In a development that environmentalists celebrated as turning the corner on a decades-long effort to safeguard the ecology of a mountain canyon some four miles from Lake Arrowhead, the U.S. Forest Service has ordered BlueTriton Brands, the bottler of Arrowhead® Spring Water, to discontinue its diversion of water in the San Bernardino Mountains.
In a letter dated July 26, 2024, San Bernardino Mountain District Ranger Michael Nobles informed BlueTriton it must “cease operations” in the San Bernardino National Forest and remove all of the siphoning and drafting equipment along with its pipelines used to collect and transfer water from Strawberry Canyon, located above the 5,000-foot elevation, to a facility further down the mountain.
In a quick turnaround, BlueTriton on August 6 sued Nobles, four of his U.S. Forest Service supervisors and the U.S. Forest Service in federal court in Washington D.C.
The illegal diversion of water from Strawberry Canyon in the San Bernardino Mountains has been ongoing for more than 90 years. Those profiting by the diversion have perpetuated it year after year, decade after decade for what is approaching a century by blurring the distinction between water high up on the mountain with water lower down on the mountain.
Beginning in 1930 and then more aggressively in the later 1930s, 1940s and 1950s into the 1960s, 1970s and 1980s, BlueTriton and its numerous corporate predecessors, all under the aegises of the Arrowhead Hot Springs Company, Arrowhead Springs Corporation, Arrowhead® Water Corporation and Arrowhead® Mountain Spring Water Company, utilized adits – horizontal passages bored into rock for drainage purposes – to draft water in Strawberry Canyon.
The intensive use of Strawberry Canyon’s water had taken place during all of those decades because of some sleight-of-hand by attorney and former California Assemblyman Byron Waters, who in the late 1920s was the legal representative of Arrowhead Springs Hotel and Arrowhead Hot Springs Resort and their owner, Charles Anthony, who also had a water bottling operation, the Arrowhead Springs Corporation, which obtained its water from springs near the hotel in the San Bernardino Mountain foothills and had been supplying it to the customers of the hotel and bottling it since 1914.  Having entered into talks with California Consumers Company, the parent of California Consolidated Waters Co., regarding the sale of the Arrowhead water bottling operations in exchange for a $100,000 commission, Anthony executed the deal with Waters’ assistance, in so doing providing a warranty title of water rights which did not in reality exist.
In a letter dated February 14, 1929, Waters asserted that water rights “belonging to the company” and associated with the Arrowhead Hot Springs property were to be sold as part of the deal. While the water rights that were actually Anthony’s to sell related to the spring water near the hotel at the 2,000-foot elevation much closer to the City of San Bernardino, the water rights Waters substituted for those were in Strawberry Canyon, much higher up the mountain, indeed within the San Bernardino National Forest flowing as Strawberry Creek.
In actuality, no claim can be made on water within a national forest.
In 1931, the Del Rosa Mutual Water Company, an appropriator of water on East Twin Creek downstream of the Arrowhead Springs Hotel as well as downstream of the confluence of Strawberry Creek and East Twin Creek, filed a lawsuit to enjoin the taking of any water either by Arrowhead Springs Corporation or California Consolidated Water Company from East Twin Creek or Strawberry Creek.
The Del Rosa suit did not involve the San Bernardino National Forest nor the State of California. A finding in that case was that neither Arrowhead Springs Corporation nor California Consumers Company had previous water rights which extended back to the founding of the San Bernardino National Forest on February 25, 1893.
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, California Consolidated Waters developed three springs using adits – horizontal borings – and then added 10 further horizontal borehole wells to tap spring water aquifers in the mountainside, thereby diverting the forest spring water through a pipeline down the mountain, giving twenty percent to half of the water thus obtained to the hotel and then bottling and selling the rest. This unauthorized twenty percent giveaway to the Arrowhead Springs owners is still ongoing.
In the 1940s and then even more intensely in the 1950s, the number of tunnels, accompanied by holes and horizontal wells along the walls of the canyon above Strawberry Creek running from near its headwaters at an elevation of 5,600 feet down to around 5,200 feet, were increased, diverting more and more water, ultimately reaching as much as 192 acre-feet or 62,563,474.29 gallons annually.
