By Anthony Serrano, Amanda Frye & Mark Gutglueck
The San Manuel Band of Mission Indians’ legal effort to convince a judge to dismiss a lawsuit aimed at forcing the United States Forest Service to prevent water from being diverted from near the top of the west San Bernardino Mountains for use as commercial drinking water has triggered an unanticipated, unintended and, from the tribe’s point-of-view, unwanted examination of the tribe’s water entitlements near the base of the mountains on its non-reservation investment property known on the grounds surrounding the historic Arrowhead Springs Hotel. Rulings in that lawsuit expected to be made later this year will potentially have a bearing on who controls or can claim ownership to a significant portion of the water and the water rights in the San Bernardino Basin.
Over the last four decades, there has been steadily increasing tension between environmentalists and entities who have gained access to water flowing in a canyon above the 5,000-foot level in the San Bernardino Mountains. Environmentalists maintain the displacement of that water is wreaking intensive ecological damage within the canyon. It is their further contention that the diversions by the corporate predecessors to those capturing the water now have been taking place in defiance of both federal and state law since the late 1920s based upon a fraudulently-drawn up document substituting water drafting rights further down the mountain at a spot closer to the 2,000-foot level as the basis for the illegal conscription of the water.
Since shortly after the San Manuel Tribe, also known as the Yuhaaviatam Nation, purchased the Arrowhead Springs Hotel in 2016, the succession of companies bottling the water originating in the canyon high up in the San Bernardino Forest have been providing a portion of that diverted water to the tribe. It is for that reason that the Yuhaaviatam Nation relatively recently became involved in the litigation relating to the water.
Arrowhead brand water in one form or another had been marketed at least since 1909. Prior to 1930, Arrowhead water for bottling was taken at the base of the mountain at the Arrowhead Springs property from Coldwater Canyon and later in Waterman Canyon from Indian Springs. The Arrowhead Springs Corporation severed the water bottling operation from the hotel in 1929 using proceeds to pay off debt assumed by the owner, Charles Anthony. That sale excluded any claims of water in the National Forest and sold a water bottling operation, what was termed “goodwill,” buildings in Los Angeles along with limited water rights on the Arrowhead Springs property. These water rights were later deeded back to the hotel owners.
Questions have long existed, however, as to whether the water rights in the Strawberry Creek headwaters located in the San Bernardino National Forest below Highway 18 originally claimed, attributed or granted to Arrowhead Water, the corporate predecessor to Arrowhead Spring Water, pertain to the current source of the water drawn at the 5,200-foot to 5,600-foot elevation from Strawberry Creek in what is known as Strawberry Canyon rather than water drawn farther down the mountain at an elevation of closer to 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.
The historical record demonstrates that the water bottled and marketed as Arrowhead Water originated from springs that were located near the grounds or on the grounds of the Arrowhead Spring Hotel, at an elevation of 2,172 feet. Prior to Anthony selling off the water bottling operation, no water was taken from Strawberry Creek for bottling purposes.
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” near what is now designated as Spring 2 along Strawberry Creek in the San Bernardino National Forest at an elevation of approximately 5,600 feet. Subsequently, in 1933 and 1934, the company put in place tunnels, holes and horizontal wells to tap into spring sites 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. Gradually and without fanfare, the bottlers of Arrowhead Water, under a succession of corporate names, dewatered Strawberry Canyon, tapping one spring at a time and taking more and more water.
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.
At present, BlueTriton/Primo Brands, the corporate successor to the previous bottlers of Arrowhead Spring Water, files official paperwork with the state using the decades-old surrendered corporation name of “Arrowhead Drinking Water Company.” This corporation has not been legally registered to do business in California for decades.
In 1987, 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 has long been 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, which staved off the contemplated lawsuit. In the meantime, Nestlé continued its water extraction, pumping an average of 62.56 million gallons of water annually from the San Bernardino Mountains.
Among the environmental groups entertaining the notion of legal action to bring the diversion of water out of Strawberry Canyon to a halt were the Sierra Club, the Center for Biological Diversity and Save Our Forest Association, Inc. The Save Our Forest Association, which was founded by Maureen Mann, Shirley Munch, Carol Pedder, Patrick Marley, Beverly Voelkelt, Trudy Blank, Carl Blank and Sherry Noone, began writing to the U.S. Forest Service protesting Nestlé’s use of the expired special use permit to divert the water from Strawberry Canyon, below Rimforest, to its water bottling plants. The United States Forest Service never responded to multiple requests for a meeting to discuss and review the environmental impacts of this long standing spring water diversion from our San Bernardino National Forest.
In April 2016, the United States Forest Service held a public scoping meeting, at which it proposed a 5-year study under the auspices of the National Environmental Policy Act 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.
In addition to virtually eradicating the Speckled Dace in Strawberry Canyon, the water siphoning was damaging or substantially diminishing the habitat for the Santa Ana sucker and mountain yellow-legged frog and the threatened, endangered or sensitive California spotted owl, Least Bell’s vireo, southwestern willow flycatcher and two-striped garter snake.
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. In continuing its investigation, the State Water Resources Control Board determined 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) per year, 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.
Nestlé, however, appealed the finding and demanded an administrative hearing process at which it would be afforded the opportunity to controvert the evidence upon which the finding was based. The company 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.
