Download a genuine replica of the February 11 San Bernardino County Sentinel by clicking on the underlying blue portal.

Sentinel 02-11-22

By Mark Gutglueck
Amid conflicting reports, the resurgence of the Postmus political syndicate has apparently led to San Bernardino County Registrar of Voters Bob Page making an exit as the county’s chief elections officer.
Undisputed is that Page, who has been with the county in various capacities for over two decades and has been serving as the head of San Bernardino County’s election system since 2018, is officially departing San Bernardino County on February 25 to take up the position of registrar of voters in Orange County.
Attending the circumstance is a situation that strongly suggests Page and the elections office in San Bernardino County were and are yet being pressured to tilt the county’s elections in favor of a slew of existing officeholders and establishment figures, primarily Bill Postmus’s associates and clients and others supported by the local Republican Party.
County employees, including ones in the registrar’s office have related that efforts to sway certain elections have taken place and are ongoing. Meanwhile, Postmus and his business associates as well as business interests working in conjunction with him and the candidates he is seeking to get reelected or elected have interests in proposals that will come before the county and local governmental jurisdictions in which hundreds of millions of dollars in contracts and scores of millions of dollars in profit are at stake.
An element holding the enterprise, an amalgam of business and political interests, together is Postmus’s skill in delivering political payoffs to governmental decision-makers. Postmus applies a formula that thwarts political activity watchdogs and fund regulators from tracing the money back to its origin, that being those business entities with an interest in the outcome of the governmental action involved. This has the further effect of obstructing investigators, stalling enforcement activity or otherwise leaving prosecutors disinclined to pursue political corruption charges against those involved.
In early 2020, Phil Cothran succeeded Jan Leja as chair of the San Bernardino County Republican Central Committee. Cothran, a successful insurance broker from Fontana, has been involved in Fontana politics since the 1980s, having become a major player therein initially through key support he provided to the political career of David Eshleman, a Fontana native, local businessman and, ironically, Democrat, who was elected to the city council in his maiden political run in 1990. Eshleman ultimately acceded to the mayor’s position in 1994, serving two terms, during which Cothran’s reputation as a political operator advanced. As a Republican, Cothran was a key backer of many Republican figures in Fontana, including former Councilman and Mayor Frank Scialdone, one-time Councilwoman and present Mayor Acquanetta Warren, Councilman John Roberts, former Councilwoman and present Second District Supervisor Janice Rutherford, former Councilman Jesse Armendarez, as well as his son and current Councilman Phil Cothran Jr. Phil Cothran Sr. has built his reputation in and outside Fontana by using his personal wealth to serve as a major backer of Republican candidates and causes and through his longtime service as a member of the San Bernardino County Workforce Development Board, a body of volunteers who supervise the allocation of federal funding to train unemployed and underemployed local residents.
While he was previously involved in the San Bernardino County Republican Central Committee, after his son’s election to the city council in 2018, Phil Cothran became even more heavily involved in that organization.
Soon after Cothran was elected chairman, word followed that Postmus, formerly a leading figure in the county Republican Party, was using the relationship he had developed with Cothran to get back into a position of power.
Postmus had once been the Boy Wonder of San Bernardino County politics. While he was yet in his early twenties in the 1990s and had not yet graduated from Redlands University with a business degree, he co-founded the High Desert Young Republicans with Keith Olberg, Brad Mitzelfelt, Anthony Adams and Tad Honeycutt. He went to work as a volunteer and field representative for then-Assemblyman and later California Senate Republican Leader Jim Brulte, Assemblywoman Kathleen Honeycutt and then Keith Olberg when he succeeded Kathleen Honeycutt in the Assembly. In 2000, attacking incumbent First District County Supervisor Kathy Davis, a fellow Republican, as too liberal, Postmus successfully challenged her for reelection and became, at the age of 29, the fifth youngest supervisor in county history. Four years later, in 2004, he acceded to the position of chairman of the board of supervisors, the second-youngest person in county history to hold that post, and was simultaneously elected chairman of the San Bernardino County Republican Central Committee.
Corresponding with Postmus’s reign as a GOP luminary was the Republicans’ dominance of the county politically. At that time, of the five Congressman representing San Bernardino County, four were Republicans even though California’s Congressional Delegation had more Democrats than Republicans. Of the five state senators representing San Bernardino County, four were Republicans, even though the Democrats at that time outnumbered Republicans in the State of California’s upper legislative house. Of the nine members of the California Assembly representing San Bernardino County, seven were Republicans, even though the Democrats held a majority of the positions in California’s lower legislative house. During the time he was active within the High Desert Young Republicans or leading the San Bernardino County Central Committee, Postmus succeeded in getting more than a dozen of his political associates elected to political office, including Keith Olberg as assemblyman, Anthony Adams as assemblyman, Tad Honeycutt as Hesperia city councilman and mayor, Dennis Nowicki as Hesperia City Councilman and mayor, Bill Jensen as Hesperia city councilman and mayor, Jim Lindley as Hesperia city councilman and mayor and Bob Hunter as Victorville city councilman. At that time, Republicans outnumbered Democrats in San Bernardino County. In 2006, midway through his second term as supervisor, Postmus vied successfully for San Bernardino County assessor, the most powerful taxing authority in the county. As assessor, Postmus possessed the ability to increase, decrease or statically maintain assessments of real estate, property holdings, buildings, businesses, factories, foundries, plants, warehouses, commercial establishments, warehouses, airplanes, boats and all manner of other assets for property tax purposes. This boosted his ability to touch the county’s wealthiest residents, business owners, real estate moguls, landowners, investors and speculators for donations and political support for himself, his designated political allies and associates, local Republicans and political causes.
As assessor, Postmus utilized his virtually unchecked authority to expand the office’s executive echelon, creating a second assistant assessor’s post whereas under his predecessors there had been one assistant assessor’s position. Postmus by fiat or administrative prerogative also created several other lucrative assignments that did not previously exist in the office. Shortly after his installation as assessor, he filled 13 of the 15 highest-ranking positions in the office with his political associates and boyfriends, virtually none of whom knew anything about real estate or assessing the value of property for taxing purposes.
In 2008, a series of revelations with regard to how his office was being run and his drug use occurred. In January 2009, when the public integrity unit of the district attorney’s office prepared, obtained and served a search warrant at his condominium in an effort to find evidence of his misuse of his public office, methamphetamine, syringes and other drug paraphernalia were discovered among other incriminating material, and he resigned his elected position. He was charged with multiple criminal offenses and in March 2011 he entered guilty pleas to 14 felony counts and a single drug possession misdemeanor.
Six of those felony convictions related to Postmus’s action during the fewer than 26 months he served in the capacity of county assessor. The other eight involved criminal activity perpetrated while he was a member of the San Bernardino County Board of Supervisors, specifically in the final two years when he was that panel’s chairman. The felonies he was convicted of included perjury, Penal Code § 118; fraud, Penal Code § 484; conspiracy, Penal Code § 182; misappropriation of public funds, Penal Code § 424; bribery, Penal Code Section 86; acceptance of a bribe by a public official, Penal Code § 165; and public officer conflict of interest, Government Code § 1090, the last of which rendered him ineligible to hold elected office in California for the remainder of his life. In entering his pleas, he agreed to testify against others involved in the criminal activity he had engaged in. A month after entering his pleas he served as the star witness before a grand jury. Eight others were charged in a celebrated set of cases relating to the corruption of the political system under his watch. It took more than six years for all of the cases to go to trial. Three of the others were convicted. Three were exonerated. A jury failed to reach a unanimous verdict against another defendant and prosecutors ultimately decided against taking the eighth of Postmus’s criminally-charged political associates, John Dino DeFazio, to trial.
During the more than five-year period while five of his co-defendants were awaiting trial and he was yet awaiting sentencing, Postmus longed to get back into the political game. He was prohibited, however, from seeking public elective office by his Government Code § 1090 conviction on the governmental officer conflict of interest conviction. Nevertheless, he worked his way around that limitation by creating a Wyoming-based company, Mountain States Consulting Group, LLC, and used that as a vehicle by which he engaged in political activity. Having himself been tripped up by California criminal statutes and political reform laws relating to bribery, receiving contributions in exchange for actions taken in an official capacity, an elected official having a personal financial interest in the outcome of a vote in which he or she participates or a governmental official having a direct or traceably indirect financial relationship with individuals impacted by his or her official action, Postmus designed and utilized Mountain States Consulting Group as a political cut-out, one by which a company, entity or person with an interest in governmental action could deliver money as either a political donation or payment to politicians or government officials involved in making the decision or decisions relating to that governmental action in a way that the origin of the money could not be tracked. In addition to political money laundering, Mountain States Consulting could also be used to employ politicians, giving them lucrative working assignments. The politicians would then merely report their employment with or through Mountain States Consulting Group on their statements of economic interest, in that way essentially legalizing, or so Postmus theorized, the delivery of money that if otherwise paid to the officeholder directly by an entity interested in action that officeholder voted upon would be considered a bribe.
Through his running of Mountain States Consulting Group, Postmus was able to buy and sell influence, putting himself back in the thick of San Bernardino County politics.
In 2018, after the prosecutions of his co-defendants were completed, Postmus was sentenced to three years in state prison on his convictions. After several months in the state prison system, as a consequence of the State of California’s prison reform and overcrowding reduction efforts known as realignment, Postmus was transferred into the custody of the San Bernardino County Sheriff’s Department. In August 2019, Sheriff John McMahon, citing Postmus’s good behavior while in custody, granted him an early release, some 27 months before his sentence was set to elapse.
That enabled Postmus to engage himself in political activity during the 2020 election cycle.
When Cothran’s assumed the chairmanship of the San Bernardino County Republican Central Committee, he turned management of the Republican Party’s county electioneering apparatus over to Postmus and Dakota Higgins, who is the deputy chief of staff to Paul Cook, who now occupies Postmus’s previous position of First District San Bernardino County supervisor.
The Sentinel is informed that Postmus has dedicated himself to ensuring that former Fontana City Councilman Jess Armendarez is elected Second District supervisor in this year’s election to replace Supervisor Janice Rutherford, a Republican who is being termed out of office as she approaches the end of her third four-year term. Armendarez in 2020 vied unsuccessfully for Fifth District county supervisor against Joe Baca Jr. As a consequence of the redistricting that took place after the 2020 Census, the section of Fontana in which Armendarez lives has now been moved into the Second District. Another campaign Postmus is assisting is that for the reelection of Fourth District San Bernardino County Supervisor Curt Hagman, the current chairman of the board of supervisors and at one time the chairman of the San Bernardino County Republican Central Committee. Postmus is also working toward Fontana Mayor Acquanetta Warren’s reelection as well as that of Cothran’s son, Phil Cothran, to the Fontana City Council.
In addition to his desire to remain a political player, Postmus has the added incentive of seeing Armendarez and Hagman in roles as county supervisors and Warren and Cothran Jr. remain on the Fontana City Council in that he represents two companies, Allied Business Solutions and Eagle 55, which have already obtained and are continuing to seek lucrative no-bid contracts from both the county and the City of Fontana.
Last month, the Sentinel was informed that Page was on the verge of resigning as registrar of voters. An inquiry was made as to that report’s accuracy. The Sentinel was informed there was no substance to it.
Thereafter, the Sentinel was told by county employees that Cothran had also brought Postmus to meetings with county staff regarding the registrar of voters and the county’s election function. Issues discussed pertained to ballot titles that the candidates would be able to use in the upcoming election. Information provided to the Sentinel suggested Page felt he was being pressured and bullied by Hagman and Supervisor Dawn Rowe. A county employee told the Sentinel that Page had been warned not to disclose that Bill Postmus was meeting with members of the registrar of voters staff, and that if he did, he risked losing his job. The context of that statement suggested that the warning issued to Page originated from someone with the authority to fire him or have him fired, most likely Hagman, Rowe, San Bernardino County Chief Executive Officer Leonard Hernandez, San Bernardino County Chief Operating Officer Luther Snoke or a combination thereof. The information further suggested that Page was therefore looking to leave the employment of the county.
Page has a history, while serving as a San Bernardino County employee, of resisting pressure and overtures he considered to be improper. In 2007, while Page was working as the chief of staff for then-Fifth District Supervisor Josie Gonzales, he met with two of Gonzales’s campaign contributors, Arshak Kouladjian and his brother, Vartan. The Kouladjian brothers, through their company, AVH Holdings, were seeking to proceed with an auto recovery and auction project on Slover Avenue in Bloomington, which had run into delays because of requirements relating to road improvements, as well as grading and drainage work.
