By Lois Henry, SJV Water
Kern County Superior Court Judge Gregory Pulskamp let the battalion of attorneys in court Wednesday know he was inclined to drop at least one cause of action in the ongoing lawsuit brought by several public interest groups against the City of Bakersfield for dewatering the Kern River.
But he likely won’t dismiss one of the lawsuit’s key claims – that Bakersfield has a duty to protect the river under the Public Trust Doctrine.
Judge Pulskamp said he would likely dismiss a claim in the lawsuit that Bakersfield breeched its duties under a natural resources code and he was “on the fence” with regard to dismissing a claim by plaintiffs that dewatering the river had created a public nuisance that caused the plaintiffs special harm.
Judge Pulskamp told attorneys and a handful of onlookers wearing “Bring Back the Kern” t-shirts that he anticipated having a written ruling on the motion to dismiss portions of the lawsuit within the next two weeks.
Though, he acknowledged that whatever he rules, the ultimate outcome of this case may not rest with him.
“I think it will eventually come down to what the judges in the 5th District (Court of Appeal) think and maybe even go to the (California) Supreme Court,” he said in reference to the fact that several parties have already appealed to the 5th District.
That appeal is specific to Pulskamp’s temporary injunction issued in late October requiring Bakersfield to keep enough water in the river to keep fish populations that had re-emerged during high flows last year, in good condition.
That flow level is still being worked out between the plaintiffs, the city and several agricultural water districts with river rights, which are “real parties in interest” in the lawsuit.
It was the ag districts that filed Wednesday’s motion to dismiss portions of the underlying lawsuit. Bakersfield remained neutral on the motion.
Pulskamp said he would do his best to sift through the complicated issues on the dismissal motion and issue his ruling quickly.
“It is an interesting case to this court personally,” Pulskamp said. “And it’s a very significant case to the community. There is a lot of tension in this case and a lot of strong feelings but I appreciate the professionalism and civility that’s been exhibited so far.”
Local advocacy group Bring Back the Kern, along with the Kern River Parkway Foundation, Water Audit California, Sierra Club, Center for Biological Diversity and Audubon Society sued Bakersfield in 2022 alleging the city has been derelict in how it operates the river.
The lawsuit seeks to force the city to conduct an in-depth study of how river operations have impacted the river’s ecosystem under the Public Trust Doctrine.
The public trust states that all natural resources are owned by the state of California in trust for the beneficial use of the public.
The plaintiffs argue that having actual water in the Kern River for the environment, recreation and aquifer recharge is a beneficial use for the public that has been ignored as ag districts have taken most of the water in most years, leaving a dry riverbed through Bakersfield.
