With Lewis Unwilling To Refile, Highland Pulls Plug On Harmony Project

The Highland City Council this week unanimously voted to cancel its previous approval of the Harmony housing project and further called upon the San Bernardino County Registrar of Voters to cancel its November 6 referendum on the project.
The council recently found itself ducking for cover in the aftermath of Superior Court Judge Donald Alvarez’s June 26 ruling that there were insufficiencies in the environmental impact report that had been certified by the city council when it approved the project in the face of considerable residential opposition two years ago.
In the wake of Alvarez’s findings and with sentiment yet running against the project, the council acted quickly at a specially-called meeting Wednesday night to rescind its previous action which had set up a November 6 citywide referendum on the project, which would have cost the city in the neighborhood of $55,000 to put on the ballot. The council’s rescission vote came in time to meet the San Bernardino County Registrar of Voters August 15 deadline for submissions of/cancellations on ballot measures.
The project, which the Lewis Group of Companies called Harmony, was proposed for land at the confluence of Mill Creek and the Santa Ana River, directly adjacent to San Bernardino National Forest lands on 1,657 acres that Orange County purchased to construct the Seven Oaks Dam. It was to entail 3,632 houses and other improvements and amenities. The project area is currently host to numerous endangered species, rare habitats, wetlands and crucial wildlife connectivity corridors.
A draft environmental impact report was circulated among nearby property owners between March 21, 2014 and May 5, 2014. After 50 comments from the public were received it was amended and recirculated once more with changes to the air quality, biological resources and traffic issues. A final environmental impact report was completed and made available to the public on March 17, 2016.
In 2016, Highland city staff, led by city manager Joseph Hughes, public works director Ernest Wong, community development director Lawrence Mainez and assistant community development director Kim Stater, generated a report, essentially justifying staff’s collective recommendation to the council to approve the project. In that response, at least some of the project opponents’ objections were addressed.
In its presentations, Lewis said the 3,662 homes would confine themselves to 658 acres within the total project area, and that a neighborhood commercial center would be contained on another six acres, and an additional 16 acres would be set aside for neighborhood commercial uses and community public facilities including the construction of a single elementary school and a fire station on a 1.5-acre site, which would come after 1,000 homes are built. Other infrastructure to accommodate the development would consist of water reservoirs, a water treatment facility, a sewage treatment plant, and a pump station.
Harmony was proposed to be developed in the rustic area straddling the extreme extension of Highland into Mentone along the foothills at the base of the San Bernardino Mountains near the headwaters of the Santa Ana River. The proposed development site is far removed from Highland’s city services and is vulnerable to episodic fire, catastrophic flooding, and the San Andreas Fault, project critics contend.
The city’s staff report relating to the project proposal conceded that “In some instances, mitigation measures for the project could not reduce the level of impact to less than significant [in the areas of] air quality, transportation and traffic.” Nevertheless, staff emphasized that the city council had the legal authority “to determine whether the benefits of the project outweigh significant environmental effects” and that the council was entitled through its authority to “adopt a statement of overriding considerations stating the reasons supporting the approval notwithstanding the significant environmental effects.”
On August 11, 2016 the Highland City Council held a meeting that was entirely devoted to considering the Harmony project. Ultimately, the council adopted the statement of overriding considerations, adopted the environmental impact report, amendments to the general plan relating to the project, approved the zone change, adopted the specific plan, approved the development agreement, and approved the subdivision of the property.
Though advocates for some environmental groups, the Greenspot Residents Association and a handful of disparate other residents were vocal in their opposition to the project proposal, it is unclear whether city officials fully appreciated the depth of the opposition to the project and whether they considered the potential that any of those entities would leap into the breach by filing legal action.
Indeed, two lawsuits ensued. One was brought by the Center for Biological Diversity, the San Bernardino Valley Audubon Society and the Greenspot Residents Association. It maintained that the environmental review for the project completely ignored that a bridge over Mill Creek – which would be required to access the development – will permanently alter that free-flowing creek. The project would also harm rare and protected species, including critical habitat for endangered San Bernardino kangaroo rats and the federally-protected Santa Ana sucker fish as well as habitat for endangered southwestern willow flycatchers, the plaintiffs, represented by the law firm Shute, Mihaly and Weinberger, asserted in the lawsuit.
The Greenspot Residents Association is an unincorporated entity comprised of concerned citizens within the area historically known as “Greenspot” that covers much of the Mentone, Redlands, and Mill Creek Canyon communities. Dedicated to the historic, cultural, ecological and agricultural preservation of the area, the association was formed and is managed exclusively by local residents. Its members were so outraged by the city’s action with regard to the Harmony project that they undertook a signature gathering effort among city residents to endorse a petition to subject the project to citizen review. While that was ongoing, the association joined with Center for Biological Diversity and the San Bernardino Valley Audubon Society in filing suit over the project.
In the same timeframe, the Sierra Club, Crafton Hills Open Space Conservancy, Tri-County Conservation League and Friends of Riverside Hills also filed suit.
Initially, the city council and city staff, assuming the procedural hoops the project opponents faced to be too daunting to overcome, aligned themselves with Lewis. But as the intensity of the effort against the project manifested and the numbers of city residents with misgivings over the development became evident, chastened city officials, calculating that in two years the anti-Harmony fervor might attenuate, consented to putting the Harmony master planned community before voters in the November 2018 election. Those politicians, who were bankrolled in large measure by money put up by the Lewis Group of Companies and its employees, were hopeful that Lewis could mount a “public information” campaign of its own to persuade the city’s residents to support the project during that two-year period.
Over that span, the lawsuits, which alleged that the Lewis Operating Company’s environmental impact report for the project was “inadequate” and had engaged in faulty analysis of both certain elements and the totality of the project, proceeded.
On June 26, Judge Alvarez finalized and signed his rulings, finding merit in some, though not all, of what the plaintiffs in both suits alleged.
In particular, Alvarez ruled in favor of the plaintiffs in the Center for Biological Diversity/Greenspot Residents Association/Audubon Society suit by determining the city and developer improperly defined the project, and that the environmental impact report was flawed in that it failed to properly analyze or mitigate downstream flooding impacts as well as the potentially deleterious impacts to regional water resources and wildlife habitat.
Another finding favorable to the plaintiffs was that the environmental impact report was flawed by virtue of having left out of the equation the volume of fill required to elevate that portion of the project in a flood zone to a level high enough that the foundations of the structures to be built would be at least one foot above the level of maximum flooding statistically likely to occur every 100 years, and that the environmental impact report further failed to reckon the impacts downstream of the grading at the south end of the project. Alvarez indicated this phase of the planning suffered because it had been carried out prematurely, that is, prior to the Federal Emergency Management Agency having done a hydrological analysis of the project area.
In that part of his ruling siding with the city and the developer, Alvarez found the suits’ contentions that the environmental impact report’s assertion that the greenhouse gas emissions were less than significant were inadequately supported by data to be unpersuasive. Alvarez said the environmental impact report relied upon proper metrics and methods for deriving data to indicate the project was in compliance with state emission regulations.
Alvarez ruled in the Sierra Club/Crafton Hills Open Space Conservancy/Tri-County Conservation League/Friends of Riverside Hills suit that the project’s environmental review violated the California Environmental Quality Act by not adequately analyzing water resources, wastewater and energy impacts from the development.
In essence, Alvarez’s ruling invalidated the project approval and introduced a requirement that if Lewis is to resubmit an application for the project that an adequate environmental impact report be carried out.