Over the years, water from Strawberry Canyon has been bottled under various names, including Arrowhead, Puritas, Arrowhead and Puritas, Arrowhead Puritas, Arrowhead® Spring Water and Arrowhead® Mountain Spring Water among them, all under the aegises of the Arrowhead Hot Springs Company, Arrowhead Springs Corporation, Arrowhead Water Corporation, California Consolidated Water, Arrowhead® Mountain Spring Water Company, Rheem, Coca-Cola Bottling Company of Los Angeles, Beatrice Foods, BCI-Arrowhead Drinking Water Company, Perrier, Nestlé, Nestlé Waters of North America, Inc. and now BlueTriton Brands.
Despite the claims of some of them to the contrary, none of those entities had a right to draft the water they were taking from Strawberry Canyon.
Water rights cannot be awarded on U.S. Forest Service land. Nor is it possible for an entity to assert prescriptive rights to water on U.S. Forest Service land. Prescriptive water rights are created when a water user infringes upon the established water rights of another entity by means of trespass or unauthorized taking of that water. Upon making what would otherwise be illegal or illicit use of a given quantity of water openly and without the use of force for a period of five or more consecutive years, under California law, the interloper who took the water can then claim an annual right to the minimum amount of water taken during each of all of the five years. While the prescriptive rights are granted to anyone making such a showing of use of another private citizen’s or local or state agency’s water, federal law supersedes state law, and federal law does not permit the federal government’s water rights to be taken away or stepped upon by prescription.
The Strawberry Canyon water diversions were being made in accordance with a permit issued by the U.S. Forest Service. In 1978, Northwest Industries of Chicago acquired Coca Cola Bottling and Arrowhead, such that for a time Coca-Cola Bottling of Los Angeles and Arrowhead were almost indistinguishable. In 1978, Northwest Industries obtained from the U.S. Forest Service a ten-year permit to draft water in Strawberry Canyon as part of its Arrowhead operation. In 1982, Northwest sold both Coca-Cola Bottling and Arrowhead® to Beatrice Foods. Thereafter, BCI acquired Arrowhead in a leveraged buyout. While Arrowhead was yet under BCI’s control, Arrowhead Puritas’s U.S. Forest Service-issued 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 yet being processed, 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 a $524-per year fee to perpetuate the water extraction under the terms of the expired permit. In 1992, Nestlé acquired the Arrowhead brand from Perrier. Nestlé continued to pay the $524 annual fee without renewing the Strawberry Canyon operation 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 and then what became Nestlé Waters of North America, Inc.
Nestlé’s water-drafting activity in Strawberry Canyon was every bit as aggressive or more so than that of its predecessors. Five, ten, then 15 years elapsed without the Forest Service undertaking an environmental assessment of the impacts the water extraction was having on the forest’s flora and fauna. Environmentalists, who had decried the situation there all along, were becoming ever more strident in their denunciations of not just Nestlé, but the Forest Service as well, which was exacerbated when Nestlé took on some retired Forest Service officials as consultants, paying them far more money than they made when they were working for the government. As a statewide drought, which lasted for more than five years after it first manifested in 2011, advanced, those complaints reached a crescendo.
In 2015, environmental groups – Save Our Forest Association, Inc., the Story of Stuff Campaign, the Center for Biological Diversity and the Sierra Club – 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 of North America to continue its operations in Strawberry Canyon for 28 years after its permit expired. At that point, the Forest Service initiated the long forestalled environmental review. In the meantime, Nestlé continued its water extraction, pumping an average of more than 60 million gallons of water annually from the San Bernardino Mountains.
In April 2016, the United States Forest Service held a public scoping meeting, at which it proposed a 5-year National Environmental Policy Act Study to determine the possible impacts of the water diversions. The Save Our Forest Association objected to this plan and recommended a no action alternative in the National Environmental Policy Act study with no further water diversion for bottling and spring water capture at the bottom of the canyon with monitoring to determine if any excess water flow existed.
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.
