Defending California River Flows in Kern River Supreme Court Appeal
Friends of the River has a long history of working to protect the Kern River, most recently providing expert scientific support to local Bakersfield river activists who are suing to rewater the long dry riverbed. Now we’re helping to defend the legal basis for restoring not just the Kern but rivers throughout the state - Fish and Game Code §5937, which requires dam owners to maintain sufficient flows to “keep in good condition any fish that may be planted or exist below the dam.”
In May, FOR, California Trout, Mono Lake Committee, Natural Resources Defense Council, and Putah Creek Council filed a Brief of Amici Curiae (literally, “friend of the court”) with the California Supreme Court, in support of the plaintiffs and respondents in Bring Back the Kern, et al. vs. the City of Bakersfield and Real Parties in Interests. Working with attorney Joe Krovoza and the Environmental Law Clinic at Stanford Law School, the amicus brief explains the basis for and importance of §5937, how it reflects the Legislature’s finding that providing sufficient flows is reasonable under the California Constitution’s Article X, § 2, and how vital §5937 has been to protecting rivers throughout California .
In 2022, Bring Back the Kern (BBK), Kern River Parkway Foundation, Kern Audubon Society, Sierra Club, and Center for Biological Diversity along with Water Audit California (BBTK Coalition) sued the City of Bakersfield in Kern County Superior Court over the failure to protect river flows under the Public Trust Doctrine and California Fish and Game Code §5937. Five local agricultural districts intervened on the side of the city and were included in the proceedings as Real Parties in Interests (RPIs). In a major victory for the river, Kern County Superior Court Judge Gregory Pulskamp ordered a Preliminary Injunction in 2023 requiring river flows to be maintained (see The Lower Kern River May Flow Again).
But, in a ruling on the subsequent RPI appeal that completely misunderstood the nature and legislative history of §5937, the Fifth Appellate District Court instead ruled that the statute was subject to Article X, §2 of the California Constitution, which prohibits “the waste or unreasonable use or unreasonable method of use of water or unreasonable method of diversion of water.” However, as our brief explained, in passing §5937, the California legislature established a mandate to protect rivers and river fisheries – in other words, it made a determination that requiring sufficient flows was not only reasonable but required.
The appeals court lifted the injunction and sent the case back to the Superior Court (see: How Long Until the Kern River Is Free?). Because of the enormous implications of the appellate decision, which would make §5937 extremely difficult to implement, the BBK coalition appealed this decision to the California Supreme Court, which accepted the appeal.
16 amici briefs have been filed, 11 supporting the RPIs and 5 supporting the BBK Coalition. Notably, the Attorney General’s office filed an amicus brief on behalf of the California Department of Fish and Wildlife that strongly disputes the appeals court’s misreading of §5937.
Now we wait. Meanwhile, the City of Bakersfield has announced that they will allow some water to flow down the Kern River through their area of responsibility this summer. FOR and the BBK Coalition is looking for details on how much water and the timing of these flows. It’s likely that the City will focus on high use times such as holidays and weekends. This is good for residents, but the ecosystem benefits of such highly managed and artificially shaped flows is much less than could be attained by following a more natural flow regime. Better than nothing, though, for the time being, until the appeal is resolved process moves forward again.
