By Anthony Serrano and Mark Gutglueck
Congressman Jay Obernolte finds himself under withering scrutiny and, in some cases, relentless attack for what some of his most ardent political supporters and members of his staff acknowledge was his “uninformed” support for the San Manuel Indian Tribe’s swap of 1,460 acres it has acquired in the San Bernardino National Forest at various locations and altitudes ranging from approximately 5,200 feet to 7,000 feet in the San Bernardino Mountains for two parcels of federal land consisting of 1,475.9 acres located near the Arrowhead Springs Hotel at the approximate 2,000 foot elevation in the San Bernardino Mountain foothills.
At issue are the water rights that can be construed as being associated with the lower-lying land and the potential that the tribe’s future diversion of that water will severely impact a major source of water for 450,000 people and remaining agricultural uses in the greater San Bernardino Metropolitan area and the watershed along the Santa Ana River as it progresses toward the Pacific Ocean, which is a primary and secondary source of water for another 300,000 Southern California residents.
Two identical federal bills, House Resolution 3925, sponsored by Congressman Jay Obernolte, and Senate Bill 2796, sponsored by Senator Alex Padilla and Senator Adam Schiff, effectuate the Yuhaaviatam of San Manuel Nation Land Exchange Act, which facilitates the land swap between the U.S. Forest Service and the Yuhaaviatam of San Manuel Nation. The stated purpose of the proposed bills, placing the 1,475.9 acres of current federal land into the hands of the Tribe in exchange for title on 1,460 acres of fee land now owned by the Tribe being transferred to the federal government, is, ostensibly, to assist the Yuhaaviatam Nation improve management of its reservation, protect cultural sites, and enhance wildfire prevention.
At least since 2017, the tribe, which consists of between 180 and 200 members, has had designs on the land surrounding the historic Arrowhead Springs Hotel. The tribe has acquired the hotel, which is situated in the foothills about four miles as the crow flies in a northwesterly direction from the tribe’s reservation, located in Highland. According to the tribe, members of which have become fabulously wealthy as a consequence of the 290,000 square-foot gaming space Yaamava’ Casino and accompanying 17-story, 432-room hotel tower resort, it has run out of space to construct millennial mansions for the tribe’s youngest generation, and for that reason needed to acquire the land in the foothills.
While Padilla, Schiff and Obernolte took the tribe and its representatives at their word that the motivation for the land acquisition was basically to obtain property which the tribe could develop residentially, others were more mindful of the implication the tribe’s acquisition of the land will have in terms of its strategic location vis-à-vis the local and regional water supply.
There was a water supply relationship between Nestlé Waters of North America, the former bottler of Arrowhead Mountain Spring Water, which between 1987 and 2021 utilized water drafted from Strawberry Canyon, utilizing adits and horizontal borehole wells at many of the natural springs near the headwaters of Strawberry Creek at an elevation between 5,200 and 5,600 feet in the San Bernardino Mountains. Nestlé conveyed the water from Strawberry Creek down the mountainside in a pipeline that terminated on property near the Arrowhead Springs Hotel, a facility where that water was transferred onto trucks to be delivered to the Arrowhead Mountain Spring Water bottling plant. Nestlé had a water-sharing arrangement with the tribe.
In 2021, Nestlé Waters of North America divested itself of all of its water holdings in the United States and Canada, with the exception of its Perrier bottling operation, selling them to BlueTriton Brands for $4.3 billion. Well prior to BlueTriton’s acquisition of Nestlé and by extension the Arrowhead Springs Mountain Water bottling operation, Nestlé’s extraction of water from Strawberry Creek had been challenged by environmentalists, who had made appeals to both federal officials with the U.S. Forest Service and the California Department of Water Resources to intervene and use their authority to end Nestlé’s water diversions and rewater the creek.
