By Lois Henry, SJV Water
A move to boot Kern County Superior Court Gregory Pulskamp off the long-running Kern River lawsuit was denied, according to a ruling issued Tuesday by the assistant presiding judge of the court.
The Kern County Water Agency filed a motion May 30 to remove Pulskamp citing its belief the judge would be biased against the agency because a preliminary injunction he had issued requiring enough water be kept in the river for fish was overturned by the 5th District Court of Appeal.
An opposing attorney called the attempt to disqualify Pulskamp unusual, improper even, given the case hasn’t been decided yet. The trial date is still seven months away.
Typically, disqualification motions come after a trial outcome is reversed, not in the middle of an ongoing lawsuit, according to attorney Adam Keats, who represents Bring Back the Kern and several other public interest groups fighting to get water back in the riverbed through Bakersfield.
The agency, however, argued in its motion that the injunction and reversal should be considered similar to a trial.
No, they are not similar, states a motion by the City of Bakersfield urging Kern’s presiding judge to deny the agency’s motion.
The underlying case never left Pulskamp’s authority and he has continued to conduct proceedings in that case even as the 5th District reviewed and ruled on the preliminary injunction, the city’s motion states.
“We’re happy that this latest effort to delay bringing the Kern River back to life has been rejected and we’re looking forward to proceeding to trial,” wrote Keats in a text message in reaction to the denial of the agency’s attempt to disqualify Pulskamp.
The agency has declined to comment on pending litigation.
Interestingly, the agency is not a defendant in this case. Nor are the four other agricultural water districts that all jointly appealed Pulskamp’s injunction order.
The only defendant is Bakersfield.
The others, including Kern Delta Water District and the North Kern, Buena Vista and Rosedale-Rio Bravo water storage districts, are “real parties in interest” to the lawsuit. That means they can be affected by the outcome of the case, but aren’t named as defendants.
In 2022, Bring Back the Kern and Water Audit California sued Bakersfield over how it operates the river. They want the city to study the environmental impact of its river operations, which leave the riverbed through town dry in most years.
During 2023’s epic water year, Bring Back the Kern sought an injunction mandating that Bakersfield keep the river flowing to sustain fish populations that arrived along with the water.
Pulskamp granted the injunction under California Fish and Game Code 5937, which mandates dam operators keep enough water downstream for fish. The agency and other ag districts appealed.
The 5th District overturned Pulskamp’s injunction and sent it back stating he first needed to determine how much water the fish need and whether carving out some water for fish was a “reasonable” use compared with other demands on the river’s water.
The plaintiffs are seeking review of that reversal by the California Supreme Court.
