Rewatering the Kern River: Water Audit seeks injunction in Kern River lawsuit

On August 10, 2023 a coalition of community advocacy groups filed a motion for a preliminary injunction to return a living river to the City of Bakersfield.

Bakersfield community advocates Bring Back the Kern, Kern River Parkway Foundation, Kern Audubon Society, Sierra Club and Center for Biological Diversity together with joint plaintiff Water Audit California, an NGO advocate for the public trust, are seeking an injunction to prevent the City of Bakersfield from making diversions in a manner that habitually dries the Kern River.

This legal confrontation has its roots firmly in the Old West. Since early in the 1900s, the Kern River has been fully diverted to agricultural irrigation; in most years leaving a dry riverbed through the City. (See exhibits attached to Request for Judicial Notice). In a battle for the future, water “rights” dating back into the 1800s are being confronted by laws of even greater antiquity:

California Fish and Game Code section 5937, enacted in its present version in 1957, is a statutory manifestation of the public trust doctrine which traces its history through colonization back to Roman law. It reads in part: “The owner of any dam shall … allow sufficient water to pass over, around or through the dam, to keep in good condition any fish that may be planted or exist below the dam.”

In 2012, two UC Davis professors Dr. Karrigan Bork ([email protected]) and Dr Peter Moyle, ([email protected]) published with co-authors: The Rebirth of Fish and Game Code 5937: Water for Fish.

“On April 12, 1852, less than two years after its admission to the Union, California criminalized the act of creating instream obstructions to salmon migration, reflecting longstanding English prohibitions on instream obstructions.”  Rebirth, p. 817

“The 1915 Flow Act provided that “the owners or occupants of any dam or artificial obstruction shall allow sufficient water at all times to pass through such fishway to keep in good condition any fish that may be planted or exist below said dam or obstruction.” Rebirth, p.822 “

“[T]he public trust doctrine highlighted the perpetual nature of obligations on state agencies and private parties pertaining to the use of natural resources in California. Second, the public trust doctrine broadened private standing to enforce environmental laws such as 5937, which themselves lack citizen suit provisions.” Rebirth, p. 855

Over the last seven years Water Audit has used the combination of FGC 5937 and the public trust doctrine in repeated successful efforts to secure bypass flows from dams operated by cities, counties and state agencies. As Dr. Moyle has written: “The most important ingredient for stream fish habitat is often lacking or in short supply: flowing water.” In this matter, after reviewing the numerous images collected by the community, he has declared: “I can say with scientific certainty that all of these fish require, at a minimum, a sufficient flow of water to remain in good condition.”

The litigation proposes a community alternative will maintain both river and irrigation flows by relocating diversions to downstream of the City. Fortuitously, this year’s heavy rains have provided an illustrative prototype for success by allowing fish to survive into the summer this year, demonstrating the possibilities if water is returned to the channel. The injunction motion is supported and illustrated by declarations from local activists, showing illustrations of life and beauty in what last year was a dusty gravel pit.

For further comment information and contact counsel for the community groups Adam Keats, ([email protected], mobile: (415) 845-2509), and for Water Audit California William McKinnon, ([email protected]; mobile (530) 575-5335).  The entire court filing can be found here.