{"id":489130,"date":"2026-10-08T11:18:14","date_gmt":"2026-10-08T11:18:14","guid":{"rendered":"https:\/\/www.newsbeep.com\/us-ca\/489130\/"},"modified":"2026-10-08T11:18:14","modified_gmt":"2026-10-08T11:18:14","slug":"justices-delve-into-constitutional-questions-swirling-in-kern-river-case-sjv-water","status":"publish","type":"post","link":"https:\/\/www.newsbeep.com\/us-ca\/489130\/","title":{"rendered":"Justices delve into constitutional questions swirling in Kern River case \u2013 SJV Water"},"content":{"rendered":"

California Supreme Court justices wasted no time Wednesday jumping into the deep end of several complex issues at the heart of an ongoing lawsuit over flows in the Kern River.<\/p>\n

\"\"Attorney Brett Stroud, representing North Kern Water Storage District and several other Kern River rights owners known as \u201creal parties in interest.\u201d Martin Novitski \/ Courtesy of the Supreme Court of California<\/p>\n

Within a few minutes of Attorney Kevin Bundy\u2019s opening address on behalf of plaintiffs Bring Back the Kern and Water Audit California, Chief Justice Patricia Guerrero interrupted to ask about one of the main issues in the case: Whether a particular water use must be found \u201creasonable\u201d when compared to other, competing uses.<\/p>\n

Her question was aimed at the relationship<\/a> between California Fish and Game Code Section 5937 \u2013 which requires dam owners to allow enough water downstream for fish \u2013 and Article X, Section 2 of the state constitution \u2013 which requires all water uses to be reasonable.<\/p>\n

\u201cYou do argue in your papers as well, that the statute, 5937, should be read as creating a presumption, that maintaining sufficient flows for fish is reasonable,\u201d Guerrero said to Bundy. \u201cBut the statute doesn\u2019t say anything about what happens when there are multiple competing uses, each of which is reasonable. What happens in that scenario?\u201d<\/p>\n

Justices also delved into who should have the burden of proof as to what was is and isn\u2019t reasonable? And who has the responsibility to initiate a reasonable test in the first place? Defendants? The court?<\/p>\n

This piece of the ongoing Kern River lawsuit involves a preliminary injunction issued by Kern County Superior Court Judge Gregory Pulskamp in 2023. He ordered Bakersfield, which operates diversion weirs in the riverbed, to keep some water in the river for fish. That injunction was overturned<\/a> by the 5th District Court of Appeal, which said Pulskamp should have determined how much water was needed for fish first and then balanced that need against existing water uses.<\/p>\n

\"\"Attorney Kevin Bundy arguing for plaintiffs Bring Back the Kern and Water Audit California. Martin Novitski \/ Courtesy of the Supreme Court of California<\/p>\n

To answer Guerrero\u2019s question, Bundy explained that when Pulskamp issued the preliminary injunction<\/a> he also ordered Bakersfield and the plaintiffs to work on how much water would be needed for fish. Once that amount was determined, other rights holders, including several agricultural water districts, could challenge whether Section 5937 had been appropriately applied.<\/p>\n

But it would be up to those challengers to make the claim and carry the burden of proof that water for fish was unreasonable, Bundy said. <\/p>\n

\u201cI do want to say that putting all this burden on plaintiffs, as the court of appeals opinion suggests, and as the other side is enthusiastically embracing, is a recipe for non-compliance,\u201d he said.<\/p>\n

In any event, initiating a reasonableness test shouldn\u2019t be up to the court, said Attorney Ian Fein, who represented the California Attorney General and Department of Fish and Wildlife.<\/p>\n

He argued that the 5th District\u2019s ruling requiring a constitutional reasonableness test in every water use case is based on an inaccurate understanding of the relationship between some constitutional and statutory laws.<\/p>\n

If the Attorney General had to prove the constitutionality of every statute it tried to enforce \u201c\u2026that would make statutory enforcement cases nearly impossible to adjudicate,\u201d Fein said.<\/p>\n