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. Nestlé Waters North America existed as Nestlé’s operation pertaining to bottling drinking water in the United States and Canada, including eight of the leading water bottling operations in the United States. Upon the sale being completed to One Rock Capital and Metropoulos, Nestlé Waters North America was redubbed BlueTriton Brands.
Responding to citizen complaints, the California State Water Resources Board, unaware that One Rock Capital Partners and Metropoulos & Company had acquired the Arrowhead Spring Water bottling operation from Nestlé, issued a draft cease and desist order against Nestlé on April 23, 2021. It subsequently amended that cease and desist order as being applicable to BlueTriton Brands, the corporate entity controlled by One Rock Capital Partners and Metropoulos & Company operating as the successor to Nestlé Waters North America overseeing the Arrowhead Mountain Spring Water bottling operation.
A public hearing by the California State Water Resources Board took place between August 2021 and July 2023, in which the Save our Forest Association and other environmental organizations and citizen activists participated as witnesses, resulting in a revised comprehensive cease and desist order against BlueTriton Brands which the State Water Board of Directors unanimously approved issuing on September 19, 2023.
Arrowhead Mountain Spring Water is among the most iconic of the brands now in the possession of BlueTriton. To the chagrin of the company, the California State Water Resources Control Board’s finalized determination on September 19, 2023 to issue the cease & desist order entailed a finding that “BlueTriton does not have any water rights that authorize these diversions and uses.”
Despite the California State Water Resources Control Board’s ruling, the U.S. Forest Service extended the Strawberry Canyon water extraction permit first issued to BCI in the 1980s under the auspices of what the Forest Service now refers to as a “land use” fee that has grown from the previous $524 per year to $2,500 annually.
On June 25, 2024 the Save Our Forest Association, represented by attorneys Rachel Doughty and Jennifer Rae Lovko, filed suit in United States District Court in Riverside against the U.S. Forest Service and Michael Nobles in his official capacity as the acting district ranger for the San Bernardino National Forest, “challenging the U.S. Forest Service decision to allow BlueTriton Brands, Inc.’s illegal occupancy of San Bernardino National Forest lands and the dewatering of Strawberry Creek and its tributary Springs.”
According to the suit, BlueTriton Brands does not have, nor can it obtain or maintain, a valid special use permit from the U.S. Forest Service. With this illegal occupancy, BlueTriton Brands has engaged and will continue to engage in the diversion of substantially all of the water from the San Beernardino National Forest’s Strawberry Canyon, negatively impacting the forest, local communities, and downstream users.”
According to the lawsuit, “Strawberry Creek is a tributary to the Santa Ana River and part of the Santa Ana River Watershed. The United States Geologic Service documented that Strawberry Creek is a recharge source for the Bunker Hill Basin. The dry and diminished Strawberry Creek has led to impaired riparian fauna and flora and a creek that cannot support fish, like the native speckled dace, as fish need water to survive. BlueTriton Brands’ occupancy has dewatered Strawberry Creek and diverted natural springs leaving Strawberry Creek with only intermittent pooling water and fractured habitats. The Santa Ana River Watershed was decreed to have no water available for appropriation decades ago and is fully appropriated. The Bunker Hill Basin remains in deficit, giving diminished water for agricultural and nearly a million people. BlueTriton Brands is taking the Strawberry Creek water that should be recharging the basin. Plaintiff files this complaint to prevent the United States Forest Service from continuing to allow BlueTriton Brands’ occupancy and diversion of water in violation of the Federal Land Policy Management Act, The National Forest Management Act, the Administrative Procedure Act and the National Environmental Policy Act.”
According to the lawsuit the “Federal Land Policy Management Act [r]equires that public land be managed in a manner that will protect the quality of scientific, scenic, historical, ecological, environmental, air and atmospheric, water resource, and archaeological values; that, where appropriate, will preserve and protect certain public lands in their natural condition; that will provide food and habitat for fish and wildlife and domestic animals; and that will provide for outdoor recreation and human occupancy and use.” The Federal Land Policy Management Act also, according to the lawsuit, “states that the United States shall receive fair market value of the use of the public land and their resources.”
The suit further propounds that “Defendant United States Forest Service is authorized under the Federal Land Policy Management Act to grant or renew rights of way upon United States Forest Service lands for various special uses, including “pipes, pipelines … and other facilities and systems for the impoundment, storage, transportation, or distribution of water. However, special use permits for such rights of way must be subject to terms and conditions that ensure compliance with federal and state laws regarding air and water quality and environmental protection, and that “minimize damage to scenic and aesthetic values and fish and wildlife habitat and otherwise protect the environment.”
According to the lawsuit, “The National Forest Management Act the San Bernardino National Forest land and resource management plan, San Bernardino National Forest’s Forest Service Handbook National Environmental Policy Act Administrative Procedure Act requires the United States Forest Service to develop, maintain, and, as appropriate, revise a land and resource management plan for each unit of the National Forest System. The land and resource management plan must ‘provide for … watershed, wildlife, and fish’ and ‘provide for diversity of plant and animal communities.’ All projects within a national forest must comply with that forest’s land and resource management plan. Here, the United States Forest Service must comply with the San Bernardino National Forest land and resource management plan which was adopted in 2005. Land and resource management plans must include enforceable design criteria—’the rules’—that managers legally must operate within in order to achieve desired conditions set forth in the land and resource management plan’s ‘vision.’” Special use permits must include terms and conditions ‘which will . . . Require compliance with State standards for public health and safety, environmental protection, and siting, construction, operation, and maintenance if those standards are more stringent than applicable Federal standards.’ Issuance of a new special use authorization for an existing use is subject to the holder being in compliance with all the terms of existing authorization and must be accompanied by ‘appropriate environmental analysis.’ All proposals for special use also must provide information demonstrating the proposal’s compliance with applicable laws, regulations, and orders.”
