To download a PDF of the March 31 edition of the SBC Sentinel, click on the blue portal below. Be patient! It may take as long as 45 seconds to fully populate.

Sentinel 03-31-17

No one is talking about possible kickbacks that may or may not have been provided to county officials by the firms that did the architectural and engineering work on the High Desert Detention Center during the construction phase of that undertaking. That project, originally referred to as the Adelanto Detention Center, encountered $29 million in construction cost overruns from the time work on the project began in late 2010 until its final phase in 2014.
The facility, located on 9438 Commerce Way in Adelanto, was formerly privately owned and run as a 706-inmate capacity institution known as Maranatha Prison. It was sold by its owner, the Moreland Family Trust, to the county in April 2005 for $31.2 million. The expansion, which was originally slated to cost $90,951,937, added 1,392 new beds to the existing capacity of the jail. After making a finding that the construction bids received from S.J. Amorosa Construction Co., Inc. of Costa Mesa and Flintco of Folsom were non-responsive, the county in December 2010 awarded a $90,951,937 contract to Bellevue, Washington-based Lydig Construction as the low bidder. But during the more than three years of construction, the board of supervisors approved a total of 29 change orders and amendments to the contract, and the price zoomed to $120,419,790.
Hellmuth, Obata & Kassabaum, Incorporated, based in Culver City, was the architect on the project. Los Angeles-based Jacobs Engineering was the project engineer, a subcontractor to Hellmuth, Obata & Kassabaum.
The total price tag on the project, including site acquisition, engineering, architectural, licensing and inspection costs, reached $176,651,910, which was $25.45 million more than the $151.1 million projected to be the project’s overall price including a ten percent cost overrun contingency when it was approved in 2010.
The county rushed things, as it needed to complete the expansion by January 31, 2014 or face losing $100 million in state funding. This impatience on the county’s part led to former director of architecture and engineering Carl Alban and other county officials prompting the board of supervisors to approve the hodge-podge, stopgap and improvisational change orders. In recommending approval of many of the change orders and contract amendments, Alban cited requirements mandated by third parties such as the state fire marshal. The county was able to declare the detention center as operational in January 2014 to meet the state deadline, doing so prior to the completion of work on the facility.
A number of the change orders or amendments related to fire safety issues. The fifth contract amendment approved on February 23, 2013 pertained to $2,472,388 worth of changes to the smoke control evacuation and automatic fire sprinkler systems, roof supports for the heating, ventilation and air conditioning system, as well as other state fire marshal-mandated modifications. The sixth amendment to Lydig’s contract, approved May 21, 2013, was, in Alban’s words, to “convert the specified fire smoke dampers to smoke dampers as part of the revisions to the smoke control system” in the amount of $5,063,392.
On June 25, 2013, an eighth amendment was approved in the amount of $6,004,736 for revision of the smoke control systems and fire protection systems, a portion of the cost of which was covered with Amendment No. 6. On August 6, 2013, the board approved an eleventh amendment, providing Lydig with $709,533 for the installation of a third electrical service system and a booster pump to ensure the proper flow and functioning of the fire protection systems; the expedited procurement and delivery of smoke control panels and supervisory panels necessary to achieve the scheduled project completion date; and the relocation of smoke detectors in the dormitory sleeping areas as required by the Board of State and Community Corrections.
On November 11, 2013 the board approved a twelfth amendment to the contract for $415,952 to add twenty-seven dampers to the smoke evacuation ductwork, modify the glazing stops at master control, install fire wrap to ducts and dampers at specified locations and separate the dry zones at the housing units.
On December 17, 2013 a thirteenth amendment in the amount of $304,450 called for modifications to the electrical service yard, fire sprinkler system isolation in the support building and constructing foundation and adding a position indication valve and monitoring devices for the fire booster pump, relocating fire/smoke dampers, revising exhaust duct risers in the center core of the housing units and adding a control module to the master control fire shutter.
On March 25, 2014, a fourteenth change order was approved for $336,682 to cover the cost of correcting overcurrent issues, improvements to water facility operations, balancing of the smoke control system, perform load bank testing of the generators and to carry out various corrective work.
Hellmuth, Obata & Kassabaum, Incorporated was originally given a $4,466,000 contract to provide architectural service on the project. Nine amendments later, Hellmuth, Obata & Kassabaum’s contract reached $10,438,396, an increase of $5,972,396.
Throughout the time the project was under way, county officials were highly defensive of the change orders and amendments, two of which were approved after the project was declared operational and opened for occupation.
Suggestions during 2013 while costs on the project were escalating pertained to kickbacks involving county officials and not Hellmuth, Obata & Kassabaum or Jacobs but rather Lydig, as the general contractor on the project which was the primary beneficiary of the cost overruns.
Almost immediately after the project was completed, however, on April 22, 2014, the board of supervisors authorized legal action against Hellmuth, Obata & Kassabaum and Jacobs. The county did not authorize any action against Lydig and made no public reproval of county architectural and engineering division employees who recommended passage of the contract amendments and change orders which created the cost overruns. Subsequently, when the lawsuit was actually filed, the county’s lawyers suggested that Lydig played a primary role in revealing the flaws contained in Hellmuth, Obata & Kassabaum or Jacobs’ design specifications.
More than a year had elapsed between the board of supervisors’ authorization of the suit and its actual filing. In that interim, the county provided Allen Matkins Leck Gamble with a retainer of $700,000 to lay the groundwork of the case against Hellmuth, Obata & Kassabaum and Jacobs. The actual filing of that suit was held in abeyance while Allen Matkins Leck Gamble and county representatives sought to negotiate with the two firms a settlement short of litigation that would be acceptable to the board of supervisors. After burning through $182,000 of that retainer, Allen Matkins Leck Gamble was making what was deemed insufficient progress toward having Hellmuth, Obata & Kassabaum and Jacobs acknowledge any responsibility for the overruns. The final cost overrun on the project attributable to either Hellmuth, Obata & Kassabaum and Jacobs occurred in March 2014. Any legal action by the county against those firms needed to be pursued within two years of the recording of that overrun. On May 1, 2015, Allen Matkins Leck Gamble, representing San Bernardino County, filed suit against Hellmuth, Obata & Kassabaum, Incorporated, and against Jacobs Engineering, alleging breach of contract and negligence.
That litigation has now dragged on for 23 months. In the meantime, Allen Matkins Leck Gamble has departed as the county’s legal representative and has been replaced by Mary Anita Salamone, with the law firm of Atkinson Andelson Loya Ruud & Romo.
Salamone was unwilling to disclose whether Allen Matkins Leck Gamble departed as the county’s legal representative in the lawsuit after learning that there was some untoward behavior on the part of some county officials. If, as has been suggested, some county officials involved in the decision-making process with regard to the contract amendments and/or change orders on the High Desert Detention Center project received money from Hellmuth, Obata & Kassabum and/or Jacobs Engineering, this would establish, in legal parlance, that the county had “unclean hands.”
The doctrine of unclean hands holds that a party asking for a judgment cannot have the help of the court if he/she/it has done anything unethical in relation to the subject of the lawsuit. Thus, if it can be established that a county official was on the take with regard to the High Desert Detention Center project, it would make pursuing the case against the architectural and engineering firms somewhat problematic. Paradoxically, if a corporate official or officials with one [or both] of those firms was or were, in fact, essentially bribing San Bernardino County officials, this might strengthen the county’s case. In this way, a primary question would be whether county officials were shaking down Hellmuth, Obata & Kassabaum and/or Jacobs Engineering, that is actively soliciting money from either or both of them, or was rather paid to look the other way after making discovery of a preexisting illicit scheme. Under California law, any contract that proceeds from corrupt action is rendered void and the offending party could be forced to disgorge whatever it was paid in accordance with such a tainted contract.
Salamone made no direct response to questions as to whether she had uncovered information to suggest bribes or kickbacks were an element of the $29 million in cost overruns on the detention center project and whether she had even attempted to trace out those reports to make a conclusion with regard to their accuracy or not.
This week, on Tuesday, the board of supervisors met in closed session to discuss the litigation against Hellmuth, Obata & Kassabaum and/or Jacobs Engineering. It returned from those secret deliberations and offered no report as to what action it had taken with regard to direction to Salamone on how to proceed in the lawsuit. –Mark Gutglueck

In a development with multiple layers of irony, Oxford Preparatory Academy has filed suit against its founder, the educator whose learning formula provided the building blocks for the academic success the much celebrated school achieved before imploding last year.
That lawsuit comes little more than two weeks before Oxford is due to make a do-or-die presentation to the California Advisory Commission on Charter Schools in Sacramento in a last-ditch effort to forestall its demise and renew its charter beyond the end of the current school year.
The collapse of Oxford Preparatory Academy, which now taints the legacy of its founder, Sue Roach, coming as it does after its students soared to the heights of scholastic achievement over an extended period, is a saga of near-Sophoclean proportion.
