By Lois Henry, SJV Water
One new legal filing and a raft of letters have been sent to the California State Supreme Court alternately praising and decrying the recent 5th District Court of Appeal opinion that overturned a local court order that had kept the Kern River flowing, at least for a few months.
The response, filed by several agricultural water districts with Kern River rights, urges the Supreme Court to deny a petition to review the 5th District’s opinion and let it remain published, which can set precedent for how other courts rule in similar cases.
The letters all seek to have the Supreme Court “depublish” the 5th District’s ruling, making it less potent. Two of the letters were filed by the original plaintiffs who had earlier submitted a petition asking the Supreme Court to review the 5th District’s ruling.
The state Attorney General and two environmental public interest groups also sent letters beseeching the state’s top court to depublish the 5th District’s opinion. More, similar, letters are expected in the next few weeks, said attorney Adam Keats, who represents Bring Back the Kern and several other public interest groups fighting for flows in the Kern River through Bakersfield.
“It’s anyone’s guess what the court will do,” Keats said. Though the 5th District opinion raises substantive legal issues, he said, the Supreme Court denies the vast majority of review petitions, so chances are low this case will be heard.
“Therefore, if it were true that fish along a reach of the Kern River system were not being maintained in good condition (which has not been proven), the presumption must not be that the defendant violated section 5937 but that it instead has applied the ‘supreme law,’ the 1928 Amendment, prohibiting flows which, under the totality of the circumstances, are unreasonable.”
– Motion by agricultural water districts with Kern River Rights asking California Supreme Court to deny review of a 5th District Court of Appeal ruling that overturned a local court order to keep water in the river
This round of legal brouhaha evolved from a preliminary injunction issued by Kern County Superior Court Judge Gregory Pulskamp in late 2023 ordering the City of Bakersfield to keep enough water in the Kern River for fish to survive. Pulskamp based his order on California Fish and Game Code 5937, which states dam owners must allow enough water downstream for fish.
Ag districts with rights to the river, appealed. Those include the Kern County Water Agency, Kern Delta Water District and the Rosedale-Rio Bravo, North Kern and Buena-Vista water storage districts.
The 5th District justices ruled that Pulskamp should have determined whether the water carved out for fish was a “reasonable” use compared to other demands, per a 1928 amendment that created article X, section 2 of the California Constitution, which states all uses of water must be measured against the standard of “reasonable and beneficial.” It also states the Legislature may enact laws in furtherance of that policy.
The Attorney General letter states that’s exactly what the Legislature did when it enacted 5937, meaning water to keep fish alive is a de facto reasonable use.
Demanding Pulskamp, or any court, conduct a reasonableness test for 5937, “… is particularly improper when a statute already expresses the Legislature’s determination about reasonable use, pursuant to the authority expressly delegated to the Legislature in section 2,” the Attorney General’s letter states.
The ag water districts argue that the 5th District’s opinion simply clarifies existing law that if a plaintiff claims 5937 is being violated, they have to prove it, according their response.
“Therefore, if it were true that fish along a reach of the Kern River system were not being maintained in good condition (which has not been proven), the presumption must not be that the defendant violated section 5937 but that it instead has applied the ‘supreme law,’ the 1928 Amendment, prohibiting flows which, under the totality of the circumstances, are unreasonable,” the response states. “In short, it is the plaintiffs’ burden to prove that existing conditions are contrary to the law.”
The other letters to the Supreme Court focused on another – potentially more momentous – part of the 5th District’s ruling regarding bonds that plaintiffs must put up in the event an injunction causes harm and is later set aside.
In this case, Pulskamp required the plaintiffs to put up $1,000 as a “nominal bond” before the injunction went into effect. That’s common in environmental cases where plaintiffs are typically nonprofit public interest groups going up against well-monied industries.
But the 5th District ruled that the bond should have reflected the actual cost of potential harm to the enjoined parties, the river rights holders.
The ag water districts that appealed Pulskamp’s injunction said the loss of water during the five months it was in effect cost them $5.7 million, according to their opening appellate brief.
Under the 5th District’s ruling, Pulskamp would have had to collect $5.7 million, or more, from the plaintiffs, not just $1,000.
If the ruling stands and remains published, that bond requirement “…could effectively close the courthouse doors,” to public interest environmental lawsuits, according to a letter from attorney Roger Moore who represents California Water Impact Network.
In fact, a section of the Code of Civil Procedure allows judges discretion over bonds, according to a letter from Water Audit California, a co-plaintiff with Bring Back the Kern.
“Many public interest environmental plaintiffs do not have the financial resources to post a bond equivalent to all damages a restrained party might incur during the pendency of an injunction,” the letter states. “Thus, pursuant to Code of Civil Procedure, section 995.240, a court may waive or reduce bond requirements for indigent plaintiffs.”
The state Supreme Court could announce whether it will review the 5th District ruling by as early as mid-July.
Meanwhile, the underlying lawsuit that spurred the injunction is still moving forward with a Dec. 8 trial date.
Bring Back the Kern and Water Audit California sued the City of Bakersfield in 2022 demanding it study the environmental impacts of its river operations, which typically leave a large section of the river through town bone dry. Bakersfield owns the riverbed, its banks and most of the weirs and canal head gates it uses to distribute water to other rights holders.
The injunction was granted in 2023 after near record snowfall brought the river, and fish populations, back to life.
