California Supreme Court declines to intervene in meandering Kern River case

On August 14, the California Supreme Court declined to hear an appeal by plaintiffs in the Kern River lawsuit of a lower court's decision staying an order to divert water through Bakersfield.

This means the 5th District Court of Appeals will proceed with a hearing on whether the order was appropriate, and the other part of the case will continue its journey to the Kern County Superior Court.

This also means that the order remains suspended, so the City of Bakersfield is not required to keep water in the river to maintain the fish population. The water that has been flowing through the city all summer has been voluntarily diverted into the riverbed by the city.

The city has released enough water into the normally dry riverbed that the Bellevue Weir, adjacent to the Park at Riverwalk on Stockdale Highway, was flowing at about 10 cubic feet per second. When the injunction was in effect, at least 45 cubic feet per second was flowing over Bellevue, so at least 5 cubic feet per second would reach the McClung Weir three miles downstream.

It is unclear whether the city can maintain these minimum flow rates since the water management year ends on September 30 and no one knows what the next water management year will bring.

Meanwhile, the dispute over the river discharge ordinance in the 5th District continues, and a hearing is not expected for several months at the earliest.

Kern County Superior Court Judge Gregory Pulskamp issued the flow ordinance last fall after the epic water year of 2023 brought water and fish back to the Kern River. He ordered the city to maintain sufficient flow under California Fish and Game Code 5937, which requires owners of dams (and weirs) to maintain enough water for fish below those structures.

Agricultural water districts with rights to the Kern River appealed the order and the 5th District issued a stay in May.

Pulskamp has continued to hear arguments on the underlying case as the river order makes its way through the appeals process.

The underlying case was filed in 2022 by Bring Back the Kern along with several other public interest groups and Water Audit California.

This lawsuit argues that the city was negligent in its use of the river because that use was not reviewed under the Public Trust Doctrine. The Public Trust Doctrine states that the State of California owns all natural resources on behalf of the public and those resources must be used to the best of its ability.

In the past, the greatest benefits were considered to be municipal needs, agriculture and industry.

In recent years, environmental benefits have become important alongside public access and enjoyment. The Bring Back the Kern lawsuit seeks to have the city review its river operations with the public trust in mind.

The city purchased some of the river's water from Tenneco West in 1977. It also purchased most of the infrastructure, including the weirs and the riverbed itself from Hart Park to near Enos Lane.

Under the terms of the purchase, the city agreed to uphold agreements, ordinances and rights of use dating back more than 100 years – the so-called “Law of the River” – to provide water to other river owners.

Bring Back the Kern's lawyers say these legal provisions about the river are essentially contracts and do not override the Public Trust Doctrine. A case management conference is scheduled for Nov. 14.