Kern River combatants sent to their respective corners – for now

May 9, 2024
by Lois Henry
Attorney Adam Keats, who represents Bring Back the Kern and several public interest groups in a lawsuit against the City of Bakersfield over the Kern River, leaves the courtroom May 9 with Stephen Montgomery, Chair of the Kern-Kaweah chapter of the Sierra Club. Montgomery wears a shirt that is a rebuttal to how agricultural districts with rights to the river typically use the phrase "law of the river." To ag districts, it refers to the 150 years to settlements, agreements and contracts that divvy up the river's water. To Bring Back the Kern, the true law of the river is what's printed on the shirt: the Public Trust Doctrine, Endangered Species Act, California constitution and California Fish and Game code 5937, which protects fish. Lois Henry / SJV Water
Lois Henry

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Further legal action on the Kern River was put on pause Thursday morning following an order by the 5th District Court of Appeal that stayed a local injunction mandating enough water be kept in the river for fish.

Kern County Superior Court Judge Gregory Pulskamp said the 5th District’s order that stayed his earlier injunction was very broad putting a hold on the injunction as well as “all proceedings embraced or affected by” it. That in mind, he, in turn, put a pause on several pending motions.

Pulskamp set a case management date of Aug. 1 where, he told the phalanx of attorneys, he might move forward on some pieces of the underlying lawsuit.

But a lot depends on how fast the 5th District moves as it prepares to hear the appeal against his injunction.

Several agricultural water districts filed appeals against the injunction in January and the stay came down in May, considered swift action in the legal world.

“That could indicate they intend to move quickly on this case,” Pulskamp said.

He reminded attorneys and others that they were free to work together to find a solution outside the courtroom.

“My read is there is a lot of interest in having water continue to flow through the city,” Pulskamp said, emphasizing “a lot.” He added that a flowing river is an “improvement to the community.”

“I think there’s enough room here for everyone to get what they want. It may take some creative thinking. It may take funding…but I think if people have the will, there’s a way.”

Kern County Superior Court Judge Gregory Pulskamp

Meanwhile, all eyes are on the 5th District Court of Appeal.

The agencies that filed the appeal, including the Kern County Water Agency, Kern Delta Water District, and the North Kern, Buena Vista and Rosedale-Rio Bravo water storage districts, have until mid-June to file briefs with the 5th District.

A hearing date for the appeal hasn’t been set.

All of that legal wrangling has to do just with the injunction Pulskamp issued last fall, not the underlying lawsuit, which is still continuing.

The underlying lawsuit was filed in 2022 by Bring Back the Kern and several other public interest groups along with Water Audit California, against the City of Bakersfield for dewatering the river. 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.”

That 2022 lawsuit demands the city study the impacts of its river operations on recreation and the ecosystem under the Public Trust doctrine, which states all natural resources are held in trust by the state for the greatest beneficial use by the public. That was once automatically considered to be farming, industry and municipal uses. But in recent years, recreation, aesthetics and the environment have gained equal footing.

As that 2022 case was moving along, last year’s epic runoff brought fish teeming back to the normally dry Kern River through Bakersfield and the plaintiffs sought an injunction to force the city to keep enough water in the river to maintain those populations.

That’s the injunction Pulskamp granted last fall per California Fish and Game Code 5937, which mandates the owner/operator of a dam must keep enough water downtream to keep fish in good condition. That injunction is now stayed pending action by the 5th District.

Sun lights up a tree along the Kern River in this February photo. Lois Henry / SJV Water

There is yet another legal ball that could drop – the California Supreme Court.

Pulskamp asked attorneys Bill McKinnon, who represents Water Audit California, and Adam Keats, who represents Bring Back the Kern, if they would be taking the issue to the state’s top court.

McKinnon replied that he has a petition for rehearing prepared to send to the 5th District. Down the road, the Supreme Court might be a consideration but he would rather settle than escalate the fight.

Keats said his clients are still weighing their options.

If this case does go up the chain, it wouldn’t be the first time a legal fight over the Kern River made its way to the Supreme Court, which decided a landmark water rights case on the Kern back in 1886.

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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