This story was originally published by SJV Water.
For the first time in more than 100 years, the Kern River is headed back to the California Supreme Court where justices may overturn or uphold an order mandating flows be kept in the riverbed through Bakersfield.
The high court announced Wednesday that it would grant review of a 5th District Court of Appeal’s ruling that overturned a Kern County Superior Court judge’s order mandating water be kept in the river for fish. The 5th District’s ruling was also “published,” meaning it can be used as legal precedent in other, similar cases.
The Kern River plaintiffs asked the Supreme Court to review the 5th District’s ruling and have it depublished. Justices granted review but declined to depublish the ruling.
Instead, justices said the 5th District’s Kern River ruling could stand, pending their review. And that the ruling could be cited as both an authoritative precedent as well as to show there is a conflict of authorities and that it was up to trial courts to then “choose between sides of any such conflict.”
The end result, observers said, may be to essentially to defang the 5th District’s ruling without actually having it depublished.
“This is really exciting,” said Kelly Damian, spokesperson for Bring Back the Kern, one of the plaintiffs in the long-running case. “It should give people hope that we still very much have a chance to have a flowing river through town. And it shows that this matters outside of Kern County. It’s an important case.”
Bill McKinnon, attorney for Water Audit California, the other plaintiff, agreed.
“There are numerous issues of substantial statewide importance embedded inside the Kern decision,” he said.
Attorney’s for the City of Bakersfield, the defendant in the case, and several agricultural water districts, who are parties of interest in the case, said they were still reviewing the Supreme Court’s announcement and did not have a comment at this time.
There are a lot of moving parts to this case.
Bring Back the Kern and Water Audit California sued the City of Bakersfield in 2022 asking the court to order the city to study the impact of how it operates the river on the environment and public access. The city owns a chunk of water, plus the river bed, weirs and most canal headgates from about Manor Road to Enos Lane. It is in charge of making diversions to other river owners based on more than 100 years of court orders, agreements, contracts and decrees.
Those other river owners include the Kern Water Agency, Kern Delta Water District, and the Buena Vista, North Kern and Rosedale-Rio Bravo water storage districts. They are considered “real parties in interest” in the case.
In 2023, Kern County Superior Court Judge Gregory Pulskamp granted an injunction the plaintiffs had sought mandating Bakersfield keep enough water in the river to keep fish – which had returned with the high flows that year – in good condition.
The water districts appealed that injunction and the 5th District overturned it this past April. The 5th District justices said Pulskamp had erred by not determining how much water was needed for fish and then balancing the reasonableness of that use compared to other uses.
The 5th District also ruled that Pulskamp erred by only requiring a “nominal bond” of $1,000 from the plaintiffs. Bonds are required in case an injunction is overturned to pay for any harm the injunction may have caused. In this case, the water districts stated that during the few months Pulskamp’s injunction had been in place, it cost them $5.7 million.
That issue, in particular, caught the attention of numerous other environmental organizations throughout the state, which filed briefs also asking the Supreme Court to depublish the 5th District’s Kern River ruling.
After the 5th District overturned Pulskamp’s order, the Kern County Water Agency asked that he be disqualified and a new judge be put in his place. The Kern County Superior Court denied that request and the agency then appealed that denial up to the 5th District.
Meanwhile, the underlying case filed against the City of Bakersfield had been chugging along with a trial date of Dec. 8.
But the water districts have filed a motion asking to delay the trial date until May 2026. They state that the 5th District’s Kern River ruling created new “…difficult, scientific, engineering, economic and public policy questions” that require more time to adequately address.
It’s unclear how the Supreme Court’s pending review of the 5th District’s ruling may affect that request.
Both plaintiffs have opposed delaying the trial. A hearing on that motion is set for August 13.
The Kern River is no stranger to the halls of California’s highest court.
An 1886 ruling by the California Supreme Court on a Kern River dispute between Henry Miller and James Ben Ali Haggin established some basic tenets of state water law regarding riparian rights, belonging to landowners along a river, and appropriative rights, when water is used on land away from a river.
In that case, justices sent the case back to Kern but after 10 years of fighting, Miller and Haggin were tired of filling the pockets of water lawyers and came to a deal.
Miller would get one-third of the river’s flow from March through August to his lands out by Buena Vista Lake and Haggin, basically, got the rest.
The Miller-Haggin agreement is still in place on the Kern River today and is part of what’s known as “the law of the river.”