Throughout the protracted dispute over the water diversion in Strawberry Canyon and the two-year investigation by the California Water Resources Control Board, Nestlé continued to insist it not only had long-established water rights in Strawberry Canyon but was acting as a responsible steward of the resources it possessed. This had prompted a San Bernardino County resident, Amanda Frye, to carry out an exhaustive examination of the historical record, including documents that had lain in the county’s archives untouched for more than five, six, seven and eight decades. What Frye unearthed were the details of how and when the team of Anthony and Waters had substituted nonexistent rights to water at the 5,200 to 5,600 elevation for actually existing water rights at the 2,000 foot elevation when Anthony sold the water bottling enterprise near Arrowhead Springs Hotel and Arrowhead Hot Springs Resort to the California Consolidated Water Company/California Consumers Company. Frye marshaled documentation to show that Nestlé’s claim to holding water rights relating to water usage and bottling activity in the forest at the elevation higher than 5,000 feet in Strawberry Canyon was spurious, and that no such water rights there extended back to prior to the founding of the San Bernardino National Forest on February 25, 1893. Rather, the historic documentation Frye retrieved from the county’s vaults showed that the rights Nestlé was referencing pertained to an area much more proximate to the Arrowhead Springs Hotel and Arrowhead Springs Resort in Coldwater Canyon at an elevation of 1,867 feet.
Meanwhile, officials with the California Water Resources Control Board arrived at a tentative determination that Nestlé could continue to divert up to 26 acre-feet of water (8.47 million gallons) per year from Strawberry Canyon, slightly over 13.5 percent of the 192 acre-feet (62.56 million gallons) it had been drafting on average per year over the previous decade. Nestlé had gone far beyond – 166 acre-feet (54.09 million gallons), to be precise – the water usage pattern deemed prudent or realistic given the circumstances, the state water board said. Going forward, the California Water Resources Control Board stated in a report released on December 21, 2017, the company was authorized to take no more than the 26 acre-feet of water.
An acre-foot is the amount of water that would cover an acre to the depth of one foot – 43,560 cubic feet or 325,851.427 gallons.
Nestlé, while ridiculing Frye’s efforts at historical documentation as incomplete, inaccurate and misinterpretative, defied the California State Water Resources Board and continued to draft water from Strawberry Canyon well in excess of 26 acre-feet of water annually, running to an amount near or exceeding its historic 192 acre-feet annual use pattern.
Quietly, however, Nestlé detailed its own research associates and consultants to delve into the historic record to cover the ground Frye had. While two historical documents eluded their survey, the conclusion they reached paralleled that of Frye.
Simultaneously, Nestlé was facing challenges over other aspects of its Nestlé Waters of North America portfolio, including claims that its Poland Spring Water brand was not derived from natural springs at all but rather from six “man-made springs” that were utilizing injected water of less than sterling quality, including run-off from a landfill and effluent, and that, in a scenario reminiscent of what was happening in the San Bernardino Mountains, Nestlé was extracting some 399 acre-feet of water, or more than 130 million gallons, from wells in northwestern Michigan, drying up several creeks and tributaries to the Muskegon River, wreaking environmental harm to the area, while paying just $200 a year in fees for a water-use permit.
Quietly, Nestlé initiated negotiations with potential investors and speculators in water resources to explore unloading those elements of its portfolio that represented potential liability going forward. Among those who demonstrated interest were Metropoulos & Company. During preliminary discussions in 2020, Nestlé ascertained that the company, which was co-founded by C. Dean Metropoulos, a Greek-American billionaire investor and businessman and his two sons, Daren and Evan, was focused more on acquiring the entirety of its American/Canadian water portfolio than a few spin-offs. Metropoulos & Company specializes in acquiring classic or iconic American and European brands that are struggling or going into eclipse, particularly ones dealing in food products, and then transforming them through modernization and promotion to reestablish their viability and popularity with consumers and enhancing the value of the companies or corporations.
Dean Metropolous, who had immigrated to the United States with his parents in 1956 at the age of ten, while employed by General Telephone in 1971 at the age of 25, relocated to Geneva, Switzerland for several years to serve as the financial director of General Telephone International’s European, Middle Eastern, and African operations. His assignment in Geneva put him in occasional contact with the corporate leadership of Nestlé S.A., which is headquartered in Vevey, Switzerland.