The suit held that “In keeping with National Forest Management Act’s mandates, the San Bernardino National Forest land and resource management plan requires that for surface water development projects, ‘instream flows favorable to the maintenance and restoration of riparian dependent and aquatic resources and channel conditions will be required.’ It also requires that surface water diversions and groundwater extractions, including well and spring developments, may only be authorized upon demonstration that the water extracted is in excess to the current and reasonably foreseeable future needs of forest resources; approved extractions must provide for the ‘long-term protection and reasonable use of surface water and groundwater resources.’”
The suit asserted that “The land resource management plan’s mandates are intended to implement the overarching goals set forth in Part 1 of the San Bernardino National Forest land and resource management plan. One of those goals is that ‘[w]atersheds, streams, groundwater recharge areas, springs, wetlands and aquifers are managed to assure the sustainability of high quantity and quality water. Where new or reauthorized water extraction or diversion is allowed, those facilities should be located to avoid long-term adverse impacts to national forest water and riparian resources.’ The land and resource management plan asks the ‘outcome evaluation question’ for Goal 5.1: ‘Is the national forest making progress toward sustaining Class 1 watershed conditions while reducing the number of Condition Class 2 and 3 watersheds?’ The San Bernardino National Forest land resource management plan incorporates the regarding soil and water conservation practices specific to the San Bernardino National Forest’s Forest Service Handbook. For riparian conservation areas, activities are limited, and watersheds are to be managed to improve degraded riparian areas for native populations of riparian-dependent species. Riparian conservation areas include perennial and intermittent springs, seeps, springs, and inner gorges. The San Bernardino National Forest’s Forest Service Handbook directs that: ‘Existing uses, activities, or occupancy within riparian conservation areas should be evaluated for risks or impacts and mitigated during special use renewal or re-issuance. If mitigation measures are not effective, reassess with the option to modify or eliminate the use, activity or occupancy when impacts are unacceptable.’”
The suit further argues that the forest service is required to review new special use permit applications for surface and ground water extraction and for transport of water across National Forest System lands to assess the potential impacts on aquatic and riparian ecosystems on or off the forest. The applicants for those permits should be required, the Save Our Forest Association maintains, to demonstrate that the proposed development would meet the riparian management objectives.”
The suit makes the point that “The San Bernardino National Forest’s Service Handbook further directs the United States Forest Service to manage watersheds to “improve or restore degraded riparian areas to proper functioning condition for native populations of riparian-dependent species.”
According to the suit, “The San Bernardino National Forest’s Service Handbook describes the affirmative duty of the USFS to ensure that ‘proof of water right is established prior to issuing or re-issuing [special use permits]’ and that the applicant has complied with ‘applicable environmental laws. Where water use… is evident [the USFS must] ensure that all special use permit applicants have secured the appropriate… California Department of Fish and Game 1602 Stream Alteration Agreement… before issuing a special use permit that would result in channel alteration.’”
The lawsuit cites the National Environmental Policy Act’s declared intention to “encourage productive and enjoyable harmony between man and his environment,” to help “prevent or eliminate damage to the environment,” and “to enrich the understanding of the ecological systems and natural resources important to the Nation.”
According to the suit, “The National Environmental Policy Act has two fundamental purposes: (1) to guarantee that, before taking an action, federal agencies take a ‘hard look’ at the consequences of that action to ensure that ‘the agency, in reaching its decision, will have available, and will carefully consider, detailed information concerning significant environmental impacts;’ and (2) to ensure that ‘the relevant information will be made available to the larger audience that may also play a role in both the decision-making process and the implementation of that decision.’ As a practical matter, National Environmental Policy Act requires comparing a baseline, determined from ‘accurate information and defensible reasoning’ against the conditions expected after approval of a proposed project in order to determine the impact on the environment.”
Doughty and Lovko assert on the Save Our Forest Association’s behalf that “Supplemental National Environmental Policy Act analysis is required when ‘there are specific new circumstances or information relevant to the environmental concerns that have bearing on the proposed action or its impacts.’ Supplemental environmental impact statements may also be required when the agency determines that the purposes of the National Environmental Policy Act will be furthered by doing so.”
The Administrative Procedure Act provides for judicial review of agency action.
Doughty and Lovko maintain “Under the Administrative Procedure Act, a reviewing court must ‘hold unlawful and set aside agency action, findings, and conclusions’ found to be ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law’ or ‘unsupported by substantial evidence in the record.’ An agency action is arbitrary and capricious if the agency ‘relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be …. the product of agency expertise.’ When reviewing agency action under the Administrative Procedure Act, a court must ensure that the agency reviewed the relevant data and articulated a satisfactory explanation establishing a “rational connection between the facts found and the choice made.”