At the Black Angus restaurant on San Bernardino’s Hospitality Lane in October 2007, Arshak Kouladjian offered Page a white envelope, which Page presumed was filled with cash. Page did accept the envelope and he informed the San Bernardino County District Attorney’s Office about what he considered was likely a bribery attempt. Page then worked with the district attorney’s office and its investigators, recording further telephonic exchanges with the Kouladjians, who were yet pushing Page and Gonzales to facilitate the approval of their Slover Avenue project. On January 3, 2008, while wearing a concealed audio recording device and transmitter, Page once more met with the Kouladjians for lunch at the Black Angus, and he was offered once more a cash-stuffed envelope, which he accepted. Meanwhile, in a van in the Black Angus’ parking lot, District Attorney’s Office Investigator Gary Barnes monitored through a radio transceiver the conversation between the three. After leaving the restaurant, Page turned the envelope over to Barnes, who upon opening it found it contained 150 $100 bills – $15,000. Ultimately, the Kouladjians were prosecuted for bribery.
Based upon the information received that Page was being pressed by Cothran, Postmus, Hagman and Rowe to conduct the 2022 election in a way that would advantage candidates they favored, the Sentinel on February 4 sent a public records request to the county for Page’s calendar to determine with whom he had met over the previous 25 months going back to January 2020.
On February 7, Orange County announced that it had hired Page to replace its outgoing registrar of voters, Neal Kelley, effective February 25.
On February 9 at 3:36 p.m., the Sentinel sent an email to Page, inquiring if he had met with Phil Cothran Sr., what the substance or subject matter of his meeting with Cothran was if such a meeting had taken place, whether Postmus was at that meeting, what the substance of his discussion with Postmus was, whether he had been instructed or warned not to disclose that Mr. Postmus was in attendance at the meeting, who it was that told him or warned him not to disclose Postmus’s presence at the meeting and whether the series of events involving Cothran and Postmus, if indeed there was such a series of events, had any bearing on his decision to leave the San Bernardino County Registrar of Voters Office for the Orange County post.
Without responding to most of the Sentinel’s inquiry, Page on February 9 at 6:07 p.m. tersely replied, “There was no such meeting.”
Page’s response was ambiguous, as he did not specify whether he was referring to a meeting with Cothran, a meeting with Cothran and Postmus or a meeting with Postmus.
The Sentinel redoubled its inquiry with county employees. Multiple employees stated that Page had met with Cothran, that there were, according to one of those employees, “dozens” of people who saw Page and Cothran together, and that Postmus has been on the premises of the registrar of voters’ office in the presence of Cothran and had met with office personnel, though Page may not have been present.
The Sentinel sent an email to David Wert, the county’s official spokesman, for clarification.
This afternoon, at 2:21 p.m. on Friday, February 11, Page responded, “While you asked several questions, it seemed to me that your principal inquiry was whether I had ‘recently met with San Bernardino County Republican Central Committee Chairman Phil Cothran and that Bill Postmus was also present at the meeting.’”
Page wrote, “As I have never met with, nor had any contact whatsoever with, Mr. Postmus during my tenure as registrar of voters, I told you that there was no such meeting. As registrar of voters, I have on occasion met with local representatives of the Republican and Democratic parties. This includes a meet and greet meeting with Mr. Cothran in April 2021.”
Page left unanswered questions as to whether Postmus is actively involved in pushing the registrar of voters’ office toward policies intended to assist in the electoral prospects for certain candidates and whether county higher-ups have pressured him and his office to keep quiet about Postmus’s activity and whether or not that pressure, if in fact it was applied, had any bearing on his decision to leave the county.

The Town of Yucca Valley is taking out a 20-year $20 million loan at 2.36 percent interest to essentially add onto and redo its civic center.
Utilizing the proceeds from the loan will allow the town to complete a number of projects already underway, such as the construction of the community aquatics/gym facility, the Town Hall consolidation project and Yucca Valley’s senior citizens center modernization project.
According to Town Manager Curtis Yakimow, by borrowing money the town is able “to keep its cash reserves as a buffer for future needs, revenue decreases, or any other unplanned events. This allows multiple generations of users to pay for long term public facilities. The cost of the projects doesn’t only fall on current residents, but future residents as well.”
Moving to secure the loan at the available and locked-in 2.36 percent, Yakimow said, means the city will engage in the “borrowing at historically low rates. While there is an interest cost to borrowing, the town’s reserves can potentially earn more in a period of rising interest rates, thereby offsetting some of the interest cost.”
The terms of the loan and the scheduling of the repayment of the principal and interest together, Yakimow said, will lower the overall cost of borrowing below other types of loan arrangements. Were the town to structure the loan so that the interest paid reflects the payments throughout the life of the loan that are uniform to the principal, the town would be obligated to pay $9.44 million [$20,000,000 X .0236 per year X 20 years], such that the town would have been on the hook for $29.699 million over the 20-year life of the loan [$20,000,000 in principal + $9.44 million in interest + $229,000 in fees].
In actuality, Yakimow said, the town will be set back merely $25.4 million over the life of the loan to pay back the principal and debt service the interest.
“The loan is structured similarly to an amortized mortgage, so the interest paid reduces over time,” Yakimow said. “Under the terms of the agreement, the Town can prepay the loan back at any time if desired, thereby reducing long-term interest costs.”
The town is not absolutely committed to borrowing the full $20 million, Yakimow said, but can use as little or as much of that amount as is deemed necessary.
“The town can borrow up to $20 million under this facility but is not required to take the full amount,” he said. “The final amount borrowed will be determined by the Town’s needs by the end of this calendar year.”
Yakimow said, “Historically, the town council has always taken steps to protect the town’s financial stability and strength and authorized this action only after careful consideration. While we didn’t need to borrow the funds to complete the project, this corporate financing arrangement will provide a lot of flexibility in future budgets, particularly in periods of rising interest rates.”
-Mark Gutglueck

Two of San Bernardino County’s most generous political donors this week were able to buy an approval of their controversial truck terminal project in Bloomington in a decision that exposed the degree to which Supervisor Joe Baca is isolated, disrespected and some would even say despised on the panel that heads San Bernardino County’s governmental structure.
David Weiner and Scott Beard united in an effort to develop a truck terminal located on an 8.95-acre parcel at 10746 Cedar Avenue in Bloomington. The property, which stands on the west side of Cedar Avenue between Santa Ana and Slover avenues, is zoned for commercial development under the countywide development plan, which the county recommitted to honoring less than two years ago.
Cedar Avenue and Locust Avenue are the major north-south thoroughfares in Bloomington, a 6.01-square mile unincorporated community with 25,482 residents, bounded by Rialto on its east and northeast sides, Fontana on its west and northwest sides and the Riverside County line on its south side. Bloomington, historically an agricultural community, over the last 60 years has transitioned into a heavily-used transportation corridor, primarily because four major east-west arterials – Valley Boulevard, Slover Avenue, Jurupa Avenue and Santa Ana Avenue, all of which lead to or toward Ontario International Airport – traverse it, along with the I-10 Freeway and the Santa Fe/Burlington Northern/Union Pacific rail line. The community is saturated with over one hundred illegal truck-related operations which county officials seemingly lack the will to rein in.
As one of San Bernardino’s more impoverished communities with a collective population that falls within the lowest ten percent of the county’s residents economically, Bloomington’s aggregate population in recent years had a median household income which stood at $34,106 annually and a median family income of $35,936. Men living there had a yearly median income of $30,680 versus $20,606 for females. The per capita income for Bloomington came in at $10,953. About 19.8 percent of families in Bloomington and 25.3 percent of its population subsist below the poverty line, including 30.5 percent of those under age 18 and 10.8 percent of those age 65 or over.
Bloomington is governed by the county board of supervisors, which for more than two decades has been permitting trucking-related operations and warehouses to be built within the community, while the cities of Fontana and Rialto and the Riverside County city of Jurupa Valley have given approval to trucking-related concerns and warehouses at the periphery of Bloomington.
A respectfully-sized contingent of Bloomington’s residents has resisted, or attempted to resist, the efforts by land speculators and developers to foist industrial and logistic-related construction projects on the community. Their protestations have been only marginally successful.
Of importance is that Cedar Avenue under the Bloomington Community Plan is zoned to serve as the major commercial route other than Valley Boulevard in the town, where it was anticipated a mall or substantial shopping centers would locate, together with restaurants, a theater or other entertainment venues or cultural/recreational amenities. In this way the effort to promote the commercialization of Cedar Avenue has gone hand-in-hand with preventing its industrialization while the town remains under the jurisdiction of the county. This has been coupled with a move by some community activists toward municipal incorporation, whereby those involved hope Bloomington’s residents can seize control of their own destiny, which activists and thinking members of the community see as key to keeping Bloomington from being overwhelmed by industrial uses – factories, foundries, warehouses, distribution facilities, truck stops, trucking yards, truck terminals, rail yards and wrecking yards.
Forces outside the city, however, are intent, based on the profit motive, in transforming the city into an industrial enclave, while either pushing the residential and agricultural uses out or simply coexisting with them, understanding that the residents in Bloomington do not have the financial, legal, political or procedural wherewithal to prevent that industrialization from occurring.
Joe Baca was elected Fifth District supervisor in 2020. The Fifth District now encompasses Rialto, Rosena Ranch, Muscoy, western San Bernardino, Colton and Bloomington. The forces of industrialization moved early on to take Baca’s measure.
Nachhattar Singh Chandi through his company, Chandi Group USA, has developed large numbers of Black Gold fueling stations and fast-food outlets in Riverside County. The City of Indio hosts the Chandi Enterprises corporate headquarters. Chandi proposed shortly after Baca took office to build a seven-diesel fuel pump/eight gasoline pump truck stop to be located at 10951 Cedar Avenue, at the southeast corner of Cedar and Santa Ana Avenue, three-quarters of a mile south of the I-10 Freeway. Using that 8.9-acre site for a truck stop ran counter to the concept of developing the prime properties along Cedar Avenue into top-of-the-line commercial venues unrelated to the trucking industry, including malls and entertainment venues. Chandi’s Cedar and Santa Ana Avenue project was to consist of 260 parking spaces including 149 for cars, 36 to accommodate trucks, and 75 for recreational vehicles or smaller or mid-size trucks, a 9,900-square-foot convenience market, two fast-food drive-thru restaurants, truck scales, the aforementioned fuel pumps and above-ground fuel tanks. In the project’s final form, a prestigious sit-down restaurant, the project’s original selling point, was dispensed with altogether.
In actuality, Chandi’s proposal was a test of Baca’s political character and integrity. What was being tested was whether Baca would remain faithful to the best interests of the Bloomington community and its residents by standing by the principles in the countywide development plan in the face of temptation in the form of hefty campaign contributions Chandi was willing to offer him. Under Bloomington’s community plan, the property where Chandi was proposing to build was zoned for a commercial center, not a truck stop.
Nachhattar Singh Chandi has proven himself to be a prolific donor to the campaign war chests of both national and state politicians, including half of a million dollars provided to a political action committee supporting former President Donald Trump. He is also one of the major donors to local officeholders in Riverside County, where his corporate empire is centered. In the 2020 election cycle, he had gravitated toward supporting Baca’s primary opponent in the Fifth District county supervisor’s contest, then-Fontana City Councilman Jesse Armendarez, primarily because Armendarez is a Republican and Baca is a Democrat. After Baca prevailed, however and before Chandi’s Cedar Avenue truck stop project came before the board of supervisors, Baca received $4,900 from Nachhattar Chandi; another $4,900 from his wife, Suzana Chandi; and $4,900 from his brother, Sandeep Chandi. $4,900 is the maximum amount of money that a single donor can provide to a politician in San Bernardino County under the donation limits now in place.
On April 6, 2021, the board of supervisors considered the Chandi truck stop proposal.
The county received correspondence questioning, expressing concern, advising against or in outright opposition to the project from the Bloomington Municipal Advisory Council, the Colton Joint Unified School District, and the California Department of Fish & Wildlife. Another 57 Bloomington residents went on record against the project. Baca joined with all four of his board colleagues, who like him, had received copious campaign contributions from Chandi and his business associates, in approving the project. At the conclusion of the April 6 meeting, shortly after the Chandi project was approved, Baca blasted past some dozen of his constituents, most of them Bloomington residents who were there to oppose the Chandi project, so he could rush out to the parking lot and speak with Nachhattar Chandi.
Baca did not anticipate the adverse publicity that would come his way when he voted to approve the Chandi project, as scores of those he represented in the Fifth District were alarmed at the fashion in which he was willing to abandon his constituents and prostitute himself to Chandi on the basis of $16,700 in political donations offered to him by Chandi and his family members/business associates in exchange for his vote.
On July 22, 2021, the Wiener/Beard project, referred to as a truck terminal by San Bernardino County Senior Planner Anthony DeLuca, who served as the lead staff assignee on the project, came before the San Bernardino County Planning Commission. Fourteen Bloomington residents spoke before the commission in opposition to the project. Prior to the meeting, the county’s land use services department had received 126 letters of concern or opposition to the project, which is intended to provide storage for trailers during delivery off-seasons and/or between deliveries, and would run seven days a week and 24 hours a day, with an average of more than 700 truck trips into or out of the terminal daily. The facility is to include 275 parking spaces in total, 260 spaces of which will be 12 feet by 55 feet. The proposal includes a 2,400 square-foot building for office use and storage, an approximate 250 square-foot guard shack, and a 4,800 square-foot maintenance shop with four repair bays.