Metropoulos & Company, having partnered with One Rock Capital Partners, LLC, tendered a $4.3 billion offer to Nestlé S.A. to acquire Nestlé Waters of North America, extending to Poland Spring® Brand 100% Natural Spring Water, Deer Park® Brand 100% Natural Spring Water, Ozarka® Brand 100% Natural Spring Water, Ice Mountain® Brand 100% Natural Spring Water, Zephyrhills® Brand 100% Natural Spring Water, Arrowhead® Brand Mountain Spring Water, Pure Life® and Splash. Not included in the deal were Nestlé’s North American marketing rights to Perrier®, S.Pellegrino® and Acqua Panna®. The offer was accepted in February 2021 and was finalized two months later, with the holdings having been consolidated under the name BlueTriton Brands
Dean Metropoulos, whose corporate activities were mostly centered in Greenwich, Connecticut and who lives in Palm Beach Florida, entrusted the due diligence on the Nestlé Waters of North America acquisition to Daren Metropoulos, who was based in California after his 2016 acquisition, for $100 million, of the Playboy Mansion in the Holmby Hills section of Los Angeles, a base from which he has operated. Despite his physical presence in California, Daren Metropoulos in carrying out his survey of the actual state of and functionality of the various companies in the Nestlé Waters of North America portfolio seems to have missed entirely the questions regarding the Arrowhead Bottling division’s water rights in the San Bernardino Mountains. Based upon later statements from BlueTriton’s corporate officers, its attorneys and Metropoulos & Company publicist, Hannah Arnold, it appears that the company accepted at face value Nestlé’s assertion that it possessed water rights in Strawberry Canyon that dated to before the founding of the San Bernardino National Forest on February 25, 1893.
The timing of the finalization of the Nestlé Waters of North America acquisition by One Rock and Metropoulos was remarkable. Just days after the BlueTriton takeover, the California State Water Resources Board, responding to citizen complaints, issued a draft cease and desist order against Nestlé on April 23, 2021. On May 11, 2021, eighteen days after the issuance of the notice, Robert E. Donlan of Ellison Schneider Harris & Donlan, L.L.P., the law firm representing BlueTriton Brands, Inc., filed a request for a hearing on the matter and allegations in the draft cease-and-desist order notice, noting that BlueTriton is the “successor by name change” to Nestlé.
Donlan asserted that BlueTriton is “the owner of the water rights and obligations subject to the notice.”
The record had to be corrected and the draft cease and desist order redrafted to reflect that it was BlueTriton Brands that had come under the board’s authority, and which had to abide by the order.
BlueTriton contested the order, which resulted in the California State Water Resources Board commissioning Alan Lilly, an administrative hearing officer, to conduct an inquiry into the matter, consisting of a series of public hearings that took place between August 2021 and July 2023. Expert witnesses brought in by BlueTriton testified along with witnesses called by the attorneys representing the state water board.
During the hearings, Kenneth Petruzzelli and John Prager, attorneys with the California Water Resources Board’s Office of Enforcement, served as the prosecution team, seeking to make the case that the cease-and-desist order was justified.
Robert E. Donlan, Christopher M. Sanders, Shawnda M. Grady, Hih Song Kim and Patty Slomski, attorneys with the law firm Ellison, Schneider, Harris and Donlan, LLP, and Rita Maguire, a water rights attorney in private practice, represented BlueTriton Brands, Inc.
Petruzzelli and Prager were assisted at certain stages by attorneys Nancee Murray and Kathleen Miller, who represented the California Department of Fish and Wildlife.
Other attorneys who participated in the hearings, advocating for the imposition of the cease-and-desist order, were Meredith E. Nikkel, Samuel E. Bivins and Holly E. Tokar of the law firm of Downey Brand, representing the San Bernardino Valley Municipal Water District; Rachel Doughty and Jessica Taylor of the Greenfire Law, PC and Christian Bucey, Erica Plasencia, Paul Kibel and Michael O’Heaney, on behalf of the Story of Stuff Project; attorney Larry Silver, representing the Sierra Club; and Lisa Belenky, the attorney for the Center for Biological Diversity.
