Appellate court stymies mandated fish flows in Kern River. But it won’t go dry – yet

May 3, 2024
by Lois Henry
Flows in the Kern River meander through sandbars at Allen Road in Bakersfield in this Jan. 2024 photo. Lois Henry / SJV Water
Lois Henry

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The 5th District Court of Appeal issued an order Friday that stayed the injunction requiring the City of Bakersfield to keep enough water in the Kern River to support fish.

That means the preliminary injunction issued by Kern County Superior Court Judge Gregory Pulskamp last fall ordering Bakersfield to keep the river flowing from about Hart Park to the McClung weir west of Allen Road is now null and void.

But it won’t mean a dry riverbed. At least not yet.

The city has committed to running enough water to keep the river flowing through town at least until August, according to Councilman Bob Smith.

River flows will drop from the current 250 cubic feet per second (cfs) to about 200 cfs, he said.

“There will be less going past Allen Road than there is now and it won’t make it all the way to the McClung,” Smith said. He credited winter and spring storms this year with providing enough snow in the watershed to keep the river flowing even without the injunction. As of May 2, the Kern River watershed was 84% of average, according to California Water Watch.

As for the future, Smith said that’s up to the legal system.

All of this maneuvering over river flows stems from a lawsuit filed by several local advocacy groups, including Bring Back the Kern, along with Water Audit California against Bakersfield back in 2022. That lawsuit seeks to force the city to study the impacts of river diversions on recreation and the ecosystem under the Public Trust doctrine.

The city owns rights to some river water as well as the entire river bed from about Hart Park to Enos Lane.  It also owns or operates six weirs within the river used to move water to agricultural districts under more than 150 years of agreements, contracts and decrees, known as “the law of the river.”

The Bring Back the Kern lawsuit contends none of those agreements trump the Public Trust doctrine, which states all natural resources are owned by the state “in trust” for the greatest benefit of the public. That includes recreation and the environment.

As that lawsuit was pending, Bring Back the Kern sought a preliminary injunction to keep water in the river after last year’s epic run off brought fish back to the river. They won that injunction under California Fish and Game Code 5937, which states the owner/operator of any dam (in this case weir) must make sure there’s enough water downstream to keep fish in good condition.

The Kern River as it passes under Coffee Road in April 2023. The river carried 1.3 million acre feet through town between January and July 2023. Lois Henry / SJV Water

Though the injunction was directed only at the city, not the ag districts, the ag districts filed a flurry of appeals to stay the injunction. The city did appeal the injunction.

In a confusing twist, the ag districts aren’t defendants in the case, just the city. The districts are considered “real parties in interest,” so can answer motions and make arguments but aren’t bound by the injunction.

It’s unclear what  happens next.

The 5th District’s order states that “Pending further action of this court…” the original injunction and implementation orders issued by Pulskamp last November and “all proceedings embraced or affected by said orders” are stayed.

Will justices themselves consider the injunction? Or is it dead? Attorneys involved in the case weren’t sure.

The stay does make moot a motion filed recently by Bring Back the Kern to force the city to increase flows  per the injunction. That motion was set to be heard May 9 in Pulskamp’s courtroom.

However, a motion by the city to force Bring Back the Kern to name the ag districts as defendants may be heard by Pulskamp May 9. The city’s contention is that by excluding the ag districts, Bring Back the Kern put it in an untenable position where it, alone, was forced to keep up river flows without contributions from the districts.

Attorney Keats dismissed that argument, stating as the owner/operator of the weirs, it’s the city’s duty to keep enough water in the river for fish. Only after that need is satisfied, should the remainder of the river be divvied up based on water rights and contracts, Keats’ response states.

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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