In the early 2000s, Roche had been the principal at Rhodes Elementary School, the highest-performing school in the Chino Valley Unified School District consistently over a number of years. With the backing of Chino Valley Superintendent Wayne Joseph, Roche submitted a proposal to create a charter academy, which the school district’s board of trustees supported. Gambling more than $3 million toward the concept, the district opened Oxford Academy at the shuttered El Rancho Elementary School, located at the corner of C Street and Oaks Avenue in Chino, after having rejected establishing the campus at the former Los Serranos Elementary School site in Chino Hills. Utilizing Roche’s formula of a rich curriculum, old-fashioned book learning, intensified classroom focus and heavy doses of parental involvement, Oxford exceeded all expectations.
In 2011, students at Oxford Preparatory Academy collectively outperformed their counterparts at every other elementary and junior high school in San Bernardino County, as measured by their score on California’s Standard Testing And Reporting exams. They repeated the feat in 2012 and 2013. Known by the acronym STAR, the tests provide an academic performance rating or index, known as API, for second through 11th graders in every class, and at every school and district in the state. The tests measured students’ progress toward achieving California’s state-adopted academic content standards in English–language arts, mathematics, science, and history/social science. The results were used, until 2014, for student and school accountability purposes. Oxford had an Academic Performance Index (API) score of 958 in 2011 and improved to 972 in 2012.
Enthusiasm for the Oxford undertaking was so high, that the number of student applicants to attend the school routinely outran the number of desks and classroom space for them by as much as 600 per year, requiring that the district hold a lottery as a means of granting admission to it. Even more significantly, Joseph had to take the extraordinary step of forging a memorandum of understanding between the district and Oxford Preparatory, preventing the academy from poaching the district’s highest performing teachers. That memorandum of understanding prohibited district teachers from taking a leave of absence from the district to teach at the charter school. The charter school was also tasked with the responsibility of providing special education services.
Under California law, charter schools are sponsored by a public school district and are supported by taxpayer funds but a autonomy, within certain parameters, to carry out its educational mission in compliance with its declared educational goals and according to its curriculum approved by the sponsoring school district’s school board. Each charter school has its own internal corporate board, which is independent of the district board. Charter schools are not given indefinite license to operate, but are chartered for a defined number of years. To continue beyond that point they must have their charter extended.
In December 2011, the Chino Cally Unified School District’s board unanimously extended Oxford’s charter for five years, from 2012-13 through 2016-17.
In the meantime, Roche expanded the Oxford model, convincing the Capistrano Unified School District to sponsor another campus, the Oxford Preparatory Academy in Mission Viejo. Roche transferred Jason Watts, who had been the principal at Oxford Preparatory Academy in Chino to Mission Viejo, where he served as the Mission Viejo’s inaugural principal/chancellor.
At the Mission Viejo campus, students rang up an impressive 993 academic performance score on the 1,000-point maximum index during the first year the school was open.
As 2016 began, it would have appeared unthinkable that the Chino Valley Unified School District would not renew the academy’s charter for 2017-18 and the four school years beyond that, with the time to do so approaching. Oxford was an exquisite feather in the district’s cap.
But in the shadows away from the limelight of the academy’s spectacular scholastic accomplishments, Roche had taken action which would redound to destroy her reputation and not simply tarnish but very likely extirpate the academic gem she had polished to near perfection.
After basking in accolades accompanied by parental enthusiasm for an academic system in a public setting that rivaled or exceeded the educational opportunities that exist in private schools in which parents would typically pay tuition exceeding $10,000 per year per student, Roche resolved to cash in on the institution she had created. A first step she took in that direction consisted of incorporating Edlighten Learning Solutions, identified as a “charter management company,” was incorporated in August 2012.
Roche withdrew from the position of executive director of Oxford Preparatory’s corporate entity and promoted Barbara Black to that position, while assuming an undefined administrative role in the academy. She then arranged to have Oxford contract for the administrative services she was providing not directly with her but through, Edlighten Learning Solutions, a for-profit entity in which she is the central figure and prime mover.
Upon Roche’s direction, Black had Oxford Charter Academy enter into a contractual arrangement to pay Edlighten $5.3 million to, essentially, employ Roche as the school’s contract administrator and operations director over the next four years.
With the date for the school board’s determination with regard to renewing Oxford’s charter approaching last spring, Joseph learned of what Roche had done. Roche was, Joseph became convinced, seeking to exploit the non-profit Oxford Preparatory Academy and line her own pockets. He publicly accused Roche of creating and then engaging in a financial conflict of interest which would have the effect, he implied, of shortchanging Oxford Preparatory’s students while enriching herself. Roche had engaged in “arrogance, overreach and greed” in the administration of the academy which victimized Oxford’s students and parents, Joseph told the school board, while employing “machinations” by which she fired dedicated educational professionals or otherwise advanced herself. Roche, the superintendent said, was cynically relying upon the reputation Oxford had attained and was manipulating the academy’s reliance on consultants, of which she was the primary one, to profit. In compliance with Joseph’s recommendation, the school board declined to renew Oxford’s charter.
Initially, Oxford’s internal board asserted the school district’s action was unjustified but then regrouped and terminated its relationship with Roche and Edlighten in May 2016. It then appealed the district’s decision to the county school board and San Bernardino County Superintendent of Schools Ted Alejandre, but the county school board declined to take any action, maintaining that by changing its management structure, the proposal that Chino Unified had rejected no longer existed, and that what had been rejected no longer existed and thus could not be reestablished through appeal. Oxford then turned to the State Department of Education, seeking to get a charter from it. In the meantime, Alejandre had made a request for an audit.
The Fiscal Crisis & Management Team, an adjunct to the California Department of Education, carried out that audit and in early December delivered a 45-page audit summary and report, highlighting the conclusion that Roche’s action may have crossed the line into criminality. The audit cataloged how Roche created a system that involved Yorba Linda-based Edlighten and another entity, the Nevada corporation Educational Excellence, in dodging accountability through what was characterized as a “daisy chain” of payments between for-profit companies which employed her family, friends and associates. Roche purposefully hid or obscured financial transactions and operations in such a way that the auditors, not to mention Chino Valley Unified officials and even Oxford’s own in-house employees could not easily track them, according to the audit report. Ultimately, public school funding was diverted to bank accounts controlled by Roche and her associates, according to the audit. Oxford Preparatory, Edlighten and Educational Excellence employed several of Roche’s relatives, including her husband Terry, daughter Rebecca Baty, son Brian Roche and cousin Nick Califato, all of whom were paid through the organization
“Interviews indicate that following the petition renewal in 2012, the founder created a complex structure of charter management corporations that exercised significant influence over transactions and contracts between these entities, and secured considerable financial benefit through contracts that charged management service fees up to 10 percent, funneling charter school dollars from Oxford Preparatory Academy schools,” the audit report states, such that Oxford was charged “for services that already existed.”
Oxford Preparatory paid Edlighten $4.2 million in management fees between January 2013 and June 2016, according to the audit. Those numbers were steadily growing, from $821,490 in 2013, $1.2 million in 2014 and $1.3 million in 2015. Edlighten was on track to take in more than $2 million from the academy in 2016, when Edlighten’s contract with Oxford was terminated in May. Because of that, Edlighten received payments of just $834,522 in 2016.
Roche’s actions were both deliberate and calculated, the auditors opined, and they said there was “sufficient evidence that affiliated and/or related party organizations were intentionally created to divert and launder funds from Oxford Preparatory Academy.”
In response to the audit and its eroding public position, Oxford Preparatory Academy greatly altered the blanket denials of wrongdoing it had issued nearly eight months previously.
“We concur that the Fiscal Crisis & Management Team findings are of great concern,” Oxford Preparatory Board Member Michael Delgado said in December a message to parents of students at the school. “The current Oxford Preparatory Academy board and administration had no knowledge of Mrs. Roche’s inappropriate expenditures and had zero authority over the way in which Edlighten spent its funds. News of this apparent mismanagement of funds – specifically the Fiscal Crisis & Management Team’s allegations of money laundering by [Edlighten] – is shocking and disappointing to all of us. The current board and administration were kept in the dark about the activities during Mrs. Roche’s tenure and outraged by the revelations in the Fiscal Crisis & Management Team report. Oxford Preparatory Academy has already implemented numerous changes to address many of the issues that have been raised.”
Delgado said the matter involving Roche should not detract from Oxford’s reputation for academic excellence or curtail its mission to offer a top-notch education to students. “In the classroom, our results speak for themselves,” Delgado said.
The academy redoubled its effort to extend its charter. In doing so, it distanced itself yet further from Roche. The academy’s board members long-associated with Roche stepped down and were replaced. Barbara Black, who had reflexively sought to defend the academy when the board denied the petition for charter renewal last year by insisting that there was “nothing out of the ordinary” or improper in the arrangement Oxford had in its contractual relationships with Edlighten and Educational Excellence, was forced out as executive director. She has been replaced, at least temporarily by Denise Pascoe, who holds the title of interim executive director. Pascoe is being assisted by Andrew Crowe, who is serving in the capacity of interim managing director. The reconstituted board put into place policies banning nepotism and conflicts of interest while intensifying oversight and tightening internal financial controls.
On January 31, Oxford provided to the Chino Valley Unified School District a report on its own internal investigation into the matter which accounted for some, though not all, of the financial diversion that took place. In that report, Oxford laid out that Roche had been the recipient of $125,435.39 in payments that had not been authorized by the academy’s board. The academy claimed it had succeeded in recovering $15,900 of that amount from Roche. Oxford reported that it was seeking full reimbursement of the remaining $109,535.39 from Roche. Two weeks ago, on March 17, it went even further, filing a lawsuit in Orange County Superior Court against her and Edlighten Learning Solutions.