The ball was in the court of Lewis and the city to carry out a deliberative process over the project in which the public and the city’s elected leadership will consider the project and an environmental impact report that offers an accurate snapshot of the consequences of the development. Simultaneously, the current members of the council found themselves in a circumstance in which growing numbers of their constituents had begun to perceive them as more accommodating of the Lewis Group of Companies than the residents they were elected to represent.
The Lewis Group of Companies’ intention with regard to the project has been difficult to fathom, and its corporate officers have not signaled whether the company is willing to proceed at this point, or whether it will simply cut its losses. While the company had an option to purchase the 1,657 acres upon which the project was to be developed, title to the property is still held by the Orange County Flood Control District. Thus, the company can cleanly walk away from the deal. No one has said so directly, but it appears that is what occurred.
Highland City Attorney Craig Steele advised the city council it could legally invalidate the entitlements approved in 2016 based upon Alvarez’s ruling which declared the environmental impact report inadequate. He recommended doing so as the city’s best course of action.
Steele said the council should consider rendering null and void “all Harmony project land use approvals, decertifying the project environmental impact report and withdrawing the referendum ballot measure.”
The council on Wednesday night did just that.
Steele said it was best that the city take the action on its own rather than be forced to do the same by some further court order. He said that “the court in the two related challenges to the adequacy of the environmental impact report ruled that portions of the environmental impact report did not comply with the California Environmental Quality Act and must be revised. This order will result in all project actions being invalidated, including the ordinances that were subject to the referendum. Since ordinances must be repealed as a result of the court order, the referendum will be moot before the voters go to the polls.”
The Orange County Flood Control District appears to have similarly given up on the prospect that the Lewis Group of Companies will be able to proceed as it had earlier intended without a major reconfiguration of its plans.
“I understand that our respective staffs have been in discussions about the Harmony project since the California Environmental Quality Act decisions were issued at the end of last month,” Thomas A. Miller, Orange County’s chief real estate officer wrote in a letter to the city on July 26. “As always, we appreciate the city’s efforts and cooperation. Consistent with the request of the city attorney, and at the behest of legal counsel for the Orange County Flood Control District, please accept this letter as a formal request that the city council rescind the Harmony project approvals granted by the city in August 2016. The Orange County Flood Control District and LCD Greenspot, LLC, request that the rescission action occur on or before August 10, 2018.”
-Mark Gutglueck

Water Level Drops At Lake Arrowhead

Based upon an analysis of the amount of water being put into and taken out of Lake Arrowhead for all purposes, together with rainfall and evaporation, the level of water at the lake in June 2018 compared to June 2017 shows there was 21.05 fewer acre-feet (6,859,164 gallons) in the lake this year than last year.
In June 2018, 92.50 acre-feet (30,141,218 gallons) were extracted from Lake Arrowhead for treatment. That treatment did not take place at the Bernina Water Treatment Plant, which was off-line in order to reconstruct the North Bay water intake system. Rather the water was treated at the Cedar Glen Water Treatment Plant.
The Lake Arrowhead Community Services District took 57.12 acre-feet (18,612,609 gallons) from the Crestline Lake Arrowhead Water Agency to replenish the lake. Wells in Grass Valley produced 11.78 acre-feet (3,838,525 gallons) that was directed into the lake.
In the first six months of 2018, 85.36 fewer acre-feet (27,814,641 gallons) were taken out of the lake for the nearby community’s water supply compared to the first six months of 2017.
No water was transferred to Grass Valley Lake from Lake Arrowhead for irrigation at the Lake Arrowhead Country Club, a repeat of what occurred in 2017. The discontinuation of water transfers to the Lake Arrowhead County Club came about because irrigation at that facility is now predominantly reliant upon recycled water. In April, 30.31 acre-feet of recycled water were used for irrigation at the Lake Arrowhead Country Club and its golf course and 35.13 acre-feet were used in May for the same purpose. In June, another 45.30 acre-feet of recycled water was diverted to the country club and its golf course, and was used exclusively for irrigation. Had the 110.74 acre-feet (36,084,740 gallons) of recycled water provided to the golf course and country club for irrigation been obtained directly from the lake, it would have diminished the lake’s level by 1.85 feet.
As of June 1, the lake’s level stood at was 5100.48 feet, which is 6.22 feet or 74.64 inches below what is deemed to be its full level.
On July 1, the lake level was 5099.81 feet’, which is 6.89 feet or 82.68 inches below being full.
In this way, the lake’s level dropped two-thirds of a foot, or 8.04 inches during June 2018. The lake is now 89.1 percent full.
There was no rain in Lake Arrowhead in June 2018. Lake Arrowhead on average experiences .16 inches of rain in June. The water year runs from October 1 to September 30. For the 2017-18 Water Year to date (since Oct. 1, 2017) total precipitation has been 15.3 inches, or roughly 41.6% of the 126-year average to date. This is an indication of the continuing drought, which underwent a respite in 2017. Average yearly precipitation over the last 126 years in Lake Arrowhead has been 37.9 inches. If the trend thus far continues, Lake Arrowhead will receive less than 50 percent of its annual average.
The Lake Arrowhead Community Services District calculates that water evaporation from the lake from January 1 through June 30 was about 1,700 acre feet, which translates to a draft of 28.35 inches.

Hesperia Council Boosts Browsowske Into Place To Reap More Development Cash

By Mark Gutglueck
The degree to which money originating with key players in the development industry provided to public office holders has become a driving factor in how government is being run in the aftermath of political prodigy Jeremiah Browsowske’s appointment to public office was given object demonstration this week.
On Tuesday, the Hesperia City Council, which was already the final authority in that city of 95,000 with regard to land use and development, gave itself even further control in influencing how project proposals are considered and received at City Hall. By a vote of 4-1, the council injected itself further into the protocol for vetting and approving construction applications by authorizing two of the council’s members to participate in the city’s Development Review Committee meetings.
The Development Review Committee gets involved relatively early in the project application/approval process. After a project proponent makes an application for project approval, relevant city divisions including the planning department, building and safety division, engineering and the fire department review the submission and plans. The project file, together with notations as to the project’s compliance with various city standards and how it fits or does not fit within the city’s codes and zoning ordinances goes to the Development Review Committee, which in a public hearing setting dialogues with the project proponent while reviewing the proposal, and either suggests or stipulates changes. The project is then reviewed by the planning commission and ultimately passed along to the city council, which alone has the authority to grant approval to the project and any deviations it might entail from the city’s zoning code, general plan or development code requirements.
By moving project proposals through the three levels of review before reaching the city council – city staff, the Development Review Committee and the Planning Commission – the aim is to fully acclimate the project proponent to the city’s codes and standards involving relatively independent perspectives which are intent on applying those standards without regard to any political considerations before the project comes before the city council. The council, as the elected body representing the city’s residents and their interests, alone possesses the power to suspend those standards if a majority of its members feel there is justification in doing so.
Heretofore, the members of the Development Review Committee were members of the planning department, representatives from the county fire department, the city’s economic development department and on occasions the California Department of Transportation, when a project might have a major impact on the road system, or the California Department of Fish & Wildlife, when a project might impact a major portion of the natural environment.
“The point is to have all the different eyes take a look at a project from all these different technical backgrounds to balance things and make sure we’re doing the things that are right for the community,” said Hesperia Principal Planner Jeff Codega.
When Codega was asked how he felt about the concept of having two members of the council on the committee, he was noncommittal, saying “We’re here to get direction from you with regard to the function and activity of the Development Review Committee.”