In December 2017, the California State Water Resources Control Board arrived at a tentative determination that Nestlé had the right to divert up to 26 acre-feet of water (8.47 million gallons) per year from Strawberry Canyon, while simultaneously reporting that Nestlé had gone far beyond the water drafting limit the company was entitled to, and was actually drafting 192 acre-feet (62.56 million gallons), such that 166 acre-feet (54.09 million gallons) the company was taking per year was unauthorized. Despite the state water authorities’ determination and order, Nestlé continued with its historical Strawberry Creek water use pattern, drafting over 180-acre-feet of water in each of the following four years, asserting that it had a water use permit issued by the United States Forest Service, for which it paid a $524 fee annually, entitling the company to uninhibited water use from the canyon. Meanwhile, the environmentalists legal and administrative challenges of Nestlé’s water use continued.
Just days after BlueTriton had taken the Arrowhead Mountain Spring Water bottling operation over from Nestlé, the California Water Resources Board reiterated its 2017 findings with regard to Nestlé’s excessive use of water from Strawberry Creek and issued a draft cease and desist order with regard to all of the water diversions out of Strawberry Canyon. Indeed, the action by the state water board followed so quickly after BlueTriton Brands’ acquisition of the Arrrowhead Spring Water bottling operation that the cease-and-desist order was issued to Nestlé rather than BlueTriton.   Once BlueTriton Brands learned of the order, its legal representatives swung into action and filed both procedural and legal challenges to it.
In response, the State Water Board suspended the order and called for what would ultimately turn out to be a protracted public hearing on the matter that was officiated over by an administrative hearing officer, Alan Lilly, which took place over 16 days between January 2022 through May 2022.
Based upon the information provided to him by more than two dozen expert witnesses called by both BlueTriton and the California Water Resources Control Board during the course of the hearings, after taking more than a year to carry out a thorough analysis of that testimony and supporting documentation, Lilly on July 7, 2023 sustained the state’s action, concluding that BlueTriton does not, and formerly Nestlé Waters of North America did not, hold water rights in the forest with regard to the water it was extracting through ten sources of water in Strawberry Canyon, those being tunnels 2, 3 and 7, and boreholes 1, 1A, 7, 7A, 7B, 7C and 8 that became the focus of the 2022 hearing.
He put his imprimatur on a proposed finalized cease and desist order curtailing the company’s diversion of water from the Strawberry Creek headwater springs.
At its September 19, 2023 meeting, the State Water Resources Control Board officially adopted Lilly’s findings and approved the finalized cease and desist order.
In July 2024 US Forest Service District Ranger Michael Nobles ordered BlueTriton to “cease operations” in the San Bernardino National Forest and submit a plan for removing all its pipes and equipment from Strawberry Creek.
BlueTriton filed a legal action against the State of California, contesting the legality of the California Water Resources Control Board’s cease-and-desist order. The state and federal action relating to ending BlueTriton’s water diversion out of Strawberry Canyon was stayed as a result of that litigation.
A more than three-mile pipeline extends in a relatively straight line down the mountainside from the bottom of Strawberry Canyon at an approximate 5,000-foot elevation to a reservoir near the Arrowhead Springs hotel. Both BlueTriton and the San Manuel Tribe utilize the water from that reservoir.
The San Manuel Band of Mission Indians do not have any legal diversion order issued by the California Water Resources Board to move Strawberry Creek water through that pipeline to the reservoir on its Arrowhead Springs Hotel property. Federal officials with the San Bernardino National Forest at this point have the sole authority to stop the flow of Strawberry Creek water via that pipeline to the lower altitude. The sole recompense to the federal government for that water being taken out of the forest in a quantity ranging to as high as 192 acre-feet or 62.56 million gallons per year, is the $524 permit fee paid by BlueTriton. The tribe is not paying for any of the water it is illegally diverting.
The Bunker Hill Basin involves a water table which underlies a 92 square mile surface area in the San Bernardino Valley from which local agricultural operations as well as domestic users in the cities of Highland, San Bernardino, Redlands, Loma Linda, Grand Terrace and Colton within San Bernardino County, all of which comprise a population of around 443,000, draw their water. The above ground and underground flow of water through the Bunker Hill Basin further impacts the Santa Ana River and Rialto-Colton basin, impacting another 300,000 people or more.
