On October 30, 2023, the Kern County Superior Court preliminarily enjoined the City of Bakersfield (“City”) from operating six Kern River weirs in a way that reduces flows below the amount sufficient to keep downstream fish in “good condition.” The ruling in Bring Back the Kern et al. v. City of Bakersfield (BCV-22-103220) seems likely to result in further development of the law regarding the application of Fish and Game Code section 5937 (“Section 5937”) and the public trust doctrine.
The Kern River is approximately 165 miles long and flows through the City. According to the ruling, the “vast majority” of the Kern River’s water is diverted each year and, as a result, the river downstream of the City’s Calloway Weir is completely dry for most of each year, except in very wet years or when foreign water is added to the river. The court observed that a portion of the dry downstream reach is adjacent to the City and used by residents for recreation.
In late 2022 a group of non-profit organizations filed a complaint and requested preliminary injunctive relief, naming the City as the defendant and naming four public water agencies with contractual interests in Kern River water as real parties in interest. The plaintiffs alleged that the City’s weir operations violate Section 5937, which requires the owner or operator of a dam to allow sufficient water to pass through or over the dam to keep fish below the dam in “good condition.”
In August 2023, the plaintiffs moved for a preliminary injunction to prohibit dewatering of the river pending the court’s deciding the case at trial. The motion required the court to consider the plaintiffs’ likelihood of succeeding on the merits at trial and to balance the hardships from granting or denying the requested injunction.
Court: Plaintiffs Will Likely Prevail on the Merits
The plaintiffs’ primary argument was that the City’s operation of its weirs violates Section 5937. The court agreed, finding that the term “dam” encompasses the City’s weirs, that the City is an “owner,” and that “fish” includes all species of fish, not just anadromous fish. The court also found that the plaintiffs (in addition to the California Department of Fish and Wildlife) have standing to enforce Section 5937 by filing a lawsuit.
The court reasoned that the text of Section 5937 requires that at least some water be allowed past a dam; that is, it prohibits a dam owner from diverting all the water in a river. The court cited cases interpreting Section 5937 as the Legislature striking a balance among competing uses, and to require allowing at least some flow past dams, even at the expense of domestic and irrigation uses. Based on its conclusion that Section 5937 is an enforceable legislative mandate that deliberately balances the competing uses of water, the court found that the plaintiffs have a “very high likelihood of succeeding on the merits.”
The Court Found the Balance of Harms Favors Plaintiffs
The City and water agencies argued that a preliminary injunction would cause great harm by preventing the City from delivering clean, safe, and reliable drinking water to Bakersfield area residents. The court found this was “a theoretical legal issue, rather than a practical factual issue.” The court based its conclusion on evidence that the river’s average annual flow far exceeds the City’s annual demand, and the City has alternative sources of water supply. Regarding interference with contractual obligations to deliver water for irrigation, the court found that Section 5937 takes precedence over contractual obligations and that the evidence of impact to agricultural uses was unclear. Despite that apparently unclear evidence regarding irrigation uses, the court concluded simply that the average annual flow of the river “should suffice for the reasonable use of all stakeholders.”
Weighed against harm to the users of public water service from the City and four public water agencies, the court found “significant harm would result to the general population and the environment if the injunction is not issued.” That harm would come absent injunctive relief, the court said, because fish and other species cannot survive without water, and the recreational and aesthetic interests of Bakersfield area residents would suffer from a dry river. Ultimately, the court found that regardless of its balance of alleged harms, the Legislature had already weighed the competing interests, leaving the court with little discretion to strike a different balance.
How Much Flow Must be Passed is Undecided
The court’s order prohibits the City from operating its weirs “in any manner that reduces Kern River flows below the volume sufficient to keep fish downstream of said weirs in good condition.” The court did not, however, decide how much water must be passed by the weirs or when. As the court recognized, deciding such details is likely a complex and technical matter that is open to considerable debate. The court directed the parties to “engage in good faith consultation to establish flow rates necessary for compliance with this order.” If the parties’ efforts to agreement are unsuccessful, any party may ask the court to impose specific flow rates or to make any other necessary determination.
Next Steps
This lawsuit bears watching as it may inform and shape how Section 5937 and the public trust doctrine might apply to other rivers and dams. The parties may or may not reach agreement on what flows are required to comply with the terms of the preliminary injunction. If not, they will likely return to the trial court with competing proposals. The court’s ruling decided only whether to grant injunctive relief pending trial. It does not finally decide the merits, which likely will require a trial given factual disputes over the costs, benefits, and feasibility of potential changes to weir operations and related water supply infrastructure. A trial of this case would likely encompass not only what flow is required by Section 5937, but also what additional flow, if any, should be required to support other public trust uses of the Kern River, such as recreation and aesthetic enjoyment. Even before a trial and any final judgment on the merits, the defendants may appeal the order granting the preliminary injunction. Finally, settlement is always a possibility, though given the stakes and interests at issue and the early stage of this case, settlement might not occur for a significant time.
Questions
If you have any questions regarding this Legal Alert, please contact the following attorneys or any of Kronick’s Municipalities and Special Districts or Water Law attorneys.
Lauren Bernadett
lbernadett@kmtg.com | 916-321-4347
Dan O’Hanlon
dohanlon@kmtg.com | 916.321.4522
Eric Robinson
erobinson@kmtg.com | 916.321.4576
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