Queried directly about the presence of city council members on development review committees in other cities, Codega said, “It’s fairly unique in terms of looking at most communities. It’s typically not done that way but that doesn’t mean it can’t be done that way, certainly.” Mindful that his political masters on the council were leaning toward placing some of their numbers on the committee, Codega, using politesse, said, “My perspective is we’ll do whatever needs to be done to make it work as best as we can. These sorts of things are opportunities. They’re opportunities for us to do things in a different way and get better at what we do.”
It was noted that in the City of Rialto, the mayor and a council member are deemed to be members of that city’s development review committee. It was further noted that they rarely attend the meetings and they do not vote.
Browsowske posed a question to Codega in such a way that it called for a preconceived answer. He asked, “As a staff member, you wouldn’t have an issue having maybe two council members on the committee, right?”
Again using politesse, Codega responded, “Anything we do is a public activity and my feeling is we’re here to serve the community just like you are so, it’s just another way of doing that.”
Councilman Larry Bird took up the propriety of loading council members into a panel intended to act in an advisory capacity and make recommendations to the city council, since the two council members to be made into committee members would then be in a position of modulating the advice the full council is to get. With his questions and statements, Bird suggested that the change would compromise the independence of the committee. “How will that help the community?” Bird asked. “Rialto does it. How is this going to help the City of Hesperia to have additional representation from this council, which already oversees this process anyway?”
When Codega responded, “Like anything else, I think there’s way to make things work and work well if we approach it the right way,” this did not seem to cover the most compelling rationale that Councilman Paul Russ felt warranted the change. Russ suggested the committee was too lackluster in its embrace of proposed projects and he accused staff members who composed the committee of “overreach,” which manifested, he said, when they “ask for additional things that aren’t in the code but they’d like to see them happen. There’s a lot of instances of that happening and have been happening in the past.”
Putting members of the city council on the committee, Russ said, would be of benefit to the city by facilitating projects and eliminating red tape. He said the two members of the council should be made members of the committee “so we can hear what are the impediments to getting some of these projects completed.”
At that point, Bird enunciated concern that the pro-development sentiment of the council members to be designated as committee members might inhibit staff members from being insistent that standards be applied to the proposed projects. Referencing the city council’s handbook on how it is to comport itself, Bird said that manual instructed that “we let staff do what staff is supposed to do. The bottom line is we do policy here and our micromanaging is very limited. At least it should be.”
It was revealed during discussion that the Development Review Committee has two meetings with regard to the development proposals, one that is held behind closed doors and one that is held in public. Bird expressed concern that the council members on the committee could be overbearing on staff during those closed meetings and that the public would have no way of knowing that occurred.
“Are we looking at something that is not seen by the public eye?” Bird asked. “I’m not necessarily against the idea of our being connected to that except for a concern that we would be too intrusive in the process and staff may not be as open to giving their thoughts on things with basically having council there, especially if we don’t have that added oversight of having that [the meeting proceedings] streamed [publicly broadcast].”
Ultimately, the council voted 4-to-1, with Bird dissenting, to place two of the council members on the Development Review Committee and to delegate Browsowske and Russ as those representatives.
Al Vogler, the husband of late Hesperia Mayor Rita Vogler, found the concept of the council’s interference in the function of the Development Review Committee troubling. Moreover, he expressed concerns about both Browsowske’s and Russ’s political entanglements, including monetary ties to the development community, which he said are likely to compromise the Development Review Committee’s commitment to have project proponents adhere to the city’s development standards. Browsoswke, as the executive director of the San Bernardino County Republican Central Committee, and Russ, as a member of the San Bernardino County Republican Central Committee, have been heavily involved in fundraising for the Republican Party, which in San Bernardino County has tapped into hefty donations from the development industry. This, says Vogler, compromises both Browsowske’s and Russ’s independence. Vogler noted that the San Bernardino County Republican Central Committee is involved in promoting Browsowske’s political ascendancy, even beyond the position he now holds on the Hesperia City Council, toward the posts of San Bernardino County supervisor or a member of the California Legislature. This leaves Browsowske, who was appointed to the city council two months ago following the untimely death of Hesperia Mayor Russ Blewett, even more beholden to the development industry, which will be called upon to directly support his ongoing campaign for city council in November and to indirectly bankroll his future political campaigns through continuing contributions to the San Bernardino County Republican Central Committee, Vogler said.
Browsowske, who is 27, is considered by a significant segment of the San Bernardino County GOP to represent the future of the Republican Party in San Bernardino County. Vogler said he perceives parallels between Browsowske and Bill Postmus, who gained election to the San Bernardino County Board of Supervisors at the age of 29 in the year 2000 and then went on to become the chairman of the San Bernardino County Board of Supervisors as well as the chairman of the San Bernardino County Republican Central Committee at the age of 33 in 2004. Postmus built a political machine that installed his allies Tad Honeycutt, Bill Jenson, Jim Lindley and Dennis Nowicki on the Hesperia City Council in the early 2000s, later placed his ally Anthony Adams in the California Assembly, and which saw his ally, Brad Mitzelfelt succeed him as First District supervisor when Postmus ran successfully for San Bernardino County assessor in 2006. Vogler, who at that time was himself a member of the San Bernardino County Republican Central Committee, and was instrumental in assisting his wife in her two term career on the Hesperia City Council in which she served as mayor, holds a close perspective on that span of political history. Vogler points out that Browsowske, like Postmus before him, has come to heavily rely upon the development community to bankroll his political career. In late 2008 and early 2009, events and a series of scandals overtook Postmus, not the least of which were revelations about his willingness to compromise the public offices he held in return for money from the development community. In 2009, he resigned from office, was charge with a first set of political corruption charges which were followed by further charges in 2010. In 2011, he pleaded guilty to a total of 14 felony, conspiracy, bribery, conflict of interest, misappropriation of public funds, fraud and perjury counts.
It was blurring the lines of distinction between what was good for his own political career and what was in the interest of his constituents that felled Postmus, Vogler said. Browsowske is on the verge of doing the same thing, he said. “Bill Postmus took money from the developers and then had his associates – Dennis Nowicki, and Jim Lindley, and Tad Honeycutt and Bill Jensen – do the bidding of those developers in Hesperia,” Vogler said. “He lost his moral compass. He defined anything that was good for him as being good for the people he was supposed to be representing.” The money the development community donated to Posmus’s political machine, Vogler said, “may have helped the Republicans in some of those elections… but it wasn’t good for Hesperia. Go look at some of those neighborhoods now. Some of them are half empty or two-thirds empty because no one wants to live there. The developers are long gone. They got their money and they’re out of it. The city’s standards got sold down the river for political donations.”
Russ and Browsowske are engaged in the same pattern of behavior, Vogler said. “I have been at past Development Review Committee meetings with Paul Russ there where he was simply in attendance allegedly outside his of his official capacity. He used his presence and his council position as a platform to push the agenda of his developer friends, on things like zoning. This change in the composition in the membership of the committee represents another power grab. He nominated himself and Mr. Browsowske. This is an attempt to micromanage the city’s development approval process. You can be sure his presence at the Development Review Committee meetings will benefit his developer friends and supporters and intimidate staff.”
