By Amanda Frye
(Thursday, May 16 5:27 PM)
On May 15, a Fresno County Superior Court judge denied the State of California’s request to have BlueTriton’s Arrowhead Water Cease and Desist Order appeal case heard in San Bernardino County. Following a multi-year investigation and lengthy administrative hearing, the State Water Resource Control Board issued a cease-and-desist order on September 19, 2023 to BlueTriton, the owner of the Arrowhead Spring Water bottling operation, to stop unauthorized water diversions from Strawberry Creek in the San Bernardino National Forest. The following month, BlueTriton filed an appeal in Fresno County citing an obscure law that allowed matters pertaining to the state government to be heard in any county where the California Attorney General has an office.
The California Attorney General’s Office, maintaining that the parties most interested in the outcome of the appeal live in San Bernardino County and that they were put at a disadvantage and inconvenience by the matter being adjudicated in a venue 270 miles away.
Deputy Attorney General Daniel Fuchs, who serves in the Natural Resources Law Section of the attorney general’s office, argued that the case must be moved under the Code of Civil Procedure, which he cited in his argument before Fresno County Superior Court Judge Robert Whalen, Jr.
“The superior court in the county where the real property that is the subject of the action, or some part thereof, is situated, is the proper court for the trial of . . . the recovery of real property, or of an estate or interest therein, or for the determination in any form, of that right or interest, and for injuries to real property,” according to Fuchs, who specifically referenced The Code of Civil Procedure  § 392, subd. (a)(1). “The ‘clear meaningm of this section is that the court with subject- matter jurisdiction in the ‘proper’ county is the only court with jurisdiction to try the action…Here, that county is San Bernardino.” Furthermore, Fuchs asserted BlueTriton’s court petition alleges a claim “in real property” because the “petition alleges that BlueTriton possesses a water right … associated with real property in San Bernardino County” and “alleges interference with a property right.” Fuchs states “There is no allegation of any property interest in Fresno County” in asserting that San Bernardino County Superior Court is the proper venue for the case.
According to court filings and emails, State Attorney Fuchs tried to stipulate with BlueTriton’s attorney the case transfer to San Bernardino County. BlueTriton’s attorney’s refused to participate in a call, claiming the firms representing BlueTriton – Sacramento-based Ellison Schneider Harris & Donlan and Frsno-based Wagner Jones Helsley  – needed more citations and arguments for the request. BlueTriton’s reply to the court was to ask why the State waited five months to suggest a change in venue.
Last Wednesday, Fresno County Superior Court Judge Robert Whalen, Jr. denied Fuchs’ change of venue request to move the court proceedings to San Bernardino County.
Many residents of San Bernardino County who have participated in the State hearing and investigations were hoping that the state would prevail in having the court case moved to San Bernardino County. Retired U.S. Forest Service Biologist Steve Loe, who was an integral participant in the State’s water case reacted with dismay upon the hearing the court’s decision. Members of the public were hoping to have the opportunity to attend court proceedings if the case was moved to San Bernardino County.
In February, Judge Whalen granted BlueTriton’s motion to stay, allowing the company to continue taking water without State enforcement. BlueTriton continues to take water from Strawberry Creek in the San Bernardino National Forest despite having no valid special use permit to do so and no recognized water rights. The San Bernardino National Forses issued a special use permit in 2023, which expired in August 2023.  BlueTriton’s pipeline yet gushes with water, which is carried water down the mountain as the former perennial Strawberry Creek fails to flow.
On Monday, a petition was filed with the California Department of Fish and Wildlife, asking it to intervene to uphold the Public Trust Doctrine of protecting trust resources of water and wildlife at Strawberry Creek. Save Our Forest Association, Sierra Club, the Story of Stuff Project, the Center for Biological Diversity along with local residents are requesting that the Department of Fish and Wildlife will intervene and protect Strawberry Creek trust resources, as the US Forest Service has not used its authority to manage the San Bernardino Forest land and resources within its jurisdiction. The US Forest Service has allowed Strawberry Creek and its springs to be drained yielding, which environmentalists maintain is endangering fauna and flora prone to wildfire. The stream bed has been impacted, they say, and can no longer support fish, such as the native speckled dace, which needs adequate water within the stream bed to survive.
