Combatants over the Kern River met in court again Thursday to argue over the City of Bakersfield’s motion seeking an order to compel the plaintiffs to bring in all the rights holders as defendants.
Kern County Superior Court Judge Gregory Pulskamp told the phalanx of attorneys on Thursday he would consider the arguments but did not set a new court date.
Whether agricultural water districts with Kern River rights are defendants or “real parties in interest” may seem like so much technical legal jargon to casual observers, but both sides agree that Pulskamp’s decision could be the difference between a one-and-done ruling and years more legal wrangling.
They just don’t agree on which decision will cause the drag out.
To recap:
Several public interest groups, including Bring Back the Kern, sued the City of Bakersfield back in 2022 arguing the city’s river operations had dewatered the river through town. The lawsuit demands the city study how its operations have affected the environment and the public’s right of access to a flowing river under the Public Trust doctrine.
In 2023, when high water brought fish back to the river, the plaintiffs sought and won an injunction requiring enough water be kept in the river to maintain those fish populations.
Throughout the legal twists and turns, only the city has been named as a defendant. The city owns rights to some river water. But it also owns the river bed from about Hart Park to Enos Lane and six weirs that divert water into canals for other rights holders.
Those other rights holders, several agricultural water districts, were not named as defendants by the plaintiffs and have only been considered “real parties in interest,” meaning they can weigh in on the case but aren’t bound by any legal rulings.
Even so, the districts appealed Pulskamp’s injunction requiring enough water be left in the river for fish to the Fifth District Court of Appeal, which granted a stay on the injunction. That nullified the injunction until justices at the Fifth District hold a hearing and make an ultimate ruling.
Briefs and counter briefs on the injunction have been filed but no hearing date has been set.
That didn’t stop the rest of the case from moving forward, which is why Pulskamp heard the city’s motion on Thursday to bring in the water districts as full fledged defendants.
The plaintiffs don’t want to bring in the water districts because that involves getting into the morass of water rights, contracts and decrees that have been layered over the river’s flows for more than 100 years, known as the “law of the river,” Attorney Adam Keats has explained.
The underlying case is about whether the city has adhered to the Public Trust doctrine, which demands water be put to the most beneficial public use – including sustaining the environment and providing public access. And the Public Trust doctrine trumps contracts and other use rights, Keats said.
Public Trust flows must come first and the remainder can be divvied up based on the Law of the River, Keats has said.
Bringing in the water districts would mean opening up the case to include potentially years of drawn out arguments over those layers of rights and contracts, according to Keats.
On the other hand, Bakersfield argued that if the water districts are left off as defendants, any ruling by Pulskamp will not be legally binding on them, just the city.
That means only the city would have to contribute to a flowing river, if that’s how the judge ultimately rules, according to Colin Pearce, the city’s attorney.
His take was that if the city is required under a court order to leave a certain percentage of water in the river for Public Trust flows beyond what the city could kick in, that would leave it open to lawsuits by the water districts and potentially years of legal squabbling.
If the plaintiffs want more water in the river, Pearce said, all the rights holders need to be at the table.
