California Supreme Court probes ‘reasonable’ water use in Kern River

SAN FRANCISCO (CN) — An attorney in a California water-use case argued Wednesday before the state’s highest court that water, as a subject of litigation, is just different.

It’s that difference which requires judges to look at whether a water use is reasonable, regardless of whether someone involved in the case invokes that argument.

Arguing for the city of Bakersfield, attorney Colin Pearce said Bring Back the Kern — a conservation group fighting for adequate water flows in the Kern River to support fish — must detail what amount of water is reasonable to achieve their goal. What benefits fish and what’s reasonable can differ.

“Water in California is scarce,” Pearce said, adding: “How you apply that beneficial use, it needs to be reasonable.”

The case before the high court stems from an October 2023 lower court decision blocking Bakersfield from reducing flows on the Kern River. An appeals court in April 2025 reversed that decision, leading Bring Back the Kern and other groups to take the case to the state Supreme Court.

The lower court found that state Fish and Game Code Section 5937 requires dam owners to allow enough water to pass through to keep fish in good condition. The appeals panel found that the lower court determined complying with that law was compulsory and didn’t consider possible harms to the city or water agencies.

The high court made no decision Wednesday.

Attorney Kevin Bundy, representing Bring Back the Kern, said other people have an interest in water from the Kern River. However, it’s not his client’s job to prove those other interests don’t exist or the court’s job to delve into “reasonableness” on its own.

Bundy argued his client’s appeal was narrowly focused on the lower court’s preliminary injunction that favored water flows for fish and Code Section 5937.

“Allowing flows for fish has always been part of the statutory scheme,” he said.

Attorney Ian Fein, representing the state attorney general and Fish and Wildlife Department, said the high court should give lawmakers a high level of deference.

Chief Justice Patricia Guerrero noted the importance of keeping fish in good condition, adding that other important issues compete with that goal. Fine argued that the justices should defer to the Legislature’s definition of “reasonable use” and not substitute their own.

Pearce said the city of Bakersfield shares Bring Back the Kern’s goal of increasing river flows. However, those flows must comply with the state Constitution’s “reasonableness” requirement.

Associate Justice Leondra Kruger questioned whether a judge must consider reasonableness if no party raises the issue. Pearce argued they must, under the state Constitution.

Pearce said the case centered on the issue of balance, meaning one person’s use shouldn’t prevail over all others.

“All water uses have to be reasonable,” he said.

Representing some water agencies affected by the case, attorney Brett Stroud said Bring Back the Kern had argued that Code Section 5937 directed water use throughout the state. That would be unconstitutional.

Kruger questioned how the court should rule in cases with different circumstances if it did, in fact, determine the code section was statewide. Stroud said justices should use a sliding scale of judgment.

However, the core issue in the case is reasonableness, he said. The trial court determined it had no jurisdiction to consider that issue, and the appeals court said reasonableness must be considered.

He asked the justices to remand the issue to the lower court and require it to consider that issue.

Taking his chance to rebut, Bundy asked the justices to reverse the appeals court and rule that Code Section 5937 states that keeping fish in good condition is reasonable.

“We’re not asking for any special rules here,” he said, adding: “Fish die without water.”