According to the suit, the United States Forest Service’s allowing BlueTrion Brands to continue drawing water from Strawberry Creek after the determination by the California Board of Water Resources that it had no valid water rights relating to that water rendered its decision to grant BlueTriton Brands a continuation of the permit arbitrary and capricious, as it had ‘entirely failed to consider an important aspect of the problem’ that is at issue, which further represented a violation of the Administrative Procedure Act.
“Under the Administrative Procedure Act, a reviewing court must also set aside agency action, findings, and conclusions found to be without observance of procedure required by law,” according to the suit.
According to the lawsuit, Strawberry Creek is tributary to East Twin Creek and the Santa Ana River. The West Fork of Strawberry Creek originates in the San Bernardino National Forest. Both the Headwaters Springs and the Cienega Springs are located within the San Bernardino National Forest. All of the water at issue in this complaint is diverted from the West Fork of Strawberry Creek Watershed, which is within the Strawberry Creek Watershed, and all within the San Bernardino National Forest. In the early 1900s, before any water was diverted from Strawberry Canyon, the canyons near the Arrowhead Hot Springs Hotel were wet and lush, Prior to diversion, Strawberry Creek was a popular fishing stream. United States Geological Survey teams visited and mapped Strawberry Creek Watershed in the late 1890s, establishing that Strawberry Creek was a perennial stream prior to diversion. United States Geological Survey quadrangle maps show Strawberry Creek as a perennial stream, and the Headwaters Springs and the Cienega Springs, all as blue lines.”
The suit references the survey work of Engineer W.P. Rowe, who was hired by BlueTrion Brand’s corporate predecessor to survey the area. The suit sites this statement from Rowe: “Strawberry creek drains a portion of the south slope of the San Bernardino Mountains. It has its source at a group of springs which issue from the side of Strawberry peak. … The flow from these springs being deep seated should be fairly regular, especially during the late summer season. The observations show this to be the case. The dependable supply will aggregate about 10 [miner’s] inches.”
One Miner’s Inch is the equivalent of 9 gallons per minute; 1 gallon per minute is the equivalent of 1,440 gallons per day; 1 gallon per minute is the equivalent of 1.61 acre-feet/year. Ten inches year-round even during dry periods, as described by Rowe, converts to 99 gallons per minute.
According to the suit, on July 27, 2018, Forest Ranger Joseph Rechsteiner signed a decision memo memorializing his decision to issue a new special use permit to Nestlé to operate and maintain existing diversion structures in Strawberry Canyon.
The suit maintains, “The initial studies provided by the permittee suggest that water extraction is reducing surface flow in Strawberry Creek. Ranger Rechsteiner himself performed only a perfunctory environmental review to support the 2018 decision memo, making findings of no extraordinary circumstances necessitating an environmental assessment or environmental impact statement, despite the acknowledged ‘impaired’ status of Strawberry Creek Watershed due to the diversion. Despite acknowledged changes in management direction since issuance of the 1978 special use permit, no consideration was apparently given to a no action alternative requiring a return to pre-diversion baseline conditions in Strawberry Canyon. On January 22, 2021, Nestlé asked the Forest Service to renew the Nestlé 2018 special use permit for one year, expiring on August 24, 2022. This request was granted, without modification to the 2018 Nestlé special use permit.”
The suit propounds, “The contents of the Nestlé 2018 special use permit specified that the permit was not renewable, assignable, or transferable. The 2018 special use permit stated: ‘Any change in control of the business entity [holding the permit] shall result in termination of this permit.’
On March 31, 2021, the privately held private equity firm of One Rock
Capital Partners, LLC, in partnership with the also-privately-held Metropoulos & Co., acquired Nestlé in a leveraged buyout. This sale operated to terminate the Nestlé 2018 special use permit. Accordingly, on April 1, 2021, Nestlé filed with the USFS a ‘Request for Revocation’ of the August 24, 2018, Nestlé 2018 speical use permit, on the basis that Nestlé had ‘conveyed all my (our) right, title, and interest in and to the improvements,’ the diversion infrastructure, to BlueTriton Brands.”
BlueTriton Brands was the follow-on corporate entity to Nestlé Waters of America, which had previously operated the Arrowhead Spring Water Bottling Company.
According to the suit, “On August 18, 2022, Acting Ranger Joseph Rechsteiner signed a special use permit for BlueTriton Brands. This special use permit expired six days later on August 24, 2022. It stated that ‘The CA State Water Board enforcement hearing in 2022 may clarify the water rights related to the system and/or uphold the draft cease and desist order issued to the holder in 2021.”
According to the suit, the ultimate finding by the California State Water Resources Board that neither BlueTriton Brands nor any of its corporate predecessors hold or held water rights to the water in Strawberry Canyon, under the applicable restrictions of the Federal Land Policy Management Act, the National Forest Management Act, the San Bernardino National Forest land and resource management plan, San Bernardino National Forest’s Forest Service Handbook, National Environmental Policy Act and the Administrative Procedure Act requires that the United States Forest Service bring BlueTriton Brand’s diversion of water from Strawberry Canyon to a halt.
The suit asked the court to adjudge and declare that the United States Forest Service’s actions in issuing the 2018 special use permit to Nestlé and the 2023 special use permit to BlueTrion Brands violated the Federal Land Policy Management Act, the National Forest Management Act, the National Environmental Policy Act and the Administrative Procedure Act and that allowing BlueTriton Brands to continue to operate in Strawberry Canyon without a valid special use permit violates the Federal Land Policy Management Act, the National Forest Management Act and the Administrative Procedure Act.