Development standards are of crucial importance in Hesperia. The modern development of Hesperia was initiated by Penn Phillips in 1954 when his company, Omart Investment Company purchased a 36-square mile tract seven miles south of Victorville, representing roughly 90 percent of the entire township of Hesperia, for $1.25 million from the Appleton Land and Water Company and the Lacey Estate, which had owned the land jointly since 1888. Phillips simultaneously announced his intention to spend $8.25 million through the Hesperia Land Company, a subsidiary of Omart Investment Company, to prepare the property for development, indicating 1,000 acres of the property was to be allocated to industrial development, 8,000 acres for agriculture and that 5,000 homes would be built along with a two-and-one-half mile-long-and-one-quarter-mile-wide artificial lake, and a resort section.
Involved with Phillips in the Hesperia venture were one-time World Heavyweight Champion Jack Dempsey as well as Charles Allen, vice-president of E.F. Hutton and Company of New York City; Fresno-based attorney Milo E. Rowell, Nat Mendelsohn of Riverside; Philip J. Farrar of Fresno; along with Los Angeles investment brokers, Dan Christy and Henry Paul Willis.
Phillips created the Hesperia Land Development and Hesperia Sales Corporation, which worked to promote his concept of the U-Finish Home, mass-produced housing units that were completely finished on the outside, leaving the buyer to complete the interior.
The formula Phillips applied in Hesperia was much like the one he used with his developments elsewhere: secure land, build homes on it, put in the minimal amount of infrastructure to make the homes habitable, bring in a population that creates the basis for a community that includes momentum for establishing some form of a jurisdictional governmental agency, sell all of the parcels acquired, take a profit and move on to the next development elsewhere.
Phillips built roads for Hesperia that were of a decidedly low standard, consisting of a mixture of desert sand used as aggregate and bitumen to create a road that was no more than one-and-a-half inches thick. The streets, when new, looked good, but under the withering sun and use, began to deteriorate within three to four years. The flash floods the desert is prone to further washed out these roads over the following decades, leaving many of Hesperia’s streets in poor condition, including some that eventually returned to being nothing more than dirt roads. Three generations later, much of Hesperia is plagued by an inferior road system.
Phillips was equally irresponsible in the creation of the town’s water system. He started with the tremendous advantage of Hesperia being blessed with a world-class water supply. The city lies near the headwaters of the Mojave River, the watershed area north of the San Bernardino Mountains, a pristine and perpetually recharged water supply created by melting snow and overflowing rainwater from the heights southeast of Hesperia. Nevertheless, in his headlong pursuit of an immediate profit, Phillips squandered that asset. The water system Phillips created for Hesperia consisted in large part of pipes cannibalized from a petroleum conveyance operation from depleted oil fields. Thus, the Hesperia Water Company, capturing water at the foot of the mountain before it rushed forward to become the Mojave River and wend out into the desert, used substandard pipes, which compromised the quality of the product provided to Hesperia for domestic use.
Part of Phillips’ legacy was that a succession of developers, charlatans and government officials that followed him into Hesperia sought to replicate the grift he had pulled off, many with some degree of success. A recurring motif was allowing the development industry to have its way with the community.
When Hesperia incorporated in 1988, it hired as its first city manager Robert Rizzo. Shortly after being established at City Hall, Rizzo went to work with those on the city council amenable to an elaborate depredation he plotted out: the city’s annexation of Las Flores Ranch in Summit which was to be converted into an 8,900 unit residential subdivision. The project never came to fruition after revelations of how the company promoting it had engaged in graft, money laundering and under-the-table payments to Hesperia officials at the time, including Rizzo, former city councilmen Percy Bakker and M. Val Shearer, as well as former Planning Commissioner Donna Roland. Rizzo departed Hesperia, eventually landing as the city manager in Bell in Los Angeles County. When he attempted to replicate many of the same tactics he had used in Hesperia, including conveying payments to members of the city council to obtain their cooperation in his money diversion schemes, Rizzo was caught and is now serving a 12 year prison term.
After lying dormant for more than two decades, the Rancho Las Flores project was resurrected as the 15,663-residential unit Tapestry master-planned community. Some have questioned the Tapestry project’s scope and intensity, which they believe will outrun the infrastructure meant to support it, creating gridlock on Hesperia’s already inadequate road system. Project opponents have suggested that the project proponents obtained the approval of project in large measure by the provision of political contributions to the city’s elected decision-makers, including Russ, the late Russ Blewett, and current Mayor Bill Holland, which resulted in those politicians ignoring the untoward ramifications of the massive subdivision.

Wells In County’s NW Corner Assessed Per Acre-Foot Fee

The Indian Wells Valley Groundwater Authority, the joint powers agency formed by Kern, Inyo and San Bernardino counties in 2016 to prevent the depletion of the aquifer in a portion of the West Mojave, is now assessing a $30 per acre-foot water pumping fee on all well owners in its jurisdiction.
The assessment, also referred to as a groundwater extraction assessment, is needed, officials said, to develop and implement the authority’s groundwater sustainability plan, which was mandated by the state of California under the Sustainable Groundwater Management Act of 2014 and must be presented to the Department of Water Resources no later than January 31, 2020. It must specify how sustainable use of water in the Indian Wells Valley Basin will be achieved over the next two decades. The projected cost of implementing the plan is $5.07 million.
Indian Wells Valley straddles southeastern Kern County, southwestern Inyo County and Northwestern San Bernardino County. Underlying it is the Indian Wells Valley Groundwater Basin, from which the City of Ridgecrest and its outlying area’s domestic, commercial, industrial and agricultural entities draw their water, as does the China Lake Naval Air Weapons Station, the Searles Valley Mineral Company in Trona and the remainder of industrial, commercial and domestic users in Trona.
Historically, the Indian Wells Valley Water Basin experiences roughly 7,000 to 11,000 acre-feet of annual natural water recharge per year, but for three decades has been using on average 28,000 to 30,000 acre-feet of water annually. Two years ago, California Governor Jerry Brown, in the face of a four-year running drought, mandated water saving measures throughout the state. Water use in the Indian Wells Valley Water Basin was reduced to under 24,000 acre-feet, which still exceeded the estimated 7,300 acre-feet of recharge by 16,700 acre-feet.
In September 2014, Governor Brown signed into law the aforementioned Sustainable Groundwater Management Act, which requires local agencies to draft plans to bring groundwater aquifers into balanced levels of pumping and recharge. It was thus mandated that a groundwater sustainability agency for Indian Wells Valley be formed by June 30, 2017, and that the agency adopt a groundwater sustainability plan by January 30, 2020.
In response, through a joint exercise of powers agreement the Indian Wells Valley Groundwater Authority was chartered in 2016 with Kern County, San Bernardino County, Inyo County, the City of Ridgecrest and the Indian Wells Valley Water District as general and voting members and United States Navy and United States Department of the Interior Bureau of Land Management as non-voting associate members.
Practically speaking, the Indian Wells Valley Groundwater Authority is dominated by Kern County together with Ridgecrest and the water district. Nevertheless, the town of Trona, which at present is not the industrial and mining powerhouse it was a century ago and in the 1920s, 1930s, 1940s, 1950s and 1960s, has an interest in the action of the authority. Trona, which lies within San Bernardino County adjacent to the Inyo County border, possesses tremendous potential as an important industrial asset regionally, statewide and nationally, and its access to water in sufficient quantity to sustain mining operations and production efforts based upon the availability of an abundance of minerals locally is crucial to realizing that potential.
The authority has retained Stetson Engineering on a $435,250 contract to serve as water resources manager.
