Judge Orders Bakersfield to Keep Water in Kern River to Protect Fish

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Published 2 years ago on

November 1, 2023

In what one attorney called a “moment of truth” for the City of Bakersfield, a judge ordered the city to keep enough water in the normally dry Kern River to protect fish populations.

Lois Henry

SJV Water

The 21-page preliminary injunction was issued by Kern County Superior Court Judge Gregory Pulskamp on Monday afternoon.

Colin Pearce, who represents the city on Kern River issues, declined to comment, saying the city is still reviewing the order. It’s unclear if the city, or other Kern River interests, will appeal the injunction.

The plaintiffs called the ruling “amazing.”

“There isn’t a single disagreement from the court with our arguments,” said Adam Keats, an attorney representing Bring Back the Kern, which, along with Water Audit of California and several other groups, sought the injunction against the city of Bakersfield.

The injunction was sought as part of an ongoing lawsuit by those groups that seeks to force the city to study the environmental impacts of diversions off the river made under more than 135 years of agreements and contracts.

The plaintiffs believed they had to file the injunction after this year’s epic runoff created a full and flowing river that brought fish back.

“There was something magical about the timing of this and there’s no question it helped from a legal perspective,” Keats said. “It made all the difference in the world because now there are fish in the water.”

Lawsuit Based on Fish & Game Code 5937

The original lawsuit, as well as the injunction, are based on California Fish and Game Code 5937, which requires enough water to flow past dams to keep downstream fish populations in “good condition.” The injunction will be in place throughout the duration of the lawsuit.

“The law is simple, direct, and clear,” Keats said. “There’s just no wiggle room.”

Asked if there might be an opportunity to settle the case, Keats gave an unequivocal “yes.”

Kevin Moreno holds a sign asking motorists to honk in support of the Kern River. He attended a hearing on Oct. 13, 2023, in Kern County on whether to grant an injunction that would cut back diversions from the river. (SJV Water/Lois Henry)

“The city would be crazy not to settle this case and (the) court just gave us a clear roadmap that this is solvable,” he said.

The city owns or operates six diversion weirs from Hart Park to west of Allen Road that move water to other so-called Kern River interests including Kern Delta Water District, the Kern County Water Agency, and the North Kern, Buena Vista, and Rosedale-Rio Bravo water storage districts.

The judge didn’t decree how much water is needed in the river to protect fish, instead leaving that up to the city and plaintiffs to determine. In fact, Pulskamp notes in his order that the city has worked in various ways over the years to keep as much water flowing in the river through town as possible.

“They’re the ones saying they’ve been trying to do this. So, if the city can’t figure out how to do this now, then they never wanted a flowing river,” Keats said. “This is Bakersfield’s moment of truth.”

He discounted the layers of contracts and agreements, known collectively as the “law of the river,” and noted Pulskamp’s order includes the city and plaintiffs, not the other Kern River interests.

‘Rights Issue’ not a Contract Issue

“This is a rights issue and that’s superior to any possible breach of contract issues,” he said.

The order notes that there should be enough water for all uses — people, agriculture, and the environment.

“What is clear, however, is that the average annual Kern River flows of approximately 726,000 acre-feet is an enormous amount of water that should suffice for the reasonable use of all interested stakeholders,” the order states. “In the words of the State Constitution, our vast water resources should be used in a manner that reflects the ‘reasonable and beneficial use thereof in the interest of the people and for the public welfare.’”

“To me, that says the court recognizes ag needs to play well with others and it’s not the end of the world for them to do so,” Keats said.

He predicted this order would have generational impacts for the Kern River and the people of Bakersfield.

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