Appeal of order to keep water in the Kern River moves forward

July 3, 2024
by Lois Henry
Leo Tordo, 11, wades through the Kern River as his brother, Remy, 8, scrambles on rocks near the Bellevue weir bridge at the Park at Riverwalk. The family has enjoyed regular visits to the river as temperatures have soared this summer. COURTESY: Stacey Shepard
Lois Henry

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Agricultural water districts with rights to the Kern River filed an opening brief recently on their appeal of a local judge’s order last fall to keep enough water in the river for fish.

The water districts insist that when Kern County Superior Court Judge Gregory Pulskamp issued a preliminary injunction to keep water in the river, he erred for, among other things, not considering how it would impact all users, according to the brief filed with the 5th District Court of Appeal in Fresno.

“A preliminary injunction that changes the status quo should be granted only in ‘extreme cases where the right thereto is clearly established,'” the water districts’ brief states. “It is an extraordinary remedy, to be granted with ‘great caution.'”

They are asking justices to reverse the injunction, which the 5th District had stayed on May 3.

River, AKA the “water buffalo,” enjoys the cool water of the Kern River. COURTESY: Stacey Shepard

The plaintiffs in the case have until July 29 to file their opposition to the water districts’ brief.

A hearing date for the appeal has not been set.

Plaintiffs initially sought a rehearing at the 5th District on its stay of the injunction but were rebuffed.

They  filed a petition with the California Supreme Court asking for a review of the stay and for the high court to direct the 5th District to, at least, explain its reasons for granting the stay, which it did not include in its May 3rd order.

Meanwhile, Judge Pulskamp has set an Aug. 1 date for a case management conference with all parties.

This case began back in 2022 when local public interest groups Bring Back the Kern and Kern River Parkway Foundation along with the Sierra Club, Center for Biological Diversity and Audubon Society sued the City of Bakersfield over how it operates the river. Bakersfield owns some river water plus, many weirs used to operate the river and the entire river bed from about Hart Park to Enos Lane.

It is also in charge of record keeping and river operations, which are based on more than 100 years of agreements, contracts and court decrees collectively known as the “Law of the River.”

The plaintiffs contended the city also needed to include the interests of the public and environment in those operations and demanded in their 2022 suit river operations be studied per the Public Trust Doctrine. That doctrine holds that all natural resources are owned by the state and to be used to the greatest public benefit. That used to be agricultural, municipal and industrial uses. But the environment and public uses have gained importance in recent years.

As that suit was making its way through the local court, 2023’s winter storms brought the river back to life and, with it, fish.

The plaintiffs sought and won a preliminary injunction in fall 2023 mandating the city keep enough water in the river to maintain those fish in good condition.

Judge Pulskamp didn’t say how much of the river’s flow that would require, instead relying on the city and the plaintiffs to work that out.

At one point it was agreed that 40% of the river’s flow was needed for fish. That amount was later cut so that a minimum five cubic feet per second was required to reach McClung weir, about three miles west of Allen Road.

Canals take water off the Kern River so it is dry through town most years.

Water districts with rights to the river – Kern Delta, Kern County Water Agency and the Buena Vista, North Kern and Rosedale-Rio Bravo water storage districts – appealed the injunction in January 2024.

Though the 5th District  stayed the injunction lifting the flow requirements, the river has remained wet through Bakersfield largely because 2024 has turned out to be an average water year so there is enough to spare for the river.

Currently, about 2,471 cfs  is being released from Lake Isabella to the “first point of measurement” on the river near Hart Park. After various water districts take their cuts, 10 cfs is making its way to the Bellevue weir at the Park at River Walk near Stockdale Highway.

Despite the lower flows, families looking to escape the heat have found a refuge in the river during this month’s brutal heat wave.

SJV Water is an independent, nonprofit news site dedicated to covering water in the San Joaquin Valley. Get inside access to SJV Water by becoming a member.


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