Supreme Court weighs Snauffer's ruling on Kern River water rights

The California Supreme Court is reviewing a ruling by 5th District Justice Mark W. Snauffer that courts must weigh whether water use is reasonable before ordering fish-protecting flows.

Snauffer, appointed by Gov. Jerry Brown in 2018 after 18 years on the Fresno County Superior Court, seeks a 12-year term Nov. 3.

His opinion in Bring Back the Kern v. City of Bakersfield (2025) reversed a Kern County judge's preliminary injunction requiring enough Kern River water for fish. A huge 2023 snowpack had sent the river flowing through the city on a sustained basis for the first time since 1983, prompting a suit under Fish and Game Code Section 5937. The statute requires dam owners to let enough water pass "to keep in good condition any fish that may be planted or exist below the dam."

Trial Judge Gregory A. Pulskamp ruled the Legislature had already balanced competing water uses in the statute, leaving him no authority to reweigh them. Writing for a unanimous panel, Snauffer called that constitutional error. Because the reasonable-use requirement of Article X, Section 2 is self-executing, he wrote, both the statute and the Constitution mean "the in-stream use of water to keep fish in good condition is required to the extent that use is reasonable." Fish flows "will often be a reasonable use of water," he added, leaving that question for the trial court.

The panel also found the judge violated irrigation districts' due process rights by approving a flow plan, agreed to only by the city and the plaintiffs, that put the city's municipal needs ahead of the districts' contracted water. It also held the $1,000 bond inadequate. The bond statute requires security tied to the damages an enjoined party may suffer, and environmental suits aren't among its exemptions.

"Whether it should be," Snauffer wrote, "is an argument for the Legislature, not the courts." Any new injunction must carry an adequate bond, with the amount left to the trial court. The high court heard argument Oct. 7.

Fresno voters approved Measure P, a three-eighths percent sales tax for parks, with 52.17% of the vote in 2018. The City Council declared it failed for lack of two-thirds approval, then asked a court to decide. The Howard Jarvis Taxpayers Association intervened; the judge agreed the supermajority rule applied even to a citizen initiative.

Snauffer reversed in City of Fresno v. Fresno Building Healthy Communities (2020), holding that Measure P had passed. Adopting a 1st District ruling on a San Francisco tax, he held that Proposition 13's two-thirds rule governs taxes imposed by local governments, not voters using the initiative power. Proposition 218's "local government," he held, doesn't include the electorate either.

The taxpayer group's warning that politicians could pose as initiative proponents to avoid a vote, he wrote, "should be addressed to the Legislature." Review was denied in 2021.

Before taking the bench, Snauffer spent 18 years at Baker, Manock & Jensen in Fresno as a partner defending medical malpractice and product liability cases, after working at McCormick, Barstow and Sacramento's Hefner, Stark & Marois. Gov. Gray Davis appointed him to the Fresno County Superior Court in 2000, where he twice supervised the civil division.

He served on the Judicial Council's Civil Jury Instructions Advisory Committee from 2020 to 2026. He graduated from UCLA School of Law.

Snauffer taught at San Joaquin College of Law from 2003 to 2007. "One of the things that has given me great satisfaction has been seeing my students at San Joaquin College of Law become successful lawyers," he wrote in a recent email. "Several have told me that my class on Civil Trial Practice was of help to them, especially at the start of their careers."

"Although I have considered retiring, I still enjoy my job, and am privileged to work with great judicial colleagues, lawyers, and administrators at the Fifth, and would like to do so for a few more years," he wrote.