California Supreme Court flooded with briefs on Kern River case from outside groups

More than a dozen “friend of the court,” briefs have been filed with the state Supreme Court debating whether a local judge erred when he ordered that enough water be kept in the mostly dry Kern River bed through Bakersfield for fish.

The Attorney General’s office, a slew of environmental and farm groups, along with far flung water districts, economic development agencies, fisheries groups and even a northern California tribe and crab boat association all weighed in on the fight for a flowing Kern River.

The attention from such a wide array of groups reflects just how high-stakes the outcome of this case will be as it involves constitutional questions that could affect water rights and conservation efforts on rivers throughout the state.

Next up, the main players in the case will file responses to the amicus briefs. Those are due by June 4, unless there’s an extension. 

After all of that paperwork is filed, the case will be ready for an actual hearing.

When will that be?

It’s up to the court. But first, justices have to sift through the mountain of legal arguments, case citations and history.

For background, Bring Back the Kern, Water Audit California and several public interest groups sued the City of Bakersfield in 2022 for how it operates the Kern River. They demanded the city study its operations under the Public Trust Doctrine, which states that California holds all natural resources in trust for the greatest benefit of the public. That includes recreation and the environment, which plaintiffs argued were negated as the river through town is dry most of the time.

In 2023, after an epic water year brought fish back to the river, the plaintiffs sought a preliminary injunction to keep water in the river. Kern County Superior Court Judge Gregory Pulskamp granted the injunction under California Fish and Game Code Section 5937, which requires dam owners to let enough water pass the structure to keep downstream fish in “good condition.”

Several agricultural water districts with rights to river water, that are considered “real parties in interest” in the case, appealed that injunction.

In 2025, the 5th District Court of Appeal overturned the injunction saying Pulskamp first should have determined if water for fish was “reasonable” when balanced against all other existing demands per Article X, Section 2 of the state constitution.

That section of the constitution requires all water use to be “reasonable.” It also states the Legislature may pass laws “in furtherance” of the section.

The plaintiffs appealed the 5th District’s ruling to the state Supreme Court, which agreed in July 2025 to review the case.

And that’s what started this current blizzard of legal briefs.

There are 16 amicus “friend of the court” briefs alone that justices will read and consider.

Most of the briefs, 11, are in support of the ag districts.

Their general argument is that, regardless of Section 5937, courts must conduct a reasonableness test under Article X, Section 2 of the constitution.

Plaintiffs argue Section 5937 means exactly what it says, that fish must be kept in good condition..

But that doesn’t exemptSection 5937 from having to pass constitutional muster, according to the amicus brief from California Constitutional Council.

“While the legislature may pass any act it pleases, all its acts are subject to limits imposed by the state or federal constitutions,” the brief states.

Other amicus briefs in support of the ag districts argue that carving out some Kern River water for fish could harm groundwater protection plans underway as part of the Sustainable Groundwater Management Act or that it could “…destabilize statewide water policy, and exacerbate the State’s ongoing housing crisis,” according to the amicus brief from the Bay Area Council.

Amicus briefs in support of the plaintiffs, however, argue that water for fish is already presumed reasonable under Section 5937.

“In passing, codifying, recodifying, and expanding Section 5937 over a period of more than twenty years, the Legislature has already determined that requiring sufficient instream flows to keep below-dam fish ‘in good condition’ is ‘reasonable’ within the meaning of (Article X,) Section 2 (of the state constitution),” states the amicus brief by California Trout. 

That’s exactly what Pulskamp found when he issued the preliminary junction in 2023. 

“Case law therefore very clearly confirms that Section 5937 was deliberately adopted by the State Legislature after balancing the competing uses of water and is enforceable as a legislative mandate,” Pulskamp wrote.