In filing an amicus brief in Bring Back The Kern v. City of Bakersfield, California Attorney General Rob Bonta has become the third California AG to sign an amicus brief in support of Water Audit California’s campaign to enforce the public trust rights of Californians. Joining in the legacy of Attorney General Kamala Harris (2013) and Attorney General Jerry Brown (2010), AG Bonta reaffirms the State’s commitment to environmental law and responsible management.
Bring Back The Kern v. City of Bakersfield, like many other Water Audit California suits, is disagreement about whether the public trust doctrine requires dam operators keep fish in “good condition”, notwithstanding economic incentives to do otherwise. AG Bonta’s amicus brief to the 5th District Court of Appeal summarizes the the State’s position thus:
It is undisputed that the City’s operations routinely dewater the stretch of the Kern River downstream of the City’s six weirs, which are dams within the meaning of Sections 5900 and 5937. Appellants do not—and reasonably could not—contend that the fish below these dams are in “good condition.” Well-established, on point case law demonstrates that the City’s conduct violates Section 5937 as a matter of law, as fish cannot exist in “good condition” without water.
Amicus Brief of the California Attorney General and [proposed] Amicus Brief of the California Department of Fish and Wildlife in Support of Environmental Respondents in Bring Back The Kern, et al v. City of Bakersfield, filed in the Fifth District Court of Appeal of the State of California, 14 October 2024.
CalTrout also submitted an amicus brief in support of the plaintiffs in October, a month after global law firm Morrison Foerster (see National Audubon Society) joined the Environmental parties.
After decades of heavy extraction left the Kern River through Bakersfield “a gravel pit”, historically heavy rains in 2022-2023 rewatered the river long enough for the local ecology to reassert itself. Seeing fish and wildlife return to the riverside in Bakersfield, locals already organized to restore the waterfront (Bring Back the Kern and Kern River Parkway Foundation) recruited organizations to help preserve it in its thriving state: Kern Audubon Society, Sierra Club, and Center for Biological Diversity, signed-on; Water Audit California was asked join because of our expertise in litigating F&GC§5937. The suit has received widespread regional media coverage in Southern California, including from KBAK/FOX58, KGET, San Joaquin Valley Sun, San Joaquin Valley Water, the Los Angeles Times, and others.
In October 2023, Kern County Superior Court Gregory Pulskamp issued a preliminary injunction which prohibited the city from operating weirs under its control “in any manner that reduces Kern River flows below the volume sufficient to keep fish downstream of said weirs in good condition”. The defendants appealed, the injunction was stayed by the 5th District Court of Appeals, and the California Supreme Court declined.
In an act which earned front-page news in the Los Angeles Times and outrage in the Daily Mail, Bakersfield quietly de-watered the river without warning. The de-watering killed thousands of fish (many endangered), caused fly populations to explode, and caused public health officials to privately worry about the hazard of Yellow Fever, West Nile Virus, and other mosquito-borne illnesses.
It is into that context that California Attorney General Rob Bonta has intervened with an amicus brief telling the 5th District Court of Appeals that it has erred in staying the preliminary injunction. Clearly, the plaintiffs are correct that the defendants must be enjoined from dewatering the river because “fish cannot exist in “good condition” without water”.