A California appeals court has reversed a lower court’s injunction that had required water agencies and the city of Bakersfield to maintain Kern River flows to support fish populations.
The California 5th District Court of Appeal ruled that the lower court failed to consider whether water use for fish preservation was “reasonable,” as required under the California Constitution.
Background
Bring Back the Kern (BBTK), Water Audit California, the Sierra Club and other environmental groups had sought and obtained a preliminary injunction, which prohibited Bakersfield from operating several Kern River weirs in a manner that would lower river flows “below the volume sufficient to keep fish … in good condition,” citing Fish and Game Code Section 5937.
After a procedural back-and-forth involving amended complaints and motions to intervene, a Kern County Superior Court judge issued a preliminary injunction in November 2023. The court later signed an implementation order that set a flow rate allowing 40% of total river flow past the final weir, the McClung Weir, subject to Bakersfield’s municipal needs. The injunction prompted legal challenges from five water agencies.
But the appellate court disagreed, writing that “courts must always consider reasonableness whenever adjudicating a use of water—even if the pertinent statutes do not call for a reasonableness determination themselves.” Citing Article X, Section 2 of the California Constitution, the court emphasized that “unreasonable or non-beneficial uses of water are never permitted under the Constitution, even if a statute would otherwise require it.”
The court later wrote in its opinion, “Because Section 2 is self-executing … a court must always consider reasonableness whenever it would direct or adjudicate a particular use of water, even when applying statutes that do not expressly incorporate a reasonableness determination.”
The lower court had reasoned that compliance with Section 5937 was mandatory and that the legislature had already considered and resolved competing water use priorities. In its ruling, the lower court stated it was “without jurisdiction to override the State Legislature and re-weigh the competing interests.” The appellate court strongly disagreed, finding that the lower court’s refusal to consider impacts on all stakeholders—especially those relying on water for domestic and agricultural purposes—was a constitutional error.
The city of Bakersfield raised concerns that the preliminary injunction went too far. In court filings, the city’s assistant water resources director, Daniel Maldonado, warned that limiting diversions could harm groundwater quality and jeopardize the city’s drinking water supply. “Health and safety issues will arise as the City’s ability to provide a safe and reliable drinking water supply is threatened,” Maldonado declared.
Water agencies also pushed back. They contended that the court had ignored scientific evidence and deprived them of due process when it implemented a flow regime based on a stipulation they had not joined.
The environmentalists maintained that the city’s operation of the weirs had rendered large stretches of the riverbed dry for decades, violating both Section 5937 and the public trust doctrine. In their injunction motion, they argued the law “does not require a quantification of flow” and that “chronically dry riverbeds” provided prima facie evidence of noncompliance with state fishery protections.
The appellate court did not rule out the possibility of future injunctions to protect fish in the river, but made clear that any such order must include a judicial finding that the water use is reasonable. “The point is that no particular use of water is per se reasonable in all circumstances, and therefore, reasonableness must always be evaluated before a court orders any particular water use,” the opinion said.
The case has been remanded for further proceedings, where the court must evaluate whether preserving fish habitat through river flows is a reasonable use of water under current conditions. — Charles Wallace, WLJ contributing editor