The lawsuit alleges breach of contract, breach of fiduciary duty, negligence, and violations of business and professions code Section 17200.
Calling what Roche had engaged in a “scheme,” Pascoe said, “Oxford Prep alleges that Edlighten Learning Solutions and Sue Roche violated the trust of our teachers, parents and students, charter authorizers and the public causing damage to our school’s reputation and community. We have an obligation to pursue corrective actions and hold those responsible for wrongdoing accountable.”
Roche’s attorney said, “The lawsuit is simply a breach of contract argument concerning whether Oxford Ppreparatory Academy’s charter management organization, Edlighten, provided all of the services due to the academy under the contract between Enlighten and Oxford. It does not concern Sue Roche because she was not a party to the contract. She was improperly named as a defendant, which will be corrected. Moreover, the contract required arbitration, not litigation, and so the entire lawsuit is improper.”
According to Greenberg, “The lawsuit does not concern any issues of restitution. The money you mention [the $125,435.39 in payments the academy’s board now says it did not authorize and which Oxford is seeking to recoup] concerns a bonus that Oxford Preparatory Academy’s accounting department issued to Ms. Roche before her retirement. Oxford has discovered that while the board conducted Ms. Roche’s annual review and she was told she would receive a bonus, the amount of the bonus was never formally voted upon by the board after Ms. Roche’s departure. This is an error on the part of the woman that took over as executive director of Oxford. However, there are countervailing issues – for example, the fact that Ms. Roche was not paid for more than 200 days of work as executive director and pursuant to Ms. Roche’s employment contract, she is entitled to receive health care coverage for life. Ms. Roche requested a mediation with Oxford Preparatory
Academy and the mediation was conducted yesterday. The parties worked cooperatively to address various old and dated issues and will meet again in the next few weeks to hopefully complete its efforts and resolve things amicably.”
The demise of Oxford Charter Academy rests entirely on the shoulders of the schoold district and Joseph, Greenberg said.
“The district’s issue is that it is trying to destroy its competition for students by denying Oxford Preparatory Academy its charter and thereby taking back the students and the money that the state provides to educate those students,” Gteenberg said. “Oxford did too good a job competing with the district and as a result Oxford Preparatory Academy’s students’ success became an embarrassment for Wayne Joseph and the Chino Valley School District. Sadly, Oxford’s students are paying the price for the success of Sue Roche’s teaching method and her approach of valuing each child. Rather than learn from Oxford Preparatory Academy’s successful methodology, the Chino Valley School District would rather destroy it.” –Mark Gutglueck

Mitch Norton

By Mark Gutglueck
Twelve weeks into the Colonies Lawsuit Settlement Public Corruption Trial, the prosecution began direct examination of its witness with the most comprehensive knowledge and understanding of the complex civil case at the basis of the dispute which resulted in alleged extortion and bribery involving four high ranking public officials.
San Bernardino County Deputy County Counsel Mitchell Norton was assigned to oversee and guide the county through a thicket of litigation that grew out of the collision between the interests of the Colonies Partners consortium, which was intent on bringing to fruition residential and commercial subdivisions on 434 acres of land it had purchased from the San Antonio Water Company in northeast Upland, and the county’s flood control division, which had easements recorded in the 1930s granting it the authority to use at least 31 acres of that property to accommodate storm water runoff. The Colonies Partners’ aggressive development scheme clashed with the county’s perceived need to utilize a portion of that property for flood control purposes. The matter was complicated further still by the advent, simultaneous with first phase of the Colonies Partners development effort, of the 210 Freeway Project, which intensified the already existing drainage and flood control problems. Because of the City of Upland’s failure to clearly demark responsibility for the provision of infrastructure to accommodate the Colonies Partners’ development and the freeway construction, when the county interrupted and retarded the progress of the Colonies Partners’ development plan the Colonies Partners responded with litigation.
According to prosecutors as articulated in a 29-count indictment handed down by a grand jury in May 2011, Colonies Partners co-managing principal Jeff Burum, after four years of being unable to resolve the matter with the county so that the project could proceed as he envisioned, conspired with former sheriff’s deputies union president Jim Erwin to extort the then-chairman of the board of supervisors, Bill Postmus, and the then-vice chairman of the board of supervisors, Paul Biane, by threatening to reveal in mailers to be sent to voters throughout the county highly derogatory personal information about both of them. After Postmus and Biane acceded to this blackmail and voted, along with then-supervisor Gary Ovitt, in November 2006 to confer a $102 million payout to the Colonies Partners to settle the lawsuit, according to the indictment, Burum then provided Postmus, Biane, Erwin and Mark Kirk, who had been Ovitt’s chief-of-staff, each with $100,000 bribes in the form of donations made to political action committees they had created or otherwise controlled. Kirk’s bribe, the prosecution alleges, was provided to him by the Colonies Partners in return for having delivered Ovitt’s vote in favor of the $102 million settlement. Erwin, who was not employed by the county at the time of his efforts related to the extortion, was, however, employed as assistant county assessor in 2007 when the $100,000 donation to his political action committee was made.
In February 2010, Postmus and Erwin were charged in the matter, and both pled not guilty. But a year later, Postmus pleaded guilty to 14 felony political corruption charges and turned states evidence, testifying as the star witness before the grand jury that indicted Burum, Biane, Kirk and Erwin. The charges in the indictment supersede the charges originally filed against Erwin, whose fate is being decided by a jury in the same courtroom that is separate from the jury hearing the case against Burum, Erwin and Kirk.
The office of county counsel is the county’s stable of in-house attorneys. The office is headed by the county’s top staff lawyer, who holds the title of county counsel. The lawyers working beneath county counsel, such as Mitch Norton, bear the title deputy county counsel.
Because of a death in the family of one of the jurors hearing the case, testimony was heard this week only on Wednesday. Norton was the only witness and the entire day was taken up by his direct examination by one of the two lead members of the prosecution team, Supervising California Deputy Attorney General Melissa Mandel. Unmolested by defense cross examination, Norton was used by Mandel to illustrate the underlying situation and the basis and much of the substance of the legal wrangling that had been ongoing between the Colonies Partners and the county. In this way, Norton tied together much of the case and filled in many of the blanks that existed between the less-than-fully contexted snippets heretofore provided to the jury by previous prosecution witnesses.
To Mandel’s questions, Norton explained that the Colonies Partners in 2002 had filed a lawsuit against the county and the San Antonio Water Company seeking “declaratory relief” as part of a “quiet title” action aimed at “settling the dispute over land rights. At issue were a variety of [flood control] easements on the land the Colonies Partners had purchased.” According to Norton, the Colonies Partners had purchased the property in 1997 for $16 million. Some 67 of the 434 acres, Norton said, were subject to the easements the county had, meaning the property could be used to accommodate flood waters. It was when the county’s intention to continue to use the property for flood control purposes was joined with the county’s creation of another element of flood control infrastructure, the 20th Street Storm Drain, Norton said, that the litigation came about.
The 20th Street Storm Drain was designed and built by the San Bernardino County Flood Control District at the behest of the City of Upland to convey water away from both the area north of the freeway as well as water accumulating on the subgrade freeway during rainstorms. The county, under the aegis of the flood control easements it had recorded against the Colonies property, channeled the water from the 20th Street Storm Drain onto the Colonies property, where an existing basin, consisting of a long-abandoned quarry, was located. Norton said the construction and eventual operation of the “20th Street Storm Drain was the most importantly overwhelming factor that led to the litigation. The Colonies [Partners] purchased the property at almost the precise same time the extension of the 210 Freeway was being planned and built through the area. The entire freeway was to be built undergrade, depressed, if you will.” This would cause water to pool on the freeway when it rained, Norton said. “The solution to that drainage challenge was the 20th Street Storm Drain,” Norton said. “The 20th Street Storm Drain was going to be depositing a lot of water on their property.”
Norton said while the Colonies Partners’ initial suit for quiet title did not involve a monetary component, he was aware early on that the Colonies Partners was requesting that money be provided to it to resolve the matter. He said the first amount the Colonies Partners was requesting was $25 million, which was first mentioned in February and then again in June of 2002. He said the request was considered by the flood control advisory board for that area of the county and that though some members of that panel were in favor of making that payment, the majority prevailed in voting against doing so out of the belief that the construction of the basin “would not cost that much.”
Norton also said that the California Department of Transportation – Caltrans – had required the northernmost strip of the Colonies Partners property for the 210 Freeway right-of-way. A lawsuit between the Colonies Partners and Caltrans ensued, which settled, Norton said, before going to trial and which resulted in Caltrans paying $18 million to the Colonies Partners for that property and any damages to the company as a consequence of both the taking and the use of that land.
Mandel asked Norton if the Caltrans settlement in which the Colonies Partners received $2 million more for fewer than 40 of the 434 acres it had purchased for $16 million had “some significance to you in your analysis of the quiet title action?”