The Bunker Hill Basin is primarily recharged from streams and runoff from the San Bernardino Mountains, including Strawberry Creek, which descends all the way from Strawberry Canyon near the 5,000-foot elevation, wending to the area near Coldwater Canyon near the Arrowhead Springs Hotel; Coldwater Creek; East Twin Creek; water flow through Little Sand Canyon; City Creek; and the water flow through Borea Canyon. Some of these streams are involved in the land exchange between the tribe and the U.S. Forest Service.
Three water districts have full or partial jurisdiction over the Bunker Hill Basin, those being the East Valley Water District,  the San Bernardino Valley Municipal Water District and the San Bernardino Valley Water Conservation District.
In addition, the San Bernardino Municipal Water Department supplies water to San Bernardino residents, the City of Redlands Municipal Utilities Department operates a water distribution system for Redlands residents, the City of Loma Linda has its own water production division, the Riverside Highland Water Company serves the City of Grand Terrace and Colton’s municipal utility division supplies water to Colton residents. All of those entities utilize water from the Bunker Hill Basin.
The San Bernardino Valley Water Conservation District was formed to monitor the Bunker Hill Basin.
A 2024 engineering report commissioned by the San Bernardino Valley Water Conservation District shows the Bunker Hill Basin is in a state of overdraft, with more water being taken out of the aquifer than what it is experiencing in water recharge on an annual basis.
There has been limited publicity with regard to House Resolution 3925 and Senate Bill 2796. While over the past several years as the land swap concept has taken shape few people took notice of it or its implication, in recent weeks and months a growing number of San Bernardino Valley’s residents are waking up to the likelihood that the tribe will use whatever water rights it can claim in the foothills to make up for the discontinued flow of water through the pipeline descending from Strawberry Canyon once the legal proceedings relating to the California Water Resources Control Board’s cease-and-desist order end and the board’s order along with that of the U.S. Forest Service relating to the decommissioning of the tunnels and horizontal boreholes BlueTriton inherited from Nestlé goes into effect.
Ever larger numbers of San Bernardino Valley residents have come to recognize that delivering to the San Manuel Band of Mission Indians ownership and control over the 1,475.9 acres of federal land in the foothills above San Bernardino and Highland would give the tribe choke point control of the region’s water supply. The land the Yuhaaviatam of San Manuel Nation will acquire under the agreement lies at a crucial juncture above the San Bernardino and Highland city limits, from which it could divert to its own use much of the inland region’s water resources.
Though senators Padilla and Schiff, whose range of responsibility extends to coverage of all 163,695 square miles of California might, perhaps, be excused for not recognizing the impact transferring ownership of the 1,475 acres at the very top of the Bunker Hill Basin will have on San Bernardino Valley’s residents, those locals who are animated about the issue are unwilling to be forgiving of Obernolte, who is responsible for a much smaller geographical area and should, in their view, be far more sensitive to the impacts of the legislation he is sponsoring.
In recent weeks, Obernolte was provided with documentation showing that the tribe has already been illegally diverting water from the Bunker Hill Basin. He spurned efforts by the Sentinel to initiate a dialogue with regard to that documentation.
In the 1960s, both the Del Rosa Water Company, which at that time provided water to customers in San Bernardino and in Highland, and the City of San Bernardino, which had a 13.48 percent interest in the Del Rosa Water Company, were parties in a lawsuit relating to water use in the underlying Bunker Hill Basin. In 1969, that lawsuit was resolved pursuant to a judicial decision that permits local water purveyors to draft from the local aquifer in a manner that is deemed to be a responsible utilization of the regional water source, subject to restrictions in the event the water table is subject to overdrafting.
A condition of that settlement was the confirmation of a previously enforced requirement that all entities drawing water from the basin fill out, annually, California State Form 505 documents registering and recording water level readings. Based upon the data extrapolated from those documents, well owners, water pumpers and water purveyors could be limited in the amount of water they were taking or they could be outright prohibited from drafting water from the Bunker Hill Basin altogether.
