By Amanda Frye and Mark Gutglueck
Three environmental groups yesterday gave formal notice of their intent to appeal a federal court’s ruling in September that is allowing Nestlé to continue to remove an estimated 36 million gallons of water from Strawberry Creek in the San Bernardino National Forest based on a permit that expired 28 years ago.
The appeal comes after U.S. District Court Judge Jesus Bernal entered a ruling in September that allowed Nestlé to continue to remove tens of millions of gallons of water each year without restrictions. Bernal’s ruling reflects, the plaintiffs contend, a misunderstanding of what the law requires.
“This appeal is absolutely necessary in order to ensure that the U.S. Forest Service does not continue to allow precious water to be siphoned off our public lands without any limits or conditions to protect wildlife, water and other public-trust resources,” said Ileene Anderson with the Center for Biological Diversity. “After nearly three decades since the permit expired, and with California entering its sixth year of drought, this situation must be remedied now.” The lower court ruling allows Nestlé’s four-mile pipeline that siphons water from San Bernardino National Forest’s Strawberry Creek to its Arrowhead bottling operations in Ontario to remain in operation despite the fact that the permit to do so expired in 1988. In exchange for allowing Nestlé have a right-of-way permit for a transmission line through which Nestlé continues pulling water from the creek
the Forest Service receives $524 a year. Nestlé pays nothing for the water.
The environmental groups making the appeal are the Story of Stuff Project, the California-based Courage Campaign Institute and the Center for Biological Diversity.
“We Californians have dramatically reduced our water use over the past year in the face of an historic drought, but Nestlé has refused to step up and do its part,” said Michael O’Heaney, executive director of the Story of Stuff Project. “The court’s bad ruling forces us to appeal the decision.”
“The Forest Service has been enabling Nestlé to destroy the delicate ecosystems of Strawberry Creek for 28 years, and it has to stop,” said Eddie Kurtz, executive director of the California-based Courage Campaign Institute. “This appeal challenges a justice system that lets massive corporations play by a different set of rules than the rest of us. Taking a public resource and selling it at an obscene profit without the legal right to do so is unacceptable.”
Earlier this year more than 500,000 people signed a petition calling on Nestlé to stop bottling water during the drought, and a poll found that a majority of people in the United States believe Nestlé should stop bottling in California.
Nestlé Waters of North America, a corporate subsidiary of the Swiss-owned Nestlé Corporation, acquired the expired permit from Perrier when it bought out that entity in 1992.
Perrier had acquired the permit when it purchased the BCI-Arrowhead Drinking Water Co. in 1987, at which time the permit was yet active. That permit allowed the holder to extract water from a significant below-ground source in the San Bernardino Mountains.
The old Arrowhead Resort began drawing surface/spring water from Coldwater Canyon at approximately 2,000 feet around 1909, and later drew water from Waterman Canyon. The Arrowhead Springs Corporation was formed when the resort was sold to a corporation. The Arrowhead Springs Company merged with the Los Angeles-based Puritas Water Company in 1929 under the corporate parenthood of Consolidated Water.
The Arrowhead Springs Corporation sold water rights it did not own pertaining to National Forest water in the upper portion of Strawberry Canyon to Consolidated Water, the owner of Arrowhead and Puritas Water, in 1929.
In the 1930s, the Arrowhead Drinking Water Company, on the basis of the non-existent water rights to the water in Strawberry canyon, put in place tunnels, boreholes and horizontal wells at the higher elevation of 5,200 feet at the headwaters to Strawberry Creek.
In 1978, Arrowhead Puritas renewed its permit for harvesting water from Strawberry Canyon by means of boreholes and horizontal wells, for which it paid the U.S. Government $524 per year, a standard fee for such uses in all National Forests. That permit expired 28 years ago, but the company continues to pay the miniscule fees associated with that permit, and utilizes for commercial purposes water thousands of times in excess of that used by local domestic users who even before California Governor Jerry Brown’s executive order limiting water use statewide had their access to mountain water cut off.
During the early and middle part of the 20th Century, the Arrowhead Puritas Water Company enlarged the pipes used to tap into the aquifer below and around Strawberry Creek and over the years built the company into the largest purveyor of bottled water on the West Coast based upon the quality of that water.
