Somach Simmons & Dunn | Attorneys at Law
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On April 2, 2025, the Fifth District Court of Appeal issued its Opinion in Bring Back the Kern v. City of Bakersfield, Case No. F087487, reversing the Kern County Superior Court’s preliminary injunction and related implementation order. In November 2023, the trial court issued the injunction, based on Fish and Game Code section 5937, but directed the parties to work together to establish what flow rates are necessary to comply with the injunction; four days later, the trial court issued the implementation order, approving the flow regime to which the Plaintiffs and Defendant (but not the various irrigation districts and Kern County Water Agency that are named as Real Parties in Interest) stipulated. The appellate court held the trial court erred by failing to consider whether the uses of water under the flow regime were reasonable, by requiring Plaintiffs to post only a nominal bond, and by violating the Real Parties’ due process rights.
The Kern River has a storied history, giving rise to the seminal case of Lux v. Haggin (1886) 69 Cal. 255, and the resulting 1888 Miller-Haggin Agreement, which apportioned flows in the river between “First Point” and “Second Point” users. The river is a source of water for irrigation, municipal, and other beneficial uses. Kern River flows are tracked and apportioned on a daily basis under a system of original California water rights, agreements, court decrees, and historic practices generally referred to as the “Law of the River.” The Kern River Watermaster, an individual that is appointed by the Kern River interests, applies the Law of the River and coordinates water releases from upstream Lake Isabella and operation of downstream weirs that divert water for beneficial uses. The City of Bakerfield’s Water Resources Department has fulfilled the Watermaster’s recordkeeping function and has operated six of the river’s weirs since its “Kern River Purchase” in 1976.
On November 30, 2022, Plaintiffs Bring Back the Kern (BBTK), Kern River Parkway Foundation, Kern Audubon Society, Sierra Club, Center for Biological Diversity, and Water Audit California (WAC) (collectively, “Plaintiffs”) sued the City of Bakersfield (City) and the Real Parties, alleging violations of: the Public Trust Doctrine; Article X, Section 2 of the California Constitution (Section 2); Fish and Game Code sections 5901, 5937, and 5948; Public Resources Code section 6009.1; Civil Code sections 3479 and 3480; and sought injunctive, among other forms of, relief.
On August 10, 2023, near the tail-end of the fourth-wettest year in recorded Kern River history, Plaintiffs filed a motion for preliminary injunction that centered around alleged Fish and Game Code section 5937 (Section 5937) violations and sought to enjoin the City from operating the six diversion weirs “in any manner that reduces river flows below a volume that is sufficient to keep fish downstream of said weirs in good condition.” On November 9, 2023, the trial court issued an injunction, but decided against setting a specific flow rate to which the City must adhere—believing that the parties and their experts were better suited to do so—and required Plaintiffs to post a nominal $1,000 bond. Four days later, Plaintiffs and the City filed a stipulation, without consultation nor agreement by the Real Parties, which provided that 40% of the total measured daily flow of the river would pass the last of the six weirs, that this “fish flow” would be subject to the City’s municipal demands, and that any remaining flows would be available for diversion by the Real Parties. The injunction crafted by Plaintiffs and the City elevated the City’s water rights to first priority in contravention of the Law of the River. The trial court approved the stipulation and entered the implementation order the following day.
Soon thereafter, the Real Parties moved for reconsideration, and WAC filed an ex parte application, along with declarations that alleged 200 cubic feet per second of flow is required to prevent a Section 5937 violation. On January 9, 2024, the trial court modified the injunction, requiring Plaintiffs and the City to consult with the Real Parties to establish a flow regime, and stayed the implementation order. The Real Parties filed their notices of appeal between January 18 and February 1, 2024.
On May 3, 2024, the Fifth District Court of Appeal issued a terse writ of supersedeas staying implementation of the original preliminary injunction order and the implementation order.
The appellate court decided seven discrete issues on appeal, all in favor of the Real Parties. First, it determined that the trial court erred by failing to consider whether the injunction’s instream flow regime was reasonable. The appellate court held that, while Section 5937 may be a valid legislative enactment, it is subservient to Section 2, which requires that “[a]ll uses of water, including public trust uses, must now conform to the standard of reasonable use.” (Op. at p. 24 [quoting National Audubon Society v. Superior Court (1983) 33 Cal.3d 419, 443].) Because Section 2 is a self-executing constitutional provision, it supersedes inconsistent state laws and prevents the California Legislature from “sanctioning manifestly unreasonable uses of water.” (Id. at p. 20.) Accordingly, courts must always consider reasonableness whenever they adjudicate a particular use of water, and the trial court failed to do so in this case. The appellate court further stated that the reasonableness of water use is case-specific, and noted that two extreme hypothetical positions—allocating all of the water to the environment, and none whatsoever to human sustenance; or allocating all of the water to irrigation, and none whatsoever to the environment—would clearly be unreasonable. It directed the trial court on remand to “determine whether and to what extent using the waters of the Kern River to keep fish in good condition is a reasonable and beneficial use of water under section 2.” (Id. at p. 31.)
