Preview
1 Scott K. Kuney (SBN 111115)
Brett A. Stroud (SBN 301777)
2 The Law Offices of Young Wooldridge, LLP
3 1800 30th Street, Fourth Floor
Bakersfield, CA 93301
4 Phone: (661) 327-9661
Fax: (661) 327-0720
5 Email: skuney@youngwooldridge.com
6 bstroud@youngwooldridge.com
7 Attorneys for Intervenor-Defendant EXEMPT FROM FILING
North Kern Water Storage District FEE [GOV. CODE, §6103]
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9 SUPERIOR COURT OF THE STATE OF CALIFORNIA
10 FOR THE COUNTY OF KERN
11 BRING BACK THE KERN, WATER AUDIT Case No. BCV-22-103220-GAP
CALIFORNIA, KERN RIVER PARKWAY Assigned to Hon. Gregory Pulskamp
12 FOUNDATION, KERN AUDUBON
13 SOCIETY, SIERRA CLUB, and CENTER
FOR BIOLOGICAL DIVERSITY,
14 NOTICE OF ENTRY OF ORDER ON
Plaintiffs and Petitioners,
DEMURRER TO THIRD AMENDED
15 v. COMPLAINT
16 CITY OF BAKERSFIELD, and DOES 1
through 500,
17 Complaint Filed: November 30, 2022
Defendants and Respondents, FAC Filed: March 6, 2023
18 SAC Filed: October 4, 2023
BUENA VISTA WATER STORAGE TAC Filed: December 1, 2023
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DISTRICT, KERN DELTA WATER Trial Date: None Set
20 DISTRICT, NORTH KERN WATER
STORAGE DISTRICT, ROSEDALE-RIO
21 BRAVO WATER STORAGE DISTRICT,
KERN COUNTY WATER AGENCY, and
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DOES 501-999,
23 Real Parties in Interest.
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327028.000 1
Notice of Entry of Order on Demurrer to Third Amended Complaint
1 TO ALL PARTIES AND TO THEIR ATTORNEYS OF RECORD HEREIN:
2 NOTICE IS HEREBY GIVEN that on February 15, 2024, an Order on Demurrer to
3 Third Amended Complaint was issued in the above-captioned action. A true and correct copy
4 of the Order is attached hereto as Exhibit “A” and incorporated herein by this reference.
5
6 Dated: February 21, 2024 THE LAW OFFICES OF YOUNG WOOLDRIDGE, LLP
7
8 By: /s/ Brett A. Stroud
Scott K. Kuney
9 Brett A. Stroud
Attorneys for Real Party in Interest
10 North Kern Water Storage District
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327028.000 2
Notice of Entry of Order on Demurrer to Third Amended Complaint
Exhibit A
Electronically Received: 2/15/2024 1:34 PM FILED
KERN COUNTY SUPERIOR COURT
02/15/2024
1 Scott K. Kuney (SBN 111115)
Brett A. Stroud (SBN 301777) Evans, Gricelda
BY _______________________
2 The Law Offices of Young Wooldridge, LLP DEPUTY
th
3 1800 30 Street, Fourth Floor
Bakersfield, CA 93301
4 Phone: (661) 327-9661 Exempt from Filing Fees
Fax: (661) 327-0720 Gov. Code, § 6103
5 Email: skuney@youngwooldridge.com
6 bstroud@youngwooldridge.com
7 Attorneys for Real Party in Interest North Kern Water Storage District
8
9 SUPERIOR COURT OF THE STATE OF CALIFORNIA
10 FOR THE COUNTY OF KERN
11 BRING BACK THE KERN, WATER AUDIT Case No. BCV-22-103220
CALIFORNIA, KERN RIVER PARKWAY Assigned to Hon. Gregory Pulskamp
12 FOUNDATION, KERN AUDUBON
SOCIETY, SIERRA CLUB, and CENTER
13 FOR BIOLOGICAL DIVERSITY,
14 Plaintiffs and Petitioners,
(PROPOSED) ORDER ON
15 v. DEMURRER TO THIRD AMENDED
CITY OF BAKERSFIELD, and DOES 1 COMPLAINT
16
through 500,
17 Defendants and Respondents,
18 BUENA VISTA WATER STORAGE
DISTRICT, KERN DELTA WATER
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DISTRICT, NORTH KERN WATER
20 STORAGE DISTRICT, ROSEDALE-RIO
BRAVO WATER STORAGE DISTRICT,
21 KERN COUNTY WATER AGENCY, and
DOES 501-999,
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Real Parties in Interest.
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2111-127\00326099.001 1
ORDER ON DEMURRER TO THIRD AMENDED COMPLAINT
1 On January 31, 2024 at 8:30 a.m., in Department J of this Court before the Honorable
2 Judge Gregory A. Pulskamp, the Court heard argument on the Real Parties’ Demurrer to the
3 Plaintiff’s Third Amended Complaint and Petition (“Demurrer”).
4 Brett Stroud and Scott Kuney appeared on behalf of Real Party in Interest North Kern
5 Water Storage District. Isaac St. Lawrence appeared on behalf of Real Party in Interest Buena
6 Vista Water Storage District. Richard Iger, Craig Carnes, and Kevin Bursey appeared on behalf
7 of Real Party in Interest Kern Delta Water District. Nicholas Jacobs appeared on behalf of Real
8 Party in Interest Kern County Water Agency. Daniel Raytis and Jennifer Spaletta appeared on
9 behalf of Real Party in Interest Rosedale-Rio Bravo Water Storage District. Adam Keats
10 appeared on behalf of Plaintiffs Bring Back the Kern, Kern River Parkway Foundation, Kern
11 Audubon Society, Sierra Club, and Center for Biological Diversity. William McKinnon appeared
12 on behalf of Plaintiff Water Audit California. Colin Pearce and Matt Collom appeared on behalf
13 of Defendant City of Bakersfield.
14 The Court, after considering the briefs of the parties and other documents on file in this
15 matter, including the declarations and exhibits filed in support of the briefs and documents and
16 matters to which the Court has taken judicial notice, and the arguments of counsel, and for good
17 cause appearing, issues the ruling attached hereto as Exhibit A (“Ruling”). Pursuant to this
18 Ruling,
19 IT IS HEREBY ORDERED THAT:
20 1. Real Parties’ Request for Judicial Notice in Support of the Demurrer is granted.
21 2. Real Parties’ Demurrer is overruled as to the first cause of action and sustained as to the
22 third and fourth causes of action. The Court denies Plaintiff leave to amend the third cause
23 of action, but grants 10 days leave to amend the fourth cause of action pursuant to California
24 Rules of Court, Rule 3.1320(g).
25
26 DATED: _________________,
Signed: 2/15/2024 04:04 PM
2024
27
Honorable Gregory A. Pulskamp
28 Judge of the Kern County Superior Court
2111-127\00326099.001 2
ORDER ON DEMURRER TO THIRD AMENDED COMPLAINT
Exhibit A
Superior Court of California
County of Kern
Bakersfield Division J
Date: 2/5/2024 Time: 8:00 AM - 5:00 PM
BCV-22-103220
BRING BACK THE KERN ET AL VS CITY OF BAKERSFIELD
Courtroom Staff
Honorable: Gregory A. Pulskamp Clerk: Inez Trimble
NATURE OF PROCEEDING:
Ruling on Real Parties in Interest’s (RPI’s) Demurrer to Plaintiffs’ Third Amended Complaint
(TAC) heretofore submitted on January 31, 2024.
RULING:
1. RPI’s Request for Judicial Notice in Support of Demurrer to Plaintiffs’ TAC is granted.
2. RPI’s Demurrer to Plaintiffs’ TAC is overruled as to the first cause of action and sustained
as to the third and fourth causes of action. The Court denies Plaintiff leave to amend
the third cause of action, but grants 10 days leave to amend the fourth cause of action
pursuant to California Rules of Court, Rule 3.1320(g).
DISCUSSION:
I. First Cause of Action
A. Violations of the Public Trust Doctrine
RPI argue that the first cause of action for writ of mandate and/or prohibition for violations of
the Public Trust Doctrine fails to state a claim. They argue that the City of Bakersfield (City) is
not a trustee agency when it operates the diversion structures (weirs) and that Plaintiffs cannot
allege a mandatory duty to operate the diversion structures in a particular way because the
Public Trust Doctrine inherently involves discretion.