The project is to be located on property which was previously intended and zoned for commercial rather than logistics/industrial/service/repair use.
Planning Commissioner Kareem Gongora, Baca’s appointee to the planning commission, at the July 22 planning commission meeting went on record against the project. In contrast, previously, when the Chandi project was considered by the planning commission, Gongora abstained rather than stand against it, protecting Baca from the charge that he had acted in defiance of an instance of officially-expressed sentiment against the Chandi project reflective of the attitude of his constituents. Gongora’s July 22 vote was widely interpreted as an indication Baca was going to oppose the project. Despite Gongora’s opposition, three of his commission colleagues – Commissioners Jonathan Weldy, Michael Stoffel and Tom Haughey – prevailed in calling upon the full board of supervisors to allow the project to proceed, with Commissioner Raymond Allard recusing himself. Allard said he was not voting because he had previously done engineering work for both Wiener and Beard.
For seven months the county temporized over the matter.
Some subtle and some more direct efforts were made to see how Baca would come out with regard to the project. His determination was deemed crucial to the fate of the project. That is largely because in far-flung 20,105-square mile San Bernardino County, the balance of the board of supervisors in making decisions on land use and other decisions pertaining to each individual district tend to follow the lead of that particular district’s supervisor, an arrangement of mutual preeminence by district by which the same courtesy is extended to all other supervisors. Thus, according to the tradition, since Bloomington is located in Baca’s Fifth District, it was expected that First District Supervisor Paul Cook, Second District Supervisor Janice Rutherford, Third District Supervisor Dawn Rowe and Fourth District Supervisor Curt Hagman would follow Baca’s lead and vote as he did with regard to the project.
Of note, nonetheless, was that both Wiener and Beard, well before the 10746 Cedar Avenue truck terminal was proposed, had made efforts to buy influence with Cook, Rutherford, Rowe and Hagman. To a lesser extent, Beard had made similar attempts with Baca. As it would turn out, Wiener’s financial influence with Rutherford, Rowe and Hagman trumped whatever collegiality they had with Baca.
The Sentinel was able to track and fully document $125,650 provided by Wiener and Beard and their related enterprises and associates to supervisors Hagman, Rutherford, Rowe, Cook and Baca, going back for slightly over a decade.
Hagman has received $16,350 from Wiener, either directly or from Wiener’s son, Michael Wiener, the Wiener Family Revocable Trust or what is referred to as the Survivor’s Trust Under The Wiener Family Revocable Trust. Hagman has also received $1,000 from Scott Beard Enterprises, LLC and another $1,000 from Gerald Beard Realty, which Scott Beard controls.
Rutherford has received $59,300 from Wiener, his son Michael Wiener, the Wiener Family Revocable Trust and the Survivor’s Trust Under The Wiener Family Revocable Trust. It is unknown how much money Rutherford received from Wiener and the individuals and entities associated with him while she was a member of the city council in Fontana prior to her election to the board of supervisors in 2010. For nearly four decades, Wiener has been a major contributor to elected officials in Fontana. Rutherford has also received $2,500 from Scott Beard.
Rowe’s political fund has been endowed with $14,300 from David Wiener and $14,300 from Michael Wiener, for a total of $28,600. She has also received a $3,500 in political contributions from Scott Beard.
David Wiener had, through 2020, provided Supervisor Cook’s electioneering fund with $2,500.
During the 2020 election cycle, Baca’s political war chest was the recipient of $4,700 from Bonnie Beard, Scott Beard’s wife, and another $4,700 from Scott Beard Enterprises, LLC. On October 4, 2021, Scott Beard provided Baca with another $1,500, so he had received from the Beards a total of $10,900 in the last two years. Beard was also active in contributing to politicians in Rialto, but the Rialto city clerk’s office did not have immediately available figures on how much money he had received from Beard and his wife while he was serving in the capacity of city councilman in that city. Of note is that Baca, whose Fifth Supervisorial District includes Bloomington, did not receive any money from Wiener or his associated entities. Baca was elected to the supervisor’s post in the November 2020 election. That race had been a match between Baca, then a Rialto city councilman, and Jesse Armendarez, then a Fontana city councilman. Wiener has been active as a developer in Fontana since 1980, when with Herb Lundin, he developed the Vineyard Valley Shopping Center at the southeast corner of Sierra Avenue and Valley Boulevard. He has proven over the last four decades to be, with Reggie King, the Ten Ninety Corporation and Phil Cothran, Sr., the major patron of Fontana’s politicians. When the 2020 race for Fifth District county supervisor evolved into a head-to-head battle between Baca and Armendarez, Wiener by default sided with Armendarez, as he personally provided Armendarez with $7,200 during the 2020 election season and his son, Michael, gave Armendarez $4,700.
In the aftermath of the race, as Armendarez had been struggling to retire a substantial debt he accumulated in that failed run, Wiener, in April 2021, swooped in to give Armendarez another $4,700. Beard, the previous month, in March 2021, gave Armendarez $1,000 to erase a portion of the failed candidate’s 2020 electoral campaign arrearage.
Information obtained by the Sentinel is that Wiener is averse to contributing any money to Baca, feeling at this point that doing so is “useless.” Baca, Wiener has opined, is not ready “to play ball,” meaning he will not sell his votes to Wiener in accordance with the latter’s wishes. In recent years, the now 94-year-old Wiener has let slip that he expects something in return for the money he has been shelling out to political officeholders. That, combined with the consideration that Baca is a Democrat leaves Wiener disinclined to provide him with any money. Baca is the lone Democrat on the board of supervisors. Both Beard and Wiener committed themselves to backing Republican as opposed to Democratic candidates and were major sources of campaign cash for Baca’s opponent, Armendarez, in 2020. This, beyond the consideration that Baca is seeking to mend fences with the residents of Bloomington over his vote in favor of the Chandi project gave him an incentive to oppose the Wiener/Beard truck terminal.
That Wiener expects something in return for the political donations he makes is an indication that those donations stand as quid pro quos. Under most circumstances, politicians in California are free to take money from individuals or businesses which are impacted by those politicians’ votes, as long as the money is not given or received with the implicit or explicit expectation that a favorable vote relating to the donor and/or his business before the governmental entity which the politician represents is to be made or was made in return. If, however, the money provided is considered by either party to be payment for a vote, such an arrangement qualifies under the law as bribery.
A total of 59 letters and emails were sent to the board of supervisors about the Wiener/Beard project, both from members of the public as well as the state Attorney General’s Bureau of Environmental Justice, the Center for Community Action and Environmental Justice, South Coast Air Quality Management District and the Colton Joint Unified School District. Comments, both in written messages and at Tuesday’s meeting, focused on air-quality concerns, greenhouse gas emissions, health risks, pedestrian safety and traffic concerns.
For its consideration of the project, the board of supervisors was presented this week, on Tuesday, February 8, with the option of making a mitigated negative declaration to provide it with its environmental certification.
Under the California Environmental Quality Act, most development projects are subjected to an environmental certification process. Some types of environmental certification are more intensive than others, ranging from an environmental impact report to an environmental impact study to an environmental assessment to an environmental examination to a mitigated negative declaration to a negative declaration.
An environmental impact report, the most involved type of environmental analysis and certification there is, consists of a thorough study of the project site, the project proposal, the potential and actual impacts the project will have on the site and surrounding area in terms of all conceivable issues, including land use, water use, air quality, potential contamination, noise, traffic, and biological and cultural resources. An environmental impact report specifies in detail what measures can, will and must be carried out to offset those impacts. A mitigated negative declaration falls near the other end of the scale and exists as a far less exacting size-up of the impacts of a project, by which the panel entrusted with ultimate land use authority, as in this case the board of supervisors, issues a declaration that all adverse environmental impacts from the project will be mitigated, or offset, by the conditions of approval of the project imposed upon the developer.
A mitigated negative declaration is a statement that a full-blown environmental impact report with regard to a project in question need not be completed because the project itself incorporates revisions and/or mitigation measures that will avoid or mitigate impacts to a point where no significant impacts on the environment will occur and that there is no substantial evidence in light of the whole record before the public agency that the project, as revised and/or approved, will have a significant impact on the environment.
An argument could be made that a project as involved as the Wiener/Beard truck terminal, by which 760 truck trips per day are to occur accompanied by the presence of repair and servicing facilities at which petroleum and lubricants, brake fluid, solvents and degreasing agents as well as other chemicals and asbestos will be present and in use, should be subject to a comprehensive environmental analysis.
Heidi Duron, the county’s director of planning, presented a project overview to the board of supervisors on Tuesday. She sought to justify utilizing a mitigated negative declaration to provide the project with its environmental certification.
“The applicant updated the technical studies for health risk and air quality, which included the greenhouse gas analysis,” Duron said.
Duron matter-of-factly recited the context into which the project is located. The site was previously zoned for commercial use. To its north is low density residential and commercial zoned property. To its south is medium density residential/commercial zoned property. To its east is medium density residential zoned property. To its west is medium density residential zoned property. Across the street to the east is the Cedar Village Mobile Home Park.
The staff recommendation called for the zoning on the property to be changed from general commercial to service commercial. Without getting into specifics, Duron said that any negative impacts from the project had been mitigated so there would not be any untoward effect on the neighboring properties or residents.
“The proposed maintenance and office building is proposed to be located away from residential uses and adjacent to the vacant commercially zoned property,” Duron said.
The corporation based in Tucson, Arizona that owns the Cedar Village Mobile Home Park receive a notice relating to the project proposal but the 200-plus owners of the mobile homes that live on the property did not receive a notice.
Duron said, according to the initial study “The initial study [for the mitigated negative declaration prepared for the board of supervisors] concluded there would be no significant effects on the environment with the included mitigation measures. The project did not necessitate the preparation of an environmental impact report as California Environmental Quality Act thresholds were not exceeded.” She said there was one letter of support for the project and the county received 126 letters in opposition, citing traffic, noise and inappropriate use of the property.
She said that subsequent to the planning commission hearing on July 22, an email was received from the California Attorney General’s Office seeking clarification on the project and related technical studies. She said that in response to that email, updated air quality and health risk assessments were prepared for the project.
“An updated initial study was completed in compliance with the California Environmental Quality Act which concluded the project did not have a significant effect on the environment, and a mitigated negative declaration was prepared,” Duron said. “The project still did not exceed any threshold that would necessitate the preparation of an environmental impact report.”
To approve the project, the board of supervisors was called upon to grant a conditional use permit, make a mitigated negative declaration and pass a proposed ordinance amending the zoning from general commercial to service commercial zoning.
Nancy Telleson, a business owner who lives adjacent to the project property, said to the board of supervisors, “Ask yourself: Would you want to live next store to this?”
Ana Carlos said, “There’s homes surrounding this project. There’s a mobile home park across the street with hundreds of families. Let’s be honest: You know you wouldn’t want your children living next to a truck stop. You wouldn’t want this in your back yard. You wouldn’t even want this in your neighborhood.”
Individuals trying to phone in their comments were unable to reach the supervisors. Their comments went unheard.
Joaquin Castejos said, “I’ve seen my community become a center for the logistics industry, with warehouses popping up everywhere. With this truck terminal, it is just an invitation for our community to continue to be a hub for warehouses for the logistics industry, for trucks. We already have bad air quality. It is up to the board of supervisors to protect Bloomington. This is not what we want to see.”
Gabriella Mendez said, “Every aspect of that report [the initial study for the mitigated negative declaration] is disputable.”
Gary Grossich, a member of the Bloomington Municipal Advisory Council, said, “This 260-stall truck terminal and maintenance facility is clearly an industrial project trying to be passed off as a commercial service use to avoid an environmental impact report. There is no commerce or service open to the public being conducted. This will be an offsite ancillary use to accommodate an existing warehouse and is in essence part of a warehouse operation without a building. Just last year the board voted for another Bloomington truck terminal project and changed the zoning to industrial, which is the correct zoning for this project.
“After voicing our concerns at the Planning Commission, the project was suddenly changed from a ‘truck terminal’ to ‘truck storage,’” Grossich continued. “Make no mistake, this is an active truck terminal, now being presented as a storage facility. The traffic analysis completely debunks the storage claim, showing as many as 572 truck trips a day which equates to one truck coming or going every two-and-one-half minutes, all day and night, 24/7. The project will increase truck traffic significantly on Cedar and the Cedar interchange which is already overburdened. The traffic study shows this project has as many or more diesel truck trips than warehouses which have been required to prepare an environment impact report.”
Grossich said, “This is clearly not the highest and best use for this prime piece of commercial property. Allowing this industrial project on a commercial corridor will effectively kill off any opportunity for future quality developments on Cedar, such as a supermarket, pharmacy, sit down restaurants and other retail uses the community desperately wants and needs. I’d like to remind Chairman Hagman and Supervisor Rutherford that several years ago you both voted against an industrial project located on Cedar that brought $60,000 a year in revenue, hundreds of jobs and millions of dollars in infrastructure improvements to our community. In this case, there is no upside. No jobs or revenue are being created, only substantial negative impacts.”