The Indian Wells Valley Groundwater Authority was able to finance its operations in the first half of 2018 with an advance from the Kern County-based Indian Wells Valley Water District, under an arrangement approved by its board members in December 2017. The pumping fee approved in principal at that authority’s May meeting and finalized with a second vote in June is intended to provide a critical part of the operating funds for the authority.
The Indian Wells Groundwater Authority has received a $2.1 million Proposition 1 grant from the California Department of Water Resources. The authority will be able to utilize roughly $1.5 million of that grant to develop the sustainability plan. To make use of the grant money, the authority must put up a matching $1.5 million.
It is anticipated that by January 2020, the authority will have expended $3.75 million toward formulating, drafting and certifying the groundwater sustainability plan; will have spent $87,600 for a U.S. Geological Survey study on the Indian Wells Valley Basin’s recharge; and will have laid out $161,500 in administrative costs as the groundwater authority, including salary for a part-time, contract general manager. A portion of the $435,250 contract with Stetson Engineering will cover that firm’s efforts through to that date, as well.
Previously, it was anticipated that James Markman, who has been retained as “special counsel” with regard to the formulation of the groundwater sustainability plan, would be paid $350,000 out of the $3.75 million budget for the drafting of the plan. Member agencies, however, have agreed to lend the services of their various attorneys to this task, reducing to $200,000 Markman’s fee.
Each of the five voting member agencies have contributed $15,000 so far toward ongoing costs. The City of Ridgecrest has contributed a far larger share toward the effort, roughly totaled at $210,466, some of which exists as in-kind participation, some of which may eventually be reimbursable.
It is anticipated the assessments will generate $750,000 per year. The amount of the fee will be $30 for each acre-foot of water pumped in the Indian Wells Valley Groundwater Basin administered as $3.00 per tenth (.10) of an acre-foot. Pursuant to Sustained Groundwater Management Act, all groundwater pumpers are subject to the groundwater extraction fee except for federal entities and those that qualify as de minimis extractors. The Sustained Groundwater Management Act expressly provides that a “de minimis extractor” is “a person who extracts, for domestic purposes, two acre-feet or less per year” (California Water Code Section 10721(e)). “Person” for the purposes of this fee is any typical household including landscaping. One acre-foot of water is equivalent to 325,851 gallons. De minimis extractors that are currently exempt from the groundwater extraction fee may be subject to future fees implemented by the Indian Wells Valley Groundwater Authority after the Indian Wells Valley Groundwater Basin Groundwater Sustainability Plan is adopted.
The charges went into effect as of August 1. Billing slips are to go out to well owners and pumpers on September 1. Payment is required within 30 days of billing.
It appears that initially, a self-reporting honor system will be in place, with well owners expected to quantify their water usage, designate that on their response to the billing slips and provide a payment in accordance with the $30 per acre-foot rate and their usage. The groundwater authority will have the authority to meter wells once the Indian Wells Valley Groundwater Sustainability Plan is in place, but is not presently authorized to do so. Nevertheless, after receiving a response from the well owners, the groundwater authority will have the option or simply accepting the amount paid as adequate, or instituting a verification effort if officials suspect underreporting of water use. Those claiming di minimus user status will be subject to immediate verification.
The authority has informed all known well owners in writing that failure to register any wells or being delinquent on billing accounts could result in action ordering water users to cease and desist pumping.
There was previously some grumbling among certain well owners about the fee. A few said the fee was too high or unreasonable. Some questioned the data and calculations used in arriving at the $30-per-acre-foot rate. Some of the small agricultural interests, including pistachio farms, were vocal in their protests with regard to the fee. The most powerful entity, relatively, expressing dismay with the fee was the Meadowbrook Farms Mutual Water Company, which memorialized its objections in the form of a letter from its legal counsel. Meadowbrook is one of seventeen members of the Indian Wells Valley Groundwater Authority’s Policy Advisory Committee. That committee is composed of a representative from each of the five general members and two associate members; two from large agriculture interests, specifically Meadowbrook Farms Mutual Water Company and the Mojave Ranch; one from small agriculture interests; two business; two domestic well owners; one from a planning agency/background; an environmental-oriented member, in this case a board member of the Eastern Kern County Resource Conservation District; and one industrial, that being a representative of the Searles Valley Minerals operation in Trona.
San Bernardino County’s interest in the authority rests primarily with the interests of the town of Trona and the Searles Valley Mineral Company, located in Trona. Trona was once a booming mining town but has been in eclipse for more than two decades. In November 2007, Ahmedabad, India-based Nirma purchased the Searles Valley Mineral Company in Trona from Sun Capital Partners. Nirma appears committed to hanging onto the company and its attendant property as a long term investment, believing that at some future point the mining and production of the mineral trona, either in the form trisodium hydrogendicarbonate dihydrate or sodium sesquicarbonate dihydrate, as well as soda ash, sodium sulfate and borax will be highly economically advantageous. The mineral Trona is the primary source of sodium carbonate, also known as soda ash, produced in the United States. Soda ash is used in the fabrication of glass, detergents and dyes. Potash was also a major mineral mined in the Trona area, and was crucial to the American war effort during World War I.
-Mark Gutglueck

Grand Terrace & Riverside Highland Water Reach Accommodation On Franchise Fees

Short of going to trial, the City of Grand Terrace and the Riverside Highland Water Company have come to a stipulated judgment resolving a disagreement between the two entities that grew out of the city’s insistence that the water utility pay a franchise fee it has avoided since the city’s incorporation in 1978.
A dispute arose in recent years regarding the city’s right to impose such a franchise fee upon Riverside-Highland for the use of city streets.
For years the city had neglected to impose any fee or surcharge on the water utility. But a few years back, city officials came to the realization that by virtue of the city’s accommodation of the company’s operations within its jurisdiction, it had such a right. As of last year, the City of Grand Terrace estimated it had forgone some half of a million dollars in revenue by not collecting franchise fees in the past. The company maintained that as a legally constituted local utility for more than a century it is exempt from paying such fees. The company resisted the city’s imposition of the fee in question, prompting the city to file suit against the company last year. In response, the company maintained it had no other option than to raise rates to pass on the burden of defraying the cost of the fees to its customers, which it claimed in a mailer it sent out to the city’s residents last November is tantamount to a tax and therefore constituted an illegitimate ploy by the city to raise taxes without a required vote of the city’s taxpayers.
The Riverside Highland Water Company was incorporated as a mutual water company by the State of California in 1898, and as such has provided domestic and irrigation water to the entirety of what is now the City of Grand Terrace, portions of the City of Colton and unincorporated areas of the counties of San Bernardino and Riverside, including Highgrove, which immediately borders Grand Terrace at the San Bernardino/Riverside County Line. The company claims that it obtained and perfected property rights which give the company authorization to transmit and distribute water to its shareholders over what is now public property in Grand Terrace. It obtained that right, the company maintains, through either express conveyance or by the application of law beginning 80 years prior to Grand Terrace incorporating as a city.
It was thus the Riverside Highland Water Company’s contention it has an easement to allow its pipes and appurtenances to remain in place beneath roads, sidewalks and other public properties in Grand Terrace. An easement is the right of an entity or individual to use land owned by another entity or individual for a specific purpose, even though the easement holder does not have title to the land in question. Easements are most often created explicitly by language contained in binding documents, although an easement can be implied, that is, taken to exist without being officially entered into by the landowner and the easement user and without being officially recorded. Such unrecorded easements are referred to as “implied easements,” are complex, and are subject to interpretation and determination by the courts, based primarily on the intention of the original parties, as well as the past use of the property in question.