Plaintiff Water Audit California (WAC) argues that they are not seeking to instruct the City on
how to comply with its mandatory statutory and public trust duties. Instead, they assert that
RULING
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BRING BACK THE KERN ET AL VS CITY OF BAKERSFIELD BCV-22-103220
MINUTES FINALIZED BY: Inez Trimble ON: 2/5/2024
the City does not have the discretion to ignore its statutory and public trust duties. WAC argues
that a writ of mandate is appropriate because Fish and Game Code section 5937 is a mandatory
ministerial duty as a clear legislative expression of the Public Trust Doctrine.
Similarly, Plaintiffs Bring Back the Kern, et al. argue that the City does not have the discretion to
entirely avoid its legal duties and violate the law. They argue that while the Court in Monterey
Coastkeeper states the Public Trust Doctrine is “inherently discretionary,” it did not rule that all
actions alleging violations of the Public Trust Doctrine necessarily involve discretionary acts.
They further argue that “[t]here should be no question that the City has a duty to consider the
public trust interest when making its daily decisions to divert water from the Kern River.” As
such, they conclude that a writ of mandate is appropriate.
A traditional writ of mandate under Code of Civil Procedure section 1085, like the one sought
here by Plaintiffs, is a method used to challenge an agency’s failure to perform an act required
by law. To obtain writ relief, a Plaintiff must show that: (1) there is no other plain, speedy,
adequate remedy in the ordinary course of law (Code Civ. Proc., § 1086); (2) the Defendant has
a clear, present, and ministerial duty to act in a particular way (Code Civ. Proc., § 1085(a)); and
(3) the Plaintiff has a clear, present, and beneficial right to the performance of that duty (Code
Civ. Proc., § 1086).
In Monterey Coastkeeper, the appellate court upheld the trial court’s decision that traditional
mandamus was inappropriate to enforce the public trust doctrine. There, the trial court
sustained a demurrer without leave to amend because appellants had not identified a
mandatory ministerial duty but instead brought a broad, generalized challenge to an agency’s
discretionary decisions.
In this case, however, Plaintiffs have identified ministerial duties with which the City must
comply, including Fish and Game Code section 5937. While the City operates the diversion
structures and manages the Kern River according to historic legal and contractual provisions,
the City does not have the discretion to ignore its statutory and public trust duties. As such, a
writ of mandate (and possibly a writ of prohibition) is appropriate.
B. Violations of the Fish and Game Code
RPI argue that the first cause of action also fails to state a claim because Fish and Game Code section
5901 applies only to anadromous fish. This Court previously ruled on October 30, 2023, that Section
5937 applies to all fish, not just anadromous fish. Similarly, there is no limitation in the language of
Section 5901. If the legislature intended Section 5901 to apply only to anadromous fish, they would
have so specified.
RPI next argue that there is no private right of enforcement, or right of action, for violations of Fish and
Game Code section 5901. In their Opposition, Plaintiffs Bring Back the Kern, et al. argue that courts
RULING
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BRING BACK THE KERN ET AL VS CITY OF BAKERSFIELD BCV-22-103220
MINUTES FINALIZED BY: Inez Trimble ON: 2/5/2024
have previously found a private right of action for violations of section 5937, and there is no reason the
two sections should be treated differently in terms of enforcement. One section regards the impacts of
dams (and other devices or contrivances) on ‘passing of fish up and down stream’ while the other
regards the impacts of dams on the conditions of the fish existing below the dam. (Fish and Game Code
§§ 5901, 5937.) Plaintiff WAC similarly argues that National Audubon held that any member of the
public has standing to assert a claim of harm under the public trust doctrine and “to the extent the
waters are the common passageway for fish, although flowing over lands entirely subject to private
ownership, they are deemed for such purposes public waters, and subject to all laws of the state
regulating the right of fishery.” (Citing Cal Trout I, 207 Cal.App.3d 585, 630.)
“It is well settled that there is a private right of action to enforce a statute ‘only if the statutory language
or legislative history affirmatively indicates such an intent. That intent need not necessarily be expressed
explicitly, but if not it must be strongly implied.’” (Noe v. Superior Ct., 237 Cal.App.4th 316, 337.) Here,
the plain language of Section 5901 does not indicate there is any private right of action to enforce its
provision. The section simply states it is unlawful to construct or maintain in any stream in specified
districts, any device or contrivance that prevents, impedes, or tends to prevent or impede, the passing
of fish up and down stream. There has been no argument by either party that the legislative history
implies there is a private right of action for violations of Section 5901. While there have been private
enforcement actions for Section 5937, the same does not appear true for Section 5901. However, “it is
an established rule of statutory construction that similar statutes should be construed in light of one
another and that similar phrases appearing in each should be given like meanings.” (People v. Tran, 61
Cal.4th 1160, 1167-1168.)
Therefore, Sections 5901 and 5937 should be treated similarly. They both relate to the presence of
dams in waterways and the impact thereof on the condition of fish and their ability to pass up and down
streams. As such, it seems appropriate that the Plaintiffs can assert a claim for violations of Section
5901 in addition to Section 5937.
Lastly, RPI argue that Section 5937 does not apply to the City’s diversion structures (weirs) because they
are not “dams.”` According to the RPI, while Section 5900(a) provides a broad definition for “dam,”
Section 5900(b) specifically defines a number of other facilities are “conduits” (i.e., something other
than dams) and the Fish and Game Code has numerous provisions treating “conduits” separate from
“dams.” Included in the “conduit” definition in Section 5900(b) is, among other things, a diversion
structure used for taking water from a river. RPI conclude that because the Complaint acknowledges
that the weirs are diversion structures used for taking water from the river, the diversion structures are
therefore not “dams” subject to Section 5937.
Plaintiff WAC argues in its Opposition that a weir acts as a barrier that impedes the flow of water.
Because the subject weirs are artificial obstructions that provide for the diversion of water, they are
subject to section 5937. Plaintiffs Bring Back the Kern, et al. argue that under the Fish and Game Code, a
weir can be both a dam and a conduit and the two definitions are not mutually exclusive.
This Court previously ruled that the weirs are “dams” because they are “artificial obstructions” and
therefore qualify as “dams” under Fish and Game Code section 5900(a). RPIs’ argument that the weirs
RULING
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BRING BACK THE KERN ET AL VS CITY OF BAKERSFIELD BCV-22-103220
MINUTES FINALIZED BY: Inez Trimble ON: 2/5/2024
are exclusively conduits under Fish and Game Code section 5900(b) is not persuasive. Section (a)
defines “dams” as including all artificial obstructions. Logically, this broad definition of a dam would
include a conduit (a diversion used for the purpose of taking or receiving water) because it is still an
artificial obstruction. Therefore, the City’s diversion structures (weirs) in the Kern River qualify as
“dams,” as that term is used in the pertinent provisions of the Fish and Game Code.
II. Third Cause of Action – Violations of Public Resources Code Section 6009.1
RPI contend that Plaintiffs fail to state a claim for breach of trustee duties under Public
Resources Code section 6009.1 because the third cause of action does not allege that the
California Legislature granted tidelands or submerged lands to the City (or the RPI). RPI argue
that the City received its interest in the weirs and the Kern River from a private corporation, not
from a grant of the legislature. They further contend, therefore, that Plaintiffs have failed to
allege sufficient facts demonstrating that the City owed a duty under Section 6009.1.
Plaintiff WAC argues that Public Resources Code Section 6009.1 ensures that private trustees of
the public trust have the same duties as state actors because in common law, public trust duties
are imposed on agencies of the state but not private actors. Further, “by a plain and
commonsense reading, Public Resources Code section 6009.1(c) was intended to be an
enumeration of the understanding of the duties of a public trustee. A trustee’s duties,
interpretation and impact have long preexisted the statute.” According to WAC, “the California
Land Act of 1851 invested all the lands transferred into the hands of the State with the public
trust.” Plaintiffs Bring Back the Kern, et al. join in WAC’s arguments regarding the Public
Resources Code.