The suit further asked for the court to vacate and set aside the BlueTriton Brand’s 2023 special use permit, the 2018 decision memo, and the National Environmental Policy Act conclusions supporting the 2018 decision memo while enjoining the United States Forest Service from approving or allowing any third party to divert water from Strawberry Canyon by entry onto forest land unless and until the United States Forest Service has performed a new or supplemental environmental analysis taking into account the historical information illuminated through the California State Water Resources Control Board Hearing, continuing damage to resources on the San Bernardino National Forest, and the failure to meet goals and standards of the San Bernardino National Forest land and resource management plan.
This should be topped with, according to Doughty and Lovko, an order to the United States Forest Service to comply with the Federal Land Policy Management Act, the National Forest Management Act, the National Environmental Policy Act and the Administrative Procedure Act in connection with BlueTriton Brand’s diversion of water from the Strawberry Creek Watershed and the removal of the water diversion structures in Strawberry Canyon to restore Strawberry Canyon to its condition pre-diversion.
On July 26, 2024, a month and a day after the filing of the lawsuit, the U.S. Forest Service issued an order that BlueTriton remove the devices and equipment it used to draft waster from the Strawberry Canyon aquifer and shut down the pipeline it uses to convey water down the mountainside to a facility located proximate to the Arrowhead Springs Hotel property where BlueTriton collected the water used for its Arrowhead Spring Water bottling operation. In a letter dated July 26, 2024, San Bernardino Mountain District Ranger Michael Nobles informed BlueTriton that the company “must cease operations” in the San Bernardino National Forest and submit a plan for removing all its pipes and equipment from federal land by the following October. The Forest Service’s action made clear that the expired water diversion permit that it and its predecessors had been operating under was no longer valid.
The company moved to challenge the Forest Service’s action, claiming there was “no legal basis” for the government’s action. The company denied the diversion of water was in any way harmful to the forest’s ecology, and it insisted that its piping of water from the national forest should be allowed to continue, given that it and all of its corporate predecessors who had bottle Arrowhead Spring Water “have continuously operated under a series of special-use permits for nearly a century.”
In further protesting the United States Forest Service’s order it made a telling disclosure, stating that the Forest Service’s was going to “have a negative impact on the San Manuel Band of Mission Indians,” insofar that BlueTriton was providing water from the pipeline to the tribe, which was using it for operational and firefighting purposes.
The cease and desist order that was issued by the California State Water Resources Board against against BlueTriton has been appealed by BlueTriton Brands and was assigned to be heard in Fresno Superior Court. In addition, BlueTriton Brands, which has since been spun off to another company, Primo Brands/Primo Brands Corporation/Primo Water Brands, has legally challenged the United States Forest Service’s order that it discontinue its water diversion operations in Strawberry Canyon.
The Save Our Forest Association, which most assuredly would have dropped its lawsuit against the U.S. Forest Service in the aftermath of the order issued to BlueTriton in July 2024 by San Bernardino Mountain District Ranger Michael Nobles had that order been actuated, has found itself obliged to continue litigating against the Forest Service as a result of BlueTriton’s litigation against The California State Water Resources Control Board and the U.S. Forest Services, which has resulted in the ordered discontinuation of the water diversions from Strawberry Creek being stayed pending those appeals.
The Yuhaaviatam of San Manuel Nation, asserting that a portion of its water supply was being threatened by the lawsuit filed by the Save Our Forest Association against the U.S. Forest Service, sought permission from the federal court to enter into the lawsuit as an intervenor on the basis that it should be allowed to participate in the case because it had a significant interest in the outcome.
The Yuhaaviatam took that legal action after the tribe had declined to participate in the California State Water Resources Board hearings that took place between August 2021 and July 2023, its leadership having written a letter to confirm it would not be party to the matter.
After it was granted intervenor status, the Yuhaaviatam of San Manuel Nation filed a motion to have the entirety of the Save Our Forest Association’s lawsuit to be thrown out for a host of reasons, not limited to that BlueTriton, through its corporate predecessors, has historic rights to the water in Strawberry Canyon, that the creation and existence of the San Bernardino National Forest does not interfere with BlueTriton’s water rights in Strawberry Canyon, that the Forest Service has recognized BlueTriton’s rights to the Strawberry Canyon water for decades and that precedent should be honored, that the State Water Board overstepped its authority in issuing the cease and desist order against BlueTriton in relation to water use in Strawberry Canyon and that the Forest Service is likely to prevail on the merits of its defense in the lawsuit brought by the Save Our Forest Association. According to the Yuhaaviatam of San Manuel Nation, if the lawsuit against the Forest Service is dismissed, the Yuhaaviatam of San Manuel Nation will remain committed to working with the Save Our Forest Association to protect the ecology of Strawberry Canyon, which it maintains can be done while still diverting some of the water from Strawberry Canyon to meet the tribe’s water needs at the Arrowhead Springs Hotel.
In the course of its effort to have the Save Our Forest Association lawsuit dismissed, the San Manuel Tribe of Mission Indians has filed numerous motions and supporting documents, all of which have been subject to intense scrutiny not only by the Save Our Forest Association’s legal team but a fair number of local residents, many with environmentalist leanings and some with a flair for archival research. In at least a handful of cases, the examination of the tribe’s assertions and the actual record has produced information or unearthed facts that appear to redound to the advantage of Save Our Forest and its legal team.