Precipitating the showdown between the City of Grand Terrace and the Riverside Highland Water Company was a decision made by the California Supreme Court in June 2017 in the case of Jacks v. the City of Santa Barbara. In that matter the City of Santa Barbara sought to impose a one percent surcharge on top of the one-percent franchise fee the city already levied on Southern California Edison for the privilege to construct and use equipment along, over and under the city’s streets to distribute electricity. Southern California Edison agreed to the imposition of that additional levy only on the condition that it would be granted permission by the California Public Utilities Commission to impose on its customers an additional one percent surcharge. The California Public Utilities Commission allowed that surcharge on customers to be made. However, part of the arrangement contained a requirement that the City of Santa Barbara maintain half of the money it received from the surcharge in an account sequestered from its general fund and used expressly for an underground utilities fund. The city, however, diverted all of the surcharge money into its general fund, touching off a class action lawsuit brought under the name of Roland Jacks, a Southern California Edison customer. Jacks alleged that the surcharge was an illegal tax under Proposition 218, which requires voter approval of all local taxes. Jacks sought refunds of the charges collected to that point and discontinuation of the surcharge going forward. The city prevailed at the trial court level, successfully arguing that a franchise fee is not a tax under Proposition 218. Jacks appealed that decision to the California Court of Appeal Second Appellate District Division Six. The appellate court in 2015 reversed the trial court, ruling that the California Constitution, as amended by Proposition 218 prohibits local governments from imposing new or increased taxes without first obtaining voter consent, concluding that the one percent surcharge was an illegal tax masquerading as a franchise fee. The city appealed the appellate court’s ruling to the California Supreme Court. The Supreme Court undercut the plaintiff, ruling that franchise fees are not proceeds from taxes, the amount of a franchise fee need not be based on costs, cities are free to sell or lease their property, the fact that a franchise fee is collected for the purpose of generating revenue does not establish that the compensation paid for the property interests is a tax, and the plaintiff did not establish the claim that the surcharge is a tax.
Grand Terrace city officials, based upon the discovery that since its inception as a municipality in 1978 the city had not collected franchise fees, in 2016 initiated a dialogue with Riverside Highland Water Company officers about the city’s collection of a one percent franchise fee. The city stepped up that effort in April 2017. In June 2017, the California Supreme Court ruling in the Jacks case emboldened city officials further.
Grand Terrace city officials asserted that for the entire length of its existence as a municipal entity, the City of Grand Terrace had been sustaining costs relating to the city’s accommodation of the water company infrastructure, including having to repair or alter streets and sidewalks in the aftermath of excavations to repair, replace or upgrade pipes.
In response to the city’s promptings, the water company contended that it had been in place and delivering services to what became the city and the surrounding area for four-fifths of a century before the city incorporated, which gave the company immunity from any requirements that it defray the cost of damage to city assets as a consequence of utility operations. The company insisted that it predated the incorporation of the city and had utility easements that granted it unobstructed access to its system. The city asked the company to produce the documents memorializing those easements. The company was not able to provide that documentation.
The company claimed that the California Constitution allows utility companies to form in the absence of local government and thus without its permission and without being subject to its authority. The city conceded that point but insisted the California Constitution did not prohibit a local governmental entity from asserting its property rights once it is in existence. As the owner of the property, the city asserted it had a right to the fee.
The city said it would forego seeking reimbursement on the fees it has not collected, but intended to impose a fee going forward.
Andrew Turner of the Pasadena-based law firm of Lagerlof, Senecal, Gosney & Kruse filed suit in San Bernardino County Superior Court on behalf of the City of Grand Terrace on July 10, 2017, seeking “a declaration that the water company is obligated to obtain franchise from the city as a condition to operating its facilities in the city rights of way” along with reimbursement of the city’s costs in filing the lawsuit.
On November 28, 2017, the water company sent a letter to its customers, asserting that the property rights by which the company transmits and distributes water to its shareholders were acquired either by express conveyance or by operation of law approximately 80 years prior to the city’s incorporation in 1978 and that “Consequently, the City of Grand Terrace is – in a very real sense – suing its own residents for the authority to impose a new tax on your water bill.”
Grand Terrace Mayor Darcy McNaboe’s husband, Jim McNaboe, is the designated secretary/treasurer on the Riverside Highland Water Company’s board of directors. Darcy McNaboe abstained from voting with regard to the legal action relating to the Riverside Highland Water Company.
At its July 26, 2018 meeting, the Grand Terrace City Council ratified a stipulated judgment in the case, and authorized the release of a joint statement between the City of Grand Terrace and Riverside Highland Water Company.
According to Grand Terrace City Manager G. Harold Duffey, “In order to avoid prolonged litigation and to finally resolve the dispute, the parties wish to enter into a stipulated judgment. The parties agree to the following:
• The City of Grand Terrace is duly authorized under the Franchise Act of 1937 to charge utilities, including mutual water companies, a franchise fee for the use of city streets and rights of way;
• A franchise fee is a statutorily authorized charge or fee; if property imposed, it is not a tax;
• A prorated franchise fee of $11,500 shall be due September 1, 2018. Thereafter, annual franchise fee payments shall be due and paid by the Riverside Highland Water Company March 1 of each successive year, commencing March 1, 2019. The Riverside Highland Water Company shall pay to the city an annual franchise fee of $23,000.”
The Sentinel has obtained a copy of the stipulated judgment signed by Andrew D. Turner as the attorney for the plaintiff, the City of Grand Terrace, and Steven M. Kennedy, the attorney for the defendant, the Riverside Highland Water Company.
In addition to the commitment to make the prorated fee installation of $11,500 on September 1, 2018 and pay an annual franchise fee of $23,000 beginning in 2009, the stipulated judgment states, “The city hereby waives any claim against Riverside Highland Water Company for street cutting or other related fees for excavating in city streets that would have accrued prior to January 1, 2018. The city also waives any right it may have to collect a franchise fee, other than the franchise fee provided for herein, or other fee, charge, tax, or assessment from Riverside Highland Water Company relating to the subject matter of this litigation under any legal theory that may otherwise be available under the law, provided, however, that Riverside Highland Water Company will still be obligated to pay street cutting and related fees for future work performed in city streets.”
In their joint statement, the city and company propounded “To avoid prolonged litigation and incurring any additional legal costs, the city and Riverside Highland Water Company have entered into a stipulated judgment to forever resolve this ongoing dispute. As a result, the Riverside Highland Water Company has agreed to pay to the city an annual franchise fee in the amount of $23,000 (as may be periodically adjusted to reflect any future increases in Riverside Highland Water Company’s water consumption rates and bi-monthly meter charges). The Riverside Highland Water Company acknowledges that this mutually-negotiated franchise fee is not a tax and constitutes compensation for the use of government property, in this case, access to city streets to provide water delivery services to Riverside Highland Water Company customers.
The City of Grand Terrace acknowledges that the Riverside Highland Water Company is a mutual water company providing water utility services within the incorporated boundaries of the City of Grand Terrace, and that Riverside Highland Water Company and the city continue to collaborate to coordinate repairs to infrastructure within the city to maximize efficiency and extend the life of city’s and Riverside Highland Water Company’s infrastructure. The city acknowledges that Riverside Highland Water Company, upon notice by the city, consistently pays its street cut fees and has no outstanding obligations to the City of Grand Terrace. The city further acknowledges that it will not seek to collect any other fee, tax, charge, or assessment from Riverside Highland Water Company relating to the use of city streets.”