Public Resources Code section 6009.1 provides that “granted public trust lands” are subject to
the supervision of the State and the State has a duty to protect the public interest in those public
trust lands. (Pub. Res. Code, § 6009.1(a).) “The state acts both as the trustor and the
representative of the beneficiaries, who are all of the people of this state, with regard to public
trust lands, and a grantee of public trust lands, including tidelands and submerged lands, acts as a
trustee, with the granted tidelands and submerged lands as the corpus of the trust.” (Id.,
§ 6009.1(b).) All duties endowed upon a trustee of state lands shall depend upon the terms of the
trust, and if there is no provision, express or implied, within the terms of the trust, a statute, or a
grant, the trustee's duties shall be interpreted and determined by principles and rules evolved by
courts of equity with respect to common trust principles. (Id., § 6009.1(d).)
RULING
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BRING BACK THE KERN ET AL VS CITY OF BAKERSFIELD BCV-22-103220
MINUTES FINALIZED BY: Inez Trimble ON: 2/5/2024
The California State Lands Commission1 manages 4 million acres of tide and submerged lands
and the beds of natural navigable rivers, streams, lakes, bays, estuaries, inlets, and straits. These
lands, often referred to as sovereign or Public Trust lands, stretch from the Klamath River and
Goose Lake in the north to the Tijuana Estuary in the south, and the Colorado River in the east,
and from the Pacific Coast three miles offshore in the west to world-famous Lake Tahoe in the
east, and includes California’s two longest rivers, the Sacramento and San Joaquin.
The Commission also monitors sovereign land granted in trust by the California Legislature to
approximately 70 local jurisdictions that generally consist of prime waterfront lands and coastal
waters. The Commission protects and enhances these lands and natural resources by issuing
leases for use or development, providing public access, resolving boundaries between public and
private lands. Through its actions, the Commission secures and safeguards the public’s access
rights to natural navigable waterways and the coastline and preserves irreplaceable natural
habitats for wildlife, vegetation, and biological communities.
The Commission’s website provides a list of grantees. Grantees include cities and counties in
California.
Here, Plaintiffs have not pled or alleged that the City is a grantee of public lands as provided for
in Public Resources Code section 6009.1. Plaintiffs do not provide authority for the proposition
that the City is the equivalent of the State for purposes of scope and jurisdiction of the Public
Resource Code. The TAC does not allege that Section 6009.1 applies to the City or the Kern
River. It may be worth noting that neither the City nor Kern County are listed as grantees of
public trust lands on the California State Lands Commission website2. Therefore, Public
Resources Code section 6009.1 does not apply to the City or RPI as alleged in the TAC. Leave
to amend is not warranted on this issue because the facts pled establish that the complaint is
incapable of a curative amendment. (See, e.g., Virginia G. v. ABC Unified School Dist. (1993)
15 Cal.App.4th 1848, 1852.)
III. Fourth Cause of Action – Public Nuisance
Lastly, RPI assert that the TAC fails to state a claim for public nuisance because there is no
private attorney general exception to the special injury requirement and Plaintiffs have not
alleged a qualifying special injury.
1
Information from California State Lands Commission website. See https://www.slc.ca.gov/about/
2
The Court takes judicial notice of this resource as information that is not subject to reasonable dispute. (Evid. Code
§ 452(h).)
RULING
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BRING BACK THE KERN ET AL VS CITY OF BAKERSFIELD BCV-22-103220
MINUTES FINALIZED BY: Inez Trimble ON: 2/5/2024
Plaintiff WAC asserts that a private attorney general exception is not required under Civil Code
section 3493 because “private individuals have been authorized to bring a mandate action to
enforce a public duty involving the protection of a public right.” They also argue that Plaintiffs
have standing because:
The City has prevented their members from the use, in a customary manner, of the Kern
River. Members of these organizations have a unique and specific interest in the fish and
wildlife within the Kern River. They have suffered an injury in fact to their public trust
interests in the fish and other wildlife of the Kern River when the City unlawfully
destroys these resources. These interests in fish and other wildlife include not only the
public trust property interest in the fish and other wildlife, but other recreational and
ecological values provided by the fish.
Plaintiffs Bring Back the Kern et al. join in WAC’s arguments regarding public nuisance.
A nuisance is defined in the Civil Code as follows:
Anything which is injurious to health, including, but not limited to, the illegal sale of
controlled substances, or is indecent or offensive to the senses, or an obstruction to the
free use of property, so as to interfere with the comfortable enjoyment of life or property,
or unlawfully obstructs the free passage or use, in the customary manner, of any
navigable lake, or river, bay, stream, canal, or basin, or any public park, square, street, or
highway, is a nuisance.
(Civ. Code, § 3479.)
A public, as opposed to private, nuisance is “one which affects at the same time an entire
community or neighborhood, or any considerable number of persons, although the extent
of the annoyance or damage inflicted upon individuals may be unequal.” (Civ. Code,
§ 3480.) Actions for public nuisance are “aimed at the protection and redress
of community interests” (People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1103, 60
Cal.Rptr.2d 277, 929 P.2d 596), and therefore, as a general rule, only public prosecutors
authorized by statute may sue for a public nuisance on behalf of the community. (Civ.
Code, § 3494; Code Civ. Proc., § 731.) However, Civil Code section 3493 provides:
“A private person may maintain an action for a public nuisance, if it is specially
injurious to himself, but not otherwise.”
(Rincon Band of Luiseno Mission Indians etc. v. Flynt (2021) 70 Cal.App.5th 1059, 1100.)
RULING
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BRING BACK THE KERN ET AL VS CITY OF BAKERSFIELD BCV-22-103220
MINUTES FINALIZED BY: Inez Trimble ON: 2/5/2024
On September 18, 2023, this Court ruled that voluntarily incurred expenses such as those alleged
by the Plaintiffs were insufficient to qualify as a special injury necessary for standing in a public
nuisance claim. Although the Court went on to overrule the challenge to the fourth cause of
action, it noted that because “Plaintiffs bring this action as a private attorney general, it is unclear
whether they therefore become exempt from the special injury requirement.” Further analysis, as
set forth below, establishes that private attorney general actions are in all likelihood not exempt
from the special injury requirement despite public policy considerations that support such a
conclusion.
To bring a public nuisance claim, a party must have suffered a special injury distinct from the
general public. (Civ. Code, § 3493.) The notion of a private attorney general exception is
certainly not in the express language of Civil Code section 3493. Although the cases cited by
Plaintiff in support of such an exception are interesting from a public policy perspective, they do
not address Section 3494 and are not directly applicable. In view of the fact that California
apparently has no published opinion supporting such an exception, the legislature’s intent as
evidenced by the plain statutory language must control. In addition, as noted by the RPI, such an
exception would likely swallow the rule since every public nuisance case would, by definition,
seem to qualify as a private attorney general case.
Therefore, because there is no established private attorney general exception and the TAC fails
to allege an appropriate special injury, the Court sustains the demurrer as to the fourth cause of
action for public nuisance. Leave to amend is warranted on this issue because the facts pled do
not establish that the complaint is incapable of a curative amendment. (See, e.g., Virginia G. v.
ABC Unified School Dist. (1993) 15 Cal.App.4th 1848, 1852.)
DISPOSITION:
RPI shall prepare a formal order consistent with this ruling for the Court's signature pursuant to
California Rule of Court 3.1312.
Copy of minutes mailed to all parties as stated on the attached certificate of mailing.
FUTURE HEARINGS:
Motion to Intervene scheduled for February 20, 2024.
RULING
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BRING BACK THE KERN ET AL VS CITY OF BAKERSFIELD BCV-22-103220
MINUTES FINALIZED BY: Inez Trimble ON: 2/5/2024
BRING BACK THE KERN ET AL VS CITY OF BAKERSFIELD
BCV-22-103220
CERTIFICATE OF MAILING
The undersigned, of said Kern County, certify: That I am a Deputy Clerk of the Superior Court of the State of California,
in and for the County of Kern, that I am a citizen of the United States, over 18 years of age, I reside in or am employed in
the County of Kern, and not a party to the within action, that I served the Ruling dated February 05, 2024 attached
hereto on all interested parties and any respective counsel of record in the within action by depositing true copies thereof,
enclosed in a sealed envelope(s) with postage fully prepaid and placed for collection and mailing on this date, following
standard Court practices, in the United States mail at Bakersfield California addressed as indicated on the attached
mailing list.
Date of Mailing: February 05, 2024
Place of Mailing: Bakersfield, CA
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.
