Judge tosses one “cause of action” in long-running Kern River case

One of several “causes of action” was cut out of the ongoing Kern River case in a ruling issued Jan. 22 by Kern County Superior Court Judge Gregory Pulskamp.

Plaintiffs Bring Back the Kern and Water Audit California had claimed in their lawsuit against the City of Bakersfield that – among other issues – it was illegally flouting California Fish and Game Code 5901, which states that it’s illegal to put anything in a river, such as a dam or a weir, that impedes fish passage.

Late last fall, agricultural water districts that are “real parties in interest” in the case, filed a motion to boot that particular cause of action from the overall case. They argued that Section 5901 can only be enforced at the discretion of the Department of Fish and Wildlife, not private parties.

Judge Pulskamp agreed and removed that issue from the upcoming trial, which is scheduled for Feb, 8, 2027.

Removing Section 5901 was the right decision, said Brett Stroud, an attorney for the North Kern Water Storage District, which is a real party in interest along with the Buena Vista and Rosedale-Rio Bravo water storage districts, Kern Delta Water District and Kern County Water Agency. Only the City of Bakersfield is a named defendant in the case.

“We feel this ruling is a helpful clarification of what this case should be about,” Stroud said.

The core issues in the case will continue, according to this latest ruling. Those core issues include whether the city’s operation of the river has violated the Public Trust Doctrine, under which the state must manage resources to the greatest public benefit, and Fish and Game Code 5937, which says dam owners must allow enough water downstream for fish.

Though disappointing, this latest ruling doesn’t affect the mission to get a river flowing through Bakersfield most of the time, Bring Back the Kern said in a statement.

“We’re still very confident we will prevail in the CA Supreme Court and in our upcoming trial.”

It’s a little complicated, but while the case is moving forward in the Kern courts, there’s a parallel action at the state Supreme Court, which could confirm, upend, or at the very least inform, how things play out locally.

Here’s the background:

• 2022 – Lawsuit filed against Bakersfield alleging it has been derelict in its operation of the river, leaving it dry through the city most of the time.
• 2023 – Pulskamp issues a preliminary injunction requiring the city to keep enough water in the river for fish.
• April 2025 – Injunction overturned by 5th District Court of Appeal because Pulskamp didn’t make a finding of how much water was needed to keep fish in good condition.
• July 2025 – State Supreme Court grants petition to review 5th District ruling.

Both the local court and the Supreme Court will be looking at how Fish and Game Code 5937 applies to the Kern River, so timing will be important.

Briefs from the city and real parties in interest are due to the Supreme Court by Feb. 11, then there’s a round of replies, which could be extended. After that, other entities can file amicus, or friend of the court briefs, on the issue. It’s likely there will be a slew of amicus briefs on both sides.

During the appellate court process, the state Attorney General’s office and Department of Fish and Game wrote an amicus brief on behalf of Bring Back the Kern.

The justices then have to digest all that work before setting a hearing date. That process could take six months to a year, pushing a hearing date back to perhaps spring 2027.

It would be difficult for Pulskamp to rule on the exact same issues that the Supreme Court is likely to define in its own ruling.

All of which means the Feb. 8, 2027 trial date could easily get bumped back, again.