One case in point is the declaration Of Eric Ustation in support of the Yuhaaviatam of San Manuel Nation’s reply brief to the Save Our Forest Association’s opposition to the motion to dismiss the association’s lawsuit against the U.S. Forest Service. In his declaration, Ustation, who is the director of local intergovernmental affairs for the Yuhaaviatam of San Manuel Nation, delineated how United States Forest Service representatives had indicated and reiterated the federal government’s commitment to the denial of BlueTriton’s special use permit going forward. According to Ustation, Forest Service employees maintained there were further practical, administrative and legal impediments to the Yuhaaviatam of San Manuel Nation obtaining its own special use permit to operate the existing BlueTriton infrastructure and that, in any event, even if the Yuhaaviatam were able to succeed in obtaining such a permit, it “would involve a long process that likely would take years.”
Despite Ustation’s intent to strengthen the Yuhaaviatam’s position in bringing the Save Our Forest Association’s suit against the U.S. Forest Service to a close, the information he provided confirmed, to the benefit of the Save Our Forest Association and its legal team, that the Forest Service had essentially adopted as valid the precepts in the association’s June 25, 2024 lawsuit.
Another example of the tribe stirring up facts and artifacts that on fuller rumination strengthen Save Our Forest’s position consists of the declaration Of Rodney Garton in support of the Yuhaaviatam of San Manuel Nation’s reply brief to the Save Our Forest Association’s opposition to the motion to dismiss the association’s lawsuit against the U.S. Forest Service. Garton had been the director of operation for the Arrowhead Springs property, consisting primarily of the Arrowhead Springs Hotel, beginning in 1977, when the facilities were owned by Campus Crusade for Christ. In his managerial role at Arrowhead Springs, Garton was intimately familiar with the property and had, he asserted in his declaration, “knowledge of the water rights and water resources upon which Arrowhead Springs and surrounding properties rely, including the water rights, water wells, recent temporary connection to non-potable water, and water deliveries from BlueTriton Brands, Inc. Garton further declared, “As the director of operations of Arrowhead Springs, I am the main contact with BlueTriton representatives regarding the delivery of water under the 1931 contact and amendments thereto.”
Garton in the declaration thereafter went on to acknowledge, “I am aware that Blue Triton and its predecessors have diverted water from Strawberry Canyon thought facilities that are partially located with the San Bernardino National Forest and that operate pursuant to a series of special use permits issued by the United States Forest Service.”
In this way, Garton, perhaps inadvertently, made an admission that BlueTriton’s access to the water was not based upon any actual water rights but rather the discretion of the United States Forest Service.
Garton has not filed any required reports with the San Bernardino Valley Municipal Water District specifying the amount or use of water drawn from seven groundwater wells registered on the Arrowhead Springs property. The Arrowhead Springs property lies toward the bottom of the watershed on the south-facing side of the western portion of the San Bernardino Mountains, which also comprises, at a higher elevation, Strawberry Creek. The owners of the Arrowhead Springs property have a riparian right to put to put to beneficial use water crossing, or available on, their land. The headwater springs in Strawberry Canyon in the National Forest are miles north and up the mountain from the Arrowhead Springs property.
Garton went on to state in the declaration that “[T]he nation and its predecessors have relied upon the water supplies delivered by Blue Triton and its predecessors through its water conveyance facilities for nearly a century, based on a contract dated September 26, 1931. The Nation continues to rely upon these water supplies for its Arrowhead Springs property.”
In this way, perhaps inadvertently, Garton reduces the legal claim both BlueTriton and the tribe have to water from Strawberry Canyon to the September 26, 1931 contract.
Of note is that in 1928 and 1929, when the owner of the Arrowhead Springs Hotel, Charles Anthony, was engaged in what ultimately proved to be a successful effort to sell his water bottling assets to the California Consolidated Waters Company and obtain for himself a $100,000 commission on the sale, and the following year when he took steps to prevent that deal from falling apart, he had used the credibility of his attorney, contractual sleight-of-hand and the buyer’s lack of familiarity with the lay of the land in the San Bernardino Mountains and its foothills to structure the circumstance around which he could get the maximum amount of money for the water assets he was selling.
To raise the capital to purchase the Arrowhead Springs Hotel in 1925, the then-newly formed Arrowhead Springs Corporation, headed by Anthony, issued high-yield gold bonds due to mature in five years in payments made to investors in cold coin, securing the bonds with collateral that consisted of the hotel, the property upon which it sat, its attendant water rights and the water-bottling operation. In 1928 as the bonds were progressing toward maturity and the date by which he was to return a sum equal to the principal to the bondholders was growing closer day-by-day, he began to cast about for a way by which he could pay off the debt, ultimately settling upon a scheme of selling off the Arrowhead Springs water rights and bottling operation. Anthony had his lawyer, then-79-year-old Byron Waters, who in the 1870s while he was yet in his 20s had been elected to the California Assembly and was one of the progenitors of California water law, delineate, based on his knowledge and memory, the water assets and water rights associated with the Arrowhead Springs property. In a document dated February 14, 1929, Waters gave very specific information as to the water rights contained within the Arrowhead Springs property boundaries prior to the sale. In that account, Waters gave no indication that water rights in the San Bernardino National Forest Strawberry Creek headwater springswere in the possession of Anthony or the Arrowhead Springs Hotel.
