Bring Back the Kern v. City of Bakersfield will decide whether a decades-old fish-protection statute can be enforced on its own terms, or whether courts must first re-balance it against competing water demands.
SACRAMENTO, Calif. — The California Supreme Court will hear oral argument on October 7, 2026, in Bring Back the Kern, et al. v. City of Bakersfield (Case No. S290840), a case that will determine how one of California’s oldest environmental water statutes, Fish and Game Code section 5937, is enforced statewide.
Background
Section 5937 requires the owner or operator of any dam to allow sufficient water to pass the dam to keep fish downstream in “good condition.” The statute traces its origins to 1915 and has been reaffirmed and expanded by the Legislature multiple times since, including after voters adopted Article X, Section 2 of the California Constitution in 1928, which requires that all uses of water be “reasonable and beneficial.”
The case arises from the Kern River, where the City of Bakersfield’s diversion structures have left long stretches of the riverbed dry for much of the year. Plaintiffs (Bring Back the Kern, Water Audit California, Kern River Parkway Foundation, Kern Audubon Society, Sierra Club, and the Center for Biological Diversity) sued the City of Bakersfield in 2022 seeking to compel compliance with Section 5937. A Kern County trial court granted a preliminary injunction in 2023, but the Fifth Appellate District reversed in 2025, holding that trial courts must independently weigh the reasonableness of all competing water uses under Article X, Section 2 before enforcing Section 5937, “even when applying statutes that do not expressly incorporate a reasonableness
determination.”
The California Supreme Court has granted review to resolve that question.
What’s at Stake
Petitioners argue that Section 5937 already represents the Legislature’s own determination that maintaining enough water for fish is a reasonable use, and that drying up a river to the point of killing fish is not. Under that view, courts should enforce the statute by its mandatory terms, while preserving a defendant’s ability to raise an as-applied constitutional challenge if it can show enforcement would be “manifestly unreasonable” under specific circumstances.
The City of Bakersfield and the real parties in interest — five Kern County water districts that divert the majority of the river’s flow — contend that Article X, Section 2 is self-executing and takes precedence over any statute, requiring courts to weigh all competing beneficial uses, including municipal drinking water and agricultural diversions before ordering any fish-flow release.
The case has drawn amicus participation from a broad range of interests, including the California Attorney General and Department of Fish and Wildlife, agricultural and municipal water associations, environmental and fishing advocacy organizations, and legal scholars, reflecting the decision’s likely impact well beyond the Kern River on how California’s water-rights framework interacts with statutory environmental protections statewide.
Oral Argument Details
The California Supreme Court will hear argument on October 7, 2026, commencing with opening comments at 9 a.m. Oral arguments before the Court are livestreamed on the Judicial Branch’s website: https://supremecourts.ca.gov.
