A recent legal controversy has erupted following a decision by the 5th District Court of Appeal that overturned a local court order to maintain water flow in California’s Kern River, at least temporarily. The case has drawn mixed reactions, prompting a flurry of legal filings and letters directed to the California State Supreme Court.
Agricultural water districts holding rights to the Kern River have filed a response urging the Supreme Court to refuse a petition to review the 5th District’s ruling and to allow it to remain published, potentially setting a precedent for future court cases.
In contrast, several letters have been submitted advocating for the Supreme Court to depublish the 5th District’s ruling, which would diminish its legal impact. These letters include petitions from the original plaintiffs who previously requested a Supreme Court review, as well as missives from the Attorney General and two environmental public interest groups.
Attorney Adam Keats, representing Bring Back the Kern and other public interest groups, indicated that while the 5th District’s opinion raises significant legal questions, the chances of the Supreme Court hearing this case remain slim, given that they deny most review petitions.
The dispute originated from a preliminary injunction issued by Kern County Superior Court Judge Gregory Pulskamp in late 2023. This injunction mandated that the City of Bakersfield ensure sufficient water flow in the Kern River to support fish survival, citing California Fish and Game Code 5937, which requires dam owners to allow adequate water downstream for aquatic life.
The agricultural water districts involved in the case, including the Kern County Water Agency, Kern Delta Water District, and Rosedale-Rio Bravo, North Kern, and Buena-Vista water storage districts, subsequently appealed Judge Pulskamp’s order.
The 5th District justices opined that Judge Pulskamp should have assessed whether the water allocated for fish was a ‘reasonable’ use in light of other competing demands.
This determination stemmed from a 1928 amendment to California’s Constitution, specifically article X, section 2, which stipulates that all water uses must be evaluated according to the standard of ‘reasonable and beneficial.’
The state Attorney General’s letter argued that the legislation behind California Fish and Game Code 5937 articulates that water for fish preservation is intrinsically a reasonable use, thereby challenging the need for a reasonableness test to be performed by a court.
Conversely, the ag districts contend that the 5th District’s ruling clarifies existing law: if someone claims a violation of 5937, they must substantiate that claim.
Their response emphasized that if the health of fish along the Kern River is indeed in question, it is the plaintiffs’ responsibility to prove this assertion, rather than assume the defendants have violated section 5937.
Another critical aspect of the 5th District’s ruling pertains to the bond requirement that plaintiffs must provide if an injunction they seek causes harm and is later withdrawn.
In the case at hand, Judge Pulskamp had mandated a $1,000 bond from the plaintiffs as a nominal requirement.
However, the 5th District deemed that the bond should more accurately reflect the potential costs associated with disruption to the river rights holders, which the agricultural water districts valued at $5.7 million during the period of the injunction.
Under the implications of the 5th District’s ruling, Judge Pulskamp would be obliged to require a bond of $5.7 million or more from the plaintiffs, significantly complicating the pursuit of public interest environmental lawsuits.
A letter from attorney Roger Moore, representing California Water Impact Network, cautioned that if this ruling is upheld and published, it could effectively restrict access to the courts for environmental plaintiffs.
Many public interest groups lack the financial capacity to secure a bond significant enough to cover potential damages imposed during an injunction, as noted in a letter from Water Audit California, which co-plaintiffed with Bring Back the Kern in the lawsuit against the City of Bakersfield.
A section of the Code of Civil Procedure allows judges discretion regarding bond amounts, enabling them to reduce or waive the requirement for financially constrained plaintiffs.
The Supreme Court is expected to announce by mid-July whether it will take up the review of the 5th District ruling.
Meanwhile, the underlying case that triggered the initial injunction is progressing, with a trial slated for December 8.
Bring Back the Kern and Water Audit California initiated legal action against the City of Bakersfield in 2022, demanding an assessment of the environmental impact stemming from river operations that often leave significant sections of the waterway devoid of water.
This litigation gained momentum following near-record snowfall that infused vitality back into the river and its aquatic ecosystems in early 2023.
As the legal proceedings unfold, the fate of the Kern River and its tributaries hangs in the balance, illustrating the intricate interplay between agricultural demands, ecological preservation, and the courts.
image source from：https://sjvwater.org/california-supreme-court-gets-an-earful-on-kern-river-appellate-court-opinion/
