State water agencies and environmentalists debated if fish or people should be prioritized when determining water flows of a river in California’s Central Valley.
By Alan Riquelmy, Courthouse News
Environmental groups clashed Thursday with California water districts before a state appeals court over water flows in the Kern River in central California, buoying their arguments on seemingly conflicting laws and supposed failures of the trial court.
Groups like the North Kern Water Storage District last year appealed a preliminary injunction requiring enough flows to keep fish in good condition. They argued that it’s improper to interpret state fish and game code as favoring fish over all other needs, adding that a balancing test must occur. They want the injunction and related implementation order shelved, with instructions relayed to the lower court from the Fifth District Court of Appeal on next steps.
No ruling occurred Thursday but the three-judge panel took the matter under submission.
Arguing for the water districts, attorney Brett Stroud told the panel the crux of the issue is the balancing test. He said the lower court accepted an argument that such a test was done by lawmakers in existing code — a law that requires dam operators to let enough water through the keep fish in good condition.
“All uses must be balanced,” Stroud said.
A blanket argument that fisheries have priority to every drop of water isn’t reasonable, he argued. Additionally, Stroud said that “good condition” is a scientific term. Determining that condition could lead to significant work on a regular basis.
Attorney Nathan Metcalf — representing the J.G. Boswell Company, also an appellant — said his client isn’t challenging the constitutionality of fish and game code section 5937, only how the lower court applied it.
The lower court should have examined other factors before issuing its injunction, like the potential for flooding his client faces, he said. A proper balancing test would have included that factor.
Colin Pearce, an attorney representing the city of Bakersfield, said the fish and game code wasn’t absolute. People have priority to water, he said, not fish.
“It’s a statement of priority,” he said of the code section, but it doesn’t trump other laws. “5937 is not absolute.”
As an example, Pearce pointed to another section of fish and game code that references that section. That other portion prohibits dams in certain areas unless they comply with that section. Pearce said that law wouldn’t be necessary if section 5937 was absolute.
“It’s people,” he added. “People have to come first.”
The code section broke the surface tension with questions from Associate Justice Jennifer Detjen, who asked plaintiff attorney Adam Keats why a judge couldn’t balance both fish needs and economic concerns in a balancing test.
Keats, who represents plaintiffs like Bring Back the Kern, Kern River Parkway Foundation and the Kern Audubon Society, said the state Legislature determined “that the fish gets the water first,” referring to section 5937. That equates to a pre-balancing of priorities.
“When the river dries up, the fish dies,” Keats added. “That’s an irreparable harm.”
Additionally, Keats argued the appeal by the water agencies was premature. The lower court issued its injunction in late 2023. It followed the injunction with an implementation order, which it updated in early 2024.
The judge had another update prepared, though the appeal set it aside.
“The court has not been able to finish its job and that job is to establish a flow regime,” Keats said.
Arguing for Water Audit California, attorney William McKinnon supported the injunction. He said fish in the Kern River have received nothing in the past century. Instead, Bakersfield or water agencies have divided the water among themselves.
McKinnon argued the lower court properly imposed allowing 40% of water flows to go past the dams, adding the percentage isn’t permanent. Instead, it allowed for scientists to perform an analysis and return with a recommendation on what level of flows were needed.
“If the parties can agree, that’d be great,” Associate Justice Mark Snauffer said at one point. “You wouldn’t be here.”
The appeals panel was comprised of Detjen, an Arnold Schwarzenegger appointee; Snauffer, appointed by Jerry Brown; and Associate Justice Rosendo Peña Jr., appointed by Gray Davis.