Grossich told the supervisors, “This project goes against the Bloomington Community Plan that the county developed with the input of our community. Developers have the right to try and develop their property and we have the right to deny the project because it doesn’t align with our community plan, a plan the county spent hundreds of thousands of dollars on, with several years of community input that the board voted unanimously to support. If a developer can show up and get a zone change which contradicts our plan, why even have a community plan?”
Steven Rogers said, “The San Bernardino County Planning Division of Land Use Services is inappropriately using a mitigated negative declaration to identify and analyze and evaluate and provide environmental clearance documentation” for the project. “This project as proposed on undeveloped property will have unavoidable and unmitigated impacts on the environment if constructed, which must be thoroughly identified, analyzed and evaluated in a proper environmental impact report in order to be compliant with the California Environmental Quality Act. Particularly of concern is that a full traffic impact analysis has not been appropriately prepared for this project as required pursuant to the San Bernardino County Transportation Authority and CalTrans standards, which should be part of a proper environmental impact report prepared for the project. Only by utilizing an environmental impact report process can the project be properly analyzed for various impacts such as traffic circulation and air quality and those impacts which are shown to be unmitigated to a level of insignificance are identified and adopted by the approving agency in a settlement of overriding considerations as contained in an environmental impact report.”
Rogers said, “The project impacts have been significantly understated [which would] result in the county not receiving a fair share of developer improvement to the area’s streets and highways and will also result in the developer being undercharged for their pro rata interest share of transportation impact fees as collected by the county and the San Bernardino County Transportation Agency.”
A caller who was able to make it through was Owen Chang, the director of facilities for the Colton Joint Unified School District.
“Approximately a year ago, the county adopted a new countywide plan to guide the future development of Bloomington and other unincorporated areas of the county,” Chang said. “According to the updated plan, most of the Bloomington area was to remain residential in order to preserve Bloomington’s residential character. However, that has not been the case. Those projects which have been approved are adjacent or in close proximity to sensitive land use such as residential, convalescent homes and district schools, which is contradictory to the intent of the countywide plan. While we recognize the trend and proliferation of industrial warehouse demands on the region, we request the county be more proactive and deliberate in its approach and planning effort to help minimize health and safety effects caused by truck pollution from industrial operations that affect our most vulnerable population, our children and those with existing health conditions. Based on district concern with unmitigated traffic and air quality expressed in our comment letter, we respectfully request the board of supervisors deny this project or at minimum request an environmental impact report be provided for the project.”
Supervisor Baca said, “I have some concerns about the project. Looking at the hours of operation, it looks like 7 a.m. to 7 p.m. seven days a week. So that being a concern, beginning in May-June, construction of the Cedar Overchange is going to begin. It’s a three-and-a-half year project. My question with that project, beginning in June, did it take that into consideration, the amount of traffic that will be generated from this project and how it will impact the overpass?”
Baca referenced the truck routes for the project and established that trucks leaving or going to the facility are supposed to go north and south on Cedar and not into the nearby residential neighborhoods.
Duran did acknowledge the zone change on the property from commercial to service commercial, without providing a justification for doing so.
In a low-key fashion, Baca brought up the difference between an environmental impact report and a mitigated negative declaration, but accepted Duran’s representation that an environmental impact report was not needed and that a mitigated negative declaration for the project will suffice.
Duran did say impacts from the project were categorized as less than significant without defining how that conclusion was reached.
Baca was not forceful in lodging his protest with regard to the project and seemed to sense that he was politically outmuscled on the board, as if he expected his colleagues to vote in favor of the project. He came across as being more concerned with preventing similar projects from being approved in Bloomington in the future than effectively blocking the Wiener/Beard proposal.
“I think with this project coming forward, it really sparks a bigger picture of a policy question for the Bloomington community,” Baca said, somewhat resignedly. “One, we don’t require an environmental impact report, which I think at some point in time we have to consider. And based on this project, it does have some public benefit, but I’m looking at here that potentially some 260 trucks additionally on the road every day, and the problem is with those trucks being on the road, we don’t have the ability as a county to maintain those roads or have the money to maintain those roads. I looked at some of the public benefits, which are minimal. They will probably benefit the applicant more than the residents for some of those minor benefits. I’m looking at long-term. We start looking at smart growth. How do these projects begin to pay for themselves in unincorporated communities? I think we have to have a bigger policy question on how do we maintain services. The bigger policy question: We have to start looking at smart growth and as projects come in, can they pay for themselves? I believe, in my opinion, when Cedar is completed there will be opportunity for economic opportunities on the corridor of Cedar Avenue.”
At that point, Baca spoke of the Chandi project in a positive sense, suggesting its commercial elements would generate revenue for the Bloomington community.
Baca refocused on the Wiener/Beard project. “I can’t support this project based on the impacts it will have and the future impacts,” he said. “Our school district opposes it and many of the residents oppose it, so I’ll be in opposition of this project today.”
He did not appeal to his colleagues to support his opposition and by his statements indicated he thought reform of the county’s land use policy had to come in the future and that it would not be applied to this project.
What came across was that ten months ago, by joining in with his board colleagues in supporting the Chandi project in return for the fat checks Chandi was writing to the various supervisors, Baca had lost any semblance of moral authority to the point that a majority of his colleagues do not respect him enough to abide by the tradition of heeding his lead in determining the fate of project proposals within his own district.
Rowe’s attitude was that once Baca compromised himself by taking money from Chandi in exchange for supporting his project, he no longer had grounds to legitimately question her or Rutherford or Hagman for accepting money from project proponents such as Wiener and Beard, and then voting to approve their project.
Rowe, slighted Baca, noting that his predecessor as Fifth District supervisor, Josie Gonzales, supported the project, and she used that as a justification for supporting a project that Baca opposes.
Rowe used the term truck stop rather than truck terminal in seeking a description of the project from Duron. This allowed Duron to deny it was a truck stop. There was no reference to the term truck terminal, which was how the county originally described the project. Rowe did not press Duron on the topic.
Rowe inquired if the number of daily truck trips would reach the 572 that Grossich referenced.
Rowe accepted Duron’s assertion that such a number was a “worse case scenario.”
A county consultant whose precise identity was not provided and said her name was phonetically something like “Cheryl Chads” who claimed to be the vice president of the Willburn Corporation, acknowledged that greenhouse gas emissions had been of concern along with diesel fume contaminants early in the examination process, but the county had settled that issue by rewriting its study for the mitigated negative declaration. “Toxic emissions were below the threshold set by the EPA,” Chads, or whatever her actual name is, said.
Rowe asked if there would be a dedicated left turn arrow for the Cedar Village Mobile Home Park coming out of the project. Neither Duron nor the woman whose name may or may not have been Chads knew whether that was the case. Rowe betrayed her commitment to the Wiener/Beard project when she did not insist that such a feature be put into the plans for the project in writing before it was voted upon. “Let me just say that if there is not, I would request one,” Rowe said.
Supervisor Cook raised questions about hazards created by truck traffic on Cedar Avenue.
“I wanted to get an analysis from CalTrans, an analysis of those freeways and those areas that had repeated accidents, repeated injuries, deaths, things like that,” Cook said. “Okay, I thought this was a legitimate request. It came back that evidently CalTrans [the California Department of Transportation] has a policy that they do not talk to individual board members such as myself. I just came from an environment where I had a top-secret clearance. We talked about nuclear weapons. We talked about these things, but CalTrans cannot talk to an elected representative that has some questions about the areas where you have the highest number of deaths and accidents.”
Before being elected to the board of supervisors, Cook was a member of Congress.
“I still haven’t gotten over it,” Cook said. “I just cannot understand that. I’m still ambivalent about that. If we’re trying to find out, based on the past histories of the accidents and deaths – I don’t know the area – if it has spiked, that would help me make a decision. It shows that the entrenched bureaucracies that are supposed to give us feedback here so to help us in our decision-making [haven’t come through with that information]. I’m just really really disappointed.”
Cook gestured at Hagman, who he said as board chairman had the authority to make such an inquiry with CalTrans, calling him “the grand poohbah.”
Hagman did not respond.
At one point, Cook indicated that what the project called for was a widening of Cedar Avenue. This would not come about, he exclaimed because of “Reluctance to add another lane?! You’re going to get more people killed! There’s no excuse for that bureaucratic thinking,” Cook said. “I’m sorry. The biggest enemy right now, I hate to say it, seems like CalTrans. I want development and want to help out the communities. I’m very ambivalent right now. I was going to support this, but because of everything that’s going in there, I’ve got severe reservations if one of the major players in this won’t answer my questions. And the questions are not about how many feet on a line. How many people were killed? How many people were killed with truck accidents? How many people were killed in that area? It is going to influence these decisions.”
Beard sought to diffuse the situation brought on by Cook’s tirade.
“Just to be clear: This is definitely not a truck stop,” Beard said. “I neglected to thank Heidi [Duron] and her team and [former Land Services Director] Teri Rahal, who is retired now, and the diligent effort they put in to make sure we toed the line on all the studies and really analyzed this project thoroughly. So, you have a very good staff down there that tries to look out for the benefit of the county.”
In response to a question from Baca about how much money the truck terminal would provide Bloomington through enhanced tax revenue, Beard said, “It is a not big generator of revenue for the community of Bloomington. We have worked on this project a long time. We have tried to take into account all the necessary mitigation for the surrounding property owners. We are going to provide a traffic signal that frankly should have been installed 25 years ago for the mobile home park folks. We reached out to the community. It’s not a popular project, but it’s not the horrific 500 traffic trips a day that’s been represented by everyone. The number of truck trips is really hard to gauge.”
Hagman, Rowe and Rutherford suggested the project would help redress illegal parking in the community. Both Hagman and Rutherford prompted groans from Bloomington residents by those assertions, as residents said that someone should tell Hagman, Rowe and Rutherford to approve truck parking projects near downtown Redlands in Rowe’s Third District or on Euclid Avenue in Ontario in Hagman’s district or on Haven Avenue in Rancho Cucamonga in Rutherford’s district. Hagman, however, made clear that as the county’s Fourth District supervisor, he was not voting on behalf of Bloomington’s residents but rather those of Chino Hills, Chino, Ontario, Montclair and south Upland, such that he wanted to get illegally parked trucks out of his jurisdiction. “From my point of view, I need to look at my region, and not any particular city each time,” Hagman said. “I’m doing the same sort of soul searching for the Fourth District right now with the illegal truck parking and ‘How do I provide places – either leave my district or stay in my district – and find real parking that are (sic) environmentally sensitive and not going on dirt fields, things like that, in residential neighborhoods, which is what they are doing right now. We also in unincorporated areas do not have the same mechanisms that our cities do to create funds to offset and provide something in return for our residents when it comes to infrastructure, when it comes to amenities for the areas, that funding stream.”
Hagman referenced community facility districts, community benefit plans and developer impact fees, but did not propose putting any of those in place as a condition for the Wiener/Beard project approval. Bloomington, Hagman essentially suggested, is on a fast track to become an industrial wasteland, and in “the bigger global view” he suggested it was proper to allow truck parking to go on in Bloomington rather than anywhere else. The solution, first proposed by former Supervisor Gonzales was to allow massive numbers of truck to “properly” park in Bloomington, Hagman said in justifying this philosophy, and he said that it was too late for Baca to try to undo that. “Do we really want to push these out to another jurisdiction? Where would that be?” Hagman asked, winkingly suggesting that Bloomington is the ideal place for such a project as the one proposed by Wiener and Beard because the lack of sophistication and money within the impoverished class in Bloomington made it unlikely that the community could mount an effective legal challenge of the approval. “I think it’s behoovant upon us to work for our cities and our unincorporated areas to look at the bigger picture. When I counted the number of newly parked trucks in south Ontario, it’s close to 5,000. And as they develop Ontario Ranch out, those 5,000 trucks have to go somewhere, and they’re there every night. They [truck drivers] go to work. They live in our community. They get the truck and do their short-haul back and forth each night. So, when I talk to my City of Ontario, I say, ‘What’s your plan?’ ‘Well, they have to go out into the High Desert.’ We don’t want 5,000 more trucks each day up the [Cajon] Pass. So, what can we do to plan for regional capacity for our own needs in this area? It’s not for somebody else’s. These are our own industries moving around. I still have my own issues, too.”
Understatedly, Baca responded to Hagman, who is the board chairman, “We [the Fifth District and Bloomington in particular] don’t have the ability to sustain these projects.”
Hagman, Rowe and Rutherford displayed thinly veiled contempt for Baca, whom they consider to be a political lightweight who is inconsistent in his resolve to advance his public career, one who is willing to step over those he represents in some cases and becoming squeamish when do is politically advantageous to the board collectively in others. Baca had joined with them last April in giving short shrift to his Bloomington constituents in exchange for Chandi’s money, they are acutely aware, but was in this go-round turning his nose up at the money Wiener and Beard are throwing the board’s way.