Petruzelli and Prager called as their primary witnesses Tomas Eggers, a water resource control engineer with the State Water Resources Control Board; Natalie Stork, a hydrologist and investigator assigned to the Office of Research, Planning and Performance and the Groundwater Management Program with the California Environmental Protection Agency and the California Regional Water Board; Victor Vasquez, who is employed within the Division of Water Rights of the State Water Resources Control Board; and Mary Ann Dickinson, a Lake Arrowhead resident and the past president and chief executive officer of the Alliance for Water Efficiency. Offering further supporting testimony and introducing evidence, documentary and otherwise, were Steve Loe, a retired wildlife and fisheries biologist who worked for the U.S. Forest Service for 40 years, including 30 years at the San Bernardino National Forest; Hugh Bialecki, the president and founder of the Save Our Forest Association; and Amanda Frye.
The lawyers for BlueTriton put on the company’s case in chief with the input of its primary expert witness, Larry Lawrence, the natural resources manager with BlueTriton Brands. Lawrence held a similar position with Nestlé Waters North America. BlueTriton called Mark Nichols, a registered geologist and certified hydrogeologist, to testify, along with Gregory Allord, a cartographer who worked for the U.S. Geological Survey for over 30 years, to provide rebuttal testimony to the prosecution’s witnesses. BlueTriton’s legal team also called Ross Grunwald, a California professional geologist and hydrogeologist, to testify.
Evidence that had a substantial bearing on the case consisted of the daily data of the amounts of water BlueTriton was drafting at various locations in Strawberry Canyon and the amount of water it was emptying into Strawberry Creek at a new discharge location lower down in the canyon. That data had been requested by Lilly and was provided by Donlan.
After a consideration of all of the evidence and testimony, Lilly issued a tentative ruling on April 21, 2023 and postdated to April 23, 2023, stating that BlueTriton has no water rights in Strawberry Canyon and could not continue to draft water from the ten founts it had in the canyon’s upper reaches but could continue to take water from three sources in the lower portion of the canyon. “[T]his order directs the respondent, BlueTriton Brands, Inc., to cease its diversions through its Tunnels 2, 3 and 7, and Boreholes 1, 1A, 7, 7A, 7B, 7C and 8 in the Strawberry Creek watershed in San Bernardino County for its water-bottling operations because BlueTriton does not have any water rights that authorize these diversions and uses,” Lilly wrote.
According to the tentative ruling, Blue Triton henceforth was no longer entitled to any water from the top of the canyon, but was to be permitted for the time being to provide water drawn from lower down in the canyon to the San Manuel Indian Tribe for its use, including at the historic hotel property. The San Manuel Tribe of Mission Indians is the current owner of the historic Arrowhead Springs Hotel and its surrounding property.
“This order does not prohibit BlueTriton from continuing to divert water through these facilities for deliveries to the San Manuel Band of Mission Indians for beneficial uses at the Arrowhead Springs Hotel property, and this order does not prohibit BlueTriton from continuing to divert water through its Boreholes 10, 11 and 12 for its water-bottling operations or deliveries to the San Manuel Band.”
Still, the draft order stated, “[O]ur cease and desist order limits the amount of BlueTriton’s total diversions from Tunnels 2 and 3 and Boreholes 1, 1A, 7, 7A, 7B, 7C and 8 during each day to the amount BlueTriton delivers to the San Manuel Band during the same day.”
The order was held in abeyance for nearly six months to give the public an opportunity to provide input on the matter.
On September 19, 2023, the California State Water Resources Control Board finalized the cease & desist order forcing BlueTriton to stop the removal of tens of millions of gallons of water annually from the Strawberry Canyon spring complex by November 1, 2023. The order reiterated the finding that BlueTriton has no water rights on U.S. Forest Service land.
