Between Obtuse Laws and Dried-Up Rivers, the Fight of a Californian Lawyer

Photo: Mario Tama Getty Images via Agence France-Presse A view from Kern County of the California Aqueduct, which moves water from the northern part of the state to the drier south.

Sarah Boumedda In San Francisco

Published at 12:00 am

• United States

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Water law in California is a veritable legal labyrinth, as this natural resource is becoming increasingly scarce in this state in the wake of climate change. How can we ensure the survival of waterways in such a context? ? Adam Keats, a water law attorney in San Francisco, has made it his hobbyhorse.

On a Friday in June, Le Devoir meets Adam Keats in his office, a small office located in a century-old building in the heart of San Francisco’s Mission District. This part of the neighborhood is sunny, although the sky is overcast on all sides just a few blocks away. “It’s because of the city’s hills,” which push the fog coming from the Pacific on either side of the area, the attorney explains.

A Boston native, Adam Keats chose California to pursue law school in the early 1990s “because it was at the forefront of environmental protection,” says Keats, who has been interested in the cause since his youth. Although he was initially drawn to civil rights, he found a path to environmental law—specifically, water law in the Golden State.

“Water law [in California] is a very closed circle of preachers,” made up of lawyers from both public and private entities, Keats says. “These people think they know everything about it and they don’t want people to understand their language. They want to control the discourse and the meaning that’s given to it, the interpretation of it.” »

In California, there's how water should be managed, and then there's how water is actually managed

— Adam Keats

Embedding himself in this secretive guild is the very basis of Mr. Keats’s work: mastering this legislation—and all its complex jargon—he uses it to protect, alongside environmental organizations, California’s waterways from abusive exploitation. His practice spans from the Sacramento Delta to the southern tip of California’s Central Valley.

Over 20 years of practice, his work has earned him the title of Northern California Super Lawyer in 2022, 2023, and 2024, awarded by the magazine of the same name, as well as the 2016 “Lawyer of the Year” in the state, awarded by California Lawyer Magazine and the Daily Journal.

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Water law, a judicial labyrinth

“In California, there is the way in which water should be managed, and then the way in which water is actually managed,” says the lawyer. In other words, water is primarily considered by the government and the economic community as a marketable resource, which can be sold between parties.

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But, on the other hand, the oldest legal principles of the common lawCalifornia states designate it as an “element essential to life” that the state has a responsibility to protect. Under the public trust doctrine (public trust doctrine, in English), natural resources belong to all and are in the custody of the state, which therefore has a duty to ensure universal access and protection.

This vision of state responsibility has, however, been gradually obscured, explains the lawyer. With industrialization and the growing demand for water from agricultural and urban areas, the structure of water rights in California has evolved to be based on two main principles: riparian water rights and appropriation water rights.

Photo: Julien Forest Le Devoir Water law attorney Adam Keats in his San Francisco office

The former allow landowners adjacent to a waterway to use that water on their property, while the latter grants ownership of the water to parties who redirect it (through dams or reservoirs) for later use. Essentially, appropriation water rights operate on a first-come, first-served basis: whoever is first to claim water in a location gets the rights for years to come. Riparian rights, however, take precedence over riparian rights.

This complex system has, however, been contested since at least the 1970s and the rise of the environmentalist movement. According to these environmentalists, water protection should be seen “not as a means of perpetuating trade or fishing for economic gain, but as a necessity for the protection of human life and nature in general,” summarizes Adam Keats.

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The “law of the river”

During our visit, he tells the Dutyof one of his cases, which concerns the Kern River. The river, fed by snow from Mount Whitney, flows through the city of Bakersfield, located northeast of Los Angeles. Its course has been altered many times, and a portion of it through the city has been dry for decades.

But in the fall of 2023, a preliminary injunction stopped the diversion of the Kern River, caused by six dams operated by the City of Bakersfield. Adam Keats and his clients, a coalition of local environmental groups, argued, among other things, that the diverted water was necessary for the vitality of the river’s marine life.

“What I think is great is that the court's decision appeals to this notion of the public trust doctrine,” which refers to the state's responsibility to nature, Keats said.

Because in order to ensure the survival of fish in the Kern River, the Kern County Superior Court recognized that Bakersfield had to commit to ensuring that water could flow unobstructed by city dams. For the first time in decades, water was able to continue to flow in the Kern River, according to the lawyer.

Of course, this decision was strongly contested by several local water utilities, as well as by the City of Bakersfield itself. “They keep telling us that we don't understand the situation, that there are over a century of contracts, lawsuits and court decisions that say who can and can't use the water or how to use it. And they call it the 'law of the river'!”

River law or not, the City of Bakersfield’s responsibility to nature takes precedence over everything, the court ruled. “That’s what we’re trying to make them understand. None of that matters. All of those interests are secondary to the obligation to protect our natural resources,” summarizes Adam Keats.

This report was funded with support from the Transat International Journalism Fund-Le Devoir.