The 36 million NIS lawsuit: The court ruled in the battle over the Asi stream

The District Court in Tel Aviv rejected on Thursday the request to certify a class action lawsuit for tens of millions of shekels against Kibbutz Nir David, which dealt with the blocking of public access to the Asi stream.

In the request for a class action, filed in June 2020 for 36 million shekels on behalf of residents of Beit Shean and other visitors, it was claimed that the kibbutz acts in a discriminatory and illegal manner by blocking the gates to the public water resource. The plaintiffs claimed a violation of the Water Law and unjust enrichment, while emphasizing the gap between closing the entrance to the public under the pretext of maintaining privacy, and operating tourism branches, guest houses, and commercial vacation activities for a fee on the banks of the stream. In her decision, Judge Idit Berkovich determined that the lawsuit is not suitable for a class action procedure and does not meet the conditions for filing a class action. The decision was first published on the "Zman Kibbutz" website.

In her decision, she noted that the class action procedure is not the appropriate tool for resolving this complex issue, while placing at the center of the verdict the need to find a proper balance between conflicting rights.

At the center of her reasoning, the judge emphasized that just as there is no place for a sweeping and absolute blocking of a natural resource from the public, so too is the opposite: the state's ownership of the stream does not grant the public the right to walk freely through the main kibbutz gate without restrictions and without consideration for the privacy, safety, and security of the residents.

In her ruling, she noted that every right, including the public's property right to water, is not absolute, and must be exercised in good faith and fairness, while weighing the values of distributive justice against the lifestyle of the members of the settlement in the center of which the stream flows. This position joins a previous ruling of the District Court in Haifa, from August 2021, in the administrative petition filed by the Shas faction, where Judge Tamar Sharon-Natanel determined that the stream and its banks are public land, but simultaneously recognized the rights of the kibbutz that was built legally.

In her ruling, she emphasized that it is not the court's role to serve as a master planner, and ordered the state to formulate a balanced planning arrangement that includes the promotion of the "Ancient Amal Stream" plan in the eastern part of the kibbutz, alongside maintaining the "Green Beach" outline in its west as a temporary solution.

The current verdict in the Tel Aviv District Court adopts the complex balancing work formulated by the state following that administrative petition. Judge Berkovich clarified that even if the state's outline is not perfect, it constitutes a proper, fair, and reasonable solution. This arrangement allows the public controlled access in the Green Beach area and on the southern bank, and on the other hand prevents free passage on the northern bank directly adjacent to the residential houses, with the aim of protecting the residents' daily routine. The court also took into account the huge investments of the kibbutz members over the years, who financed from their own pockets the cleaning and restoration of the neglected stream. It was determined that even though these actions do not grant the kibbutz ownership of the water, they are a relevant consideration in the system of balances and the determination of accessibility conditions.

On the procedural level, the plaintiffs' claims that the kibbutz acts as a "business" according to the Consumer Protection Law or as an operator of a public place that discriminates against visitors were rejected. It was determined that the kibbutz is a cooperative association operating within the framework of private law, and its local facilities are intended to serve its members and not the general public. Likewise, the comparison between a kibbutz and a local authority was rejected, and the demand for retroactive financial compensation was rejected, since it was the state that did not regulate the issue in the past. However, the court clarified that the rejection of the lawsuit does not constitute a definitive decision on the fundamental constitutional question regarding the kibbutz's authority to block its gates, and this issue remains open.