\"\"Attorney Colin Pearce, representing the City of Bakersfield. Martin Novitski\/Courtesy of the Supreme Court of California<\/p>\n

Attorney Colin Pearch, representing Bakersfield, disagreed.<\/p>\n

\u201cIf plaintiffs in this case wanted 5937 to apply, they needed to show how that was reasonable, why they needed to take water away from other uses, and how much water they needed,\u201d he said. <\/p>\n

That prompted Associate Justice Leondra Kruger to note: \u201c\u2026we don\u2019t ask courts to apply the full body of law on their own. We usually, have courts adjudicating real controversies brought to them by parties who think that the law is being violated.\u201d<\/p>\n

\u201cWater is different,\u201d Pearce responded, adding that reasonableness is a prerequisite for water use in California.<\/p>\n

Besides, said Attorney Brett Stroud, arguing for the ag districts considered \u201creal parties in interest\u201d in the case, Judge Pulskamp was provided with \u201creams\u201d of uncontested evidence about how water is divvied up on the Kern River and how that water is used.<\/p>\n

\u201cThere were actually extensive declarations from the real parties describing the existing uses of water and what the impact would be of withdrawing water from those uses,\u201d Stroud said. <\/p>\n

Instead of weighing that evidence against the plaintiffs\u2019 request for flows under Section 5937, Pulskamp declined to consider it, Stroud said. <\/p>\n

Justices have 90 days to issue a written ruling, though a majority opinion on this case is most likely already written, according to Bundy.<\/p>\n

\u201cOral arguments are really just to help justices refine their thinking on the issue,\u201d he said.<\/p>\n

Bring Back the Kern and Water Audit sued Bakersfield in 2022 demanding it review its river operations under the Public Trust Doctrine, which holds that all water is owned by the state and must be put to the highest beneficial use, including public access and the environment. <\/p>\n

Because the river is dry most years for several miles through Bakersfield, the plaintiffs argued Bakersfield is violating the Public Trust Doctrine. <\/p>\n

When the river was flush with water in 2023, bringing fish back with it, they sought the injunction. As this piece of the case has worked its way to the state\u2019s high court, the underlying case has continued with trial pushed back to October 2027.<\/p>\n

\"\"Attorney Brett Stroud, argues before the California State Supreme Court Wednesday, Oct. 7 in the Kern River case. Martin Novitski \/ Courtesy of the Supreme Court of California<\/p>\n","protected":false},"excerpt":{"rendered":"California Supreme Court justices wasted no time Wednesday jumping into the deep end of several complex issues at…\n","protected":false},"author":2,"featured_media":489131,"comment_status":"","ping_status":"","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[30],"tags":[101,103,102,104,106,105],"class_list":["post-489130","post","type-post","status-publish","format-standard","has-post-thumbnail","category-san-francisco","tag-san-francisco","tag-san-francisco-headlines","tag-san-francisco-news","tag-sf","tag-sf-headlines","tag-sf-news"],"_links":{"self":[{"href":"https:\/\/www.newsbeep.com\/us-ca\/wp-json\/wp\/v2\/posts\/489130","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.newsbeep.com\/us-ca\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.newsbeep.com\/us-ca\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.newsbeep.com\/us-ca\/wp-json\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/www.newsbeep.com\/us-ca\/wp-json\/wp\/v2\/comments?post=489130"}],"version-history":[{"count":0,"href":"https:\/\/www.newsbeep.com\/us-ca\/wp-json\/wp\/v2\/posts\/489130\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.newsbeep.com\/us-ca\/wp-json\/wp\/v2\/media\/489131"}],"wp:attachment":[{"href":"https:\/\/www.newsbeep.com\/us-ca\/wp-json\/wp\/v2\/media?parent=489130"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.newsbeep.com\/us-ca\/wp-json\/wp\/v2\/categories?post=489130"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.newsbeep.com\/us-ca\/wp-json\/wp\/v2\/tags?post=489130"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}