California water agencies push back against Kern River lawsuit

BAKERSFIELD, Calif. (CN) — Water agencies that receive diversions from the Kern River want a judge to dismiss parts of a lawsuit against the city of Bakersfield, arguing environmental groups haven’t properly argued there’s a claim to litigate.

However, the judge in the case indicated he wouldn’t rule in favor of the agencies on the one claim attorneys say could potentially affect the existing preliminary injunction requiring a certain level of flow to protect fish.

Attorneys argued Wednesday before Kern County Superior Court Judge Greg Pulskamp. The judge in October issued the preliminary injunction about water flows and tweaked it in late December, days before water agencies filed their notice of demurrer — a specific kind of motion to dismiss.

Organizations including Bring Back the Kern, Water Audit California and the Center for Biological Diversity sued Bakersfield in 2022 over water diversions, saying they hurt wildlife habitats and the river’s ecosystem.

Water agencies that receive some of those diversions are now party to the case, arguing Wednesday that the environmentalists fail to state a claim in three of the lawsuit’s causes of action. They didn’t oppose a fourth cause.

Only one of those claims potentially could affect the injunction — that fish and game code requires water flows to keep fish that are below a dam in good condition. Water agencies argue that the weirs on the river aren’t dams. However, the judge indicated Wednesday he’d likely reject that argument.

“If the court grants that part of their motion, then the injunction would be in trouble,” said attorney Adam Keats, who represents several environmental groups, in an email. “But the judge said that at least tentatively he was not inclined to grant the motion as to the fish and game code.”

Attorney Brett Stroud, representing the North Kern Water Storage District, argued Wednesday that weirs don’t stop the flow of water, meaning they aren’t dams.

“The plaintiffs argue that every structure essentially is a dam,” Stroud said.

The environmental groups also claim Bakersfield breached its fiduciary duties as a trustee. However, the water agencies say the law the groups cite imposes no duty on the city. The law cited applies when the Legislature grants certain land to an entity, and it then becomes a trustee of that land. In this case, Bakersfield got its interest in the weirs and river from a private corporation.

The judge said he tentatively would grant the demurrer on this argument.

Additionally, the environmental groups have said they have standing to file a public nuisance claim because they’re acting as a private attorney general, which makes a special injury requirement inapplicable, and that they’ve suffered an injury that’s different from the public.

The water agencies dispute those claims, saying that no private attorney general exception exists. That means without a claim of a special injury, the judge should dismiss that argument.

The environmental groups’ injuries are no different from the public’s, and spending time and money on the case doesn’t qualify, said attorney Kevin Bursey, representing the Kern Delta Water District.

The judge said he was “on the fence” about deciding this point.

Colin Pearce, an attorney for Bakersfield, said the city had no position on the demurrer motion. Bakersfield wants water in the river for the fish, but it also wants to use it to serve people.

“I think this is a very significant case for the community,” the judge said. “I think this’ll probably go to what judges in the Fifth [Appellate District] think and, who knows, maybe the California Supreme Court.”

A decision is expected in one to two weeks.

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