When Baca asked for a “cap” on the number of trucks that can go through that area per day, the board, in a smug show of disrespect toward him and one of commitment toward Wiener and Beard, pointedly did not even acknowledge what he had requested. No such cap was put into the operating conditions for the Wiener/Beard project.
For a brief moment during Tuesday’s hearing, it seemed as if Baca might have cobbled together three votes – his own, Cook’s and Rutherford’s – to prevent the Wiener/Beard truck terminal project from getting go-ahead.
Rutherford said, “I do just want to echo one thing that Supervisor Baca said. I talked with staff about this individually. We’re getting to the point with so many of these projects that we know we’re going to end up in litigation. That’s frustrating as an elected official. That’s frustrating for the taxpayers’ dollars. It’s not how the system is supposed to work, but it’s how it works in California these days. I think one of the things the county should start doing to help prepare us for that kind of land use decision-making is require more environmental impact reports up front. I think that would give this board additional information to make the decision, give the community additional input and provide an extra layer of protection as we go into litigation processes.”
Rutherford seemed to be on the brink of suggesting that the Wiener/Beard project be reconsidered under the standards not of a mitigated negative declaration but rather a full-blown environmental impact report. With her vote on that grounds, Cook’s vote based on inadequate truck traffic safety data and Baca’s opposition, it appeared that the project might be rejected outright or at least might be postponed pending a more thorough environmental analysis.
Rutherford then dashed that possibility
“That said, I disagree with Supervisor Baca’s position on this,” she said.
Curiously, however, Rutherford hinted that an appeal of the board’s approval of the Wiener/Beard project will be forthcoming.
“I know it is going to end up before a judge and a judge will make the ultimate decision,” Rutherford said.
Rowe motioned to accept staff’s recommendation that the project be approved. Rutherford seconded that motion.
The vote was taken. Cook stonily sat silent, refusing to vote. Baca cast his vote against the project. The motion passed, 3-to-1-to-1, with Hagman, Rowe and Rutherford prevailing, Baca in opposition and Cook abstaining.
-Mark Gutglueck

The City of Needles, which for decades was on a downward financial spiral, now has its head above water enough to transfer $2.8 million out of its general fund reserve account to cover arrearages that have been accumulating as a consequence of its municipal golf course running in the red over the last five years.
The Rivers Edge Golf Course is owned and operated by the City of Needles and offers a championship par 71, 18-hole golf course, running 6,515 yards, or 3.7 miles. It is the only golf course in the Tri-State Region at the confluence of the California, Nevada and Arizona borders located on the Colorado River and where golfers are permitted to walk the course. The site consists of a driving range, short game practice field and putting green, cart barn, golf pro shop, and a clubhouse concession that occupies a leased area of the pro shop.
Rivers Edge Golf Course is located on the Colorado River off interstate 40 and Historic Route 66. The course was built in 1960 and has maintained a rich history as a golfing venue. It has hosted the Flip Mendez Youth Fund Golf Tournament in May for the past 23 years. The course is next door to the Needles Marina Resort, a popular recreational vehicle oasis that overlooks the Colorado River. It is described by golfers as a relatively flat and well-kempt course with nice character, wide fairways and gentle angles, where rounds are more than reasonably priced at $13 for 9 holes on a walking weekday morning. It fills the niche of a course for snowbirds coming to the region in winter months as well as rivergoers in the spring, summer and fall. The course is open year-round.
Despite those advantages, the facility has not been able to function at a profit for some time.
In 2020, the city solicited proposals for an experienced individual or firm providing golf course management services to operate the links, ranges, pro shop/country club and other amenities. According to the document the city put out in conjunction with that solicitation, in fiscal year 2018 the course generated $492,657 in revenue; another $706,957 in fiscal year 2019; was on course to stir up $696,515 in revenue in 2020; and the city was budgeting for fiscal year 2021 with the expectation that the course would bring in $834,309. The city indicated in that document that it anticipated increasing use of the course, such that it would be host to over 20,000 rounds of golf on an annual basis with a two-year average of 21,084 rounds. The ideal candidate for the new course management would, the document stated, “brand [the] course to attract golfers to create more golf tournament opportunities in the Tri-State Region” and “Reduce costs to improve the bottom line by efficiency and maintenance of the course.” The document noted that the course’s “water costs are fixed due to the city’s present perfected water rights.”
With the advent of the coronavirus crisis in 2020, however, Needles went into serious isolation. Remarkably, that sequestering worked. There were no reported COVID-19 cases in Needles in March, in April and into May of 2020, even as the contagion raged in all 23 of San Bernardino County’s other municipalities and in many of its unincorporated communities. That privileged status of unblemished health came to an end when two Needles residents, whose occupation required that they travel regularly between Needles and Barstow, became infected, apparently, toward the end of April. They did not report their illness, though they self-quarantined. Needles’ fortune held, and it remained one of the more COVID-free spots in America as Spring 2020 gave way to Summer 2020.
That positive distinction came at a price, however. The city’s golf course, already on a trajectory to lose money that year, fared even worse.
At the end of fiscal year 2019-2020 on June 30, 2020, the golf course for those 12 months had expenses of $938,724, while simultaneously having charged its golfers/customers $357,568, a loss of $581,156. Rivers Edge did even more poorly in 2020-21, although the city has not released precise figures. It remained in the red until earlier this month, with 2021-2022 having progressed into its eighth month.
At its February 8 meeting, upon hearing that the city’s golf fund deficit will reach $2,800,000 as of February 28, 2022, the Needles City Council voted to transfer $2.8 million from its reserves to clear that debt.
The city was able to take that action because its coffers have been swelled with revenue from municipal levies upon commercial marijuana enterprises within its city limits. In 2012, Needles became the first of the cities in San Bernardino County to allow medical marijuana dispensaries to operate within its jurisdiction. At that time, like the county’s 21 other cities and two incorporated towns, the county did not allow marijuana to be dispensed in its unincorporated areas. In this way, Needles got in on the ground floor of the marijuana boom not only in San Bernardino County but California, as well.
At that point, marijuana was legally available in California for medicinal use in locations where local government was amenable to its sale. In 2016, California’s voters passed Proposition 64, the Adult Use of Marijuana Act, allowing marijuana and its derivatives to be sold for their intoxicative effect. Needles did not miss a stroke, and now marijuana shops selling both medical and highly potent psychoactive marijuana proliferate in Needles as do marijuana cultivation operations. The city imposes a duty on those sales. At this point, the cities of San Bernardino, Adelanto and Barstow have consented to allowing the commercial availability of marijuana and Hesperia permits marijuana delivery services to function there.
Needles, like San Bernardino and Adelanto, has not been forthcoming with regard to how much revenue it is capturing by the tax/fees imposed on marijuana and cannabis-related product sales, and Barstow has not advanced far enough in allowing sales for revenue information to be available. Whatever Needles’ take of the lucrative marijuana enterprises it has permitted, it apparently has exceeded $2.8 million.
It was observed that there was some level of poetic justice in what had occurred in Needles on February 8, in that the recreational use of marijuana in the city is now paying for the drop-off in recreational activity at the golf course.
-Mark Gutglueck

National Community Renaissance of California, which was co-founded in 1991 by Jeff Burum and Andrew Wright in response to the need for affordable housing in San Bernardino County, has used its authority as an established nonprofit development corporation to issue $100 million in bonds.
The proceeds from the sale of the taxable bonds will be utilized to construct affordable housing, according to the company’s publicist, Jill Van Balen.
“National Community Renaissance of California will use the proceeds of the bonds to finance the acquisition, development, and preservation of high-quality affordable multifamily housing, in alignment with our mission of breaking the cycle of poverty by providing affordable housing options and industry-leading social services to the underserved communities that need them most,” Van Balen said.
On February 9, the company, which goes by the acronym National CORE, finalized the issuance, which consisted of $100 million in taxable Series 2022 Social Bonds. Underwritten by Morgan Stanley, the bonds are expected to mature in 2032. Last year, National CORE became the only affordable housing developer in Southern California and only the second in the nation to receive an A+ rating from Standard & Poor’s Global Ratings. That achievement provided National CORE with access to new, non-traditional financial resources, reinforcing and accelerating the nonprofit’s effort to address the chronic housing affordability crisis facing cities across the country.
National CORE took a leaf out of Bridge Housing’s book in pursuing bond financing.
In 2020, BRIDGE Housing issued $100 million in Series 2020 Sustainability Bonds, marking the first-ever taxable bond offering by a nonprofit affordable housing developer in the United States.
“This is a game-changer for the affordable housing industry and, more importantly, those who struggle with housing instability,” said National CORE CEO/President Steve PonTell. “By accessing capital markets, we can dramatically accelerate the development and preservation of critically-needed affordable housing across the country. Stable housing strengthens community health, educational attainment, economic mobility, and quality of life. Our hope is that other affordable housing developers will follow National CORE’s lead by embracing this ground-breaking financing model.”
According to Van Balen, National CORE’s goals mirror the Social Bond Principles as promulgated by the International Capital Market Association of supporting affordable housing, socioeconomic advancement and empowerment, and access to essential services as a means of ending poverty, reducing inequalities and promoting sustainable cities and communities.
According to a 2021 report by the National Low Income Housing Coalition, the United States persists in struggling with an affordable housing shortage, lacking 6.8 million rental homes for households with incomes at or below the poverty guideline, which is defined as 30 percent or below of an area’s median income. That shortage nearly doubled from a 3.6-million-unit shortfall in 2019.
National CORE owns and manages more than 7,500 affordable, senior, market rate, and special needs units in California, serving nearly 30,000 residents.
“Importantly, National CORE’s innovative and holistic model provides families and seniors with safe, stable and high-quality affordable housing communities that offer industry-leading wraparound social services including preschool and afterschool programs, family financial training, and senior wellness resources,” Van Belen said.
“In the 30 years since we launched our operations, our mission has always been about serving others, and yesterday’s bond closing will allow us to serve so many more,” said National CORE Founder and Board Chairman Jeffrey Burum. “This is a seminal moment for our industry and our organization in advancing that mission by helping to end the affordable housing crisis in our country.”

By clicking on the blue portal below, you can download a PDF of the February 4 edition of the San Bernardino County Sentinel.

Sentinel 02-04-22

By Mark Gutglueck
The State Water Resources Control Board’s hearing relating to the proposed issuance of a cease-and-desist order to BlueTriton Brands, Inc. curtailing that company’s drafting of water from the San Bernardino National Forest’s Strawberry Canyon resumed this week after a two-week hiatus.
In April 2021, One Rock Capital Partners, LLC in partnership with Metropoulos & Company, having formed Triton Water Holdings, Inc., purchased all of the American and Canadian assets of Nestlé Waters North America, Inc. with the exception of its Perrier bottling rights.
Overnight, Nestlé Waters North America, Inc. was rechristened BlueTriton Brands, Inc, and One Rock/Metropoulos took possession of operations relating 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.
In making the buyout from Nestlé, it seems that One Rock/Metropoulos had not taken full stock of the controversy surrounding Arrowhead Mountain Spring Water, a flagship brand celebrated as being “bottled from a higher source” in marketing campaigns. Within one month of the acquisition, BlueTriton found itself faced with the prospect that it would need to reduce by more than 95 percent the amount of water it was diverting from near the top of the San Bernardino Mountains to provide its customers with the Arrowhead product.
The Arrowhead Mountain Spring Water bottling operation had been obtained by Nestlé Waters North America, Inc. as a consequence of Nestlé’s 1992 acquisition of Perrier, which came amidst some confusion about the chain of title to Arrowhead, which was included within the portfolios of otherwise non-existent entities, shell companies or distributorships such as the Arrowhead Water Corporation and Great Spring Waters. Perrier had acquired Arrowhead from the BCI-Arrowhead Drinking Water Company, a division of Beatrice Foods, in 1987.
There had been several companies bottling water under brands incorporating the Arrowhead name, some going back to the first decade of the 20th Century. Names used over the years included 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 Corp, Arrowhead Mountain Spring Water Company, Coca-Cola Bottling of Los Angeles, Rheem, and California Consolidated Water Company.
Arrowhead’s pre-1930 bottling operations had drawn water from a spring near the privately-owned historic Arrowhead Hotel as well as from Arrowhead Springs on the east side of Arrowhead Mountain and in Coldwater Canyon at a level below the San Bernardino National Forest, which was established higher up in the San Bernardino Mountains in 1893.
At the time of a corporate transition in 1930, one of the Nestlé/Blue Triton predecessors had begun water drafting operations at the approximate 5,200-foot to 5,600-foot elevation in the San Bernardino Mountains, within the national forest. 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, sometimes referred to as appropriative 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 appropriative 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.
So, despite the consideration that BlueTriton’s corporate predecessors had been drafting substantial amounts of water from what is referred to as Strawberry Canyon at the 5,200-foot-to-5,600-foot elevation level in the National Forest, neither Blue Triton, nor Nestlé nor Perrier nor any previous company bottling water under the Arrowhead brand had established water rights in Strawberry Canyon.
