California Fish and Game Code Section 5937 has long been a subject of scholarly debate with uncertainty in its application. In a published opinion filed on April 2, 2025, California’s Court of Appeal for the Fifth Appellate District considered the interaction between the Fish and Game Code’s requirements for water to keep fish in good condition on the one hand, and the California Constitution’s mandate that water be put to reasonable and beneficial use on the other. While the fish may get the water in some circumstances, the court held that the existence of a statutory requirement for a certain use of water does not overcome a court’s obligation to independently determine if—on balance—that use meets the reasonable and beneficial use requirements of the California Constitution.
The Kern River flows down from the Sierra Nevada Mountains, through Lake Isabella, and eventually through the City of Bakersfield (“City”). The City operates multiple weirs along the river to divert water for its own use as well as the use of several water agencies based on a complex and heavily litigated history of water rights dating back to 1888. In Bring Back the Kern, et al. v. City of Bakersfield, a group of environmental plaintiffs sued the City, arguing operation of the weirs violated Fish and Game Code section 5937, which requires that a dam owner or operator “allow sufficient water at all times to pass over, around or through the dam, to keep in good condition any fish that may be planted or exist below the dam.”
The environmental groups sought a preliminary injunction to prohibit the City from operating the weirs in question in a way that would reduce Kern River flows below the volume needed to keep fish downstream in good condition. Participating as real parties in interest, water agencies argued that the proposed injunction would violate Article X, section 2 of the California Constitution, which requires the water of the state to be put to reasonable and beneficial use. Rejecting these arguments, the trial court granted the injunction and held that section 5937 was a legislative balancing of competing uses of water in favor of the needs of fish, and that the court was without jurisdiction to reweigh those competing interests under Article X, section 2.
The Court of Appeal reversed, holding that courts “must always consider reasonableness whenever [they] would direct or adjudicate a particular use of water, even when applying statues that do not expressly incorporate a reasonableness determination.” The trial court’s failure to do so was constitutional error. The court discussed in detail the provisions of Article X, section 2. Focusing on the self-executing language, the court held that Article X, section 2 is to be applied directly by courts similar to a statute. Although the legislature can enact statutes that further the goals of Article X, section 2, those statutes do not overcome a court’s obligation to independently apply Article X, section 2’s reasonableness requirement. According to the court, “no judicial adjudication of competing water uses is complete until the court assesses whether the use is beneficial and reasonable.” Furthermore, if a statutory use or allocation of water is shown to be unreasonable, Article X, section 2 prohibits that use even though the statute would otherwise require it. Article X, section 2 can limit legislative discretion.
On remand, the court directed the trial court to look to the totality of the circumstances in determining whether using the waters of the Kern River to keep fish in good condition was a reasonable and beneficial use under Article X, section 2. That determination should include consideration not only of the effects on fish and other wildlife, but also recreation, water quality, water supply needs, domestic need, irrigation, effects on other users, and effects on appropriates essential to the economic development of the state.
While this case specifically dealt with the interaction between Article X, Section 2 and the Fish and Game Code, its discussion of the self-executing nature of Article X, section 2 will have far-reaching applications outside of section 5937. For questions about this legal development, please contact Brownstein.
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