This story was originally published by SJV Water.
The Kern County Water Agency filed a motion May 30 seeking to remove Kern County Superior Court Judge Gregory Pulskamp from the long-running Kern River lawsuit saying it believes he is prejudiced against the agency.
It’s highly unusual – one opposing attorney said improper – to try and get a judge removed from a case without a ruling, much less one that hasn’t even gone to trial yet.
Disqualification efforts are typically filed if one side gets a negative ruling at trial that’s later overturned at a higher level and then sent back down to the original judge.
That hasn’t happened in this case, in which Bring Back the Kern, Water Audit California and several other public interest groups sued the City of Bakersfield demanding it study the environmental impact of its river operations.
The trial date is December 8, still seven months away.
The agency declined to comment.
However, the Kern County Water Agency is making its case to Kern County’s Presiding Judge John Lua that Pulskamp is biased against it because his preliminary injunction, which had required enough water in the river to support fish, was overturned by the 5th District Court of Appeal.
“The term ‘new trial’ is interpreted broadly to include any reexamination of actual or legal issues in controversy in the prior proceeding,” the agency’s motion states.
No, the rules for removal are not interpreted “broadly” and, no, there is no “prior proceeding,” states a motion opposing Pulskamp’s removal filed by the City of Bakersfield.
“…there is and has been only a single proceeding, and no ‘prior proceeding,’” the motion states.
The underlying case never left Pulskamp’s authority and he has continued to conduct proceedings in that case even as justices at the 5th District reviewed and ruled on the preliminary injunction, the city’s motion states.
It asks Lua to summarily deny the agency’s motion.
“It’s not a crazy thing to do,” said Attorney Adam Keats, who represents Bring Back the Kern, of trying to get a new judge if you felt one was unfair. “What’s unusual here, and what’s not proper, is to try and do it in the middle of litigation. They’re out of line on this.”
He said it’s also “really weird,” for a public agency to challenge a judge in the same county where that agency operates.
“It’s a strong statement to make that a county judge, who you’ll likely be appearing before in the future, is biased against you,” Keats said. “That should be backed up by something.”
When asked if this could result in a change of venue, taking the case to another county, Keats didn’t think so. That’s typically reserved for cases in which public agencies are suing one another and need a neutral arbiter to avoid any conflict-of-interest issues.
Bring Back the Kern also filed a motion opposing the agency’s attempt to remove Pulskamp.
None of the other “real parties in interest” signed off on the Kern County Water Agency motion, which is likely tactical “to preserve their rights” in case they want to file a similar challenge in the future, Keats said.
Several agricultural water agencies with river rights are considered “parties in interest,” but not defendants, in this case. That means because they can be impacted by the outcome, they’re allowed to weigh in on the case.
It was those districts, including the agency, Kern Delta Water District, Rosedale-Rio Bravo, North Kern and Buena Vista water storage districts, that appealed Pulskamp’s injunction. The court overturned the injunction in early April stating Pulskamp had to determine how much water was needed for fish and whether that was a reasonable use of water compared to other demands.
Bring Back the Kern and Water Audit have petitioned the state Supreme Court to review the 5th District’s ruling on the injunction.