Just a little over a month later, on October 24, Blue Triton, represented by John Kinsey and Nicholas Cardella of the Fresno-based law firm Wanger Jones Helsley and Robert Donlan, Christopher Sanders and Shawnda Grady of the Sacramento-based law firm Ellison Schneider Harris & Donlan, filed a lawsuit against the State Water Resources Control Board in Fresno Superior Court, challenging the board’s finalized cease and desist order.
The legal theory BlueTriton sought to pursue in the case is one that holds that there is a distinction in California water law between surface water and subsurface water and that the State Water Resources Control Board’s authority extends only over surface water and not to water drafted out of the water table or aquifer. Since the Arrowhead Water operation consists of borings, tunnels and adits which tap into subsurface water, according to BlueTriton’s legal team, the State Water Resources Control Board’s undertaking to apply a cease-and-desist order was illegitimate from the inception and the ultimate conclusion that BlueTriton had not established water rights to the water it is drafting in Strawberry Canyon within the San Bernardino National Forest is moot and therefore inapplicable, as only the U.S. Forest Service has authority with regard to underground water within its jurisdiction. Thus, the U.S. Forest Service special use permit bought for a $524-per year fee issued to Nestlé and subsequently to its corporate successor, BlueTriton, provides a fully proper, appropriate and both administratively and legally defensible basis to have allowed the drafting of that water in the past, at present and into the future, Kinsey, Cardella, Donlan, Sanders and Grady maintained.
The filing of the lawsuit brought with it a staying of the water use restrictions imposed by the cease-and-desist order, thus allowing BlueTriton to continue it diversion of water from Strawberry Canyon unabated.
Blue Triton’s strategy, of course, was dependent upon the U.S. Forest Service continuing to permit the company to capture water as it and its corporate predecessors have done for decades. That stratagem failed with the posting of District Ranger Nobles July 26, 2024 letter informing BlueTriton that its application for a new permit has been denied.
In that letter Nobles requested that BlueTriton provide him with a plan/timetable for removing all its pipes and equipment.
In the letter to Louis Mixon, III, who is BlueTriton’s senior natural resource manager, Nobles wrote, “After careful consideration and review of the information provided by BlueTriton, I regret to inform you that your application dated February 21, 2023 for use and occupancy of lands and resources of the San Bernardino National Forest (SBNF), has been denied. As a consequence of this denial, BlueTriton’s current permit terminates, and it must cease operations on SBNF lands. The Forest Service repeatedly requested BlueTriton provide additional information necessary to assure compliance with BlueTriton’s existing permit, and evaluate BlueTriton’s application for a new permit. Several of our requests, particularly those concerning the use of the water being taken from SBNF lands, were consistently left unanswered by BlueTriton. As we repeatedly explained, this information was necessary to evaluate compliance with your current permit, and to provide adequate information to consider your application. BlueTriton’s refusal to provide the information provides us no alternative to denying your application. Pursuant to the terms of BlueTriton’s prior special use permit (FCD728503), that permit is now terminated as a result of this denial.”
Nobles said that based upon his analysis, “BlueTriton’s application has not sufficiently demonstrated that all construction, reconstruction, operation and maintenance of tunnels on the National Forest use practices that minimize adverse effects on groundwater aquifers and their surface expressions [and] that the water extracted is excess to the current and reasonably foreseeable future needs of the forest resources.”
Somewhat ironically, it appears that BlueTriton may have sought to enhance its chances of having the permit renewed by repurposing much of the water it was drafting for other than bottling purposes, a ploy to elude the negative publicity it has sustained in recent years over diverting precious mountain spring water ultimately into plastic bottles while California has staggered under drought conditions. Doing that violated the terms of the permit the company was seeking to renew, Nobles stated.
