On May 4, 2026, California Sportfishing Protection Alliance joined with the Winnemem Wintu Tribe, San Francisco Crab Boat Owners Association, and North Coast Rivers Alliance to file an amicus brief in an appeal of the Kern River case Bring Back the Kern v. City of Bakersfield, 2025. Attorney Stephan Volker filed the amicus brief in the case, which is now before the California Supreme Court. The amicus parties’ central argument is that both California Fish and Game Code Section 5937 and Article X Section 2 of the California Constitution are mandates. These laws must be understood and read together. The laws do not conflict.
FGC Sect. 5937 requires dam owners to allow sufficient water for fish to pass through fishways, and over, around, and through a dam to keep fish downstream of the dam “in good condition”. Article X, Sect. 2 requires that the conservation of waters of the state be exercised “with a view to the reasonable and beneficial use” in the interest of the people and for the public welfare, and that any use of water must be reasonable.
In its 2025 opinion, the Fifth District Court of Appeal ruled in the favor of agricultural water users. It said that the trial court ruling, which put a halt to agricultural diversions while the case was being heard, was wrong. The Court of Appeal said the trial court failed to first evaluate whether it was reasonable to deprive diverters the right to divert water from the Kern River.
The amicus brief succinctly answers that the Court of Appeal is wrong as a matter of law: “In sum, and as the California Trout cases recognize, section 5937 reflects the Legislature’s determination that requiring dam owners to release sufficient water to keep fish in good condition is presumptively reasonable, whereas allowing them to dry up the river they dammed and kill the fish therein is not.”
The Court of Appeal’s ruling allowed the resumption of water diversions from the lower Kern River. Now the river is drying up. The plaintiffs in the case, Bring Back the Kern, Kern River Parkway Foundation, Kern Audubon Society, Sierra Club, Center for Biological Diversity, and Water Audit California, appealed to the California Supreme Court.
CSPA and the other amici have filed this brief to guarantee that there will be enough water to sustain fish populations in the Kern River. CSPA and others also filed the amicus brief because the convoluted ruling by the Fifth Appellate District Court of Appeal would establish a terrible precedent. It could allow courts to place the burden of proof on organizations like CSPA to show on the front end of a case that a court would conclude that putting water back in a river was reasonable. This would give courts authority to overrule the Legislature’s enactment of Section 5937.
The message that the plaintiffs, CSPA, and other amici are sending is this: Justices of the California Supreme Court, please reverse the judgment of the Fifth District Court of Appeal now. Send this case back to the trial court in Kern County. Provide directions to the trial court to reinstate the method to stop the diversions. (This method is called a preliminary injunction, a legal action to not engage in an activity.) Send the case back before the river is gone this year and fish populations are further devastated.
CSPA welcomes your support to advocate for fish and the public trust doctrine. The waters of California are here for us, the people, and for plants and animals. River waters are not the private property of agricultural businesses. Yet we all know that it takes effort and strength to stop powerful economic interests and to defend foundational environmental law.
A 2023 drone shot of the Kern River, where the waterway empties into the Kern River Intertie. This photo was taken before the diversions began in 2025 and the river started to dry up. The Intertie is a component of water infrastructure shared between the federal government and the State of California. Image: Fred Greaves and the California Department of Water Resources