BAKERSFIELD, Calif. (CN) — An injunction protecting fish in California's Kern River remains in place, even after a judge rebuffed several claims in a case looking to restore water to the dried up river.
Environmental groups — including Bring Back the Kern, Water Audit California and the Center for Biological Diversity — sued Bakersfield in 2022, saying that the city's water diversions hurt wildlife habitats and the river's ecosystem.
Kern County Superior Court Judge Greg Pulskamp overruled this week Bakersfield's request to dismiss a claim relating to public trust and fish and game code — allowing a preliminary injunction imposed in October by Pulskam that requires a certain amount of water flow to protect fish to stay in effect.
The judge ruled that Bakersfield has a duty to comply with certain rules, including fish and game code. He also didn’t agree with the argument that weirs aren’t dams.
"The city’s diversion structures (weirs) in the Kern River qualify as ‘dams,’ as that term is used in the pertinent provisions of the fish and game code,” Pulskamp writes.
The judge’s ruling stemmed from a hearing last week. The water agencies — entities that receive water diversions from Bakersfield — had filed the demurrer, similar to a motion to dismiss, saying that the environmental groups had no claims to litigate.
However, Pulskamp didn’t agree with the environmentalists on two other claims and sided with the water agencies. One of those causes of action, dealing with public nuisance, can be tweaked by the groups and potentially move forward.
The groups argued that they can file a public nuisance claim, as they’re acting like a private attorney general. That means they don’t need to show they have a special injury from the water diversions.
Pulskamp notes in his ruling that he’d already decided that expenses incurred by the groups aren’t an injury. The judge also writes that the private attorney general exception isn’t listed in the applicable law.
While the environmental groups can amend that part of their suit, Pulskamp ruled that they couldn’t amend the final claim that was challenged that says Bakersfield failed in its duties as a trustee.
The water agencies have argued that the law cited by the environmental groups doesn’t affect the city. That’s because Bakersfield got its interest in the weirs and river from a private corporation, not through a grant from the Legislature.
“It may be worth noting that neither the city nor Kern County are listed as grantees of public trust lands on the California State Lands Commission website,” Pulskamp writes.
“We're gratified that the court recognized the validity of our primary claims under the public trust doctrine and the fish and game code, and that this ruling will not affect the preliminary injunction,” said attorney Adam Keats, who represents many of the environmental groups, in an email. “The claims that the court rejected are somewhat novel and will probably benefit from appellate review at some point in the future.”
Attorneys in the case are next set to appear in court on Feb. 20 for a motion to intervene.
Subscribe to Closing Arguments
Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.
Additional Reads
-
Inaccessible border app May 8, 2024 -