In 1978 the U.S. Forest Service issued a permit for a pipeline conveyance system involving water drafting in Strawberry Canyon to the Arrowhead Puritas water bottling operation, then under the ownership of Beatrice Foods, for a standard fee of $524. The permit granted no water rights. Under the ownership of Beatrice Foods, Arrowhead Puritas had morphed into the BCI-Arrowhead Drinking Water Company. When the Arrowhead Puritas water drafting permit in Strawberry Canyon expired, the BCI-Arrowhead Drinking Water Company applied to extend the permit. In 1987, while that application was still pending, Perrier purchased the BCI-Arrowhead Drinking Water Company.
The water pipeline conveyance extraction special use permit renewal process entailed a U.S. Forest Service review of the water drafting arrangement and its environmental/ecological impact, which in the late 1980s and 1990s the U.S. Forest Service did not have the immediately available resources to carry out. In a gesture of compromise, Perrier was allowed, pending the eventual U.S. 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 bottling operations 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.”
The diversion of that water left a parched and dewatered forest canyon below Strawberry Canyon, which burnt in the “Old Fire” in 2003.
Nestlé’s intensive water-drafting activity was long decried by environmentalists. That water removal came under increasing criticism as a statewide drought, which lasted for more than five years after it first manifested in 2011, advanced. In 2015 environmental groups were gearing up to file a lawsuit claiming the U.S. Forest Service had violated protocols and harmed the ecology of the mountain by allowing Nestlé Waters North America to continue its operations in Strawberry Canyon for 28 years after its permit expired. At that point, the Forest Service moved to make an environmental review. In the meantime, Nestlé continued its water extraction, pumping an average of 62.56 million gallons of water annually from the San Bernardino Mountains. Environmentalists lodged protests with the water rights division of the California Water Resources Control Board, alleging Nestlé was diverting water without rights, making unreasonable use of the water it was taking, failing to monitor the amount drawn or make an accurate accounting of the water it was taking, and wreaking environmental damage by its action.
Following a two-year investigation, state officials in late 2017 arrived at a tentative determination that Nestlé could continue to divert up to 26 acre-feet of water (8.47 million gallons) per year. Nestlé had gone far beyond the water drafting limit the company was entitled to, the State Water Resources Control Board said, and was actually drafting 192 acre-feet (62.56 million gallons), such that 166 acre-feet (54.09 million gallons) the company was taking annually was unauthorized, according to a report released on December 21, 2017.
The Water Rights Division of the State Water Resources Control Board called upon Nestlé to immediately end its diversions beyond the 26-acre-foot threshold or otherwise marshal evidence supporting its level of diversion.
Nestlé, despite being unable to produce any historical record of water rights approaching the volume of its diversion, continued to maintain it had established rights to roughly 190 acre-feet of water per year in Strawberry Canyon. The company refused to comply with the State Water Resources Control Board’s mandate, continuing to take 144 acre-feet in 2017, 141 acre-feet in 2018, 210 acre-feet in 2019, and 180-acre feet in 2020. By 2020, Nestlé was in negotiations with One Rock Capital Partners, LLC and Metropoulos & Company for the sale of Nestlé Waters North America. In late March 2021, in what was represented as a $4.3 billion transaction, that deal was closed.
A month later, on April 23, 2021, the State Water Resources Control Board’s Division of Water Rights, through its permitting and enforcement branch, issued a cease-and-desist order relating to the Strawberry Canyon water diversion activity. Initially, that cease-and-desist order went to Nestlé Waters North America, as the State Water Resources Control Board had not been informed of the buyout of Nestlé Waters North America, including the Arrowhead Spring Water bottling operation, by One Rock Capital Partners, LLC and Metropoulos & Company.
By that point, the State Water Resources Control Board had revised the maximum amount of water to be diverted from Strawberry Canyon to 7.26 acre feet per year.
In the April 23, 2021 notice, signed by Julé Rizzardo, the assistant deputy director for the permitting and enforcement branch of the State Water Board’s Division of Water Rights, a revised report of investigation and a draft cease-and-desist order was served upon Nestlé Waters North America, Inc., informing it to end its unauthorized and unlawful activities, which was defined in the cease-and-desist order as taking any more than 7.26 acre-feet (2.342 million gallons) of water annually out of Strawberry Canyon.
The draft order alleged that Nestlé’s diversion and use of water from Strawberry Creek in San Bernardino County violated or threatened to violate the prohibition in Water Code section 1052 against the unauthorized diversion or use of water subject to Division 2 of the Water Code. The draft cease-and-desist order notice, issued under Water Code section 1834, advised Nestlé that if Nestlé wanted to request a hearing on the draft order it had to submit a written request for a hearing to the administrative hearing office within 20 days from Nestlé’s receipt of the notice.
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 matters 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.”
Even before One Rock/Metropoulos closed the deal with Nestlé for the Nestlé Waters North America buyout, inquiries were made, including ones by the Sentinel, with regard to whether One Rock/Metropoulos fully understood that Nestlé’s claim to rights to water in Strawberry Canyon was in dispute. One Rock Capital Partners, LLC and Metropoulos & Company nonetheless proceeded with the Nestlé Waters North America buyout.
After it became widely known that Donlan and his firm were seeking the hearing on behalf of BlueTriton, a multitude of entities and individuals, many of whom had been instrumental in prompting the State Water Resources Control Board to make its inquiry into the activity in Strawberry Canyon, made requests to weigh in on the matter and add additional hearing issues. Those parties eventually grew to include the San Bernardino Valley Municipal Water District; the Center for Biological Diversity; the Sierra Club; the California Department of Fish and Wildlife; the Story of Stuff Project; Steve Loe, a retired U.S. Forest Service biologist; Hugh Bialecki, a Lake Arrowhead-based dentist who is the president of the Save Our Forest Association; Amanda Frye, a Redlands resident who has done extensive historical research relating to water rights holdings and claims by various entities and corporations in San Bernardino County; Victor Vasquez, who has worked within the Division of Water Rights of the State Water Resources Control Board; Anthony Serrano, a resident of Highland and water user in the Bunker Hill Basin, where water originating in Strawberry Canyon eventually flows; and Tomas Eggers, a water resources control engineer employed by the State of California.
Despite the earlier insistence of One Rock/Metropoulos/BlueTriton corporate officials that they were knowledgeable about the disputes over the water rights in Strawberry Canyon, when Donlan and his law firm were faced with the prospect that many of those who had been raising that issue, in some cases as early as 2014, were intent on participating in the hearing, Ellison Schneider Harris & Donlan filed a motion with the administrative law judge who was to be the hearing officer, Alan Lilly, seeking to prevent Vasquez, Loe, Frye, Eggers and Bialecki as well as Rachel Doughty, an attorney representing the Story of Stuff Project, from testifying or participating in the hearing, claiming they did not qualify as expert witnesses and any information they would bring to the discussion was irrelevant.
Lilly denied that motion.
When the hearing began in early January, the primary witness for BlueTriton was Larry Lawrence, the natural resources manager with BlueTriton Brands. Lawrence held a similar position with Nestlé Waters North America.
A mechanical engineer by training, Lawrence offered an overview of the water collection and diversion facilities in use by BlueTriton Brands at the confluence of the east and west forks of Strawberry Creek.
Lawrence said that prior to 2021, the excess water collected by Nestlé from Strawberry Creek had been deposited in Waterman Canyon, two watersheds over from Strawberry Canyon, where the cisterns that Nestlé had for the collection of the water ultimately used in the Arrowhead Spring Water bottling operation are located. Since 2021, Lawrence said, Nestlé and now BlueTriton had in large measure been complying with the Forest Service’s instructions to discharge the excess water in lower Strawberry Canyon, although roughly 20 percent of the diverted Strawberry Creek water is sent to the mountain base grounds of the historic Arrowhead Hotel now owned by the San Manuel Mission Indian Tribe.
Lawrence was cross examined by multiple parties.
The hearing resumed this week and was conducted in an electronic format, with those participating doing so remotely, using Zoom videoconferencing.
Amanda Frye testified on January 31.
Frye, a resident of Redlands, is a nutritional scientist and author. She previously worked in a survey office and is well-versed in map reading, surveying and legal property descriptions. Among the publications that have published her work is the Sentinel.
In her non-sworn opening statement, Frye said she had conducted unpaid independent research investigating the matters in this case regarding the water rights, the history, the springs and what she characterized as the unauthorized water diversions in Strawberry Canyon by BlueTriton Brands, Inc. and its corporate predecessors. She said she had hiked through Strawberry Canyon on numerous occasions, “observing the dewatered Strawberry Creek and BlueTriton’s pipeline and spring diversion sites.”
Frye said that “any claims within the forest boundaries had to be made in
1893,” at the time of the founding of the San Bernardino National Forest. “Neither BlueTriton nor their predecessors have owned land nor water rights in the San Bernardino National Forest Strawberry Creek headwaters,” Frye asserted. “In 1930, BlueTriton’s predecessor, California Consolidated Water Company, encroached into the forest’s Strawberry Creek headwaters and started diverting spring water from Strawberry Canyon with neither a valid water right nor state appropriation/diversion permit. This encroachment occurred before the Del Rosa judgment.”
The Del Rosa lawsuit was a lawsuit over appropriative water rights brought in the early 1930s by the plaintiff Del Rosa Mutual Water Company, represented by attorney Ralph Swing, against D.J. Carpenter, Isabel Turner, George Mason, J.B. Jeffers, L.R. McKesson, the National Thrift Corporation of America, the National Thrift Corporation, California Consolidated Water Company and California Consumers Company, the Arrowhead Springs Company and Arrowhead Springs Corporation. The lawsuit was settled by a stipulation of those rights on October 19, 1931.
The Del Rosa lawsuit, Frye said, “did not state that the Strawberry Creek headwaters, located within Township 2 North, Range 3 West were in the San Bernardino National
Forest. Neither the United States Forest Service nor the State Water Board were parties to the case.”
Frye said, “BlueTriton’s predecessors continued diverting Strawberry Creek spring water, expanding the water take from one spring in 1930 to building three spring adits/tunnels and using 10 borehole horizontal wells to tap spring aquifers in Strawberry Canyon carrying billions of gallons of the forest water down the mountain to be trucked to a bottling facility and sold back to the public as ‘Arrowhead® Mountain Spring Water.’”
An adit is a horizontal passage bored into earth, stone, a boulder or a hillside for drainage purposes.
Frye said, “Location is essential to understanding this case. The Public Land Survey System is used to identify location in the historic records, withdrawal sites and property boundaries. BlueTriton takes and diverts the public’s forest water from the mountain top Township 2 North, [starting at 5,600 feet above sea level] then pipes the water to the mountain base about 2000 feet above sea level at Township 1 North [where the water is then dispatched by truck to a bottling facility]. The true Arrowhead Springs are located on private land below the landmark Arrowhead at the mountain base. The first Arrowhead bottled water came from Coldwater Creek near the landmark Arrowhead at the mountain base which was a different watershed and not downstream from BlueTriton’s water withdrawal from unnamed springs in the Strawberry Creek headwaters. The Strawberry Creek headwaters spring numbers are from BlueTriton’s predecessor, and are not the true Arrowhead Springs.”
Frye said that “Historic records show that prior to diversion, Strawberry Creek was a perennial stream that flowed even during dry months, with headwater springs feeding a vibrant flowing creek lined with scrub oak, chamise, alder, dogwood, cedar, sycamore, willow, ferns, bay laurel and thimbleberry. Prior to diversion, Strawberry Creek was used for recreational trout fishing. Today, Strawberry Creek has diminished flow and a dry creek bed with impoverished fauna and flora that no longer can support trout since fish need water to survive.”
In bringing her opening statement to a close Frye implied that Nestlé had hoodwinked One Rock/Metropoulos by selling it non-existent rights to Strawberry Canyon water, noting that “The evidence reflects that BlueTriton has neither valid water rights nor authorized diversion permits in the Strawberry Creek headwaters, including no evidence to pre-1914 rights. The business name “Arrowhead Mountain Spring Water Company” was a name used in the 1990s on printed letterhead, permits, invoices, and newspaper articles for the Strawberry Canyon spring water diversion; yet, this name does not appear in BlueTriton’s chain of title; thus, the chain of title was broken.”
Frye said a principle in law is that “a seller cannot legally sell, transfer or deed what he does not own; therefore, the purchaser of such fraudulent transactions can claim no ownership title. Records reflect that BlueTriton predecessors did not have a valid water right in Strawberry Creek headwaters and gave away any possible pre-1914 water rights in the 1930s. Thus, it appears that BlueTriton purchased only a water bottling operation. It is the purchaser who has the burden of due diligence to understand what he is buying.”
In California, a water right obtained prior to 1914 is given special status as a “pre-1914 appropriative water right.” A water user with a pre-1914 right, on non-federal land, needs no water right permit unless the use of the water increases beyond the amount of water used prior to 1914, in which case the user must obtain a permit for the new amount unless it can be established that there was a plan in place before 1914 to use the additional water after 1914.