Tara Leal
CLERK OF THE SUPERIOR COURT
Date: February 05, 2024
By: Inez Trimble
Inez Trimble, Deputy Clerk
MAILING LIST
ADAM KEATS BRETT A STROUD
LAW OFFICE OF ADAM KEATS THE LAW OFFICES OF YOUNG WOOLDRIDGE
303 SACRAMENTO ST 2ND FLOOR LLP
SAN FRANCISCO CA 94111 1800 30TH STREET FOURTH FLOOR
BAKERSFIELD CA 93301
WILLIAM A MCKINNON ISAAC L ST LAWRENCE
WILLIAM MCKINNON ATTORNEY AT LAW MCMURTREY HARTSOCK & WORTH
952 SCHOOL ST PMB316 2001 22ND ST #100
NAPA CA 94559 BAKERSFIELD CA 93301
COLIN L PEARCE RICHARD L IGER
DUANE MORRIS LLP KERN DELTA WATER DISTRICT
1 MARKET SPEAR TWR #2200 501 TAFT HWY
SAN FRANCISCO CA 941051127 BAKERSFIELD CA 93307-6247
Certificate of Mailing
Page 8 of 9
BRING BACK THE KERN ET AL VS CITY OF BAKERSFIELD
BCV-22-103220
DANIEL M ROOT VIRGINIA A GENNARO
BELDEN BLAINE RAYTIS LLP OFC BAKERSFIELD CITY ATTORNEY
5016 CALIFORNIA AVE #3 1600 TRUXTUN AVE 4FL
BAKERSFIELD CA 93309 BAKERSFIELD CA 93301
AMELIA THOMAS MINABERRIGARAI LOUINDA V LACEY
KERN COUNTY WATER AGENCY SOMACH SIMMONS & DUNN
3200 RIO MIRADA DR 500 CAPITOL MALL SUITE 1000
BAKERSFIELD CA 93308 SACRAMENTO CA 95814
KEVIN W BURSEY JENNIFER L SPALETTA
ELLISON SCHNEIDER HARRIS & DONLAN STOEL RIVES LLP
2600 CAPITOL AVE #400 500 CAPITOL MALL #1600
SACRAMENTO CA 95816 SACRAMENTO CA 95814
NICHOLAS ALLEN JACOBS NATHAN A METCALF
500 CAPITAL MALL #1000 HANSON BRIDGETT LLP
SACRAMENTO CA 95814 1676 N CALIFORNIA BLVD #620
WALNUT CREEK CA 94596
MICHELLE E CHESTER FIFTH DISTRICT COURT OF APPEAL
SOMACH SIMMONS & DUNN 2424 VENTURA ST
500 CAPITOL MALL #1000 FRESNO CA 93721
SACRAMENTO CA 95814-4742
Certificate of Mailing
Page 9 of 9
PROOF OF SERVICE
1
The undersigned hereby declares that I am and was at the times of the service hereunder
2
mentioned, over the age of eighteen (18) year's, and not a party to the within cause. My business
address is 1800 30th Street, Fourth Floor, Bakersfield, CA 93301.
3
I served by email the document entitled (PROPOSED) ORDER ON DEMURRER TO
4
THIRD AMENDED COMPLAINT on the interested parties in this action as listed on the
5 following service list:
Adam F. Keats adam@keatslaw.org Attorneysfor Plaintiff:
6
Bring Back the Kern, Kern River
7 Parkway Foundation, Kern Audubon
Society, Sierra Club, Centerfor
8 Biological Diversity
William McKinnon legal@waterauditca.org Attorneysfor Plaintiff:
9
Linda Ghiringhelli Linda.asc@sbcglobal.net Water Audit California
10 Valerie Stephan ystephan@waterauditca.org
Colin L. Pearce clpearce@duanemoms.com Attorneysfor Defendant:
11 Jolie-Anne S. Ansley jsansley@duanemorris.com City ofBakersfield
Ashley L. Barton abarton@duanemoms.com
12
Matthew S. Collom mcollom@bakersfieldcity.us
13 Blanca A^Herrera baheiTera@duanemorris.com
Robert E. Donlan red@eslawfinn.com Attorneysfor Intervenors:
14
Craig A. Carnes cac@eslawfinn.com Kern Delta Water District
Kevin W. Bursey kbursey@eslawfinn.com
15
Richard Iger richard@kerndelta.org
16 Isaac St. Lawrence isaac@mhwslegal.com Attorneys for Intervenors:
James A. Worth j im@mhwslegal.com. Buena Vista Water Storage District
17
Lupe Gonzalez lupe@mhwslegal.com
18 Daniel N. Raytis dan@bbr.law Attorneys for Intervenors:
Daniel M. Root droot@bbr.law Rosedale-Rio Bravo Water Storage
19 Jennifer L. Spaletta iennifer.spaletta@stoel.com District
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Amelia T. Minaberrigarai ameliam@kcwa.com Attorneys for Intervenors:
21 Nicholas A. Jacobs niacobs@somachlaw.com Kern County Water Agency
Pennie MacPherson pmacpherson@somachlaw.com
22 j estabrook@somachlaw. com
gloomis@somachlaw.com
23
llacey@somachlaw.com
24 On the date set forth below, I caused the document to be sent to the persons at the e-mail
addresses listed on the service list. I did not receive, within a reasonable time after the transmission,
25
any electronic message or other indication that the transmission was unsuccessful. I declare under
26 penalty of perjury under the laws of the State of California that the above is true and correct. Executed
on February 9, 2024, at Bakersfield, California.
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28 Kristen L. Moen
Proof of Service
1 PROOF OF SERVICE
Bring Back the Kern, et al. v. City of Bakersfield
2
Kern County Case No. BCV-22-103220
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4 The undersigned hereby declares that I am and was at the times of the service hereunder
mentioned, over the age of eighteen (18) years, and not a party to the within cause. My business
5 address is 1800 30th Street, Fourth Floor, Bakersfield, CA 93301. My electronic service address
is kmoen@youngwooldridge.com.
6
Pursuant to California Rules of Court, rule 2.251(c)(4) and Code of Civil Procedure
7 section 1010.6, I served by email the document entitled NOTICE OF ENTRY OF ORDER
ON DEMURRER TO THIRD AMENDED COMPLAINT on the interested parties in this
8 action as listed on the attached service list.
9 On the date set forth below, I caused the document to be sent to the persons at the e-mail
addresses listed on the service list. I did not receive, within a reasonable time after the
10
transmission, any electronic message or other indication that the transmission was unsuccessful.
11 I declare under penalty of perjury under the laws of the State of California that the above is
12 true and correct. Executed on February 21, 2024, at Bakersfield, California.