Anthony entered into an agreement to sell the water and water rights associated with the Arrowhead Springs property, the bottling operation there and a building in Los Angeles utilized to support the distribution of the water in that city to the Consolidated Water Company, which was at the same time involved in the acquisition of the “Puritas Water” and “Liquid Steam” water bottling operations in California. Anthony then used the proceeds from the sale to satisfy the debt to the bondholders.
In 1930, about to be overtaken by threatened lawsuits emanating from both the California Consolidated Waters Company and several of the bondholders, Anthony, offered an assurance to California Consolidated Waters that it could take whatever water he was or was not entitled to, “without warranty,” on property he owned or did not own, again “without warranty,” and that beyond his property the company was at liberty to construct a pipeline up the mountain to Strawberry Canyon to convey water down to California Consolidated Water’s holding tanks or cisterns on the Arrowhead Springs grounds, if the hotel was provided with “half” of that water.
Having used the cachet of being represented by the venerable Waters, whose gravitas and reputation preceded him, Anthony was able to enhance the seeming value of the assets he was offering to divest himself of to convince Consolidated Waters to make the outlay and a little more than a year later, unhampered of being represented by Waters, was able to engage in a violation of the principle of “Nemo dat quod non habet,” meaning “no one can give what he does not have,” the legal concept which establishes that a person cannot transfer ownership of goods or property he or she does not in actually own, and the receiver cannot take ownership of the object sold. This forms the basis of the fraud at the heart of the lawsuit brought by the Save Our Forest Association against the U.S. Forest Service to prevent BlueTriton from seizing water in Strawberry Canyon which the plaintiff contends BlueTriton does not own.
Based on Anthony’s action, California Consolidated Waters assumed water rights it did not actually possess to water located above the 5,000 foot elevation in Strawberry Canyon further up in the San Bernardino Mountains, blurring the distinction with the wells and riparian rights at the hot springs and cold springs at the 2,172-foot elevation on the grounds of the Arrowhead Springs
Hotel.
Anthony’s 1930 document deeding water to California Consolidated Waters would form the basis of all future claims lodged by California Consolidated Waters, and all subsequent bottlers of Arrowhead Water and Arrowhead Spring Water, including the Arrowhead Water Bottling Company, Standard Oil of California, Rheem Manufacturing, the Coca Cola Bottling Company of Los Angeles, Northwest Industries, Arrowhead Puritas, Beatrice Foods. BCI, the BCI-Arrowhead Drinking Water Company, Perrier Nestlé, Nestlé Waters North America, BlueTriton, and BlueTriton/Primo Brands to water originating in Strawberry Canyon.
Blurring the distinction between the wells and riparian rights at the hot springs and cold springs at the 2,172-foot elevation on the grounds of the Arrowhead Springs Hotel and water that flowed through Strawberry Creek at an elevation above 5,000 foot elevation in Strawberry Canyon further up in the San Bernardino Mountains within the San Bernardino National Forest – federal land – upon which no individual or entity established water rights prior to the establishment of the 677,982 acre forest in 1893, California Consolidated Waters constructed a single water siphoning unit that involved taking water from a lone “bedrock crevice” spring within Strawberry Canyon.. The California Consolidated Water Company and its corporate successors, including Arrowhead Water Corporation, Arrowhead Springs Corporation, Arrowhead® Mountain Spring Water Company and Arrowhead-Puritas, Rheem, Coca-Cola Bottling Company of Los Angeles and Beatrice Foods and the BCI-Arrowhead Drinking Water Company, augmented the single bedrock crevice spring water drafting device with six more such contrivances, known as adits – horizontal borings – at the upper end of the canyon to an altitude of 5,600 feet along Strawberry Creek, and lower down in the canyon another three along the creek at an approximate elevation of 5,200 feet. Those companies used these horizontal boreholes to tap spring water aquifers in the mountainside, thereupon transporting the forest spring water through a pipeline down the mountain, giving twenty percent to half of the water thus obtained to the Arrowhead Springs Hotel and then bottling and selling the rest, marketing it under various names, including Arrowhead, Puritas, Arrowhead and Puritas, Arrowhead Puritas, Arrowhead® Spring Water and Arrowhead® Mountain Spring Water among them.
Based upon Garton’s declaration in support of the tribe’s intervention in the Save Our Forrest Association lawsuit and other documents marshaled by BlueTriton in its legal challenges to the orders issued by the California State Water Resources Control Board and the U.S. Forest Service appeals, the formula for controverting BlueTriton’s claim to the water in Strawberry Canyon has been reduced or simplified to demonstrating the invalidity of Arrowhead Springs Hotel/Charles Anthony claim to Strawberry Creek water rights manufactured by Byron Waters which form the basis of the September 26, 1931 contract.
