish & G. Code, § 1801.) But the court went on to add that “that policy does not give rise to a mandatory duty.” (Arroyo v. State of California (1995) 34 Cal.App.4th 755, 765.)
The court did reject the bald proposition that the government can never be liable for a nuisance caused by wildlife, and could be liable if, for example, it had physically moved the wildlife populations at issue. Here, however, the court found that the city was not a substantial factor in causing the sea-lion smells.

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Tim KowalTimothy M. Kowal is a civil litigator specializing in trespass, land use, and business litigation. You can contact Tim at (714) 641-1232 or tkowal@tvalaw.com.
(View more articles by Tim Kowal here.)

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