13
/s/ Kristen L. Moen
14 Kristen L. Moen
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Proof of Service
1 SERVICE LIST
2 Bring Back the Kern, et al. v. City of Bakersfield
Kern County Case No. BCV-22-103220
3
Adam F. Keats adam@keatslaw.org Attorneys for Plaintiff:
4
Bring Back the Kern, Kern River
5 Parkway Foundation, Kern Audubon
Society, Sierra Club, Center for
6 Biological Diversity
William McKinnon legal@waterauditca.org Attorneys for Plaintiff:
7
Linda Ghiringhelli Linda.asc@sbcglobal.net Water Audit California
8 Valerie Stephan vstephan@waterauditca.org
9 Colin L. Pearce clpearce@duanemorris.com Attorneys for Defendant:
Jolie-Anne S. Ansley jsansley@duanemorris.com City of Bakersfield
10
Ashley L. Barton abarton@duanemorris.com
11 Matthew S. Collom mcollom@bakersfieldcity.us
Blanca A. Herrera baherrera@duanemorris.com
12
13 Robert E. Donlan red@eslawfirm.com Attorneys for Intervenors:
Craig A. Carnes cac@eslawfirm.com Kern Delta Water District
14 Kevin W. Bursey kbursey@eslawfirm.com
Richard Iger richard@kerndelta.org
15
16 Isaac St. Lawrence isaac@mhwslegal.com Attorneys for Intervenors:
James A. Worth jim@mhwslegal.com Buena Vista Water Storage District
17 Lupe Gonzalez lupe@mhwslegal.com
18 Daniel N. Raytis dan@bbr.law Attorneys for Intervenors:
19 Daniel M. Root droot@bbr.law Rosedale-Rio Bravo Water Storage
Heather McCoy heather@bbr.law District
20 Jennifer L. Spaletta jennifer.spaletta@stoel.com
21 Amelia T. Minaberrigarai ameliam@kcwa.com Attorneys for Intervenors:
22 Nicholas A. Jacobs njacobs@somachlaw.com Kern County Water Agency
Pennie MacPherson pmacpherson@somachlaw.com
23 Louinda V. Lacey llacey@somachlaw.com
Jennifer Estabrook jestabrook@somachlaw.com
24 Gloria Loomis gloomis@somachlaw.com
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Proof of Service
Preview
1 Scott K. Kuney (SBN 111115) Brett A. Stroud (SBN 301777) 2 The Law Offices of Young Wooldridge, LLP 3 1800 30th Street, Fourth Floor Bakersfield, CA 93301 4 Phone: (661) 327-9661 Fax: (661) 327-0720 5 Email: skuney@youngwooldridge.com 6 bstroud@youngwooldridge.com 7 Attorneys for Intervenor-Defendant EXEMPT FROM FILING North Kern Water Storage District FEE [GOV. CODE, §6103] 8 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 FOR THE COUNTY OF KERN 11 BRING BACK THE KERN, WATER AUDIT Case No. BCV-22-103220-GAP CALIFORNIA, KERN RIVER PARKWAY Assigned to Hon. Gregory Pulskamp 12 FOUNDATION, KERN AUDUBON 13 SOCIETY, SIERRA CLUB, and CENTER FOR BIOLOGICAL DIVERSITY, 14 NOTICE OF ENTRY OF ORDER ON Plaintiffs and Petitioners, DEMURRER TO THIRD AMENDED 15 v. COMPLAINT 16 CITY OF BAKERSFIELD, and DOES 1 through 500, 17 Complaint Filed: November 30, 2022 Defendants and Respondents, FAC Filed: March 6, 2023 18 SAC Filed: October 4, 2023 BUENA VISTA WATER STORAGE TAC Filed: December 1, 2023 19 DISTRICT, KERN DELTA WATER Trial Date: None Set 20 DISTRICT, NORTH KERN WATER STORAGE DISTRICT, ROSEDALE-RIO 21 BRAVO WATER STORAGE DISTRICT, KERN COUNTY WATER AGENCY, and 22 DOES 501-999, 23 Real Parties in Interest. 24 25 26 27 28 327028.000 1 Notice of Entry of Order on Demurrer to Third Amended Complaint 1 TO ALL PARTIES AND TO THEIR ATTORNEYS OF RECORD HEREIN: 2 NOTICE IS HEREBY GIVEN that on February 15, 2024, an Order on Demurrer to 3 Third Amended Complaint was issued in the above-captioned action. A true and correct copy 4 of the Order is attached hereto as Exhibit “A” and incorporated herein by this reference. 5 6 Dated: February 21, 2024 THE LAW OFFICES OF YOUNG WOOLDRIDGE, LLP 7 8 By: /s/ Brett A. Stroud Scott K. Kuney 9 Brett A. Stroud Attorneys for Real Party in Interest 10 North Kern Water Storage District 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 327028.000 2 Notice of Entry of Order on Demurrer to Third Amended Complaint Exhibit A Electronically Received: 2/15/2024 1:34 PM FILED KERN COUNTY SUPERIOR COURT 02/15/2024 1 Scott K. Kuney (SBN 111115) Brett A. Stroud (SBN 301777) Evans, Gricelda BY _______________________ 2 The Law Offices of Young Wooldridge, LLP DEPUTY th 3 1800 30 Street, Fourth Floor Bakersfield, CA 93301 4 Phone: (661) 327-9661 Exempt from Filing Fees Fax: (661) 327-0720 Gov. Code, § 6103 5 Email: skuney@youngwooldridge.com 6 bstroud@youngwooldridge.com 7 Attorneys for Real Party in Interest North Kern Water Storage District 8 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 FOR THE COUNTY OF KERN 11 BRING BACK THE KERN, WATER AUDIT Case No. BCV-22-103220 CALIFORNIA, KERN RIVER PARKWAY Assigned to Hon. Gregory Pulskamp 12 FOUNDATION, KERN AUDUBON SOCIETY, SIERRA CLUB, and CENTER 13 FOR BIOLOGICAL DIVERSITY, 14 Plaintiffs and Petitioners, (PROPOSED) ORDER ON 15 v. DEMURRER TO THIRD AMENDED CITY OF BAKERSFIELD, and DOES 1 COMPLAINT 16 through 500, 17 Defendants and Respondents, 18 BUENA VISTA WATER STORAGE DISTRICT, KERN DELTA WATER 19 DISTRICT, NORTH KERN WATER 20 STORAGE DISTRICT, ROSEDALE-RIO BRAVO WATER STORAGE DISTRICT, 21 KERN COUNTY WATER AGENCY, and DOES 501-999, 22 Real Parties in Interest. 23 24 25 26 27 28 2111-127\00326099.001 1 ORDER ON DEMURRER TO THIRD AMENDED COMPLAINT 1 On January 31, 2024 at 8:30 a.m., in Department J of this Court before the Honorable 2 Judge Gregory A. Pulskamp, the Court heard argument on the Real Parties’ Demurrer to the 3 Plaintiff’s Third Amended Complaint and Petition (“Demurrer”). 4 Brett Stroud and Scott Kuney appeared on behalf of Real Party in Interest North Kern 5 Water Storage District. Isaac St. Lawrence appeared on behalf of Real Party in Interest Buena 6 Vista Water Storage District. Richard Iger, Craig Carnes, and Kevin Bursey appeared on behalf 7 of Real Party in Interest Kern Delta Water District. Nicholas Jacobs appeared on behalf of Real 8 Party in Interest Kern County Water Agency. Daniel Raytis and Jennifer Spaletta appeared on 9 behalf of Real Party in Interest Rosedale-Rio Bravo Water Storage District. Adam Keats 10 appeared on behalf of Plaintiffs Bring Back the Kern, Kern River Parkway Foundation, Kern 11 Audubon Society, Sierra Club, and Center for Biological Diversity. William McKinnon appeared 12 on behalf of Plaintiff Water Audit California. Colin Pearce and Matt Collom appeared on behalf 13 of Defendant City of Bakersfield. 14 The Court, after considering the briefs of the parties and other documents on file in this 15 matter, including the declarations and exhibits filed in support of the briefs and documents and 16 matters to which the Court has taken judicial notice, and the arguments of counsel, and for good 17 cause appearing, issues the ruling attached hereto as Exhibit A (“Ruling”). Pursuant to this 18 Ruling, 19 IT IS HEREBY ORDERED THAT: 20 1. Real Parties’ Request for Judicial Notice in Support of the Demurrer is granted. 21 2. Real Parties’ Demurrer is overruled as to the first cause of action and sustained as to the 22 third and fourth causes of action. The Court denies Plaintiff leave to amend the third cause 23 of action, but grants 10 days leave to amend the fourth cause of action pursuant to California 24 Rules of Court, Rule 3.1320(g). 25 26 DATED: _________________, Signed: 2/15/2024 04:04 PM 2024 27 Honorable Gregory A. Pulskamp 28 Judge of the Kern County Superior Court 2111-127\00326099.001 2 ORDER ON DEMURRER TO THIRD AMENDED COMPLAINT Exhibit A Superior Court of California County of Kern Bakersfield Division J Date: 2/5/2024 Time: 8:00 AM - 5:00 PM BCV-22-103220 BRING BACK THE KERN ET AL VS CITY OF BAKERSFIELD Courtroom Staff Honorable: Gregory A. Pulskamp Clerk: Inez Trimble NATURE OF PROCEEDING: Ruling on Real Parties in Interest’s (RPI’s) Demurrer to Plaintiffs’ Third Amended Complaint (TAC) heretofore submitted on January 31, 2024. RULING: 1. RPI’s Request for Judicial Notice in Support of Demurrer to Plaintiffs’ TAC is granted. 