In her sworn testimony, Frye said her research had shown that the “Arrowhead Drinking Water Company was surrendered in 1987 and was no longer an active California business entity in 2015.” She said the water tapping systems in Strawberry Canyon “were registered nonetheless to the Arrowhead Drinking Water Company. The business name Arrowhead Mountain Spring Water Company is handwritten on the 1978 expired permit and was in the 1990s US Forest Service record, documents, letterhead, in correspondence, invoices and even found in newspaper articles showing the exportation of water to Japan.”
BlueTriton during the hearing was represented in the main by Robert Donlan and another attorney with the water law practice group of Ellison Schneider Harris & Donlan, Shawnda Grady.
Over the course of Frye’s testimony, as well as before it began, Grady lodged multiple objections to both the rationale for Frye’s testimony, the basis for her testimony, the foundation for her testimony, Frye’s lack of qualifications and expertise as well as the substance of her statements and the statements themselves.
At one point, Lilly responded to Grady’s objection with regard to Frye’s alleged lack of expertise and qualifications, which included an assertion that Frye was proffering inexpert opinions.
“Based on her extensive research, she is entitled to give these opinions,” Lilly said. “As far as what weight I or the State Water Board will give them, that is another question. Since she’s apparently not qualified as a lawyer with requisite knowledge for legal opinions, [it] might not have a large amount of weight, but I’m going to allow her to testify because I believe she has some knowledge sufficient to testify.”
Frye related that she had made an extensive survey of the area on her own by hiking there, which had given her the opportunity to compare and contrast the condition of Strawberry Canyon in recent years with an account of its water resources described by W. P. “Penn” Rowe, a civil engineer who had made extensive field notes of the springs in Strawberry Canyon in 1930, preparatory to those springs being tapped and diverted.
“The headwaters appear basically as a dry creek,” she said, with “no continual creek flow and no visible natural springs.” In comparison, Rowe’s field’s notes, Frye said, referenced a stream that was “flowing.”
At that point, Grady raised an objection to Frye’s characterization of Rowe’s observations as “relying on hearsay” evidence.
Lilly overruled the objection.
What she had observed in recent years in Strawberry Canyon, Frye said, was vastly different from what was described in Rowe’s 1930 field notes and reports.
Frye dated the initiation of the effort by the Consolidated Water Company, a BlueTriton, corporate predecessor, to remove water from Strawberry Canyon as August 1930.
She then referenced Rowe’s field notes corresponding to the springs in Strawberry Canyon which today have been supplanted by the facilities BlueTriton is using to divert the Strawberry Creek water.
She said Rowe’s July 3, 1930 field notes “describe the natural spring site and how much water was in Strawberry Creek’s headwaters, the ecosystem prior to diversion. On July 3, 1930, Rowe described the highway spring. This spring was described as being developed by digging into rock. The highway spring flow was described by Rowe on July 3, 1930: ‘Water runs down the top of bedrock and comes out under boulders.’ He recorded the flow at that point as five gallons in 74 seconds, making note that in May [1930] it was five gallons in 60 seconds.”
She compared what Rowe had encountered nearly 92 years ago with what is presently the case in Strawberry Canyon.
“Now, this headwater springs is barely wet, and now the diversion pipe dribbles water to a creek a few feet away from the natural spring site. The flow was small, enough to fill some water to Strawberry Creek for a few yards,” she said, adding, “In October 2016, I sent a Freedom of Information Act request to the U.S. Forest Service for documents relating to this highway springs. The original appropriation permit was obtained in 1928 to divert water for use along the highway and a drinking fountain along the Red Rock Wall Overlook. The diversion permit was for 6.25 gallons per minute or 9,000 gallons per day. U.S. Forest Service reports indicate that a minimum 6.25 gallons per day from this highway springs, 6108, was going to be required, otherwise water extractions could be shut off or reduced. Based on the site, it is questionable this minimum flow monitoring and water shut-off is occurring. The U.S Forest Service Highway Springs no longer expresses under the described boulders. Now there is just a dry creek bed. Below that dry creek bed and boulders is a spring box that myself and others have seen referenced as Spring 1. This sits below the highway spring and the boulders. I have also seen this referred to as Spring Box 8 or 1-8 Complex. I have never seen any natural flowing water at this sight, only a dry creek bed.”
Frye said that “Prior to diversion, Rowe notes on July 3, 1930, Spring 1 output was five gallons in 27.2 seconds. Rowe’s notes describe Spring 1 as in a hollow below the highway springs. Spring 1 was not diverted until 1948, and prior to diversion in April 1948, Spring 1 output was recorded at 10.5 gallons a minute.”
At present, Frye said, based on her own observation, just down from Spring Box 1, there is “no natural spring expression.”
With regard to the discharge pipe near that location, Frye said, “Sometimes when I’ve been up there, there’s water expressing from the discharge pipe, usually not.”
In making her presentation relating to her observations of the condition of Strawberry Canyon in recent years, Frye presented photographic evidence taken during hikes in the area.
Frye continued, saying, “July 3, 1930, Rowe describes Spring 2 site flow as five gallons in 5.1 seconds. Rowe describes Spring 2 as coming out of bedrock through small crevices west of [Spring] Number 1 and 500 feet lower in elevation. Now there’s just a vault, no natural stream of spring flow, and it’s just a birdbath filled with a discharge pipe dribbling water.”
Frye went on.
“On July 3, 1930, Rowe recorded Spring 3 output at five gallons in 15.4 seconds,” Frye testified. “He described the spring as water from a lot of bedrock and the headwaters of Strawberry Creek.”
She contrasted the 1930 circumstance to the condition today.
“All that is at the vault,” Frye said, is a “pipeline, dry creek bed.”
Frye said she had first gone to Spring 4 on December 4, 2021. The situation at Spring 4, which is not diverted or developed, is a natural spring flow and extends a few yards downstream and then stops.
According to Frye, “Rowe on July 3, 1930, describes Spring 4 as ‘big springs. Five gallons in 4.5 seconds. Water from one big crevice.’ Rowe noted that Spring 2 and 3 formed streams that flowed into Spring 4.”
In contrast, Frye said, “Now there are no streams flowing from Spring 2 or 3 into Spring 4.”
Frye further testified, “The first spring I ever visited was Spring Site 7. When I hiked to Spring 7, all that was visible was a vault, pipes and a dry spring bed. In October 2017, I hiked up Strawberry Creek from City Creek Road to the Strawberry Creek east-west confluence below BlueTriton Springs 10, 11, 12. The contrast between the east and west branch was striking. BlueTriton takes water above the west Strawberry Creek branch. The west branch above the confluence was more like a stagnant wet marsh that was easy to walk through versus the untapped east branch, which was rapidly flowing with several inches of water deep, even in October. The differences between the impoverished west branch and the vibrant east branch of Strawberry Creek was visibly noticeable. Nestle’s take above the west branch appears to have negative impact on the creek.”
Grady objected, suggesting Frye had not signaled in advance that she was going to make reference to Spring 7 in making her application to participate in the hearing.
Rachel Doughty, the attorney for the Story of Stuff Project, found a reference to Spring 7 in the preview of the evidence Frye had provided to the State Water Resources Control Board in preparation for her appearance. Lilly overruled Grady’s objection.
“This testimony is relevant to the base flows that Mr. Rowe observed in 1930,” Lilly said.
In distinguishing between the locations where BlueTriton’s pre-1930 corporate predecessors had their water drafting facilities and the springs in Strawberry Canyon that are now being diverted, Frye in her testimony strove to demonstrate that the Arrowhead water bottling operation associated with the Arrowhead Springs Hotel in the first decade of the 1900s, the 1910s and the 1920s drew its water in the foothills of the San Bernardino Mountains just above the City of San Bernardino and outside the confines of the San Bernardino National Forest. Strawberry Creek in Strawberry Canyon is located higher up in the San Bernardino Mountains, within the national forest. Two key and separate locations, Frye said, were San Bernardino Township 1 and San Bernardino Township 2.
She said the original source for the bottled Arrowhead water was in Township 1 North, where the springs and hot springs associated with the hotel are located.
“That was located at Township 1 North,” she said. “The hot springs was well known to Indian tribes and early settlers.”
Her geographical references, she said were “based upon the Public Land Survey System,” which specifies townships, which consist of six-mile by six-mile squares containing 36 one-mile by one-mile sections. Within those townships are east and west ranges.
In the relevant area, the two townships Frye referenced – Township 1 North and Township 2 North – are oriented relative to the San Bernardino Meridian, which runs along the south end of Township 1 North.
“Township 1 North,” Frye said, covers the “mountain base, the Arrowhead Landmark, the hot springs, Coldwater Canyon, the Arrowhead Springs Hotel and Indian Springs.”
Frye said that Township 2 North covers land that is “beneath the Rim of the World” along with Highway 18 and BlueTriton’s water withdrawal sites “within the San Bernardino National Forest.”
She stated, “The early withdrawal sites were at Township 1 North Range 4 West based on records I found at the San Bernardino County historical archives.”
Strawberry Canyon, in contrast, lies within Township 2 North Range 3 West.
Further proof that the original water supply for water bottled using Arrowhead in its brand name came from low in the San Bernardino Mountains south of the national forest consists of San Bernardino Superior Court case records, Frye testified.
“There were two court cases,” she said. “In 1912-1913, Arrowhead Hot Springs versus Arrowhead Cold Springs Company, Case 12532 San Bernardino County Superior Court. It gives the Arrowhead Hot Springs property legal description in the complaint, Township 1 North Range 4 West-Range 3 West. This is at the base of the mountain in Township 1. This describes the original source for Arrowhead water bottling was from Coldwater Creek from springs coming off the rock of Arrowhead Mountain in Coldwater Canyon. There’s repeated testimony describing what that looked like. So, we know that the original site for withdrawal was at the base of the mountain and from Coldwater Creek.”
Further indication that water bottled under the Arrowhead brand did not come from Strawberry Canyon until after 1930 is provided by, she said, “the Del Rosa judgment. Consolidated Water Company tried to obtain water rights at the current site location. The case never mentioned that the land was in Township 2 North Range 3 West [nor] was located in the San Bernardino National Forest. Neither the U.S. Forest Service nor the State of California were involved in the cases. Adverse possession does not apply to federal land.”
Yet more evidence that BlueTriton has no claim to the water in Strawberry Canyon consists of a line contained in San Bernardino National Forest historic records kept in an archive in Riverside County, Frye said. A document she located dated April 28, 1966 is a memorandum concerning all of the applications to appropriate water within the boundaries of the San Bernardino National Forest up until that time. On page 10 of that memorandum is reference to the highway spring that Rowe had described in his July 3, 1930 field notes. The fifth line on page 10 in the April 28, 1966 memorandum places the highway spring within Township 2 North Range 3 West and gives the California Division of Highways jurisdiction over the spring, which was used to provide motorists with a drinking fountain, with that jurisdiction being granted to or claimed by the California Division of Highways on October 31, 1928. The jurisdiction over the highway spring was later transferred to the U.S Forest Service, Frye noted.
“There are no other applications in the San Bernardino National Forest for any of BlueTrion’s predecessors,” she said.
Within the San Bernardino County Hall of Records are multiple references to the appurtenances for the Arrowhead bottled water operations in the first three decades of the 20th Century. Included in these, Frye said, were a “1929 pipeline survey and easements,” as well as a licensed land surveyor’s map. “The first thing to notice is the maps are in Township 1 North,” she said. “These maps show that the pipeline in 1929 was only at the mountain base.”
Frye said, “The early history of the Arrowhead bottled water is tightly intertwined with the Hot Springs Hotel, especially since the Coldwater Creek fed by springs off of Arrowhead Mountain was the source of the first water for bottling. The history of the Arrowhead Springs Hotel, the recorded deeds, give the location of this hotel and the Arrowhead Springs property at the base of the mountain Township 1 North.”
Any legitimate claim to water that BlueTriton may have in the area pertains to a source in an area outside Strawberry Canyon, Frye said, “since BlueTriton’s interest is derived from the property and the water bottling was first located at the base of the mountain.”
She said this is backed by “property deeds recorded between 1915 to 1925 on the Arrowhead Springs real property. If you notice in those deeds, it only contains real property at the base of the mountain in Township 1 North. The associated water rights go with the real property.”
Frye noted that from 1920 to 1924, while the Arrowhead Springs Hotel was being used as an asylum for shellshocked and gassed veterans of World War I, documents were generated which demonstrate the water at the hotel was being obtained from Indian Springs located in Township 1 North.
“In 1925, the hotel and water business were sold, and used as collateral for the issuance of a gold bond,” Frye stated. “Documents for the bond issuance give the hotel property and the associated water rights as being in Township 1 North Range 4 and 3 West.”