Water originating in the San Bernardino Mountains and using the Arrowhead brand in one form or another had been marketed at least since 1909. Questions have long existed, however, as to whether the water rights originally claimed, attributed or granted to Arrowhead Puritas, the corporate predecessor to Arrowhead Spring Water, pertain to the water drawn at the 5,200-foot elevation level from Strawberry Creek in what is known as Strawberry Canyon rather than water drawn farther down the mountain at around the 2,000-foot above sea level. In 1929, the California Consolidated Waters Company was formed to merge three Los Angeles-based companies that bottled and distributed “Arrowhead Water,” “Puritas Water” and “Liquid Steam.” The property, bottling operations, water distribution and administration of Arrowhead Springs Company, Puritas of California Consumers Company and the water bottling division of Merchants Ice and Storage were all administered by California Consolidated Waters Company. In August 1930, California Consolidated Waters, on the basis of a single pipeline permit that was not based on any water rights and without having obtained a diversion permit or any further valid authorization or rights, started diverting spring water from a single “bedrock crevice” spring in the San Bernardino National Forest along Strawberry Creek at an elevation of 5,600 feet. Subsequently, in 1933 and 1934, the company put in place tunnels, ultimately accompanied by holes and horizontal wells at or near the headwaters of Strawberry Creek in Strawberry Canyon. Strawberry Creek was noted in maps and springs studies prior to the diversion to be a perennial stream which was fed by abundant flowing headwaters springs. The Arrowhead Water Bottling Company, under various names and corporate configurations, including divisions of Standard Oil of California and Rheem Manufacturing, continued to operate, drawing water from Strawberry Canyon throughout the 20th Century. In 1969, the Arrowhead Water Bottling Company was acquired by the Coca Cola Bottling Company of Los Angeles and in 1978, Chicago-based Northwest Industries acquired Arrowhead Puritas when it bought Coca Cola Bottling of Los Angeles. In 1982, Northwest Industries unloaded Coca-Cola Bottling of Los Angeles to Beatrice Foods. BCI subsequently acquired Beatrice in a leveraged buyout. While under BCI’s control, the U.S. Forest Service-issued Arrowhead Puritas water drafting permit in Strawberry Canyon expired, and the BCI-Arrowhead Drinking Water Company applied to extend the permit. In 1987, while that application was still pending, Perrier purchased the BCI-Arrowhead Drinking Water Company.
The then-pending water extraction permit renewal required a U.S. Forest Service review of the water drafting arrangement and its environmental/ecological impact, which the U.S. Forest Service then did not have the immediately available resources to carry out. In a gesture of compromise, Perrier was allowed, pending the eventual Forest Service review, to continue to operate in Strawberry Canyon by simply continuing to pay the $524-per year fee to perpetuate the water extraction under the terms of the expired permit. In 1992, when Nestlé acquired the Arrowhead brand from Perrier, it inherited the Strawberry Canyon operation and continued to pay the $524 annual fee without renewing the permit, which at that time existed under the name of the “Arrowhead Mountain Spring Water Co,” one that was never listed legally in corporate filings, but which operated under Nestlé Waters of North America, Inc. until it was acquired by BlueTriton Brands
Nestlé’s intensive water-drafting activity, which was long decried by environmentalists, came under increasing fire as a statewide drought, which lasted for more than five years after it first manifested in 2011, advanced. In 2015, environmental groups were gearing up to file a lawsuit claiming the U.S. Forest Service had violated protocols and harmed the ecology of the mountain by allowing Nestlé Waters North America to continue its operations in Strawberry Canyon for 28 years after its permit expired. At that point, the Forest Service moved to make an environmental review. In the meantime, Nestlé continued its water extraction, pumping an average of 62.56 million gallons of water annually from the San Bernardino Mountains. Environmentalists lodged protests with the water rights division of the California Water Resources Control Board, alleging Nestlé was diverting water without rights, making unreasonable use of the water it was taking, failing to monitor the amount drawn or make an accurate accounting of the water it was taking, and wreaking environmental damage by its action.
Following a two-year investigation, state officials arrived at a tentative determination that Nestlé could continue to divert up to 26 acre-feet of water (8.47 million gallons) per year. Nestlé had gone far beyond the water drafting limit the company was entitled to, the State Water Resources Control Board said, and was actually drafting 192 acre-feet (62.56 million gallons), such that 166 acre-feet (54.09 million gallons) the company was taking on an annual basis was unauthorized, according to a report released on December 21, 2017.
In March 2021, Nestlé’s parent company, Nestlé S.A., a corporate conglomerate headquartered in Vevey, Vaud, Switzerland, sold its Nestlé Waters North America division, with the exception of its bottling rights to Perrier, to One Rock Capital Partners, LLC, in partnership with Metropoulos & Company.
On September 19, 2023, the California State Water Resources Control Board  approved a cease & desist order drafted by the board’s administrative hearings office forcing BlueTriton to discontinue the removal of water from the upper reaches of Strawberry Canyon.
The Cease & Desist Order the board approved was the product of an administrative hearing process overssen by Allen Lilly, one of the water board’s hearing officers, who presided over a nearly year-long hearing in 2021 and early 2022 into BlueTriton’s appeal of the findings of the State Water Board’s enforcement staff following an extensive investigation. In addition to prosecutors from the Water Board and attorneys for BlueTriton, both the Story of Stuff Project and multiple other complainants were able to introduce evidence and call witnesses during the hearings and to participate in a site visit to the springs in February 2022.
The order concludes that the water in question, because it originates from springs, even if it is intercepted prior to expressing at the surface, falls under the jurisdiction of the State Water Board, which by law regulates surface water and not groundwater. Further, according to the order, BlueTriton did not perfect an appropriative right to the water it removes and in particular, did not perfect a pre-1914 right, considered to be California’s inviolable gold standard in terms of water rights, as it has long claimed.
The order was silent on the removal of water from three of the spring sources BlueTriton taps at a lower elevation in Strawberry Canyon and allows the company to divert water from the springs to the owners of the Arrowhead Hotel property for riparian uses.
BlueTriton’s filing of the appeal has stayed the order and has also delayed the filing of a further protest environmentalists intend to file challenging BlueTriton’s taking of water lower in the canyon.