The statement continues, “The city council of the City of Grand Terrace and the board of directors of the Riverside Highland Water Company acknowledge that both parties are committed to work together toward the delivery of quality services to maintain the quality of life for residents and business owners within the City of Grand Terrace.”
Mark Gutglueck

With Both Cheeks Smitten On Prayer Issue, CVUSD Turns To Supreme Court

Undeterred by two resounding defeats in Riverside Federal Court in 2016 and once again last month before the Ninth Circuit Court in San Francisco, the devoutly religious faction of the Chino Valley school board prevailed in a 3-2 vote on August 1 calling for the district to throw one last Hail Mary pass into the end zone by petitioning the United States Supreme Court to reconsider the case for allowing celebrations of Christian belief to remain as an intrinsic element of school district functions.
For more than a decade the board of education with the Chino Valley Unified School District has tested the boundary of permissible religious advocacy at its public functions. In 2008, with the election of James Na, a Chinese immigrant who considers the United States to be the fulfillment of Biblical prophecy by which the values of the Kingdom of God have become manifest upon earth, that tendency stepped up a notch. It intensified further still with the 2012 election of Andrew Cruz to the school board.
From the school board dais Na and Cruz would frequently urge those in attendance to calibrate their own code of behavior with the instruction laid out by the Word of the Lord in the Good Book, and they would commonly take recourse in Biblical passages. At one point during a meeting in January 2014, Na said everyone should ‘surrender themselves to God’s will. Everyone who does not know Jesus, go find Him.”
Not to be outdone, Cruz on more than one occasion has reminded those in attendance at the board’s meetings that “Jesus Christ is the truth and the way and the light. Jesus Christ died for our sins, according to the Scripture, and he was buried and he was raised on the third day, according to the Scripture. Lord, hear my prayer, listen to my cry for mercy; in your faithfulness and righteousness come to my relief. Do not bring your servant into judgment, for no one living is righteous before you. The enemy pursues me, he crushes me to the ground; he makes me dwell in the darkness like those long dead. So my spirit grows faint within me; my heart within me is dismayed. I remember the days of long ago; I meditate on all your works and consider what your hands have done. I spread out my hands to you; I thirst for you like a parched land. Answer me quickly, Lord; my spirit fails. Do not hide your face from me or I will be like those who go down to the pit.”
Na and Andrew Cruz are members of the Chino Hills Calvary Chapel, a church led by the Reverend Jack Hibbs. Hibbs evinces a denominationalist attitude, which holds that Christians have a duty to take over public office and promote their religious beliefs.
Hibbs made an object demonstration of the impact his brand of evangelism can effectuate when in 2010, through an extension of his church known as the Watchman Industry and with Na’s assistance, he successfully lobbied the school board to include Bible study classes as part of the district’s high school curriculum. In 2014, Hibbs further galvanized the voters among Chino Hills Calvary Chapel’s 10,000 members to go to the polls and elect to the school board yet another of his congregation’s members, Sylvia Orosco.
Just days after Orosco’s election but before she was sworn in and while the position she would take up was still held by Charles Dickie, on November 13, 2014, the Freedom From Religion Foundation of Madison, Wisconsin filed suit in Federal Court in Riverside against the district on behalf of two named plaintiffs, Larry Maldonado and Mike Anderson, and 21 unnamed plaintiffs who asserted they were alienated or intimidated at school board meetings because of the insistence of some district officials to engage in so-called Christian witnessing, including “prayers, Bible readings and proselytizing.”
The plaintiffs asked for an injunction against the intrusion of religiosity into the conducting of district business.
Although all board members and the district collectively were identified as defendants, the suit cited Na and Cruz for their routine practice of quoting Biblical passages and making other religious references.
Na and Cruz were able to convince the remainder of the board that the district would not sustain any costs or liability as a consequence of defending against the suit, and in January 2015 the board voted 3-2 against hiring the law firm which normally represents it in court. Instead, the district engaged the Sacramento-based Pacific Justice Institute for $1 to defend the district in the civil lawsuit.
The Pacific Justice Institute, founded and led by Brad Dacus, touts itself as a public interest law firm that “handles cases addressing religious freedom, including church and private school rights issues, curtailments to evangelism by the government, harassment because of religious faith, employers attacked for their religious-based policies [and] students and teachers’ rights to share their faith at public schools.”
The case went before Federal Judge Jesus Bernal, who on February 18, 2016 issued an encyclical in which he rejected the Pacific Justice Institute’s arguments that the district’s policy of celebrating the beliefs of a majority of the board did not violate the plaintiffs’ rights to attend district board meetings and participate in other district and school functions without being subjected to an intensive round of religious advocacy. Bernal ordered the Chino Unified School District Board to discontinue its overt and constant references to Christianity during its public meetings and refrain forthwith from inserting religion into official proceedings.
“The court finds… permitting religious prayer in board meetings, and the policy and custom of reciting prayers, Bible readings, and proselytizing at board meetings, constitute unconstitutional government endorsements of religion in violation of plaintiffs’ First Amendment rights,” Bernal wrote. “Defendant board members are enjoined from conducting, permitting or otherwise endorsing school-sponsored prayer in board meetings.”
The board had claimed its actions are protected by the legislative prayer exception, and volunteer chaplains could be permitted to open each legislative session with a prayer.
But Bernal called the argument “meritless,” saying, “The legislative exception does not apply to prayer at school board meetings.”
Bernal held that the nature of the school board made it even more imperative that it not break down the constitutional wall between state and church.
“The risk that a student will feel coerced by the board’s policy and practice of religious prayer is even higher here than at football games or graduations,” Bernal stated. “The school board possesses an inherently authoritarian position with respect to the students. The board metes out discipline and awards at these meetings, and sets school policies that directly and immediately affect the students’ lives.”
Bernal awarded the Freedom From Religion Foundation’s legal team $202,425.00 in attorney’s fees and $546.70 in costs to be paid by the district.
Despite that setback, Na, Cruz and Orozco, buttressed by Hibbs and the parishioners at Calvary Chapel, were persuaded to fight on. Dispensing with the representation of the Pacific Justice Institute, the school board majority on March 7, 2016 opted to be represented by another Christian advocacy attorney, Robert Tyler of the Murrieta-based law firm Tyler & Bursch, to handle the appeal of Bernal’s ruling.
In pursuing the appeal, the school board reasserted its rights to proselytize during public forums, hinging its argument on the basis of the 2014 5-4 decision by the U.S. Supreme Court in the case of Town of Greece v. Galloway. In the Greece case the Supreme Court held that public officials can open public meetings with prayers — even explicitly Christian ones — if the government agency does not discriminate against minority faiths when choosing who may offer a prayer and the prayer does not coerce participation from nonbelievers. Nevertheless, in the majority opinion in the Greece/Galloway case, Supreme Court Justice Anthony Kennedy made clear that prayer was acceptable only when it is offered “during the ceremonial portion of the town’s meeting. Board members are not engaged in policymaking at this time, but in more general functions, such as swearing in new police officers, inducting high school athletes into the town hall of fame, and presenting proclamations to volunteers, civic groups, and senior citizens. It is a moment for town leaders to recognize the achievements of their constituents and the aspects of community life that are worth celebrating.”
