Rehearing on Kern River rejected by appellate court. Next step could be the California Supreme Court

May 24, 2024
by Lois Henry
The Kern River meanders past Yokuts Park in central Bakersfield on May 24. Lois Henry / SJV Water
Lois Henry

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The 5th District Court of Appeal denied a petition Friday to rehear the court’s earlier decision to put a hold on a Kern County court’s order that had required the City of Bakersfield keep enough water in the Kern River for fish to survive.

Both plaintiffs in the action have said they will likely petition the California Supreme Court to review the 5th District’s ruling. The deadline is June 13.

If that petition is granted – a long shot considering less than 1% of petitions to the high court are successful – it would be the second time the Kern River has appeared before the California Supreme Court in 138 years. 

Its last trip up the legal chain was a doozy. That 1886 ruling ended a nearly 10-year-long legal battle between Henry Miller and James Ben Ali Haggin over the Kern River and established the basis of California water law. So, kind of a big deal.

It remains to be seen if the Kern River gets that far this time.

As for what the public can expect of river flows, Councilman Bob Smith told SJV Water that the city will keep at least some water running down the river to Allen Road through August. Beyond that is too far to speculate, according to Smith.

As the river dries up, though, that could bring a new round of legal issues.

Fish would have naturally moved upstream as the water receded but weirs in the riverbed owned or operated by the city are preventing that, said Attorney Adam  Keats, who represents Bring Back the Kern and several other public interest groups in a lawsuit against Bakersfield.

That’s a violation of California Fish and Game Code 5901, which states it’s illegal to build structures that impede fish passage in a river, he said.

“We may file (for another injunction) on that,” Keats said. “That could require the city to construct fish ladders over each of those weirs and that’s not cheap.”

Keeping enough water in the river for fish, Keats noted, would be more cost effective.

Bakersfield does want water in the river, said its attorney Colin Pearce. But it only has so much to give.

“The city has been trying to get water in the river for decades,” Pearce said. “The fight is really between the water districts, who have more water than the city, and the plaintiffs, who want more water in the river.”

Agricultural water districts with rights to the river are named as real parties in interest in the case, but aren’t defendants and aren’t bound by any rulings.

All of this legal wrangling stems from a lawsuit filed in 2022 against Bakersfield by Bring Back the Kern and Water Audit California that demanded the city study how its operation of the river affects the environment.

The next court date in that case will be Aug. 1. But it’s unclear what will happen at that hearing as the 5th District’s ruling could stymie certain actions.

Lawsuit recap

The 2022 lawsuit against Bakersfield alleges the city has been derelict in its operation of the river. Bakersfield owns rights to some river water plus it owns or operates six weirs in the river bed (which it also owns) from about Manor Street to Enos Lane.

It operates those weirs to deliver water to other rights holders, including Kern Delta Water District, the Kern County Water Agency and the North Kern and Buena Vista water storage districts. The timing and amounts of water each entity gets is laid out in contracts, agreements and decrees that go back nearly 150 years.

The Bring Back the Kern lawsuit states that Bakersfield has not fulfilled its obligation to consider those operations under the Public Trust doctrine. The Public Trust doctrine states all natural resources are owned by the state and must be put to the greatest beneficial use. That used to mean farming, industry and municipal uses. But over the years, recreation, aesthetics and the environment have gained equal footing.

Injunction recap

As the main legal action was moving forward, the epic 2023 winter brought enough flows back to the normally dry riverbed through Bakersfield that fish reemerged, prompting Bring Back the Kern and Water Audit California to request an injunction requiring Bakersfield to keep those fish populations alive.

Kern County Superior Court Judge Gregory Pulskamp granted that injunction in November 2023 per California Fish and Game Code 5937, which requires the owner/operator of any dam to let enough water pass downstream to “keep fish in good condition.”

In January, the agricultural districts, appealed that injunction to the 5th District Court of Appeal. On May 3, the 5th District ordered the injunction “stayed,” or voided, until it holds a hearing on the issue.

The 5th District did not give any reasoning for its stay on the injunction, but clearly stated all actions “embraced or affected” by that injunction were also to be paused. 

How far reaching that order is, was unclear to Judge Pulskamp who set the Aug. 1 hearing date in hopes the 5th District would move quickly to hold its own hearing and “provide a little more guidance” as to the rest of the case.

That doesn’t seem likely. 

All the attorneys interviewed for this story agreed it will likely be a year, or more, before the 5th District holds a hearing on the injunction. If the California Supreme Court steps in, that would add an entirely new wrinkle.

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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