2. RPI’s Demurrer to Plaintiffs’ TAC is overruled as to the first cause of action and sustained as to the third and fourth causes of action. The Court denies Plaintiff leave to amend the third cause of action, but grants 10 days leave to amend the fourth cause of action pursuant to California Rules of Court, Rule 3.1320(g). DISCUSSION: I. First Cause of Action A. Violations of the Public Trust Doctrine RPI argue that the first cause of action for writ of mandate and/or prohibition for violations of the Public Trust Doctrine fails to state a claim. They argue that the City of Bakersfield (City) is not a trustee agency when it operates the diversion structures (weirs) and that Plaintiffs cannot allege a mandatory duty to operate the diversion structures in a particular way because the Public Trust Doctrine inherently involves discretion. Plaintiff Water Audit California (WAC) argues that they are not seeking to instruct the City on how to comply with its mandatory statutory and public trust duties. Instead, they assert that RULING Page 1 of 9 BRING BACK THE KERN ET AL VS CITY OF BAKERSFIELD BCV-22-103220 MINUTES FINALIZED BY: Inez Trimble ON: 2/5/2024 the City does not have the discretion to ignore its statutory and public trust duties. WAC argues that a writ of mandate is appropriate because Fish and Game Code section 5937 is a mandatory ministerial duty as a clear legislative expression of the Public Trust Doctrine. Similarly, Plaintiffs Bring Back the Kern, et al. argue that the City does not have the discretion to entirely avoid its legal duties and violate the law. They argue that while the Court in Monterey Coastkeeper states the Public Trust Doctrine is “inherently discretionary,” it did not rule that all actions alleging violations of the Public Trust Doctrine necessarily involve discretionary acts. They further argue that “[t]here should be no question that the City has a duty to consider the public trust interest when making its daily decisions to divert water from the Kern River.” As such, they conclude that a writ of mandate is appropriate. A traditional writ of mandate under Code of Civil Procedure section 1085, like the one sought here by Plaintiffs, is a method used to challenge an agency’s failure to perform an act required by law. To obtain writ relief, a Plaintiff must show that: (1) there is no other plain, speedy, adequate remedy in the ordinary course of law (Code Civ. Proc., § 1086); (2) the Defendant has a clear, present, and ministerial duty to act in a particular way (Code Civ. Proc., § 1085(a)); and (3) the Plaintiff has a clear, present, and beneficial right to the performance of that duty (Code Civ. Proc., § 1086). In Monterey Coastkeeper, the appellate court upheld the trial court’s decision that traditional mandamus was inappropriate to enforce the public trust doctrine. There, the trial court sustained a demurrer without leave to amend because appellants had not identified a mandatory ministerial duty but instead brought a broad, generalized challenge to an agency’s discretionary decisions. In this case, however, Plaintiffs have identified ministerial duties with which the City must comply, including Fish and Game Code section 5937. While the City operates the diversion structures and manages the Kern River according to historic legal and contractual provisions, the City does not have the discretion to ignore its statutory and public trust duties. As such, a writ of mandate (and possibly a writ of prohibition) is appropriate. B. Violations of the Fish and Game Code RPI argue that the first cause of action also fails to state a claim because Fish and Game Code section 5901 applies only to anadromous fish. This Court previously ruled on October 30, 2023, that Section 5937 applies to all fish, not just anadromous fish. Similarly, there is no limitation in the language of Section 5901. If the legislature intended Section 5901 to apply only to anadromous fish, they would have so specified. RPI next argue that there is no private right of enforcement, or right of action, for violations of Fish and Game Code section 5901. In their Opposition, Plaintiffs Bring Back the Kern, et al. argue that courts RULING Page 2 of 9 BRING BACK THE KERN ET AL VS CITY OF BAKERSFIELD BCV-22-103220 MINUTES FINALIZED BY: Inez Trimble ON: 2/5/2024 have previously found a private right of action for violations of section 5937, and there is no reason the two sections should be treated differently in terms of enforcement. One section regards the impacts of dams (and other devices or contrivances) on ‘passing of fish up and down stream’ while the other regards the impacts of dams on the conditions of the fish existing below the dam. (Fish and Game Code §§ 5901, 5937.) Plaintiff WAC similarly argues that National Audubon held that any member of the public has standing to assert a claim of harm under the public trust doctrine and “to the extent the waters are the common passageway for fish, although flowing over lands entirely subject to private ownership, they are deemed for such purposes public waters, and subject to all laws of the state regulating the right of fishery.” (Citing Cal Trout I, 207 Cal.App.3d 585, 630.) “It is well settled that there is a private right of action to enforce a statute ‘only if the statutory language or legislative history affirmatively indicates such an intent. That intent need not necessarily be expressed explicitly, but if not it must be strongly implied.’” (Noe v. Superior Ct., 237 Cal.App.4th 316, 337.) Here, the plain language of Section 5901 does not indicate there is any private right of action to enforce its provision. The section simply states it is unlawful to construct or maintain in any stream in specified districts, any device or contrivance that prevents, impedes, or tends to prevent or impede, the passing of fish up and down stream. There has been no argument by either party that the legislative history implies there is a private right of action for violations of Section 5901. While there have been private enforcement actions for Section 5937, the same does not appear true for Section 5901. However, “it is an established rule of statutory construction that similar statutes should be construed in light of one another and that similar phrases appearing in each should be given like meanings.” (People v. Tran, 61 Cal.4th 1160, 1167-1168.) Therefore, Sections 5901 and 5937 should be treated similarly. They both relate to the presence of dams in waterways and the impact thereof on the condition of fish and their ability to pass up and down streams. As such, it seems appropriate that the Plaintiffs can assert a claim for violations of Section 5901 in addition to Section 5937. Lastly, RPI argue that Section 5937 does not apply to the City’s diversion structures (weirs) because they are not “dams.”` According to the RPI, while Section 5900(a) provides a broad definition for “dam,” Section 5900(b) specifically defines a number of other facilities are “conduits” (i.e., something other than dams) and the Fish and Game Code has numerous provisions treating “conduits” separate from “dams.” Included in the “conduit” definition in Section 5900(b) is, among other things, a diversion structure used for taking water from a river. RPI conclude that because the Complaint acknowledges that the weirs are diversion structures used for taking water from the river, the diversion structures are therefore not “dams” subject to Section 5937. Plaintiff WAC argues in its Opposition that a weir acts as a barrier that impedes the flow of water. Because the subject weirs are artificial obstructions that provide for the diversion of water, they are subject to section 5937. Plaintiffs Bring Back the Kern, et al. argue that under the Fish and Game Code, a weir can be both a dam and a conduit and the two definitions are not mutually exclusive. This Court previously ruled that the weirs are “dams” because they are “artificial obstructions” and therefore qualify as “dams” under Fish and Game Code section 5900(a). RPIs’ argument that the weirs RULING Page 3 of 9 BRING BACK THE KERN ET AL VS CITY OF BAKERSFIELD BCV-22-103220 MINUTES FINALIZED BY: Inez Trimble ON: 2/5/2024 are exclusively conduits under Fish and Game Code section 5900(b) is not persuasive. Section (a) defines “dams” as including all artificial obstructions. Logically, this broad definition of a dam would include a conduit (a diversion used for the purpose of taking or receiving water) because it is still an artificial obstruction. Therefore, the City’s diversion structures (weirs) in the Kern River qualify as “dams,” as that term is used in the pertinent provisions of the Fish and Game Code. II. Third Cause of Action – Violations of Public Resources Code Section 6009.1 RPI contend that Plaintiffs fail to state a claim for breach of trustee duties under Public Resources Code section 6009.1 because the third cause of action does not allege that the California Legislature granted tidelands or submerged lands to the City (or the RPI). RPI argue that the City received its interest in the weirs and the Kern River from a private corporation, not from a grant of the legislature. They further contend, therefore, that Plaintiffs have failed to allege sufficient facts demonstrating that the City owed a duty under Section 6009.1. Plaintiff WAC argues that Public Resources Code Section 6009.1 ensures that private trustees of the public trust have