Petition asks California’s highest court to wade into Kern River legal fracas

June 12, 2024
by Lois Henry
Sun lights up a tree along the Kern River in this February 2024 photo. Lois Henry / SJV Water
Lois Henry

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Plaintiffs in an ongoing lawsuit over the Kern River filed a petition asking the California Supreme Court to review an order that tossed out an injunction many had anticipated would guarantee a flowing river through Bakersfield.

Specifically, the petition asks the Supreme Court to direct the 5th District Court of Appeal to explain why it stayed the injunction that had required enough water in the river to keep fish in good condition. The Supreme Court petition was filed June 11.

The 5th District issued what’s known as a “writ of supersedeas” May 3 setting aside the injunction and staying all legal actions surrounding the injunction, which had been issued by Kern County Superior Court Judge Gregory Pulskamp last fall.

But the 5th District didn’t explain why it was issuing that writ. It provided no findings at all, which, according to the plaintiffs’ Supreme Court petition, is required.

“This request is consistent with the Constitutional mandate that judicial decisions should explain the basis on which they are made,” the petition states. “Providing detailed reasons for a judgment ensures that the decision-making process is transparent.”

Explanations for appellate decisions are often used as guidance for lower courts, the petition states, ensuring laws are applied consistently throughout the state. And, “a reasoned decision will help guide the conduct of the parties to this litigation.”

Scott Kuney, an attorney for one of the local agricultural water districts that had sought the writ of supersedeas, said the districts had just received the Supreme Court petition and would not be able to comment.

The districts have 20 days to file an opposition.

Then the parties wait.

It’s extremely rare for the Supreme Court to grant a review so this petition is a long shot, said both plaintiffs attorneys Bill McKinnon, who represents Water Audit California, and Adam Keats, who represents a consortium of public interest groups including Bring Back the Kern, Kern River Parkway Foundation, the Sierra Club and Center for Biological Diversity.

If review is granted, that opens a host of new questions, McKinnon said.

The Supreme Court could direct the 5th District to explain and publish its decision and leave it at that or it could even decide to take up the case itself.

“A lot of options are possible,” McKinnon said. “But this is already a very unique situation built on top of several unique occurrences.”

The underlying lawsuit for all this was filed in November 2022 by Water Audit and Bring Back the Kern against the City of Bakersfield for its operation of the river. Those operations are based on more than 100 years of agreements, legal settlements and decrees with local ag water districts.

But the lawsuit argued Bakersfield had ignored its public trust obligations and demanded the city conduct a study to see how river operations are affecting the environment and public uses, such as recreation. The city owns a chunk of Kern River water as well as the riverbed and several weirs used to move water into a hydra of canals off the river to local water districts.

That lawsuit is still proceeding.

After 2023’s epic flows brought fish back to the river through Bakersfield, which is normally dry, the plaintiffs won an injunction on Nov. 9, 2023 that prohibited Bakersfield from diverting too much water out of the rivers in order to protect the fish.

The water districts, including the Kern County Water Agency, Kern Delta Water District, and the North Kern, Buena Vista and Rosedale-Rio Bravo water storage districts, filed an appeal against that injunction in January.

However, the injunction was modified twice. So that appeal, which as yet to be heard, is over something that no longer exists, McKinnon noted.

“You seldom have a matter moving so fast that the appeal is outmoded before parties even submit opening briefs,” he said.

Then in May the water districts sought and were granted the writ of supersedeas, which McKinnon said are very rarely granted.

On top of it all, the 5th District didn’t explain its decision.

“It’s the rarest of instances,” McKinnon said.

If the petition is granted, it would be the second time the Kern River has come before the Supreme Court. In 1886, justices decided a case between Henry Miller and James Ben Ali Haggin that established the basis of California water law.

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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