In a major decision, the Fifth Appellate District of the California Court of Appeal reversed a preliminary injunction and related orders in Bring Back the Kern v. City of Bakersfield. The case centered on whether the City of Bakersfield and local water agencies must allow sufficient Kern River flows to keep fish downstream in good condition, as required by California Fish and Game Code Section 5937. Here’s what you need to know:
Key Issues and Rulings
- Constitutional Requirement for Reasonable Water Use. The court ruled that all water uses in California must meet the constitutional standard of “reasonable and beneficial use” under Article X, Section 2 of the California Constitution.
Courts must balance environmental needs with other uses, such as municipal water supply and agricultural irrigation: “Section5937 requires dam owners to allow sufficient flows to keep fish in good condition, and section 2 prohibits all unreasonable uses of water. Together, these two legal authorities provide that the in-stream use of water to keep fish in good condition is required to the extent that use is reasonable.” Holding that trial court erred by failing to evaluate whether using Kern River water to keep fish in good condition was reasonable, the appellate court ruled that the trial court “must determine whether and to what extent using the waters of the Kern River to keep fish in good condition is a reasonable and beneficial use of water under section 2”. - Vague Injunction Rejected. The appellate court held that the injunction issued by the trial court lacked specificity: “the court erred in failing to set a flow rate requirement in the injunction. Specifically, the injunction did not say how much water Bakersfield must let flow past the weirs in order to keep downstream fish in good condition.” . Recognizing that an “agreement of all the parties would have some advantages to one set unilaterally by the court”, the Appeals Court nevertheless ruled that “the reasonableness analysis required by section 2 requires at least an estimate of how much water previously used for domestic consumption, irrigation, etc., will now be dedicated to the in-stream public trust use”.
- Nominal Bond Improper. The appellate court found inadequate the trial court’s imposition of a $1,000 bond for the injunction: “Not only does the statute preclude waiver of the bond requirement altogether, it also precludes nominal bonds.” California law requires courts to set bonds based on potential damages to the enjoined party. Trial courts must “estimate the harmful effect which the injunction is likely to have on the restrained party,” and set bonds for injunctions accordingly.
- Due Process Violations. Related to #2, the appellate court found that an injunction with clear metrics “would respect the parties’ due process rights by explaining exactly how to comply with the injunction”. Further, the trial court violated the rights of
non-party local water agencies by implementing an order based on a stipulation they did not agree to. Because “the implementation order established an interim regime whereby Bakersfield would receive the water needed for its ‘municipal needs and demands’ before the water agencies received any of their contracted water”, the “order went beyond the authority granted by section 5937 by altering the priority of rights between Bakersfield and the water agencies”. Whether or not the water agencies’ allocations have priority, the agencies were deprived of their rights to hearing, consideration, and relief, with neither their consent nor proper notice. - Implementation Order Reversed. The appellate court reversed the trial court’s order that established an interim flow regime prioritizing Bakersfield’s water needs. Future changes to water allocations which impact rights-holders must either be agreed upon by all affected parties or litigated with proper notice and hearing.
- Balancing Competing Water Uses. The court reiterated that no single use of water — whether for domestic purposes, irrigation, or environmental preservation — has absolute priority in every instance. Accordingly, all uses must be balanced under the constitutional standard of reasonableness.
What’s Next?
The case has been sent back to the trial court for further proceedings. The court must now determine whether using Kern River water to keep fish in good condition is reasonable and beneficial, and if so, how much water is required to do so. The court will have to weigh impacts on other water users, public trust values, and environmental needs, and include interested parties not originally party to the litigation. Water Audit has joined Bring Back the Kern in petitioning the Supreme Court to clarify the relationship between California Constitution Article 10 Section 2 and Fish and Game Code section 5937.
Why This Matters
This ruling underscores the importance of procedural fairness and specificity in environmental litigation. Decisions like this will shape how California negotiates the management of its vital water resources in an era of chronic water scarcity and growing demands.
Water Audit has joined in the Bring Back the Kern’s recently filed Petition to the California Supreme Court.