By Lois Henry, SJV Water
Groups trying to bring water back to the dry Kern River bed through Bakersfield have petitioned the California Supreme Court to review an appeals court decision that knocked down an order that had kept flows going for a few months last year.
“I hope this appeal to the state Supreme Court shows the people of Bakersfield how much we care about the river and how much we believe in this mission to restore our city’s river,” wrote Kelly Damian in a text message. Damian is a spokesperson for Bring Back the Kern, which is suing the City of Bakersfield over how it operates the river along with Water Audit California and several other public interest groups.
The main lawsuit, filed in 2022, is still ongoing with a trial date set in December. That suit seeks to force Bakersfield to study its river operations under the Public Trust Doctrine, which requires water be put to the highest public benefit, including environmental protection and public access.
The action seeking Supreme Court review involves a preliminary injunction issued in late 2023 that mandated Bakersfield keep enough water in the river to keep fish in good condition per California Fish and Game Code Section 5937.
Agricultural water districts with river rights appealed that injunction. The 5th District Court of Appeal overturned it in April stating, among other things, the trial court should have balanced the “reasonableness” of keeping some water for fish against other uses, such as ag and municipal.
The plaintiffs state in their Supreme Court petition that balancing requirement essentially renders Section 5937 unconstitutional. They also argue the 5th District opinion, which was published, conflicts with existing applications of 5937 as well as federal law.
That means the 5th District opinion could reach far beyond the Kern River, giving it a slightly better chance of being reviewed by the Supreme court.
“Chances are still low,” said Bring Back the Kern Attorney Adam Keats. “But this is a big issue. It raises questions of the constitutionality of 5937 and the ability of the Legislature to pass laws.”
Justices based their reversal of the injunction on article X, section 2 of the California constitution, which says all water use must be “reasonable.”
The Bring Back the Kern petition states article X, section 2 also states “…the Legislature may also enact laws in the furtherance of the policy in this section contained” and that several landmark cases found 5937 was a proper under article X, section 2.
“As the trial court correctly found, Plaintiffs demonstrated a high likelihood of success on the merits of their argument that the City’s diverision of all water in the Kern River, leaving nothing for fish, violates the plain terms of Section 5937,” the petition states. “No additional ‘balancing’ was required for the trial court to reach this conclusion as a matter of law.”
Attorneys Scott Kuney, who represents North Kern Water Storage District, and Colin Pearce who represents Bakersfield, declined to comment on the petition.
The Supreme Court should issue decide whether to accept the case in about two months.
It rejected a petition by Bring Back the Kern and Water Audit to review the 5th District Court of Appeal’s stay of the injunction in May 2024.
If this petition is granted, it would be the second time the Kern River has come before the state Supreme Court. In 1886, justices decided a case between Henry Miller and James Ben Ali Haggin that established the basis of California water law.