An exhaustive archival examination completed in August determined that the Del Rosa Mutual Water Company made regular annual Form 505 filings from January 13, 1960 through March 19, 1986 in compliance with the court settlement. From 1987 onward to date, there is no documentation in the archives to show that either the company or its corporate successor made the required Form 505 filings.
The San Manuel tribe’s efforts to obtain alternative water sources in preparation for further casino expansion as well as development of housing for its tribe members included purchasing from the City of San Bernardino in January 2019 the city’s 13.48 percent interest in the Del Rosa Mutual Water Company.
Consequently, the San Manuel Band of Mission Indians increased its drafting of water at a lower elevation, at a level of 2,000-foot elevation and below, from East and West Twin Creeks, impacting the water level in the Bunker Hill Basin. There is no record of the San Manuel Tribe having filled out or filed the Form 505s relating to its water use in the San Bernardino Mountain Foothills.
The Sentinel made repeated efforts to engage Congressman Obernolte in a discussion with regard to the tribe’s unwillingness or demonstrated inability so far to make those Form 505 filings and whether the federal government should enter into a deal giving the tribe title to the San Bernardino Mountain Foothill property that presumably will carry with it water rights within a crucial area of water recharge to the Bunker Hill Basin. The Sentinel, in particular, sought to obtain Obernolte’s view as to whether the land swap should be delayed until it is ascertained whether the tribe, which is a sovereign entity outside the strictures of California law, would be willing to abide by the same water use restrictions and regulations that other water users within the Bunker Hill Basin are bound by. Obernolte was unwilling to engage in that dialogue.
The land currently owned by the tribe in the San Bernardino Mountains which is to be deeded to the Forest Service if the land swap goes through falls within Obernolte’s 23rd Congressional District. Similarly, the land in the foothills that the tribe is to obtain in the trade falls within the 23rd Congressional District. While the top end of the Bunker Basin just along the San Bernardino Mountain Foothills lies within Obernolte’s jurisdiction, roughly six-sevenths to seven-eighths of of the Bunker Hill Basin, that being the most densely populated area overlying the Bunker Hill Basin’s water table, is enclosed within Congressman Pete Aguilar’s 33rd Congressional District. Obernolte was unwilling to discuss whether the area to be potentially or actually most heavily negatively impacted as a consequence of the land swap being outside his congressional district resulted in his disregard of those impacts. Nor was he willing to say whether he had discussed the advisability of having the Forest Service make the land trade with Congressman Aguilar.
In a brief public statement made regarding why he was sponsoring the legislation, Obernolte alluded to the matter of the land trade being “tied up in red tape,” which appeared to be a possible or actual reference to the State Water Resources Board’s and U.S. Forest Service’s actions impacting the amount of water available to BlueTriton, which by extension impacts the amount of water available to the tribe. Efforts by the Sentinel to obtain clarification from Obernolte on what his precise meaning was did not succeed.
It appears that complying with the Forest Service Land and Resource Management Plan, riparian and stream protection laws and policies, endangered species protection and water rights requirements could not have been accomplished using a normal land exchange processes, and it was therefore necessary to use House Resolution 3925 and Senate Bill 2796 to bypass those restrictions. Obernolte was unwilling to detail why he believes suspension of the normally applicable riparian, stream and endangered species protections and maneuvering around traditional water rights requirements was justified in this case.
Obernolte turned down the Sentinel’s invitation to weigh against one another the advantageous and disadvantageous aspects of the land swap.
Some San Bernardino Valley residents, including those who might be deemed his political opponents, suggested that Obernolte had sponsored the land trade as part of an untoward quid pro quo in which his reward is to come in the form of hefty monetary contributions to his political war chest from the deep-pocketed San Manuel Tribe. That monetary incentive explains, some said, why Obernolte had so little direct knowledge about what the land swap is to entail or what its impacts will be.
Obernolte’s supporters defended him as an honest politician who was above being bribed or influenced by money. At the same time, they conceded, as did members of his staff, that there was very little substance in his statements with regard to House Resolution 3925 because he was, as virtually all members of Congress do from time to time, merely carrying legislation that he had not himself written which was intended to benefit one of the wealthiest landowners in his district.