“The facts and issues were interrelated,” said Norton “The Caltrans lawsuit was all about impacts from the freeway project, what the value of the property Caltrans took from them [was] and the value of the damages above and beyond that which the Colonies [Partners] might have suffered. The quiet title action was related because the flood control easements had an impact on how the new basin and the drainage was to be handled.”
In this way, Norton suggested, an argument could be made that the Colonies Partners had already accepted the limitations on the developability of its property and that it would need to dedicate a portion of the property – that part already encumbered by the flood control easements and perhaps more – to hosting the basin, and it had already been compensated monetarily for making that dedication.
The litigation between the Colonies Partners and the county was being heard by Judge Peter Norell.
At issue and at stake in the litigation, Norton explained, was not just the Colonies Partners’ contentions against the county, but the wider issues relating to the circumstance, including that the Colonies Partners’ development plan was not taking place in a vacuum and had impacts of its own, that the Colonies Partners’ property stood to see its value raised as much or even more than it had been damaged over the extension of the freeway, which transformed a portion of that land into valuable prime commercial property, and that most, if not all, of whatever damages the Colonies Partners had suffered had come not at the hands of the county but as a consequence of the action of three other governmental entities – Caltrans, the City of Upland, and the transportation agency for the entire county, San Bernardino Associated Governments, which is an agency independent of the county. The 20th Street Storm Drain had been constructed upon the request of the City of Upland in consultation with Caltrans and the transportation agency to facilitate the freeway construction as well as development such as the Colonies Partners’ Colonies at San Antonio residential and Colonies Crossroads commercial subdivisions.
With regard to the Colonies Partners’ legal action, Norton said, “Ultimately, the underpinning of this action was the cost of the flood control improvements that were necessary because of the 20th Street Storm Drain. The rest of the picture was the 20th Street Storm Drain was going to drain the freeway and bring a large volume of water. What was the flood control basin going to look like and who was going to pay to build it? The county argued they had easements. The 20th Street Storm Drain was developed and planned by four different public agencies. It was necessary to keep cars from being flooded off the freeway. This was significant and important to the size of the basin required to accept that drainage.”
Thus, Norton said, “The question of the continuing viability of the easements was important because if the public agencies could not rely on those easements, then the county would need to pay money to maintain the validity of the easements.”
In this way, Norton said, the Colonies Partners’ claim of monetary damages against the county hinged on the contention that the easements were not valid. And indeed, Judge Norell entered a ruling that the county had abandoned the easements. Based upon the analysis he carried out with another member of the office of county counsel, Charles Scolastico, as well as the county’s outside counsel at that time, Thomas Winfield, they recommended to the county board of supervisors to have the county appeal Norell’s ruling to the Fourth District Court of Appeal in Riverside. The board voted to do so.
Mandel asked Norton what had occurred at that point.
“I believe that soon after Judge Norell issued his ruling there was a big increase in construction activities at the property,” Norton said. “I got the general impression there was a lot of heavy equipment out there.” That activity included efforts to effectuate “the removal of two levies,” which, he said, raised the concern of county officials that the Colonies Partners were “compromising flood control protection there.” His office quickly moved to file a writ to get an injunction halting the Colonies Partners’ action, Norton said. The injunction was granted but was in effect only a short time, he said, and the Colonies Partners construction activity at the property never stopped.
While the appeal was pending, Norton said, efforts continued toward negotiating a settlement. In those discussions, he said, the Colonies Partners made demands for compensation which were more than the $25 million they had been asking for previously and some of the discussions involved an element of the deal consisting of the county deeding over to the Colonies Partners some of the surplus property it held elsewhere.
Norton said that Paul Biane was at that time the member of the board of supervisors who was most involved in the settlement discussions. He said that though it was not illegal for members of the board to be involving themselves directly in discussions with the principals in an entity against whom the county is engaged in litigation, there was concern about Biane’s conversations with Burum in a circumstance in which an attorney to represent the county was not present.
“I will say I have a general recollection that Mr. Biane made it very clear that he had a lot of conversations with Mr. Burum about settlement,” Norton testified.
“Were there concerns expressed about these meetings?” Mandel asked.
“I don’t know if I can narrow it down to a particular time or specific discussion. I would just say it had been communicated to Mr. Biane and the whole board this is a delicate legal matter… and to use discretion,” Norton said.
Ultimately, the county grew disenchanted with Winfield as its legal representative and brought in the law firm of Munger, Tolles & Olson to represent it in the litigation with the Colonies Partners. Penultimately, the Fourth District Court of Appeal issued a tentative ruling reversing Norell in his decision that the easements had been abandoned. This undercut the Colonies Partners in its assertions that the county, by insisting it had the right to use the existing basin on the Colonies Partners’ property for water runoff, was illegally “taking” property. The appellate court ruled that the county was entitled to use 31 acres specified in a 1934 easement for flood control purposes and would need to work out terms relating to its use of another 30 acres specified under another easement recorded in 1939, as well as another six acres involved so the 67 acre basin could be accommodated on the Colonies Partners property.
Mandel produced an email from Norton to Steve Kristovich and Paul Watford with the Munger Tolles & Olson firm dated March 21, 2005 in which was given a glimpse into the high pressure atmosphere and browbeating Biane was being subjected to at this point during his meetings with the Colonies Partners principals, who had been the largest donors to his campaign for supervisor in 2002, when he unseated his predecessor as Second District county supervisor, Jon Mikels. In the memo, Norton tells Kristovich and Watford that Biane “is enthusiastic about telling Dan [Richards, Burum’s co-managing partner] how they may have no taking claim, since Dan continues to bend his ear on that point, and mentioned that Dan may play more ‘good cop’ to Jeff’s “all geared up to battle approach.”
Norton confirmed the email’s validity and that Biane had met with Richards and Burum at the Red Hill Country Club in Rancho Cucamonga.
Despite the relative victory the county had achieved with the appellate court’s reversal of Norell’s ruling and the reestablishment of the validity of the flood control easements on the Colonies property, the Colonies partners continued to press for a high dollar settlement, Norton testified.
Norton gave an illustration of that point by his account of a March 25, 2005 meeting at Biane’s Rancho Cucamonga district office, located within the ground floor of the Rancho Cucamonga Courthouse. Present at that Friday meeting, were the county’s representatives consisting of Postmus, Biane, Norton, Kristovich and Watford and the Colonies principals Burum and Richards; the company’s consultant, former state senator Jim Brulte; and Colonies attorneys Scott Sommer and Heidi Timken.
Norton said he was under the impression that “the purpose of the meeting was to have a free flowing debate and discussion about the tentative opinion that had just come out” because the Colonies Partners “did not agree with the county’s view of the tentative opinion.”
Mandel asked Norton, “When the meeting first began, did Mr. Postmus make an unusual announcement?”
“At the outset to the meeting, he made some introductory remarks, saying ‘Thank you, everyone, for coming,’ and saying we were going to have a debate and that after a while, when that portion of the meeting is concluded, he would ask the attorneys to be excused from the room so they could talk to the Colonies [Partners] about settling,” said Norton. “It was more of a table setting remark, as ‘Here’s what we’re going to do this afternoon,’” Norton said. “It was a surprise.”
Mandel asked if Norton had perceived it as more than just a surprise. She referenced his testimony before the grand jury on February 24, 2011, when he characterized Postmus’ move as “bizarre, surreal and quite unusual.” Norton acknowledged, “It did strike us as being unusual.”
From their vantage point outside the glass-walled conference room, Norton said he, Kristovich and Watford could see Brulte at the head of the conference table, Postmus and Biane on one side and Burum and Richards on the other. “I remember a spirited conversation with documents and maps on the conference table,” Norton said, estimating the meeting lasted about an hour.
Mandel asked Norton if he noted at that time “anything unusual about Mr. Biane’s appearance and demeanor?”
Norton said Biane was “distressed and disheveled.”
“Then what?” Mandel asked. Norton said Biane said, “We have a tentative deal and want to talk to you about it.” The proposal had two components, Norton said, consisting of $22 million in cash and a $55 million land component.
Mandel asked Norton if Biane had tried to “explain why he decided to settle for $77 million?” Norton said he could not recall. Mandel then returned to the subject of the March 21 email in which Biane had come across as being determined to have the attorneys hammer Richards and Burum with the implication of the appellate court ruling that the county was not taking any property from the Colonies to which the county was not entitled and that it owed the company no money, pointing up the contrast with what had occurred during the March 25 meeting.
“We didn’t discuss the settlement, per se,” said Norton. “I know he was enthusiastic about being aggressive with the Colonies [Partners] about the merits of the case” four days previously.
“Did you explain to Mr. Biane and the other members of the board of supervisors that if there is no taking claim they didn’t owe anything?” Mandel asked Norton.
“I believe we had,” said Norton.
Mandel asked Norton what followed the announcement of the tentative settlement.
“After Mr. Biane informed the lawyers of the tentative deal, he next asked the Munger Tolles lawyers if during the next closed session meeting [of the board of supervisors] they would present a written analysis for proposed settlement and recommend that it be approved,” Norton said.
“What was the reaction?” Mandel asked.
“Their [Watford and Kristovich’s] reaction was ‘Not so fast. We understand your request. Thank you for giving us this information we need to analyze. We need to look at it and see what we come up with,’” Norton said.