Second, the appellate court determined that the trial court erred by not setting a flow rate requirement in connection with the injunction, and the injunction’s mandate that the City not operate the weirs in a “manner that reduces Kern River flows below the volume sufficient to keep fish downstream of said weirs in good condition” was too broad. The opinion holds that Plaintiffs, as the moving parties, bear the burden of proving what flow rates are required to keep fish in “good condition,” and advised that, in the event another injunction is issued on remand, the trial court should set an objective standard for compliance therewith—whether it require the City to operate to a particular flow rate or a percentage of the river’s natural flow rate at a given time—and the flow requirement must be reasonable (e.g., it would be unreasonable to “devote substantially more water to fish flows than necessary to keep fish in good condition”). (Op. at p. 33).
Third, the appellate court determined that the Real Parties’ appeal of the trial court’s “nominal” bond was timely because they filed their notices within the time periods allowed by the Rules of Court, rules 8.104 and 8.108.
Fourth, it determined that the trial court erred by setting a nominal $1,000 bond in violation of Code of Civil Procedure section 529. The statute mandates that courts, upon granting an injunction, “require an undertaking on the part of the applicant to the effect that the applicant will pay to the party enjoined any damages, not exceeding an amount to be specified, the party may sustain by reason of the injunction, if the court finally decides that the applicant was not entitled to the injunction.” (Code Civ. Proc., § 529, subd. (a).) There are four exemptions under subdivision (b) of the statute, none of which are applicable to “environmental litigation.” (Op. at pp. 36-37.) The appellate court held that the statute precludes the setting of nominal bonds, instead requiring courts to “estimate the harmful effect which the injunction is likely to have on the restrained party, and to set the undertaking at that sum.” (Id. at p. 36 [quoting Abba Rubber Co. v. Seaquist (1991) 235 Cal.App.3d 1, 14].) This the trial court did not do.
Fifth, the appellate court determined that the trial court violated the Real Parties’ due process rights by approving the flow regime to which Plaintiffs and the City stipulated, but to which the Real Parties did not. The flow regime stood to benefit the City, at the expense of the Real Parties, by effectively subordinating the Real Parties’ rights to the City’s municipal demands being met, which clearly affects the Real Parties’ rights (some of which are senior to the City’s rights, and some of which also serve municipal uses). The appellate court rejected the City’s arguments that the Real Parties are not “actual parties” to the case; that the Real Parties’ opportunity to stipulate and ability to participate in the hearing on the preliminary injunction motion resolved any due process issues; and that state law requires the court to prioritize domestic uses over irrigation uses. On the last point, the appellate court held that, while Water Code section 106 provides a statutory policy in favor of domestic uses, no use of water has an “absolute priority” (Op. at p. 43 [quoting Audubon, supra, 33 Cal.3d at p. 447 fn. 30]); it further noted that the statute similarly prioritizes irrigation uses over all other uses, and rejected a “categorical approach” whereby the highest hierarchical use must be satisfied before the next highest use can be accommodated.
Sixth, the appellate court determined that the Real Parties’ appeal of the implementation order was not moot, notwithstanding the trial court’s stay of the same, because stays can be lifted. Thus, the court concluded it could grant effective relief to the Real Parties by reversing the order, preventing the same from being “un-stayed.” (Op. at p. 44.)
Seventh, and finally, the appellate court determined that the trial court’s subsequent order modifying the injunction did not render the injunction non-appealable—the Real Parties appealed the underlying injunction and the trial court modified only parts thereof (but not those to which the Real Parties primarily took issue), thus the Real Parties were entitled to seek appellate review of the injunction.
The Opinion addresses important issues regarding, among other things, application of article X, section 2 and preliminary injunction bond procedures. Time remains for Plaintiffs to petition the California Supreme Court to review the Opinion. Meanwhile, a trial is set to begin on December 8, 2025, in the Kern County Superior Court, and there remains the possibility that the trial court could issue another preliminary injunction before then. Thus, while the appellate court’s decision is certainly significant and a victory for the Real Parties, the case is far from over.
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