Kern River. Photo by tdlucas5000.

SJV WATER: State Attorney General, Fish and Wildlife join fight to bring flows back to the Kern River

By Lois Henry, SJV Water

Two powerful California agencies have jumped into the legal fight over flows in the lower Kern River.

California Attorney General Rob Bonta filed a brief Monday “on behalf of the People of the State” as well as the California Department of Fish and Wildlife urging the 5th District Court of Appeals to reinstate a Kern County judge’s order mandating enough water be allowed to run through the river to keep fish alive.

“We are super excited about this,” said Kelly Damian, spokesperson for local group Bring Back the Kern, which, along with several other groups, sued the City of Bakersfield in 2022 over its river operations. It then sought and won a preliminary injunction in Oct. 2023 mandating the city keep enough water flowing for fish.

She said the firepower brought by Bonta’s amicus, or friend-of-the-court, brief adds significant momentum to Bring Back the Kern’s cause.

“The people fighting against us need to open their eyes and see what’s happening right in front of them,” she said. “Morrison Foerster (law firm) has joined, CalTrout filed an amicus brief and now the Attorney General of the State of California is weighing in. They need to realize it’s time to settle this case.”

Though Bring Back the Kern only names Bakersfield as a defendant in its lawsuit, several agricultural districts with river rights joined the case as “real parties in interest.”

Those districts appealed the Kern River injunction and the 5th District paused the injunction to hear further arguments.

Calls and texts to attorneys representing those districts were not immediately returned on Monday. Bakersfield declined to comment on Bonta’s action.

Though Bakersfield had voluntarily run water down the river even after the injunction was stayed, its river rights ran out at the end of August. Without additional water from the ag districts, the river suddenly went dry causing a massive fish die.

Residents and river advocates were shocked by the loss of life, which prompted an investigation by Fish and Game. That investigation is still ongoing, according to an email from July Vance, regional manager of the central region.

The main focus in Bonta’s amicus brief is Fish and Game Code 5937, which states dam owners must run enough water downstream to keep fish in “good condition.”

“Appellants do not dispute that the City regularly dewaters the Kern River below its six weirs…nor do (or could) they argue that the fist in these stretches of the river are in ‘good condition,’” the brief states.

Bonta also contends the ag districts’ appeal is a constitutional challenge to 5937, which was adopted in its current form in 1923 but has existed in California law since 1872 and has been upheld in numerous cases over the years.

Though an amicus brief from the Attorney General is significant, courts have complete discretion over how much weight, if any, to give them in deciding a case.

Damian said Bakersfield should be heartened by the Attorney General’s amicus brief.

“In the last Council meeting we attended, the city expressed a love for the river and chagrin that there was absolutely nothing they could do about it,” Damian said. “This amicus brief gives them the reassurance they were asking for. Their job is to care for the river and then distribute the water to rights holders. They’re doing it out of order. This amicus brief puts that in black and white.”

SJV Water is an independent, nonprofit news site covering water in the San Joaquin Valley, www.sjvwater.org. Reach us at sjvwater@sjvwater.org