In fact, Kristovich and Watford did generate a written analysis, but it was not one that recommended approval. On the contrary, it recommended against the $77 million settlement, laying out that the dollar figure was not justifiable, that the Court of Appeal was leaning toward a ruling in favor of the county and had yet to enter that decision, and that entering into a unilateral settlement with the Colonies Partners on terms that were unreasonable would very likely have the effect of compromising efforts by the county and flood control district to recover its costs from the City of Upland, Caltrans and the regional transportation agency in its indemnification action against those three parties.
After he had left work at 5:15 p.m. on April 4, 2005, the Monday before that memo was to be distributed the following morning to the board of supervisors in a closed session, Norton said he received a conference call from both Postmus and Biane. He remembered the time, he said, because he had just dropped two of his children off for piano lessons.
Mandel asked about the demeanor and tone of voice Postmus and Biane evinced during that call.
“I don’t know about demeanor or tone, I just remember the overall message communicated by them was pressure to not have the memo distributed,” Norton said. “I do not recall the exact words they used. They just expressed very strongly they were hoping Munger Tolles would not go forward with the [memo]. They were somehow hopeful I could stop that from happening.”
The memo was presented to the board. Despite the recommendation that the county not proceed with the settlement as worked out at the March 25 negotiation session, the board appeared purposed to settle on the $77 million terms. Norton said that Watford and Kristovich, acutely aware that the board was not following their advice, sought to withdraw as the county’s legal representative, finalizing that move in May 2005. In June 2005, the memo was leaked to the press. Public outrage over the $77 million settlement figure that ensued resulted in the settlement proposal being scrapped.
Norton testified that in attempting to come to terms with the Colonies Partners’ damage claims that were intrinsic to the litigation, county officials undertook an effort to determine the value of the property rendered undevelopable because it was to be devoted to flood control purposes. It was that loss which the Colonies Partners claimed constituted a major portion of the damages it was sustaining. Norton pointed out that in doing its appraisal, the county worked from the assumptions that the property was encumbered by the flood control easements; that it was zoned as open space by the City of Upland, which had land use authority over the property; that arrangements for flood and drainage alleviation had to be made to render the property developable; and that an entitlement to proceed with the development of the property at the intensity envisioned by the Colonies Partners had yet to be granted. This led to the conclusion, Norton said, that the 67 acres of property which the county intended for use as a flood control basin was in its entirety valued in the neighborhood of $1 million. He contrasted this with the $1.5 million per acre estimation of the property’s value, which the Colonies Partners’ appraiser, Michael Waldron, arrived at based upon the assumption the property was entirely and fully developable and entitled to be put to “its highest and best use.” Minus some necessary set-asides, Norton said, this meant the Colonies Partners and Waldron were valuing the 67 acres at $86 million, a difference of $85 million from the county’s assessment.
“The concern with Mr. Waldron’s approach with his appraisal of the Colonies property is one assumption he made for the purposes of his analysis, which was there was no 20th Street Storm Drain in existence,” Norton said, and that “there would be no water flowing [from the freeway] onto the property. That was an inappropriate appraisal to use as the benchmark for a land exchange. His appraisal was not appropriate to use in this context.”
Norton further related what came across as inappropriate characterizations, representations or suggestions by members of the Colonies Partners legal, advisory and lobbying team. Norton said he had been invited by Biane’s chief of staff, Matt Brown, to the Rancho Cucamonga office of one of Burum’s companies, Diversified Pacific, to meet Waldron for a general discussion of issues. Others in attendance at the meeting were Jim Brulte and the Colonies Partners’ attorney Heidi Timken, Norton said. At one point, Norton said, Brulte said something to the effect that establishing the high numbers in the appraisal “would be important to protect the political futures of the board members … to justify a settlement of that magnitude.”
Norton testified that when he expressed doubt as to the validity of the numbers in the appraisal and whether in using standard appraisal criteria the property and all that was related to it could be established at the value Waldron was propounding, “Ms. Timken’s comment was ‘Don’t worry. We’ll make it pencil.”
During the single day he was on the witness stand, Norton was a strong witness for the prosecution, coming across as well-versed in the facts, highly articulate, believable and reliable, and able to put issues, events and circumstances into a perspective that demystified and explained many of the case’s complexities and arcane elements. He is due back to court on Monday. It is unknown precisely how much longer Mandel will carry out her direct examination of him, but given his comprehensive knowledge of the general outline, specific elements and minutiae of the matter and his ability to place those issues in context and orient the two juries to the case’s circumstance, it may suit the prosecution’s purposes to keep him in place another day or two.
His value to the prosecution notwithstanding, Norton also represents a potential liability in that after the 2006 settlement and for the more than ten years since then, he has been the lead member of county counsel’s office seeking to recover a sizeable portion of the $102 million from the county’s insurers. That litigation over the indemnification has dragged on for more than twice as long as the Colonies Partners’ lawsuit against the county lasted. Some of the county’s insurance carriers have paid on the county’s claims. Others have not, making assertions that parallel those of the prosecution, which hold that the settlement was tainted by graft and bribery, thus excusing them from having to indemnify the county. In response, Norton has made statements in court papers, before hearing officers and in court which in turn parallel some of the defense’s positions, in particular that the $102 million settlement was a justifiable one under the totality of the circumstances. Statements made by Norton in that context contradict some of the testimony he gave before the grand jury that indicted Burum, Biane, Erwin and Kirk. Burum’s lead defense attorney, Stephen Larson, is salivating at the prospect of cross examining Norton, which he will almost assuredly begin to do sometime in the coming week. Of interest to court observers to say nothing of the prosecutors and the defendants is how well Norton, who is not without lawyering skills of his own, will fare under what should prove a withering round of questioning by Larson, and whether he will be able to provide answers which continue to comport with the prosecution’s scenario without losing his equanimity, composure and credibility.
Early this week, on Monday morning, Judge Michael Smith rejected a request for additional courtroom security based on an under-seal motion by prosecutors alleging incidents of intimidation and threatening conduct by the defense team and the defendants. In a motion filed March 23, Mandel referenced what she characterized as “repeated acts of harassment” by Burum toward prosecutors outside the presence of Judge Smith and that Burum has seated himself at the counsel table so he is facing the jury and engaging in eye contact with them. Mandel asserted that at one time, while neither Smith nor the jurors were in the courtroom, Burum expressed his hatred toward her and supervising deputy district attorney Lewis Cope, the other member of the prosecution team.
Larson filed a response to Mandel’s motion in which he acknowledged his client had an “outburst at the conclusion of court proceedings on Tuesday [March 21]” and “Mr. Burum has taken to sitting at the end of the defense table in a position where he is facing the
juries.” Larson said Burum’s outburst should be put in the context of his having been “unjustly indicted for crimes he did not commit” and having been subjected to “biased, self-serving, and deeply uncredible witnesses” providing “hour upon hour, day after day, week after week, of testimony that proves nothing more than that the only reason we are here is that the inherently one-sided nature of the grand jury process allowed the prosecution to manipulate the evidence and trick the grand jury into returning an indictment.”
The incident referenced in Mandel’s motion, according to Larson, was his client’s expression of “his extreme frustration at the gamesmanship and delay” in reaction to hearing that the prosecutors intended to call one of the key witnesses in this case, Mitch Norton, as early as the next day, with less than 24-hours’ notice to the defense team. Mr. Burum’s frustration, and his anger toward these prosecutors, is understandable.” Larson said, “Against this backdrop,” Burum had let the prosecution team know “he was tired of their manipulation and that if they had any evidence of a crime he committed they should bring it forward in the courtroom.”
Larson said “Mr. Burum does regularly watch the jurors during testimony. Mr. Burum is a keen observer of human behavior and reactions, and he has every right to observe the jurors deciding the charges against him so that he can then share his observations with the defense team.”
Moreover, Larson said, “no one on the defense team is attempting to ‘intimidate’ the prosecutors. And to suggest that Mr. Burum would attempt to do so with the courtroom deputy and other court staff looking on is absurd.”
Larson said the prosecution realizes “that they have lost the interest and respect of both juries” and that Mandel’s motion was in itself an “attempt to intimidate the defense by creating a false record of supposedly improper conduct” and “patently false accusations are being leveled in order to set up an excuse for losing this case.”
Judge Smith, who had reviewed the motions over the weekend, said he was not going to grant Mandel’s motion. “I certainly have not seen anything that would indicate to me that any of the defendants have done anything to be intimidating or threatening in any way,” said Judge Smith. “I’m sure the bailiffs haven’t, because if they did, they would have advised me of that.” Nevertheless, he advised the defendants and their attorneys that it is in their own interest to remain as low key as possible.
“This is a case where the prosecution alleges and argues that the defendants have used intimidating and threatening tactics to achieve a particular result with the board of supervisors, so obviously if a juror, rightly or wrongly, correctly or incorrectly, perceives a defendant’s actions or attitude as being intimidating or threatening, that only aids the prosecution in their argument and may well have the juror believe something needs to be done to impress upon that individual the intimidating conduct must be stopped or not rewarded. The only way a juror can do that is with their verdict.”