the same duties as state actors because in common law, public trust duties are imposed on agencies of the state but not private actors. Further, “by a plain and commonsense reading, Public Resources Code section 6009.1(c) was intended to be an enumeration of the understanding of the duties of a public trustee. A trustee’s duties, interpretation and impact have long preexisted the statute.” According to WAC, “the California Land Act of 1851 invested all the lands transferred into the hands of the State with the public trust.” Plaintiffs Bring Back the Kern, et al. join in WAC’s arguments regarding the Public Resources Code. Public Resources Code section 6009.1 provides that “granted public trust lands” are subject to the supervision of the State and the State has a duty to protect the public interest in those public trust lands. (Pub. Res. Code, § 6009.1(a).) “The state acts both as the trustor and the representative of the beneficiaries, who are all of the people of this state, with regard to public trust lands, and a grantee of public trust lands, including tidelands and submerged lands, acts as a trustee, with the granted tidelands and submerged lands as the corpus of the trust.” (Id., § 6009.1(b).) All duties endowed upon a trustee of state lands shall depend upon the terms of the trust, and if there is no provision, express or implied, within the terms of the trust, a statute, or a grant, the trustee's duties shall be interpreted and determined by principles and rules evolved by courts of equity with respect to common trust principles. (Id., § 6009.1(d).) RULING Page 4 of 9 BRING BACK THE KERN ET AL VS CITY OF BAKERSFIELD BCV-22-103220 MINUTES FINALIZED BY: Inez Trimble ON: 2/5/2024 The California State Lands Commission1 manages 4 million acres of tide and submerged lands and the beds of natural navigable rivers, streams, lakes, bays, estuaries, inlets, and straits. These lands, often referred to as sovereign or Public Trust lands, stretch from the Klamath River and Goose Lake in the north to the Tijuana Estuary in the south, and the Colorado River in the east, and from the Pacific Coast three miles offshore in the west to world-famous Lake Tahoe in the east, and includes California’s two longest rivers, the Sacramento and San Joaquin. The Commission also monitors sovereign land granted in trust by the California Legislature to approximately 70 local jurisdictions that generally consist of prime waterfront lands and coastal waters. The Commission protects and enhances these lands and natural resources by issuing leases for use or development, providing public access, resolving boundaries between public and private lands. Through its actions, the Commission secures and safeguards the public’s access rights to natural navigable waterways and the coastline and preserves irreplaceable natural habitats for wildlife, vegetation, and biological communities. The Commission’s website provides a list of grantees. Grantees include cities and counties in California. Here, Plaintiffs have not pled or alleged that the City is a grantee of public lands as provided for in Public Resources Code section 6009.1. Plaintiffs do not provide authority for the proposition that the City is the equivalent of the State for purposes of scope and jurisdiction of the Public Resource Code. The TAC does not allege that Section 6009.1 applies to the City or the Kern River. It may be worth noting that neither the City nor Kern County are listed as grantees of public trust lands on the California State Lands Commission website2. Therefore, Public Resources Code section 6009.1 does not apply to the City or RPI as alleged in the TAC. Leave to amend is not warranted on this issue because the facts pled establish that the complaint is incapable of a curative amendment. (See, e.g., Virginia G. v. ABC Unified School Dist. (1993) 15 Cal.App.4th 1848, 1852.) III. Fourth Cause of Action – Public Nuisance Lastly, RPI assert that the TAC fails to state a claim for public nuisance because there is no private attorney general exception to the special injury requirement and Plaintiffs have not alleged a qualifying special injury. 1 Information from California State Lands Commission website. See https://www.slc.ca.gov/about/ 2 The Court takes judicial notice of this resource as information that is not subject to reasonable dispute. (Evid. Code § 452(h).) RULING Page 5 of 9 BRING BACK THE KERN ET AL VS CITY OF BAKERSFIELD BCV-22-103220 MINUTES FINALIZED BY: Inez Trimble ON: 2/5/2024 Plaintiff WAC asserts that a private attorney general exception is not required under Civil Code section 3493 because “private individuals have been authorized to bring a mandate action to enforce a public duty involving the protection of a public right.” They also argue that Plaintiffs have standing because: The City has prevented their members from the use, in a customary manner, of the Kern River. Members of these organizations have a unique and specific interest in the fish and wildlife within the Kern River. They have suffered an injury in fact to their public trust interests in the fish and other wildlife of the Kern River when the City unlawfully destroys these resources. These interests in fish and other wildlife include not only the public trust property interest in the fish and other wildlife, but other recreational and ecological values provided by the fish. Plaintiffs Bring Back the Kern et al. join in WAC’s arguments regarding public nuisance. A nuisance is defined in the Civil Code as follows: Anything which is injurious to health, including, but not limited to, the illegal sale of controlled substances, or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, or unlawfully obstructs the free passage or use, in the customary manner, of any navigable lake, or river, bay, stream, canal, or basin, or any public park, square, street, or highway, is a nuisance. (Civ. Code, § 3479.) A public, as opposed to private, nuisance is “one which affects at the same time an entire community or neighborhood, or any considerable number of persons, although the extent of the annoyance or damage inflicted upon individuals may be unequal.” (Civ. Code, § 3480.) Actions for public nuisance are “aimed at the protection and redress of community interests” (People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1103, 60 Cal.Rptr.2d 277, 929 P.2d 596), and therefore, as a general rule, only public prosecutors authorized by statute may sue for a public nuisance on behalf of the community. (Civ. Code, § 3494; Code Civ. Proc., § 731.) However, Civil Code section 3493 provides: “A private person may maintain an action for a public nuisance, if it is specially injurious to himself, but not otherwise.” (Rincon Band of Luiseno Mission Indians etc. v. Flynt (2021) 70 Cal.App.5th 1059, 1100.) RULING Page 6 of 9 BRING BACK THE KERN ET AL VS CITY OF BAKERSFIELD BCV-22-103220 MINUTES FINALIZED BY: Inez Trimble ON: 2/5/2024 On September 18, 2023, this Court ruled that voluntarily incurred expenses such as those alleged by the Plaintiffs were insufficient to qualify as a special injury necessary for standing in a public nuisance claim. Although the Court went on to overrule the challenge to the fourth cause of action, it noted that because “Plaintiffs bring this action as a private attorney general, it is unclear whether they therefore become exempt from the special injury requirement.” Further analysis, as set forth below, establishes that private attorney general actions are in all likelihood not exempt from the special injury requirement despite public policy considerations that support such a conclusion. To bring a public nuisance claim, a party must have suffered a special injury distinct from the general public. (Civ. Code, § 3493.) The notion of a private attorney general exception is certainly not in the express language of Civil Code section 3493. Although the cases cited by Plaintiff in support of such an exception are interesting from a public policy perspective, they do not address Section 3494 and are not directly applicable. In view of the fact that California apparently has no published opinion supporting such an exception, the legislature’s intent as evidenced by the plain statutory language must control. In addition, as noted by the RPI, such an exception would likely swallow the rule since every public nuisance case would, by definition, seem to qualify as a private attorney general case. Therefore, because there is no established private attorney general exception and the TAC fails to allege an appropriate special injury, the Court sustains