There were other elements of Garton’s declaration that are proving problematic for both the tribe and BlueTriton. Specifically, Garton was in place as the director of operations for the Arrowhead Springs property in the 2008 to 2010 timeframe, when arrangements were being made by the City of San Bernardino and Campus Crusade for Christ, then the owner of the Arrowhead Springs Hotel and its attendant property for the property’s annexation by the City of San Bernardino. The annexation process was overseen by the San Bernardino County Local Agency Formation Commission. A document filed with the Local Agency Formation Commission during the annexation procedure on August 4, 2009, consisting of seven pages and titled, “Agreement in Principle Between Campus Crusade for Christ, Inc, Arrowhead Springs Corporation, City of San Bernardino and the San Bernardino Municpal Water Deparment: LAFCO 3050,” which was certified as accepted by the Local Agency Formation Commission on February 11, 2010, specified that a publicly owned water purveyor was required to provide domestic water, recycled water and irrigation water to the annexed property once it was brought into the San Bernardino City Limits. In that agreement, the City of San Bernardino, through the San Bernardino Muncipal Water Department, committed to providing that water. While Garton in his declaration makes clear that since acquiring the Arrowhead Springs Property the tribe was relying upon Nestlé and BlueTriton for water, that “The Nation continues to rely upon these water supplies for its Arrowhead Springs property,” and “The Nation uses the water that BlueTriton delivers to Arrowhead Springs for domestic, irrigation of fire-defensive space, fire suppression, recreeations, governmental and cultural purposes,” nowhere does he make mention of that based on the annexation of the property into the City of San Bernardino in 2010, the City of San Bernardino and the San Bernardino Municipal Water Department are required to deliver water to the Arrowhead Springs district. It was Garton’s assertion that the San Manuel Tribe required Blue Triton to continue to provide it with water that resulted in the closer examination of the annexation and other documents, which led to the discovery that the Yuhaaviatam of San Manuel Nation was not, as Garton and others claimed, dependent exclusively on BlueTriton for its water supply. Not only are there seven water wells located on the Arrowhead Springs grounds but 29 natural springs, some of which are cold and some of which are hot.
Research by the Save Our Forest Service’s support and legal team in response to the San Manuel Nation’s intervention in the lawsuit led to the in-depth examination of September 9, 2025 testimony of Joseph Maarango, a member of the San Manuel Tribe Culture Council, before the U.S. House of Representatives Natural Resources Committee Subcommittee on Indian Insular affairs. In his testimony relating to what had been proposed in 2017 as an exchange of 1,475 acres of National Forest System land owned by the U.S. Government and 1,460 acres of non-Federal Land owned by the San Manuel Nation, all of which is within the boundary of the San Bernardino National Forest, Maarango revealed that after engaging for six years in the discussions for the land swap, the U.S. Forest Service in 2023 had come to the conclusion that it was not interested in acquiring 80 acres of the 1,460 acres the tribe was offering and that by 2025, as a consequence of the investigative phase of the internal administrative processes the U.S. Forest Service and other federal agencies engaged in to clear the way for the trade, issues had been discovered which had given federal officials pause, that, in Marrango’s words created a situation that “has failed to allow the exchange to be completed in a timely manner.”
In the course of the Save Our Forest Association’s litigation against the Forest Service, it has also been learned that BlueTriton was dumping upwards of 30-acre feet of water per year into Waterman Canyon, water which was beyond what it could use for bottling purposes and that provided to the tribe.
An observation made by those who were able to size up the information brought to light as the Save Our Forest Association, Doughty and Lovko were opposing the tribe’s motion to have the suit against the U.S. Forest Service dismissed was that if indeed the tribe did not have adequate water supply originating on the Arrowhead Springs property for whatever activity is ongoing there, instead of expending money on a legal effort to have Save Our Forest’s lawsuit dismissed and thereby seeking to perpetuate the ecological havoc near the top of the mountain, it should be taking legal action against the City of San Bernardino to ensure that it would live up to its 2010 commitment to supply it with water.
Going beyond the Save Our Forest Association’s concern that the drafting of as much as 192 acre-feet of water annually will dewater Strawberry Canyon and eventually permanently destroy its ecology, residents in and around San Bernardino who have learned of what has been churned up by the Save Our Forest lawsuit are growing concerned that subtly and quietly, the tribe is moving toward monopolizing a substantial amount of water in the San Bernardino Valley and thereby securing future water rights that will leave the Yuhaaviatam in control not of just the untold riches it is taking in from gamblers at its casino in Highland but control over the elixir of life in the most heavily populated area of San Bernardino County. Garton, as the manager of the Arrowhead Springs property during the San Manuel tribes ownership of that land over the last decade, has not made an official report with the San Bernardino Valley Municipal Water District, as is required under the annexation agreement pertaining to the property ratified by the San Bernardino County Local Agency Formation Commission in 2010, of how much water the tribe is drafting from the seven wells on that property or how much water is being taken from the property’s nearly thirty separate springs, nor how that water is being utilized. The combination in the amount of water that the tribe would have control over including water from Strawberry Canyon, the water available on the Arrowhead Springs grounds and the water the tribe would be able to take from the San Bernardino National Forest Front Country if the pending land swap with the U.S. Forest Service is effectuated would likely amount to the single greatest quantity of water under the control of any single entity – in this case a tribe with 200 members – within the context of a county with a population of 2,229,418. The water that would fall under the control of the tribe in the land trade with the U.S. Forest alone would derive the Bunker Hill Water Basin, which underlies some 89,600 acres or about 120 square miles, of billions of gallons of downstream water for recharging the aquifer that supports upwards of 800,000 people.
Save Our Forest Association vs. The U.S. Forest Service is being heard by Judge Jesus Bernal at the United States District Court for the Central District of California – Eastern Division in Riverside.