This story was originally published by SJV Water.
Justices with the 5th District Court of Appeal peppered attorneys with questions about the application of state water law and the fight over Kern River flows during arguments in Fresno on Thursday.
How the 5th District rules on this appeal could have far-reaching effects on river conservation efforts throughout California as it involves California Fish and Game Code 5937.
That code states dam owners must keep enough water downstream to keep fish in good condition. It was the linchpin in restoring other California rivers, including the San Joaquin River in Fresno County.
And 5937 is the underpinning of a preliminary injunction and implementation order issued in late fall 2023 by Kern County Superior Court Gregory Pulskamp that mandated the City of Bakersfield keep enough water in the river through town for fish.
That section is normally dry as canals east of town take most of the water for irrigation. The huge 2023 water year brought flows and fish back for the full length of the river and public interest groups suing Bakersfield over its river operations sought the injunction to protect those fish populations
Agricultural districts with rights to Kern River water appealed the injunction and implementation order as overly broad and argued they were made without balancing the needs of other water users, as required under Article X, Section 2 of the California Constitution.
The 5th District paused the injunction in May 2024.
Though the ag districts have said they aren’t challenging the constitutionality of 5937 – just how it was applied by Pulskamp – their appeal attracted attention from the state Attorney General’s office as well as California Trout, which both filed briefs supporting Pulskamp’s order.
Deputy Attorney General Jeffrey Reusch even appeared Thursday to bolster arguments in favor of the order.
The three 5th district justices, Jennifer Detjen, Rosendo Peña Jr. and Mark Snauffer, were especially engaged on how 5937 and Article X, Section 2 interact, considering Pulskamp did not state how much water should be run in the river for fish, leaving that up to the parties to determine.
Brett Stroud, representing the ag districts, argued the amount of water necessary for fish should have been defined first and balanced against the other water needs on the river. Otherwise, he said, Pulskamp’s order violates Article X, Section 2’s prohibition against unreasonable or wasteful use of water.
He also negated arguments that nullifying the injunction would create “irreparable harm” to the fish.
The Kern River has plenty of fish in sections with water, Stroud said.
Justice Snauffer later asked Adam Keats, who represents Bring Back the Kern and several other public interest groups advocating for river flows, whether Pulskamp’s order did any balancing under Article X, Section 2.
“My impression is it did not,” Justice Snauffer said. “It seems like the court just says it isn’t applicable.”
Yes, and that’s OK, Keats argued.
“Article X, Section 2 is compatible with 5937,” he said.
The last line in Article X, Section 2 states the Legislature can enact laws to uphold the policy. Keats said 5937 does exactly that as it creates a “pre-balancing” of needs.
“So the fish get water first?” Justice Detjen asked.
Under 5937, yes, replied Keats.
Other attorneys argued the ag districts’ appeal of Pulskamp’s injunction is premature.
It’s impossible to do a balancing test of needs if no water is assigned to fish, stated Bill McKinnon, who represents Water Audit California.
“It creates a circular argument,” he said.
Deputy Attorney Reusch agreed, saying this appeal stopped river flows and interrupted that process.
“So, an evidentiary hearing is what’s necessary?” Justice Snauffer asked.
Unless the parties can agree on a flow rate, yes, Reusch said.
“If the parties could agree, we wouldn’t be here,” Snauffer quipped. “But it seems we do all agree that we don’t know what an adequate flow is for the Kern because there hasn’t been an opportunity to experiment, if that’s the right way to say it.”
Justices have 90 days to issue their ruling.
The injunction under appeal is an outgrowth of a lawsuit against Bakersfield by Bring Back the Kern that seeks to have the city study how it operates the river under the Public Trust Doctrine, which states all natural resources are held in trust by the state for the most beneficial use to the public.
That lawsuit is set for trial December 8 this year.