the demurrer as to the fourth cause of action for public nuisance. Leave to amend is warranted on this issue because the facts pled do not establish that the complaint is incapable of a curative amendment. (See, e.g., Virginia G. v. ABC Unified School Dist. (1993) 15 Cal.App.4th 1848, 1852.) DISPOSITION: RPI shall prepare a formal order consistent with this ruling for the Court's signature pursuant to California Rule of Court 3.1312. Copy of minutes mailed to all parties as stated on the attached certificate of mailing. FUTURE HEARINGS: Motion to Intervene scheduled for February 20, 2024. RULING Page 7 of 9 BRING BACK THE KERN ET AL VS CITY OF BAKERSFIELD BCV-22-103220 MINUTES FINALIZED BY: Inez Trimble ON: 2/5/2024 BRING BACK THE KERN ET AL VS CITY OF BAKERSFIELD BCV-22-103220 CERTIFICATE OF MAILING The undersigned, of said Kern County, certify: That I am a Deputy Clerk of the Superior Court of the State of California, in and for the County of Kern, that I am a citizen of the United States, over 18 years of age, I reside in or am employed in the County of Kern, and not a party to the within action, that I served the Ruling dated February 05, 2024 attached hereto on all interested parties and any respective counsel of record in the within action by depositing true copies thereof, enclosed in a sealed envelope(s) with postage fully prepaid and placed for collection and mailing on this date, following standard Court practices, in the United States mail at Bakersfield California addressed as indicated on the attached mailing list. Date of Mailing: February 05, 2024 Place of Mailing: Bakersfield, CA I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Tara Leal CLERK OF THE SUPERIOR COURT Date: February 05, 2024 By: Inez Trimble Inez Trimble, Deputy Clerk MAILING LIST ADAM KEATS BRETT A STROUD LAW OFFICE OF ADAM KEATS THE LAW OFFICES OF YOUNG WOOLDRIDGE 303 SACRAMENTO ST 2ND FLOOR LLP SAN FRANCISCO CA 94111 1800 30TH STREET FOURTH FLOOR BAKERSFIELD CA 93301 WILLIAM A MCKINNON ISAAC L ST LAWRENCE WILLIAM MCKINNON ATTORNEY AT LAW MCMURTREY HARTSOCK & WORTH 952 SCHOOL ST PMB316 2001 22ND ST #100 NAPA CA 94559 BAKERSFIELD CA 93301 COLIN L PEARCE RICHARD L IGER DUANE MORRIS LLP KERN DELTA WATER DISTRICT 1 MARKET SPEAR TWR #2200 501 TAFT HWY SAN FRANCISCO CA 941051127 BAKERSFIELD CA 93307-6247 Certificate of Mailing Page 8 of 9 BRING BACK THE KERN ET AL VS CITY OF BAKERSFIELD BCV-22-103220 DANIEL M ROOT VIRGINIA A GENNARO BELDEN BLAINE RAYTIS LLP OFC BAKERSFIELD CITY ATTORNEY 5016 CALIFORNIA AVE #3 1600 TRUXTUN AVE 4FL BAKERSFIELD CA 93309 BAKERSFIELD CA 93301 AMELIA THOMAS MINABERRIGARAI LOUINDA V LACEY KERN COUNTY WATER AGENCY SOMACH SIMMONS & DUNN 3200 RIO MIRADA DR 500 CAPITOL MALL SUITE 1000 BAKERSFIELD CA 93308 SACRAMENTO CA 95814 KEVIN W BURSEY JENNIFER L SPALETTA ELLISON SCHNEIDER HARRIS & DONLAN STOEL RIVES LLP 2600 CAPITOL AVE #400 500 CAPITOL MALL #1600 SACRAMENTO CA 95816 SACRAMENTO CA 95814 NICHOLAS ALLEN JACOBS NATHAN A METCALF 500 CAPITAL MALL #1000 HANSON BRIDGETT LLP SACRAMENTO CA 95814 1676 N CALIFORNIA BLVD #620 WALNUT CREEK CA 94596 MICHELLE E CHESTER FIFTH DISTRICT COURT OF APPEAL SOMACH SIMMONS & DUNN 2424 VENTURA ST 500 CAPITOL MALL #1000 FRESNO CA 93721 SACRAMENTO CA 95814-4742 Certificate of Mailing Page 9 of 9 PROOF OF SERVICE 1 The undersigned hereby declares that I am and was at the times of the service hereunder 2 mentioned, over the age of eighteen (18) year's, and not a party to the within cause. My business address is 1800 30th Street, Fourth Floor, Bakersfield, CA 93301. 3 I served by email the document entitled (PROPOSED) ORDER ON DEMURRER TO 4 THIRD AMENDED COMPLAINT on the interested parties in this action as listed on the 5 following service list: Adam F. Keats adam@keatslaw.org Attorneysfor Plaintiff: 6 Bring Back the Kern, Kern River 7 Parkway Foundation, Kern Audubon Society, Sierra Club, Centerfor 8 Biological Diversity William McKinnon legal@waterauditca.org Attorneysfor Plaintiff: 9 Linda Ghiringhelli Linda.asc@sbcglobal.net Water Audit California 10 Valerie Stephan ystephan@waterauditca.org Colin L. Pearce clpearce@duanemoms.com Attorneysfor Defendant: 11 Jolie-Anne S. Ansley jsansley@duanemorris.com City ofBakersfield Ashley L. Barton abarton@duanemoms.com 12 Matthew S. Collom mcollom@bakersfieldcity.us 13 Blanca A^Herrera baheiTera@duanemorris.com Robert E. Donlan red@eslawfinn.com Attorneysfor Intervenors: 14 Craig A. Carnes cac@eslawfinn.com Kern Delta Water District Kevin W. Bursey kbursey@eslawfinn.com 15 Richard Iger richard@kerndelta.org 16 Isaac St. Lawrence isaac@mhwslegal.com Attorneys for Intervenors: James A. Worth j im@mhwslegal.com. Buena Vista Water Storage District 17 Lupe Gonzalez lupe@mhwslegal.com 18 Daniel N. Raytis dan@bbr.law Attorneys for Intervenors: Daniel M. Root droot@bbr.law Rosedale-Rio Bravo Water Storage 19 Jennifer L. Spaletta iennifer.spaletta@stoel.com District 20 Amelia T. Minaberrigarai ameliam@kcwa.com Attorneys for Intervenors: 21 Nicholas A. Jacobs niacobs@somachlaw.com Kern County Water Agency Pennie MacPherson pmacpherson@somachlaw.com 22 j estabrook@somachlaw. com gloomis@somachlaw.com 23 llacey@somachlaw.com 24 On the date set forth below, I caused the document to be sent to the persons at the e-mail addresses listed on the service list. I did not receive, within a reasonable time after the transmission, 25 any electronic message or other indication that the transmission was unsuccessful. I declare under 26 penalty of perjury under the laws of the State of California that the above is true and correct. Executed on February 9, 2024, at Bakersfield, California. 27 28 Kristen L. Moen Proof of Service 1 PROOF OF SERVICE Bring Back the Kern, et al. v. City of Bakersfield 2 Kern County Case No. BCV-22-103220 3 4 The undersigned hereby declares that I am and was at the times of the service hereunder mentioned, over the age of eighteen (18) years, and not a party to the within cause. My business 5 address is 1800 30th Street, Fourth Floor, Bakersfield, CA 93301. My electronic service address is kmoen@youngwooldridge.com. 6 Pursuant to California Rules of Court, rule 2.251(c)(4) and Code of Civil Procedure 7 section 1010.6, I served by email the document entitled NOTICE OF ENTRY OF ORDER ON DEMURRER TO THIRD AMENDED COMPLAINT on the interested parties in this 8 action as listed on the attached service list. 9 On the date set forth below, I caused the document to be sent to the persons at the e-mail addresses listed on the service list. I did not receive, within a reasonable time after the 10 transmission, any electronic message or other indication that the transmission was unsuccessful. 11 I declare under penalty of perjury under the laws of the State of California that the above is 12 true and correct. Executed on February 21, 2024, at Bakersfield, California. 13 /s/ Kristen L. Moen 14 Kristen L. Moen 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Proof of Service 1 SERVICE LIST 2 Bring Back the Kern, et al. v. City of Bakersfield Kern County Case No. BCV-22-103220 3 Adam F. Keats adam@keatslaw.org Attorneys for Plaintiff: 4 Bring Back the Kern, Kern River 5 Parkway Foundation, Kern Audubon Society, Sierra Club, Center for 6 Biological Diversity William McKinnon legal@waterauditca.org Attorneys for Plaintiff: 7 Linda Ghiringhelli Linda.asc@sbcglobal.net Water Audit California 8 Valerie Stephan vstephan@waterauditca.org 9 Colin L. Pearce clpearce@duanemorris.com Attorneys for Defendant: Jolie-Anne S. Ansley jsansley@duanemorris.com City of Bakersfield 10 Ashley L. Barton abarton@duanemorris.com 11 Matthew S. Collom mcollom@bakersfieldcity.us Blanca A. Herrera baherrera@duanemorris.com 12 13 Robert E. Donlan red@eslawfirm.com Attorneys for Intervenors: Craig A. Carnes cac@eslawfirm.com Kern Delta Water District 14 Kevin W. Bursey kbursey@eslawfirm.com Richard Iger richard@kerndelta.org 15 16 Isaac St. Lawrence isaac@mhwslegal.com Attorneys for Intervenors: James A. Worth jim@mhwslegal.com Buena Vista Water Storage District 17 Lupe Gonzalez lupe@mhwslegal.com 18 Daniel N. Raytis dan@bbr.law Attorneys for Intervenors: 19 Daniel M. Root droot@bbr.law Rosedale-Rio Bravo Water Storage Heather McCoy heather@bbr.law District 20 Jennifer L. Spaletta jennifer.spaletta@stoel.com 21 Amelia T. Minaberrigarai ameliam@kcwa.com Attorneys for Intervenors: 22 Nicholas A. Jacobs njacobs@somachlaw.com Kern County Water Agency Pennie MacPherson pmacpherson@somachlaw.com 23 Louinda V. Lacey llacey@somachlaw.com Jennifer Estabrook jestabrook@somachlaw.com 24 Gloria Loomis gloomis@somachlaw.com 25 26 27 28 Proof of Service