“Both BlueTriton’s application materials and its subsequent correspondence recognize that conditions in Strawberry Canyon have significantly changed since our last evaluation in 2018,” Nobles wrote. “Given these changing circumstances, BlueTriton’s application materials are insufficient to demonstrate compliance with the current [San Bernardino National Forest] Land Management Plan. Of greater concern, as I explained in my prior correspondence, is that BlueTriton refuses to provide sufficient information about the uses of the waters being taken from the San Bernardino National Forest to assure that they are in compliance with California law. Compliance with State law in regards to water rights and uses is a precondition to the issuance of any special use permit. The purpose of the use must be the same for which it was authorized. The 2018 decision memo signed by Ranger Joseph Rechsteiner documented that ‘Nestlé’s project purpose is to continue to operate and maintain the existing system to supply bottled drinking water for retail sale.’ Similarly, your most recent application explicitly described the purpose of the requested ‘business facilities’ as being ‘to supply bottled drinking water for retail purposes.’ Despite this proclaimed and documented purpose, BlueTriton’s reporting shows that 94-98% of the total diverted monthly volume was delivered to the Arrowhead Springs Hotel property for undisclosed purposes, rather than for the purpose of supplying bottled drinking water as described in the permit and application. In fact, for months BlueTriton has indicated it has bottled none of the water taken from the San Bernardino National Forest. This change of diversion and use of the water remains completely ahistoric, despite BlueTriton’s contrary assertions. This volume increase from 4.5 million gallons in December of 2023 to 9.5 million gallons in May of 2024 represents a significant trend of substantial amounts of water used for unauthorized purposes.”
Nobles’ letter continues, “This increase represents significantly more water than has ever been delivered previously with seemingly no change of the uses of the Arrowhead property. As we have noted, the recipient property to our knowledge has no irrigated agriculture, no industrial uses, no residences, and no municipalities. The hotel and conference facility on the property is not operating, and there is no explanation of where the millions of gallons of water per month are going. As explained in prior correspondences, such an unprecedented volume of water must be explained in sufficient detail. Still, after several requests from the Forest Service and ample time to provide the requested information, BlueTriton failed to provide any explanation and asserted that responsibility lies with the tribe. To be clear, BlueTriton is the current permit holder and applicant for the new permit. BlueTriton is therefore solely responsible for complying with the terms of the permit and also for providing information necessary for its application.”
Nobles then quoted from BlueTriton’s previous special use authorization FCD728503, which stipulates that “Any change in a water facility, including a change in the ownership or beneficial use of water or location of use of water from a water facility, that is not expressly authorized in this permit shall result in termination of the authorization for that water facility.”
Nobles stated, “[T]here has been a change in both the beneficial use of water and the location of that use. This constitutes a violation of the current permit and basis for termination. It also provides independent reason to deny BlueTriton’s application. For all of these reasons, I have decided to deny BlueTriton’s application. This determination regarding the denial of your application is final and not subject to administrative appeal because your permit did not provide for renewal.”
While environmentalists and activists who have long advocated that the Forest Service cancel the Nestlé/BlueTriton permits lauded Nobles’ action, their ebullience was attenuated somewhat when BlueTriton, represented by attorneys George Sibley and Kevin Elliker of the Richmond, Virginia-based law firm of Hunton Andrews Kurth and attorney Todd Mikolop of Hunton Andrews Kurth’s Washington, D.C. office, filed suit in the United States District Court for the District of Columbia, naming as defendants Nobles, in his role as the Front Country District Ranger in the San Bernardino National Forest, as well as Danelle Harrison, in her official capacity as the forest supervisor of the San Bernardino National Forest of the U.S. Forest Service and Nobles’ immediate supervisor, along with Jennifer Eberlein, the regional forester for the Pacific Southwest Region of the U.S. Forest Service; Christopher French, the deputy chief for the National Forest System of the U.S. Forest Service; Randy Moore, the Chief of the U.S. Forest Service and the United States Forest Service, seeking the court’s declaration that denying the permit renewal is a violation of the federal Administrative Procedures Act, that the court vacate and set aside the U.S. Forest Service’s denial of the permit renewal and that the court “issue a preliminary and permanent injunction prohibiting the U.S. Forest Service from denying or otherwise unreasonably restricting plaintiff’s access to Arrowhead Springs.”
Save Our Forest Association President Hugh Bialecki told the Sentinel, “The United States Forest Service has acted within its authority, following the evidence and the requirements of the special use permit. BlueTriton Brands, like Nestlé Waters, however, has acted with impunity and disregard for the impacts these diversions have created on our public lands. Our intent now is to be working cooperatively with the United States Forest Service on the restoration of Strawberry Canyon.”