Date set for arguments in Kern River appellate court hearing

Justices for the 5th District Court of Appeal will hear arguments on March 20 over whether flows can be legally required to run down the Kern riverbed.

“We’re looking forward to getting the appeal resolved and – hopefully – getting the river flowing again soon,” said Attorney Adam Keats, who represents a local public interest group called Bring Back the Kern, which sued the City of Bakersfield in 2022 for allegedly being derelict in its river operations.

The opposition, several agricultural water districts with river rights, is also eagerly anticipating the upcoming hearing.

“Appellants are pleased that the Court of Appeal has scheduled oral argument for March 20 and are looking forward to addressing the court,” wrote Attorney Scott Kuney in a text message.

The Bring Back the Kern  lawsuit is ongoing, with the next hearing date set for December 2025.

This appellate action regards a preliminary injunction issued by Kern County Superior Court Judge Gregory Pulskamp in late October 2023 that mandated Bakersfield keep enough water in the river through town to keep fish in good condition.

River advocates rejoiced, anticipating a flowing river through the heart of town rather than the dusty ribbon of sand that exists most years.

The ag water districts, however, appealed Pulskamp’s order and the 5th District paused it in May 2023. 

The flows stopped and the river eventually dried up in Sept. 2024 leading to a mass fish die off, causing outrage among environmental groups and prompting an investigation by the California Department of Fish and Wildlife.

The complexities of Kern River water ownership, river operations and ongoing legal actions put a pin in that investigation.

“This relates to water rights issues which CDFW expects will be informed by the ongoing 5937 litigation,” wrote Julie Vance, Fish and Wildlife regional manager, in an email. 

She referred to California Fish and Game Code 5937, which states dam owners must keep enough water downstream to keep fish in good condition, which is what Judge Pulskamp used as the underpinning for his Oct. 2023 order. 

The case has captured wide attention with the state Attorney General’s and Fish and Wildlife department weighing in, urging the 5th District to uphold Pulskamp’s order and keep the river flowing.

The state was even granted time to make its own oral arguments during the March 20 hearing.

Each side will get a total of 40 minutes. The appellants, the ag water districts, will go first. 

The respondents’ 40 minutes will be divided among Bring Back the Kern (15 minutes), co-respondent Water Audit California (10 minutes), the Attorney General and Fish and Wildlife (5 minutes) and the City of Bakersfield (10 minutes.)

If the appellants have time left over from their original 40 minutes, they can then respond.

The hearing will begin at 1:30 in the Fresno 5th District Court of Appeal, 2424 Ventura Street starting.

A ruling from the 5th District is required within 90 days of the hearing, so should be available by the end of June at the latest.