By Steve Loe
Nelson Switzer, the sustainability chief at Nestlé, retailer of Arrowhead Mountain Spring Water, has made several of what I consider very inaccurate and misleading statements and editorial submissions recently.
I am a retired U.S. Forest Service fish and wildlife biologist who spent over thirty years protecting and helping to manage the San Bernardino National Forest for the public. The Strawberry Creek Watershed (where Nestlé has their wells and tunnels that they call springs) includes a very important stream and wildlife habitat within the forest, which is public land and owned by us, every citizen. Nestlé only has a permit to occupy and use the land and water from the Forest Service. The Forest Service has the authority to modify or not reissue the permit in order to protect the National Forest and its resources.
In 1929, Nestlé’s predecessors obtained a permit from the Forest Service to create tunnels and drill horizontal wells into the mountain to harvest groundwater. For all these years Nestlé has claimed that it had water rights to springs that pre-date the Forest Service and that those rights included all the water they could get from their horizontal wells within the forest. The Forest Service has questioned the water rights for years and a retired Forest Service employee who still lives in Redlands even tried to get the upper levels of the Forest Service to charge for the water that was obviously groundwater and not surface water from springs as Nestlé claimed. These efforts were stopped by political pressure from Washington. All of the large water companies are very powerful and go immediately to Washington if the Forest Service tries to change their operations.
National Forests have Federal Reserve Rights for groundwater and surface water. It appears as if Nestlé’s claim of ownership of the water is not true. They have recently threatened to sue the Forest Service for illegal taking if it tried to curtail its water take from the forest. It is public water managed by the State of California Department of Water Resources and the Forest Service for the public good. Both agencies include protecting the environment for the public in their mission. The Arrowhead Springs that Nestlé refers to as being used for 121 years are not even close to the Forest Service-permitted wells where it gets its water out of the National Forest. This is not water that flows to the surface naturally as bubbling springs as Nestlé claims. Its current sources are all deep wells and tunnels (not naturally flowing springs), miles from where it claims historic use of Arrowhead Springs. It is taking National Forest and State public water.
When the permit was first issued, we as a society and as scientists did not have the knowledge of the environment that we have today. The US Forest Service now has scientists on staff who understand groundwater and surface water relationships, the importance of groundwater and surface water in protecting vegetation and wildlife, including rare and endangered species, and management needed to protect the National Forest. The permit that Nestlé has been operating under expired 29 years ago. The permits were only issued for 10 years because things change in 10 years that could make it necessary to change the permit. In the last 20 years the San Bernardino National Forest has learned so much about the plants and animals and geology of the front country of the San Bernardino Mountains. We now know that in the hot, dry summer in the front country, there is never excess water in our few perennial streams that run all year. Every drop of water is important in the summer months, especially during a drought.
Until the public raised the issue of Nestlé taking huge amounts of water during a severe drought, Nestlé’s scientists only monitored their wells and groundwater above their wells. It said its employees fly over the stream many times on the way to and from its wells and everything has always looked great. That is not real monitoring. The company only recently started looking at the stream below its wells because of public pressure.
The permit should have never been allowed to expire and remain in force for 29 years with no change in the operation to protect the environment. There are species that have been eliminated from Strawberry Creek because of fire, drought and low water flows made worse by Nestlé’s removal of an average of over sixty million gallons of our water per year. There are species that are listed as threatened or endangered that find suitable habitat in Strawberry Creek. All of the species in the Strawberry Creek watershed need water and can be adversely affected by removal of groundwater at the top of the watershed. With today’s knowledge of surface water/groundwater relationships, the Forest Service should never permit taking water away from the forest for a nonessential use with so much potential to harm the environment. All recent permits issued by the Forest Service require intensive monitoring and mitigation to protect the forest from potential impacts. The Forest Service even made long-term recreation cabin owners stop taking water from streams because of the need to protect summer flows in our mountain streams. Nestlé, a multi-national foreign corporation, should not be treated better than U.S. citizens and be allowed to remove huge amounts of water with no constraints to protect the forest and streams.
The very worst thing about this circumstance is that during the worst drought in 300 plus years, Nestlé refused to let any of the water it is able to capture go to the stream. At the same time the mountain residents who are dependent on some of the same groundwater were being told to cut their water use by twenty-five percent or more, Nestlé actually increased its water seizure in 2015 because of slightly more rain in the winter. The hundreds of millions of gallons of water taken during the drought could have provided essential water for the plants and animals that we all know were struggling to survive during the drought.
Many people are beginning to understand why this situation is so different than other Forest Service permits. Nestlé is one of the most powerful corporations in the world. It has have acquired huge government influence by hiring ex- high level Forest Service and other government agency heads, gaining sway over legislators, and intimidating the Forest Service through threats to take legal action. It is a foreign corporation based in Switzerland as opposed to a U.S. or local company. It does do not have the concern for protecting natural resources of the U.S., California and public land like the locally owned and operated corporations and agencies the Forest Service normally works with. Profit is the bottom line for Nestlé and its shareholders. It has gotten away with taking our public water and hurting our stream and forest for many years through claims that were false. Now that we know the truth about the history and water rights, as well as the environmental changes since 1978, it is time to let the groundwater, springs and streams recover from the drought. Then we can determine if there is excess water to National Forest and natural resource needs.
Mr. Switzer says that “We focus on maintaining an open dialog and close, long standing relationships with the communities in which we live and work.” Nothing is further from the truth in our case. For three years we (the public) have been asking for a public meeting to talk about the permit and how to protect the stream. The League of Women Voters even held a public forum/hearing to give Nestlé a chance to meet with the public to discuss taking care of our forest, mountain, and Strawberry Creek. Instead of coming to the meeting, company officials restated in a letter their input to the Forest Service a year ago stating that they really cared about Strawberry Creek, but it was their water and Strawberry Creek was fine. In their opinion, the State or the Forest Service had no authority to tell them to leave water for the stream. It was their water based on their claim of ownership.
It is as if Mr. Switzer has not been around to see what is really going on here. Thank goodness the public is getting involved more and more every day in taking back our public land and water. Nestlé has spent millions in Southern California on newspaper, billboard and movie theater adds displaying its stewardship of water and natural resources, and yet did nothing to ease the impact on plants and animals affected by its water removal during the terrible drought.
Those of us who care about the National Forest and Strawberry Creek continue to ask Nestlé for an open, public meeting so it can explain to us how it is taking care of the watershed while it continues to remove massive amounts of water, and give us a chance to present public opinion and ideas for protecting our stream and mountains.

Steve Loe is a retired US Forest Service biologist residing in Yucaipa.

In the upscale communities of Upland and San Antonio Heights over the last two years, residents abiding graciously and peacefully in their comfortable neighborhoods were barely, if at all, aware that those living in the far less affluent cities of San Bernardino, Twentynine Palms and Needles were locked in a battle with their own political leadership over the dissolution of their municipal or community-based fire departments. In each of those three cases, those turned out to be losing causes, as the San Bernardino County Local Agency Formation Commission sided with the cities in granting the formation of a county fire district coterminous with those municipalities’ city limits. Upon annexation into those districts, an assessment was imposed on each parcel owner therein. No actual vote of those to be incorporated into the district and to be assessed was held; what residents were afforded was a 30-day protest window during which all voters in the proposed district and all landowners in the district could lodge letters of protest. If 25 percent of either category – voters or landowners – filed a protest, then a straight up or down vote would have been scheduled on the annexation/assessment district formation. If 50 percent plus one or more had protested, then the annexation would have been nullified outright. In all three cities, nowhere near the 25 percent protest threshold was achieved and the dissolution of the local fire department took place and the county fire department now provides that service.
Whereas heretofore the residents of Upland and San Antonio Heights lived blissfully outside the ken of what was happening in the county seat and out in the desert and next to the river, they are now learning that what happens to others can also be visited upon them.
While Upland boasts having the third most affluent collection of residents overall in the county, it ranks far behind several other San Bernardino County cities in terms of its wealth as a municipality. That is because north of Foothill Boulevard where most of its well-heeled residents live, Upland pretty much exists as a bedroom community with little in the way of sales tax-producing commercial operations, with the exception of the Colonies Crossroads district next to the 210 Freeway. The city’s financial challenges, which four years ago prompted its auditor to warn that Upland was in danger of being unable to sustain itself as a going concern, prompted the city council to embrace the idea of following in the footsteps of San Bernardino, Twentynine Palms and Needles by closing out its fire department and annexing, along with bordering San Antonio Heights, into the county’s Service Zone FP-5. Accompanying the annexation will be a $150 per parcel assessment.
After the proposal was floated last year, the city council signed off on making the appropriate inquiries and applications with the San Bernardino County Local Agency Formation Commission. Last week the commission held a public hearing, during which spirited opposition to the changeover was registered, more so from San Antonio Heights residents than Uplanders. Opposition is based on a number of considerations. Among many Upland residents, the loss of local control is a major concern. Some of those have expressed resentment at not being given the option of applying the money they will be forced to pay in the form of an assessment to enhancing the existing municipal fire department rather than giving it to the county. Another sentiment generally expressed is that Upland officials have lauded the change as one to reduce costs through streamlining, efficiency and economies of scale. Why then, some residents have asked, are they being assessed? A more pointed variant of that applies in San Antonio Heights, which lies within an unincorporated county area and already receives its fire protection service from the county’s fire division. How is it they are now being assessed additionally for a service they are already receiving? Moreover, some sense that more is at play. Though San Antonio Heights and Upland are closely associated geographically, historically San Antonio Heights has been effectively resistant to being subsumed by Upland. Some see the forced inclusion of the two into a single fire assessment district as a precursor of the annexation of the heights by Upland.