Frye further located documentation for a series of agreements involving Charles Anthony, the water bottling manager and the vice president of the Arrowhead Springs Corporation. Some of those documents show Anthony was approached by the California Consumers Company to sell off the water bottling company. The title insurance policy describing what was to be conveyed in the sale excludes any surface rights, the hot springs and anything reserved by the U.S. Government, which would include water rights in the forest, Frye pointed out.
“Thus, there was nothing ever in Strawberry Creek and Canyon, even up through 1929,” she said. “It was always at the base of the mountain.”
According to Frye, the notice of intended sale included certain water rights and easements relating to the sale of the hotel property. “We know that those are in Township 1 North Range 4 West based on deeds,” she said. Byron Waters, the attorney who drew up the documents for the sale, wrote that all water rights in the possession of the hotel would be transferred, Frye said, and in the title insurance policy there are exclusions and exceptions. Excluded, she said, are water reservations in the San Bernardino National Forest, and anything involving adverse possession, surface streams and hot springs belonging to the Arrowhead Springs Corporation.
“So, the clause alone would have excluded anything in Strawberry Creek in the upper canyons in Township 2 Range 3 West in the San Bernardino National Forest,” she said. “It also would have excluded Indian Springs, because actually that was located, based on the 1929 Survey map, in the San Bernardino National Forest. The terms ‘belonging to grantor’ are key. The grantor, Arrowhead Springs Corp., only owned property in Township 1 North, and that did not include anything in the Strawberry Creek headwaters, Township 2 North.”
Also testifying this week was Hugh Bialecki, a Lake Arrowhead-based dentist who is the president of the Save Our Forest Association.
Bialecki stated that as early as September 2014, he had expressed concern about water depletion in Strawberry Canyon and wanted to have an informational exchange with U.S. Forest Service representatives on the subject, but was not able to get them to schedule such a meeting. In a March 2015 letter to then-Regional Forester Randy Morris, Bialecki proposed a National Environmental Protection Act study of the situation in Strawberry Creek and objected to continued water diversions there, which he asked to be halted until there was a thorough review of all aspects surrounding the special use permit for the water pipeline that had been issued to Arrowhead Puritas/Beatrice Foods in 1978 and which had expired in 1987, and was being automatically renewed on an annual basis.
Bialecki said he had also sought to address the issue of what he said were Nestlé’s illegally-claimed water rights, specifically the lack of recorded claims at the water withdrawal sites in Strawberry Canyon and Indian Springs. He made, he said, multiple attempts to communicate with the United States Forest Service regarding what he called “this previously wrong expired permit” to draw water from Strawberry Creek.
Bialecki also presented photographs he had taken that documented the circumstances relevant to his testimony.
Grady objected to Bialecki’s testimony and presentation of evidence on technical grounds, arguing that Bialecki was permitted to participate and make statements pertaining to policy rather than on evidentiary grounds, and that this had been changed abruptly just before his appearance as a witness. Grady said Bialecki’s exhibits and testimony in writing were not provided sufficiently in advance of his appearance, that is, by the December 17 deadline Lilly had set for such submissions. Grady further suggested that Bialecki’s statements had no relevance to the issue being considered by the State Water Resources Control Board.
Lilly overruled the objection, and offered Grady an assurance that only the information deemed relevant to the question of whether the cease-and-desist order should be granted would be considered in his final ruling.
“Certainly, at the end of the day we will only consider evidence that is relevant to the hearing issues as we prepare our post order,” Lilly said. Lilly said he was indulging all members of the public who wanted to participate in the hearing process, insofar as they had input, information or evidence that had a bearing on the matter. He said the State Water Resources Control Board had a policy of allowing interested parties who are not represented by attorneys to participate in the hearings.
Anthony Serrano, a Highland resident, gave brief testimony. Highland draws some of its water from the Bunker Hill Basin.
Serrano submitted exhibits, stating “From a local resident’s standpoint in the city of Highland, it is clear to us who have worked on water diversion projects in our community over the years, the Bunker Hill Basin was affected by the diversion of water.”
Grady objected to Serrano’s testimony and offerings as lacking a proper foundation.
Lilly overruled the objection, stating, “At least parts of each document are relevant to the hearing issues,” and he said what is not relevant will be omitted from the final report and will not be used or relied upon in the drafting of the proposed order.
Testifying this week as well was Steve Loe, a retired U.S. Forest Service biologist who had 30-years’ experience working within the San Bernardino National Forest as well as for the forest service in Prescott Arizona for four years, Eureka, California for three years and Tucson, Arizona for three years.
Water diversion from Strawberry Creek by BlueTriton, Nestlé and their predecessors, Loe said, “has completely stopped any flows from reaching the main stem of Strawberry Creek. Strawberry Creek used to have over a hundred gallons per minute and the headwaters springs, just 1, 2, 3 and 4, that’s now down to a half of a gallon per minute.”
Rachel Doughty, representing the Story of Stuff Project, asked, “To what degree has BlueTriton’s diversion impacted the natural spring flows and base flows near the diversions?”
“They’ve completely eliminated them,” Loe said.
Loe identified W.P. Rowe as “an engineer hired in ‘29, ‘28 maybe, to start working on the Strawberry Springs and determining what the flows were and whether or not they could be diverted, and if they were diverted, what the outputs would be so that BlueTriton’s predecessors could make decisions along with the hotel property on development of those springs.”
Loe said Rowe used methods and techniques in his measurements that were accurate and consistent with what is still used by engineers, and that Rowe’s measurements were credible, detailed and meticulous.
Based upon Rowe’s recorded findings, the riparian landscape of Strawberry Canyon in 1929 and 1930 was far superior compared to what exists there now, Loe testified.
“It was much more lush at that time,” Loe said. “There’s whole sections of stream a half-mile long that no longer have surface flows. That’s a major, major loss.”
Chris Sanders of Ellison Schneider Harris & Donlan cross examined Loe on behalf of BlueTriton, and wrung from him that he is not a licensed civil engineer, is not a licensed hydrologist, is not a registered hydrologist, is not a licensed geologist, not a trained or certified historian and is not an attorney.
Lilly took it upon himself to question Loe.
In response to a question from Lilly, Loe said that the junction of flow from all of the upper springs at the head of Strawberry Creek is at Station 123+00 or 12,300 feet upstream from the old intake to the 4-inch pipe from Strawberry Creek to the Arrowhead Hotel which was laid in 1929.
Lilly asked Loe about his understanding of who built the water intakes and pipelines in Strawberry Canyon.
“The Arrowhead Springs Hotel and Consolidated Water had a deal,” Loe responded. “I’m not sure if Consolidated had any money in that original 1929 pipe to the hotel pick-up, but then from there it went up the west fork of Strawberry Creek and Consolidated Water paid for that. Consolidated Water paid for the pipeline from the springs down to connect to the Consolidated Water link to the Arrowhead Springs. It was an in-stream diversion, from what I can tell, so they connected pipeline together is what happened.”
Lilly referenced Weir 3 Station 1 in Strawberry Canyon, and asked Loe if it had been laid in 1929.
Grady objected that Lilly was asking questions without providing the basis for the foundation of Loe’s statements in response.
“You’re asking questions of a witness, and asking him to speak as if what he says is necessarily fact, without asking the basis of any of these opinions, the documents that lay the foundation for those opinions,” Grady said.
Lilly sustained the objection to his own question and then restated the question to ask Loe, based on his review of all of the Rowe papers and other historical documents, what his understanding was as to the date the pipeline from the weir at Station 0 or Station 1 to the Arrowhead Hotel was established.
“Based on your reading of historical documents, who installed the pipeline?” Lilly asked.
“Arrowhead Springs Hotel as far as I know,” Loe responded. “There may have been a contribution from Consolidated Water. Arrowhead Springs Holtel in collaboration with Consolidated Water.”
Lilly then posed one more question regarding diversions from Strawberry Creek to the Arrowhead Springs Hotel crucial to whether BlueTriton could establish water rights in Strawberry Canyon dating from before the 1893 founding of the San Bernardino National Forest.
“Based on your review of all the historical documents, do you have any information or understanding that there were any diversions from Strawberry Creek to the Arrowhead Springs Hotel any time before 1929?” Lilly asked.
“It appears that there may have been a pipeline that predated the one that we just looked at by maybe six months to a year into the bottom of Strawberry Creek about a half a mile up from the hotel, but it looks like that was quickly abandoned, I think,” Loe said. “My opinion is because of several factors: 1) There wasn’t a whole lot of water getting there and 2) it appeared to cross the creek, which would have been very hard to maintain with the flows we get in that area with floodwaters. I think at some point very quickly… and it may have just been blueprints is all that they had. I think they very quickly then decided to go up the way they went all the way to where the hotel pick-up is and did that in 1929. I think all that happened in 1929.”
Lilly then asked if he was aware of any diversions from Strawberry Creek before 1929.
“No,” Loe said.
Lilly asked about the Cold Creek pipeline and when it was built.
“I think it was about the same time. It may have been earlier. So, it may have started earlier in 1929, maybe even ‘28, but it was basically at the same time, from my understanding.”
Lilly asked who built it
“I have a feeling it was probably a joint thing again,” Loe said. “For sure, the hotel was getting water from Coldwater [Canyon], so I know they were involved. Rowe did some of the work. So, I don’t know. It could have been a cooperative deal again or it could have all just been the hotel.”
Lilly asked for a conversion of one miner’s inch flow under a four-inch head.
“It said 11 inches in some spots [of the documentation he consulted] and then it said nine inches in others,” Loe said. “It said nine inches was southern California versus Northern California. So, I tried both figures to see what correlates to what Rowe was coming up with in gallons per minute, and determined that consistently throughout he used nine gallons per minute.”
Grady asserted that BlueTriton was not being given a fair shake during the hearing and that Lilly was tailoring his rulings and allowing testimony that was prejudicial to her client. Alluding to questions Lilly had himself asked of Loe, she further suggested that Lilly is siding with the State Water Resources Control Board and the various other participants in the hearing against BlueTriton.
“I want to note for the record that we object to the fact that we are layering what’s being deemed cross examination and redirect where we have aligned parties all versus BlueTriton, and so what we instead seem to be having is a multiple-layer direct tag-team approach to this proceeding,” Grady said. “We’re just feeling a little bit like old television wrestling instead of an actual proceeding.”
Lilly responded, saying, “I don’t know what your analogy is, but just to clarify, number one, I do not represent any party and I’m not taking any position. I have no idea where I am going to come out on any of these issues, so I disagree with your characterization, your words suggesting that my questions were aligned with any party. Secondly, beyond that I think that rules and Government Code 11513 subdivision b allow for that. I don’t think that there’s any provision there [to disallow seeking clarification from a witness], whether cross examination is friendly or neutral. They appear to allow for redirect within the scope of cross examination. So, for those reasons I overrule your objection.”
Grady, said she respectfully disagreed and that “This proceeding has lost track. We have absolutely no indication of the scope of what’s being presented in this parallel prosecution.”
As part of the hearing process, Lilly has called for a “site visit,” that is, a walking tour of Strawberry Canyon in which he and those wishing to participate can survey the canyon and Blue Triton’s water diversion, along with a helicopter flyover of the site involving himself and attorneys willing to participate as well as a yet-to-be-arranged tour of the Arrowhead Springs Hotel and the springs at the base of the mountains from which the hotel and associated water bottling operations historically derived their water. The hotel is now owned by the San Manuel Band of Mission Indians, which yet must consent to the tour.
Robert Donlan, as the lead legal representative of BlueTriton, made a strategic decision to have his legal team hold back on presenting certain testimony and evidence in the early stage of the hearing, instead opting to present that during the hearing’s rebuttal phase, which has yet to come. Donlan wanted Lilly to delay the site visit until after the rebuttal evidence is presented because, he said, “We think our rebuttal testimony will be very helpful to your understanding of the watershed. To take that rebuttal testimony before you go out into the field, we think, will lead to a much more informed site visit for the hearing officer.”
Lilly, however, expressed his intention of making the site visit at the earliest opportunity, tentatively set for February 16 and 17. He said he would be willing to sojourn from Sacramento to Strawberry Canyon a second time if some ground is covered during BlueTriton’s rebuttal that encourages him to make a second tour.
In response, Donlan, came across as being himself reluctant, reflecting the attitude of BlueTriton, to have the site visit take place.
“I do not think it’s an efficient use of the state’s resources to go down there twice, perhaps not even once,” Donlan said. “There are some concerns with my client about the expanding scope of this site visit, and I do want to state now, early, that we’ve talked about indemnification and waivers in the past. We haven’t heard anything from you about that. There’s some work that needs to be done before my client will let me and my colleagues participate in a site visit with the potential exposure to liability. If there is an injury – and there will be with the group you are talking about some level of injury; hopefully there’s no serious injuries – I think it’s reasonable to assume there’s some exposure to liability that BlueTriton Brands has. Whether it’s on federal land or not, you are visiting facilities that are controlled by BlueTriton, a private party. You have folks that are participating in this hearing that could get hurt. So, I’m telling you what our limitations are. You can do with that what you want. There may be some limitations on BlueTriton and its team’s ability to participate without some liability protections.”