In a wide-ranging ruling that could have larger implications for public interest lawsuits throughout California, the 5th District Court of Appeal reversed a preliminary injunction that had required water in the Kern River through the heart of Bakersfield.

“It was a gut punch,” said Kelly Damian, spokesperson for Bring Back the Kern, one of the plaintiffs that had sought the injunction to keep water in the river.

“While we are disappointed, we are not dissuaded. This is life when you’re fighting for the environment. Get ready for a lot of losses.”

She noted the underlying lawsuit over the river is still ongoing.

Underlying Lawsuit Continues

Bring Back the Kern, Water Audit California and several other public interest groups sued the City of Bakersfield in 2022 for dewatering the river. They are demanding the city study the environmental impacts of its river operations.

That lawsuit is set for trial in December.

The preliminary injunction was an outgrowth of that 2022 lawsuit. It was an attempt to keep water in the river for fish that had come teeming back with high flows in 2023.

The 5th District’s ruling, issued Wednesday, reversed the injunction but didn’t close the door to a possible future injunction and, in fact, gave lengthy direction for how that could be done.

But tucked into the ruling was a seeming side issue that could prove more momentous.

Bond Requirement Raises Concerns

That issue involves how much money plaintiffs seeking such injunctions must put up as a “bond” in the event the injunction causes harm and is later set aside.

In this case, Kern County Superior Court Judge Gregory Pulskamp required the plaintiffs to put up $1,000 as a “nominal bond” before the injunction would go into effect.

That’s not enough, according to justices with the 5th District.

The bond should be closer to what the injunction could actually cost the parties being enjoined, according to the ruling.

In the Kern River case, the agricultural 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 brief.

Under the 5th District’s ruling, Pulskamp would have had to collect at least $5.7 million from the plaintiffs, not just $1,000.

This ruling was “certified for publication,” meaning it can be cited as legal precedent. That could create an almost insurmountable hurdle for just about any injunction sought by public interest groups, making it fodder for a possible California Supreme Court appeal.

Court Cites Reasonable Use Doctrine

The main issue the 5th District had with Pulskamp’s injunction is he didn’t consider the possible impacts his injunction could have on all Kern River water users under the state’s reasonable use doctrine.

Though Bakersfield was somewhat neutral in this legal skirmish it was pleased with that part of the ruling.

“It gave clear and helpful direction to the parties to determine how much water is needed for fish and for the trial court to balance the impacts on all water users,” according to the city’s attorney Colin Pearce.

Whether the Kern River plaintiffs attempt to seek another injunction remains to be seen.

Both Bill McKinnon and Adam Keats, attorneys for Water Audit California and Bring Back the Kern, respectively, said they are still reading through the 47-page ruling to understand all its complexities.

Even so, Keats said Wednesday’s ruling was not fatal either to obtaining another injunction or to the main lawsuit.

“The question isn’t whether the Kern River is going to flow again, the question is when,” he said.

The agricultural entities that brought the appeal were pleased with Wednesday’s ruling.

“The Appellants appreciate reading today’s decision from the Court of Appeal redressing and reversing each of the trial courts orders that were subject to appeal,” wrote attorney Scottt Kuney in a text message.

He referred to Pulskamp’s injunction issued Nov. 9, 2023 and a later implementation order that laid out how much water would remain in the river. That implementation order was later modified by Pulskamp.

The ag districts, including  the North Kern, Rosedale-Rio Bravo and Buena Vista water storage district, Kern Delta Water District, the Kern County Water Agency and the J.G. Boswell Company, appealed the injunction and implementation order in January 2024.

The 5th District ordered the injunction stayed in May 2024.

About the Author

SJV Water CEO and editor Lois Henry has spent 30 years covering the San Joaquin Valley.

About SJV Water

SJV Water is an independent, nonprofit news site covering water in the San Joaquin Valley, www.sjvwater.org. Email us at sjvwater@sjvwater.org.