Research done by the Sentinel indicates the water rights the Nestlé Corporation cites as the basis of its claim to the more than 35 million gallons of water it pumps annually from Strawberry Canyon do not pertain to either the aquifer or the location from which that water is being taken.
On April 19, 2016, the Sentinel sought and obtained access to San Bernardino County Archives to review the cited original possessory claim and land patent. A review of relevant documents demonstrated that Nestlé Waters of North America’s cited possessory claim and land patent by David Noble Smith were for 160 acres located at the “foot” of the mountain (“Ace of Spades” now referred to as the “Arrowhead”) located in Township 1 North Range 4 West in the San Bernardino Meridian (T1N R4W SBM). The Strawberry Canyon wells/tunnels/ “springs” are located in Township 2 N Range 3W SBM (T2N R3W SBM). The possessory claim and land patent is over two miles away and a different township and range than the Strawberry Creek headwater wells/tunnels/“springs.”
Nestlé Waters of North America has cited a possessory claim and land patent that has no water rights claim in T2N R3W SBM. Furthermore, Nestlé Waters of North America has no pre-1914 water rights claims for the springs in Strawberry Canyon headwaters. The recordation of the David Noble Smith estate to Darby et al. October 12, 1886 is for T1N R4W SBM, which further indicates that there was no claim to the Strawberry Creek headwater springs in T2N R3W SBM. Forest Service Quadrangle maps, state well numbers, and expired permit all show Nestlé Waters of North America wells/tunnels/“springs” in Strawberry Canyon are in T2N R3W, not the location of Nestlé Waters of North America’s cited possessory claim T1N R4W.
The connection between Strawberry Canyon headwaters rights and the possessory claim do not hold water when original documents are examined. Nestlé Waters of North America’s claim to Strawberry Canyon headwater spring rights by possessory claim appears to be erroneously based, as the possessory claim, subsequent land patent and next owner real estate transfer clearly document a different township and range than Nestlé Waters of North America’s Strawberry Creek headwater well/tunnel/“spring” locations.
It thus appears that Nestlé Waters of North America has made a false claim to the United States Forest Service by citing Strawberry Creek headwater springs as “pre-1914 rights” from a possessory claim and patent that are located in a different township and range with no mention of Strawberry Creek headwater springs or water rights anywhere in the original historical record.
Jane Lazgin, director of media and public relations for Nestlé Waters of North America told the Sentinel Nestlé continues to rely on the water rights it has asserted and that those rights are valid.
“Arrowhead has vested, senior water rights and has demonstrated continuous beneficial use of those rights since the late 1800s. In California, “pre-1914” water rights are, by law, the most senior water rights in the state. In fact, our water rights pre-date the creation of the San Bernardino National Forest.”
Lazgin continued, “Nestlé Waters pays the United States Forest Service for the use of a narrow, five-foot wide right-of-way on which we maintain a four-inch diameter, stainless steel pipeline. The fee for this right-of-way is established by a schedule of fees set by regulations adopted by the U.S. Forest Service, which is applied to all special use permit holders on United States Forest Service land. Nestlé Waters has been reporting its water use to the State Water Resources Control Board since 1947, through the reporting program specifically established under California law. Nestlé complies with all reporting requirements and continues to report its water use from this spring as mandated by California law.”
Today, November 18, 2016, the U.S. Department of Agriculture announced that the U.S. Forest Service has identified an additional 36 million dead trees across California since its last aerial survey in May 2016. This brings the total number of dead trees since 2010 to over 102 million on 7.7 million acres of California’s drought stricken forests. In 2016 alone, 62 million trees have died, representing more than a 100 percent increase in dead trees across the state from 2015.
The plaintiffs in the case hope to use documentation with regard to the deterioration of the forest and its watershed to convince the federal court of appeals that Bernal erred in upholding the continuing applicability of the expired permit. The continuing recognition of that permit, which elapsed in 1988 but has been renewed by the Forest Service without any environmental assessment of its impact, is contrary to federal regulations and law including the National Environmental Protection Act, the plaintiffs maintain, without a comprehensive environmental impact study and certification that the continued pumping of the water is not damaging the forest.