On April 2, 2025, California’s Fifth Appellate District issued a decision in Bring Back the Kern v. City of Bakersfield (April 2, 2025, F087487) (2025 WL 98443). The Court held the “self-executing” reasonableness requirement in Article X, Section 2, of the California Constitution must be applied “whenever adjudicating a use of water.” This requirement applies even if the relevant statute does not explicitly call for a reasonableness determination. While this decision reaffirms existing law, it quashes any argument that Fish and Game Code section 5937 — which requires that dam owners allow sufficient water to pass through and around dams to keep fish in “good condition” — requires prioritizing water for fish regardless of how allocating water for fish affects other beneficial uses.

Case Background

A group of non-governmental organizations sued the City of Bakersfield to modify existing Kern River flows to keep fish “in good condition” under section 5937 of the Fish and Game Code. Kern River water is allocated to diverters based on a complex and long-established set of water rights, court judgments and decrees, agreements, policies, and water management procedures. The City of Bakersfield operates multiple weirs on the Kern River used to divert water for its own use and for the use of many entities with rights to use the Kern River water. These other entities include a number of water agencies that were later joined in the case as real parties in interest.

On Nov. 9, 2023, the trial court granted a preliminary injunction against Bakersfield, which required it to operate the weirs in a manner consistent with Fish and Game Code section 5937. The trial court did not set a river flow rate to meet that objective, but instead required the plaintiffs and Bakersfield to negotiate the rate. However, in granting the preliminary injunction, the trial court did not balance the beneficial uses of water as required under Article X, Section 2, of the California Constitution. Rather than perform this balancing, the trial court determined that section 5937 did not require consideration of other beneficial water uses.

Appellate Court Decision

Following oral argument, which included Hanson Bridgett’s water law attorneys, the Fifth Appellate District reversed the trial court’s decision, explaining that “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 Court reaffirmed that “[u]nreasonable or non-beneficial uses of water are never permitted under the Constitution, even if a statute would otherwise require it.” While Fish and Game Code section 5937 is a “valid” legislative enactment, the use of in-stream water to keep fish in good condition is required only “to the extent that use is reasonable.”

The Court concluded that the trial court applying Fish and Game Code section 5937 “without giving direct effect” to the Article X, Section 2, requirements “was error.” The Court remanded the case to the trial court to balance other beneficial uses of water and determine whether and to what extent using the Kern River water to keep fish “in good condition” is reasonable and otherwise a beneficial use under the California Constitution.

Such a determination, the Court notes, involves weighing the “totality of the circumstances, which include effects on fish and other wildlife … water quality, the transportation of adequate water supplies where needed… water supplies for the domestic needs of people… irrigation… effects on other users of the watercourse… and any effects on appropriations essential to the economic development of this state.”

Impact on Future Water Disputes

The Court’s decision is a strong reminder that the California Constitution is the “supreme law of the state.” The Constitution’s beneficial use requirement must be considered when allocating water use, by statute or otherwise. And while the Court’s decision pertained specifically to allocating fish flows under Fish and Game Code section 5937, it nonetheless provides guidance for all future California water disputes.

Hanson Bridgett’s Water Law Team represents parties to the case. If you have any questions or concerns about this decision, please contact our Water Law attorneys.