Last week, at the public hearing before the entity empowered to accept or reject the annexation, Kathleen Rollings-McDonald, the executive director of the San Bernardino County Local Agency Formation Commission (LAFCO), sought to offer reassurances to San Antonio Heights residents with regard to the last point specifically, saying the annexation into the fire district would not lay the groundwork for an Upland takeover. Many of those in attendance were skeptical, however, and Rollings-McDonald managed to displease the lion’s share of those on hand when she signaled what was coming, by saying her staff’s analysis showed “the San Antonio Heights community will also benefit from this change because of the increased staffing levels at the existing county fire station in their community.”
Those addressing the proposal at the hearing were overwhelmingly opposed to it. That softened no soap with the LAFCO board.
The LAFCO board rejected the request that San Antonio Heights be excised from the service zone and then voted to move forward with disbanding the Upland Fire Department as it now exists, annex the department into the county service zone, transfer city fire station properties, employees, assets, obligations, and any of its liabilities into the San Bernardino County Fire division and its Valley Service Zone. In the ensuing week LAFCO initiated the 30-day protest period by sending out notifications of the annexation to those in the district. Not even the most committed of die-hard opponents believes that will elicit anything approaching the 50 percent protest needed to stop the takeover in both Upland and San Antonio Heights or even prompt the minimum 25 percent protest to trigger an election.
Nevertheless, some of the San Antonio Heights residents believe it possible that 25 percent of Heights voters or property owners will lodge protests. A yet unresolved legal question is whether that could be used to force the matter to a vote in San Antonio Heights alone, since San Antonio Heights qualifies as a jurisdiction separate from Upland.
Of note is that the better-fixed Upland and San Antonio Heights residents have more leverage to bring to bear against the annexation effort, by virtue of their relative wealth, than did their counterparts in San Bernardino, Twentynine Palms and Needles.
Bob Cable, a San Antonio Heights resident and one of the owners of Cable Airport, this morning told the Sentinel by text message from Chicago, “The San Antonio Heights Association is furious about this. I personally have never felt that my constitutional rights have been violated as much as with what is happening between the county, the city and LAFCO. I will be back in town next week. We are gearing up to fight this in court.”

By Carlos Avalos
The Fontana police department has been getting hammered with civil lawsuits and allegations of racism, nepotism, and corruption in the past few months, with these recent allegations coming not from residents of Fontana, but from officers, current and former, on the force. At issue are charges made by a handful of officers who contradict the department’s claim that its members serve the public with the utmost integrity. In reality, they say, the Fontana Police Department is an institution that targets minorities for traffic stops, has a white supremacist culture, uses excessive force, falsifies documents, and tampers with evidence.
Now comes the possibility that the spotlight being focused on the controversy in the Fontana Police Department will be wielded by a civilian.
In its February 3 edition, the Sentinel reported on the double indignity that was visited upon Fontana resident Jimmy Earl Burelson in 1994. The first indignity to which Jimmy Burelson was subjected came at the hands of a person or persons unknown, who murdered him and left him behind the Kentucky Fried Chicken franchise on Sierra Avenue. The second indignity came after he was dead, before or while he was transported, as are all murder victims in San Bernardino County, to the San Bernardino County Morgue, where an autopsy was conducted. What was out of the ordinary, indeed off the charts out of the ordinary, in Burleson’s case was that by the time he was on the autopsy table his corpse was tampered with. A chicken bone was placed in his hand and a picture of him was taken while the autopsy was yet being conducted. Most have drawn the inference that the chicken bone was placed in his hand in a joking manner to show that Mr. Burelson, an African American, did not want to let go of a piece of chicken when he was killed.
An implication of this, at least for some, is that the Fontana Police Department has racist overtones in its makeup. Another is that the San Bernardino County Coroner’s Office was complicit in Burelson’s desecration, although that is less certain. Yet another is that the Fontana Police Department was cavalier in preserving the integrity of evidence, to say nothing of being lax or negligent with regard to training, tact and compassion.
The Sentinel recently reached and interviewed one of Jimmy Earl Burelson’s living relatives, his stepsister Lurline Davis. Born and raised in Blythe on the Colorado River, Davis recently celebrated her 71st birthday. She is retired after 31 years as a dispatcher and records clerk for the Blythe Police Department. She told the Sentinel that “law enforcement was not something I expected to make a career out of,” but that through a government program she had been given an internship with the police department and upon the completion of her training, the Blythe Police Department kept her on for a few years before offering her a fulltime position.
When asked about her thoughts and observations about police officers generally and the standard to which they should be held, Davis told the Sentinel that “being a dispatcher, I dealt with many people before the police officers did, and worked and lived my whole life with one simple but cliché philosophy, which is ‘Treat others the way you want to be treated.’” She also said that “because of the nature of law enforcement and how officers are sworn to protect and serve the community, they need to have a good moral compass.” She told the Sentinel that no one is perfect and that extends to police officers, but being a police officer brings with it special privileges the normal citizen is not afforded, and if a police officer abuses that trust and responsibility, it is a recipe for disaster. A prime example of this, she said, was the horrible treatment accorded her brother.
Davis said she detected, as a result of the more than three decades she spent in her role as a dispatcher, that “Not all police officers treat everyone the same.” Davis said one thing that stuck with her was her introduction to a male recruit fresh out of the academy who was hired by the Blythe Police Department. Davis said her impression was that the academy experience and training the young man received made him believe that as soon as he put on his uniform he occupied a station above the normal person and was able to live his life by a different set of rules because of the position that he had attained.
Davis conveyed to the recruit that “Obviously, the young man had not learned anything in his training to become a police officer, and that just because he was wearing a police uniform meant absolutely nothing.” Unfortunately, Davis observed, the prevalence of that attitude within police culture and a portion of the populace in general equates to a police uniform becoming “somewhat of a get out of jail free card,” and that as a result she had seen, during her years on the force, “this breeding in decades and decades of young people an attitude in which they do not respect, like, or trust law enforcement.” Officers were “tough with young people,” she said, and they were unconcerned about any sort of repercussions because they knew nothing would be done to them, no matter how they treated a person they encountered. She said it was her perception that most officers when in uniform and behind a badge act totally differently than they do in their civilian lives. She said the reason for this was because many of them are not mature enough to have the responsibility the position entails, and are not capable of dealing with even a little bit of power and authority.
Overall, Davis said, both while she was yet working in law enforcement and now, she “unfortunately” held the view that the impact of police on society is more negative than positive, that officers tend to be more hurtful than helpful and more absorbed with their position in power than serving the citizenry and that law enforcement as an institution is more destructive than it is curative or even palliative. She said that in her early years as a police department employee, most officers had been drawn to the profession out of a genuine desire to achieve the greater good, not because it was a family tradition or simply to receive a paycheck or to cash in on the benefits that are now a standard perquisite of the profession.
With regard to Jimmy Earl Burelson, Davis said he was her “stepbrother,” but was also actually her half-cousin. Davis and Burelson had different fathers, and Davis’s mother raised him from his infancy. Mrs. Davis’s mother was actually his aunt, she said. Mr. Burleson’s niece, Alica Davis, was also at the interview, and the Sentinel asked her to speak about her uncle. She said she had known him her entire life and that he was a good guy, but just like anyone, had issues. Alica said he was not a troublemaker but was very protective of his family and did not let anyone take advantage of him.
Whatever her uncle’s difficulties and status, Alica said he did not deserve to be treated how he was by the Fontana Police Department. Alica said that he was always kind, loving, and nurturing with her, and always was playing with her and entertaining her. The Sentinel then asked Alica how she heard about the death of her uncle. She said that she remembered the Fontana P.D. telling the family that Mr. Burelson had gotten out of jail and had no transportation and was beaten up by a group of people and that is how he died. Alica said her family knows something untoward occurred. Despite whatever her uncle was going through, he always made it home safe and knew how to take care of himself, she said.
When she was shown a photo of her uncle on the coroner’s room examining table, a tear rolled down her cheek as she struggled to comprehend the desecration he had been submitted to. “I don’t understand how someone could do that to another human being, regardless of what color of skin a person is,” she said, adding that the most apt word to describe the way the Fontana Police Department treated her uncle is “evil.”.
When the Sentinel asked about the night Jimmy Burelson was murdered, Alica replied “We heard three different stories about how he died. I can’t remember two of them in all of the detail. The story I remember was that he got out of jail and there was no transportation, and he was beaten up. Our family could not get a straight story from the Fontana Police Department or the San Bernardino County Coroner’s Office of how he died.”
