By Lois Henry, SJV Water
The Kern County Water Agency is asking the 5th District Court of Appeal to order the Kern County Superior Court to remove Judge Gregory Pulskamp from the long-running Kern River case.
The agency states the Kern court “abused its discretion” in denying the agency’s challenge to Pulskamp on June 10.
The agency believes Pulskamp will be biased against it because a preliminary injunction he issued in 2023 mandating the City of Bakersfield keep some water in the river bed for fish was reversed by the 5th District in April.
Because the plaintiffs are making the same claims and seeking the same remedies in the trial as they did for the injunction, Pulskamp should be disqualified, the agency states in its writ of mandate filed with the 5th District on Tuesday.
Plaintiffs, including Water Audit California, Bring Back the Kern and several other public interest groups, are seeking “…instream flows associated with claims brought under the Public Trust Doctrine and Fish & Game Code section 5937,” the agency’s writ states.
But justices already ruled that Pulskamp erred in how he applied exactly those same legal principles in his 2023 injunction.
Pulskamp should have first determined how much water was needed for fish and then made a determination if that use was reasonable considering all the other demands on that river water, according to the 5th District’s April ruling, which returned the case to Pulskamp.
Plaintiffs opposed the agency’s first attempt to fire Pulskamp for, among other reasons, the fact that a trial has yet to take place. It is scheduled for December 8 unless a new judge is assigned, which would likely set the date back several months.
Typically, disqualification motions come after a trial outcome is reversed, not in the middle of an ongoing lawsuit, according to the plaintiffs.
The agency, though, argues in its writ that the exact proceedings don’t matter since Pulskamp would be ruling on the same issues that he already decided when he issued the 2023 injunction.
Attorney Adam Keats who represents Bring Back the Kern, called the attempt to get Pulskamp kicked off the case a delay tactic.
Bring Back the Kern and Water Audit sued the City of Bakersfield in 2022 seeking force it to study its river operations under the Public Trust Doctrine, which holds that the state of California owns all natural resources in trust for the highest, most beneficial use by the public. That has traditionally included agriculture and municipal uses. In recent years, thought, the environment and public recreation have also been seen as beneficial uses.
Then after 2023 high runoff brought fish back to the river, the plaintiffs sought an injunction to keep water flowing under Fish and Game Code Section 5937, which states dam owners must keep enough water downstream for fish.
Bakersfield, which owns a chunk of river water, as well as the river bed, its banks and most of the weirs and headgates from Hart Park to Enos Lane, is the only defendant in the case.
The Kern County Water Agency and several other agricultural water districts with rights to the river are “real parties in interest,” meaning they can weigh in on the case because its outcome will affect their rights. The other districts include the Buena Vista, North Kern, Rosedale-Rio Bravo water storage districts and the Kern Delta Water District.
The other districts have not joined the agency’s challenge to Pulskamp.