Accordingly, Tyler sought and obtained from the American Center For Law And Justice an amicus curiae brief filed on May 3, 2017 in which Francis Manion, Geoffrey Surtees, Edward L. White III and Erik Zimmerman propounded on behalf of the American Center For Law And Justice their contention that in its response to the lawsuit filed by the Freedom From Religion Foundation, the district and its school board were merely seeking to preserve its invocation policy at board meetings. The American Center For Law And Justice sought to draw a distinction between previous Supreme Court and other rulings banning prayer in school and the act of sanctifying the quasi-legislative action of the school board. In this way, the amicus curiae brief held, the matter at issue was “essentially more of a ‘legislative-prayer case’ than a ‘school-prayer matter.’”
According to Manion, Surtees, White and Zimmerman, American legislative bodies have incorporated invocations into their proceedings from the outset of the country’s existence. The Supreme Court, they said, has previously “acknowledged the fact that ‘the Continental Congress, beginning in 1774, adopted the traditional procedure of opening its sessions with a prayer offered by a paid chaplain.’ The United States Congress elected chaplains and authorized the payment of their salaries within months of the passage of the Constitution. As the [Supreme] Court explained, ‘[c]learly the men who wrote the First Amendment Religion Clauses did not view paid legislative chaplains and opening prayers as a violation of that amendment, for the practice of opening sessions with prayer has continued without interruption ever since that early session of Congress.”
Manion, Surtees, White and Zimmerman further noted that “Most state legislatures have also opened with prayer since the time they were created.”
Since the Supreme Court upheld the Town of Galloway’s council’s right, as a deliberative and legislative body, to hold invocations at the outsets of its meetings, the same principle applies to the Chino Valley Unified School District Board of Trustees, acting in its legislative capacity, Manion, Surtees, White and Zimmerman asserted. “Because school boards are deliberative public bodies, Supreme Court decisions addressing legislative prayer— Marsh [another public prayer case] and
Galloway —should control this case, and not cases dealing with student prayer. The location of a school board meeting does not alter the fact that it is a deliberative public body. While children might often be present at school board meetings, they do not constitute the principal audience of the meeting. Children were present at town council meetings in Galloway, but that fact did not change the outcome,” according to the amicus curiae brief.
A three-judge panel of the U.S. 9th Circuit Court of Appeals considered the appeal, finding the arguments propounded by Tyler along with Manion, Surtees, White and Zimmerman unpersuasive, not the least because of the fashion in which they sought to minimize the extent to which Na and Cruz went far beyond offering a simple convocation at the opening of the meetings and instead subjected those present to what was tantamount to Christian indoctrination. On July 25, 2018, the 9th Circuit panel upheld in its entirety Bernal’s 2016 ruling. 9th Circuit Judges M. Margaret McKeown and Kim McLane Wardlaw and Colorado District Judge Wiley Y. Daniel said the Chino Valley School Board must desist in incorporating prayers, proselytizing and the citation of Christian Scripture as elements of its meetings. The court noted the frequent presence of children at the meetings who are obliged to attend because of presentations or participation in the items being taken up by the board. The proselytizing could have an undue influence on them, the panel said. “These prayers typically take place before groups of schoolchildren whose attendance is not truly voluntary and whose relationship to school district officials, including the board, is not one of full parity,” according to the decision, which stated that the school board meetings fulfill a further “function as extensions of the educational experience of the district’s public schools. The audience and timing of the prayers, as well as the religious preaching at the board meetings, diverge from the legislative-prayer tradition. “Unlike a session of Congress or a state legislature, or a meeting of a town board, the Chino Valley board meetings function as extensions of the educational experience of the district’s public schools.”
Though the Greece/Galloway decision on which the district based its appeal made clear that all religious affiliations had to be respected in such prayer sessions if they were to be conducted, the predominant number of the Chino Valley Unified School District religious references were Christian ones, slighting other religious minority groups within the district such as Buddhists, Jews, and Moslems as well as atheists and agnostics, the appellate court held.
The 9th Circuit Court cited the principle established in the 1971 case of Lemon v. Kurtzman in which the Supreme Court ruled that legislation relating to religion must have a secular purpose and should not be primarily intended to advance or inhibit any religion and further not create “excessive government entanglement” with religion as was clearly the case with the religious-angled utterances of some of the members of the Chino Valley Unified School District Board of Trustees.
According to the 9th Circuit Court, the Establishment Clause of the 1st Amendment to the U.S. Constitution limits the degree to which believers of one faith can conscript others to go along with its rituals in a public setting, and it held that the board can solemnify its proceedings without the Christian references.
“The Establishment Clause, grounded in experiences of persecution, affirms the fundamental truth that no matter what an individual’s religious beliefs, he has a valued place in the political community,” the 9th Circuit said.
Nevertheless, on August 1, after more than two hours in closed session discussions, Na, Cruz and Orosco voted not to accept the 9th Circuit as having the final authority on whether the school board’s members can make public expression of their religious beliefs at school board meetings.
With board members Irene Hernandez-Blair and Pam Feix dissenting, Na, Cruz and Orozco gave direction to Superintendent Norm Enfield to have Tyler press on with a petition seeking the U.S. Supreme Court to conduct an en banc review of the 9th Circuit’s ruling. This would bring the issue in front of all nine members of the Supreme Court rather than a two-or-three member panel thereof, ensuring what the board hopes will be a comprehensive revisiting of all of the issues.
Based on statements made by Tyler, Na, Cruz and Orozco, they have faith that the concept of public prayer will resonate more positively among the increasingly conservative members of the U.S. Supreme Court than did it with three judges based in San Francisco and with Bernal, a Yale and Stanford Law-educated jurist appointed by President Barack Obama they consider to be a liberal.
While Tyler is not charging the city for his legal services, the $202,971.70 awarded to the Freedom From Religion Foundation has yet to paid, and this does not include further lawyer’s fees accrued during the appeal to the 9th Circuit. If the matter is accepted for review by the Supreme Court and the district does not prevail, this would compound the costs, very likely to $600,000 or more.
Hibbs has created an entity, the Let Us Pray Foundation, which said it would assist with the district’s legal costs. It has reportedly raised in the neighborhood of $100,000 for that purpose.
-Mark Gutglueck

Parry’s False Prairie Clover

The Parry Dalea, known as Parry’s False Prairie-clover is a species of flowering plant in the legume family with delicate purple and whitish pea-flowers arranged into delicate spikes known by scientific name Marina parryi or alternately Dalea parryi. Parry’s false prairie-clover is native to the deserts of the southwestern United States and northern Mexico.
Marina parryi is a relatively inconspicuous plant, with slender stems and well separated leaves, though the stems often overlap to create a clump.
A perennial herb, it produces stiff, branching stems 8 to 32 inches centimeters long. It is coated with reddish glands and rough hairs. The leaves are compound, made up of several pairs of small oval leaflets no more than 6 millimeters long. The grayish-green and pinnately compound leaves are composed of one small, oval, rounded, or egg-shaped terminal leaflet and 5 to 12 pairs of opposite side leaflets, all ovate to nearly round, flat, less than a quarter of an inch in length, and also gland-dotted. Leaflet margins may be reddish.
The inflorescence is a narrow, elongated cluster extending over the uppermost 1 to 4 inches of the stem; flowers at the base of the cluster bloom earliest. The flower’s raceme is of deep blue and white bicolored flowers each under a centimeter long. The calyx lobes are shorter than the calyx tube. The corolla is around a quarter of an inch long, and all petals are purple towards the outer edges and white at the center. The largest petals are the keel. The main flowering of early spring is often followed by a second bloom in the fall.
Because it is so small and slender it usually requires careful searching, best done in mid to late spring.

From: Wikipedia, fireflyforest.com, /fieldguide and www.americansouthwest.net