There is some significance to this last point. Jimmy Burelson’s body was altered – either at the scene where his body was found or on its way to the coroner’s office. A half eaten fried chicken leg was placed in his hand. The body of the dead man, a prime piece of evidence in the case, was tampered with. Did this contribute to the subsequent inability to determine what had happened and the failure to find Jimmy Burelson’s killer? Was his family not told about what had been learned about his death because the department did not know how he had been killed? Or was the department’s reticence due to embarrassment over the unprofessional desecration of his body that followed his death? Was something being hidden? Did a member of the Fontana Police Department kill him as the result of an unjustifiable use of force that has never been acknowledged? Foul play was certainly involved. Who perpetrated it? Lurline Davis said she is going to find out what happened and why.
Mrs. Davis was found by pastors in the Fontana community, who provided her with the February 3 edition of the Sentinel with the photo of her brother upon the coroner’s examining table. Until that time, Davis had no idea that her brother was treated the way he had been by the Fontana Police Department. She said the disrespect that was shown toward her brother’s corpse was a blot upon the Fontana Police Department, a demonstration that at least some of its members consider themselves about the law, an indication of a lack of professionalism, decency and intelligence, and something she hopes the perpetrator is losing sleep over now that the photo has become an exhibit in a court case brought by two of the department’s officers against the department and the City of Fontana. She was critical of the coroner’s office for allowing a member or members of the Fontana Police Department to stage the chicken leg photo.
Lurline Davis also shared that Jimmy Burelson’s father, Frank Burelson, was killed while he was in jail. She said she believes that what happened to her brother is not an isolated incident or the first time something like this has happened in San Bernardino County, but a reflection of the low standards within many local law enforcement agencies. Noting that there is no statute of limitations on murder, she said she is weighing her options with regard to a lawsuit against the Fontana Police Department and the San Bernardino County Coroner’s Office to force an accounting of the deliberate destruction of evidence that would have shed light on her brother’s murder.

Though local officials are not likely to admit it, one of the last openly operated brothels in San Bernardino County was the Orange Hotel in Ontario on Holt Avenue, a block east of Euclid Avenue. The once-stately structure had declined into a house of ill-fame by the 1950s, and continued to offer libidinous delight to its patrons well into the 1970s, just a stone’s throw from City Hall and the police station. The pillars of the community winked at and sometimes personally participated in the goings-on inside.

The California great horned owl, known by its scientific name Bubo virginianus pacificus, is the type of great horned owl most likely to be seen in Southern California and San Bernardino County in particular. The great horned owl, of which there are more than 20 subspecies, was once referred to by naturalists as the “winged tiger” or “tiger of the air,” as well as the hoot owl. The Californian great horned owl is an extremely adaptable bird which ranges throughout Central and Southern California west of the Sierra Nevada except the San Joaquin Valley, south to Northwestern Baja California. It intergrades with pallescens in San Diego County.
Resident all-year, the California great Horned Owl sports a very rich brown, dark underside with barring. The humeral area is black. Feet are mottled dark. The facial disc is often darkly mottled. Among owls, this is a fairly small-bodied race, in fact including the lightest wild great horned adult owl ever weighed. The wing chord length in males averages 13.09 inches and in females averages 13.83 inches. Body mass in males ranges from 1.499 to 2.804 pounds, averaging 2.186 pounds. In females, the weight ranges from 1.819 to 3.677 pounds, averaging 2.894 pounds. Tail length is 6.9 to 8.6 inches 8.0 to 9.1 inches in males and females, respectively. Bill length is 1.3 to 1.6 inches.
In most aspects of their behavior, great horned owls are typical of owls and most birds of prey. There is disagreement among ornithologists about whether the great horned owl is a bird of “essentially low intelligence,” as has been concluded by Paul L. Errington, or whether they are intelligent birds, as enunciated by William J. Baerg. The assessment of the horned owl’s intelligence for some turns on the willingness of those birds taken captive by humans to accede to training. Most captive horned owls, once mature, appear to resent captivity and may attack their keepers. This makes them ill-suited for falconry or entertainment purposes, thus resulting in some considering the birds to be stupid. This may say more about the narrow point of reference these humans have than about the birds themselves, which have a natural affinity for freedom.
Its primary diet appears to be rabbits and hares, rats and mice and voles, although it is an opportunistic feeder and freely hunts any animal it can overtake, primarily rodents and other small mammals, but also larger mid-sized mammals, various birds, reptiles, amphibians and invertebrates. According to Carol Lee, “Almost any living creature that walks, crawls, flies, or swims, except the large mammals, is the great horned owl’s legitimate prey.” In fact, the great horned owl has the most diverse prey profile of any raptor in the Americas.
The horned owl makes great use of secrecy and stealth. Its natural-colored plumage camouflages it well while active at night and while roosting during the day. In daytime it roosts usually in large trees and occasionally in crevices or small caves in rocks or in dense shrubbery. Generally great horned owls are active at night, although in some areas may be active in the late afternoon or early morning.
Hunting activity tends to peak between 8:30 pm and 12:00 am at night and then can pick back up from 4:30 am to sunrise. Owls hunt mainly by watching from a snag, pole or other high perch. During hunting forays, they often fly about 160 to 330 feet from perch to perch, stopping to survey for food at each, until they sense prey below. From such vantage points, owls dive down to the ground, often with wings folded, to ambush their prey. Effective maximum hunting distance of an owl from an elevated perch is 300 feet. Due to their short but broad wings, great horned owls are ideally suited for low speed and maneuverability, though they can reach speeds of more than 40 miles per hours in level flight. Despite reports that they do not hunt on the wing, they also sometimes hunt by flying low over openings on the ground, scanning below for prey activity. Owls can snatch birds and some arboreal mammals directly from tree branches in a glide as well. The stiff feathering of their wings allows owls to produce minimal sound in flight while hunting.
Almost all prey are killed by crushing with the owl’s feet or by incidentally stabbing of the talons, often instantly, though some may be bitten about the face as well. Prey is swallowed whole when possible. Not all prey can be swallowed at once, and owls will also fly with prey to a perch and tear off pieces with their bill.
Many large prey items are dismembered. A signature method when dealing with large prey for the great horned owl is to behead the victims before it takes to its nest or eating perch. The great horned owl will also crush the bones of its prey to make it more compact for carrying. Many owls will accrue a cache of prey, especially those who are nesting. Caches are kept in a safe location, usually the crotch of a tall tree.
The great horned owl is one of the earliest nesting birds in North America, often laying eggs weeks or even months before other raptorial birds. The courtship for the great horned owl runs from October to December and mates are chosen by December to January. This species is strictly monogamous. The male attracts the attention of his mate by hooting emphatically while leaning over and puffing up his white throat. The white throat may serve as a visual stimuli in the low light conditions typical of when this owl courts. He often flies up and down on a perch, while approaching the potential mate. Eventually, he comes to approach the female and tries to rub his bill against hers while repeatedly bowing. If receptive, the female hoots back when the pair meet but is more subdued in both her hoot and display. The male may convince the female by bringing her freshly caught prey, which they will then share. While males often hoot emphatically for about a month or six weeks towards the end of the year, the period where females also hoot is usually only a week to ten days. Pairs typically breed together year after year and may mate for life, although they associate with each other more loosely when their young become mostly independent. Pairs rekindling their reproductive relationship in the winter may perform a milder courtship to strengthen pair bonds before producing young.
Males select nesting sites and bring the females’ attention to them by flying to them and then stomping on them. Like all owls, great horned owls do not build their own nest. They nest in a wider variety of nest sites than any other North American bird. Most tree nests used by great horned owls are those constructed by other animals, often from a height of about 15 to 72 feet off the ground. They often take over a nest used by some other large bird, and add no more to the nest than feathers.
Egg laying by the California great horned owl takes place from early February to late March. There are usually two eggs per clutch, but clutches range in size from one to six eggs. The average egg width is 1.83 inches, the average length is 2.2 inches and the average weight is 1.8 ounces. The incubation period ranges from 28 to 37 days, averaging 33 days. The female alone usually does all the incubation and rarely moves from the nest, while the male owl captures food and brings it to her, with the first nightly food delivery typically occurring soon after dark. The young weigh around 1.22 oz at birth on average and can gain an average of about 1.17 ounces a day for the first four weeks of life, with typical weights in the range of 1.8 or 2.2 lb pounds by 25–29 days for males and females, respectively. The nestling owls develop mostly in behavior between two weeks and two months of age, in which time they adapt the ability to defend themselves, grasp foods and climb. Vocally, the young are able to exert weak chirps while still in the egg, developing into a raspy chirp shortly after hatching. Young owls move onto nearby branches at 6 weeks and start to fly about a week later. However, the young are not usually competent fliers until they are about 10 to 12 weeks old. The age at which the young leave the nest is varied based on the abundance of food.
Mated pairs of horned owls occupy territories year-round and long-term. Territories are established and maintained through hooting, with highest activity before egg-laying and second peak in autumn when juveniles disperse.

The attention is on the head this week and the turban-like head pieces that go with the Boho look of spring are quite rapturing. The headpieces and wraps are a fun statement hair accessory that works wonders the on head with, curly, and straight hair. Be it a head wrap, headpiece, or turban, this is very Boho-chic and sportive. The headpieces come in different styles and have been a classic statement piece since the early 1920s. But recently the turban, head wrap, and headpiece have been shaping their way back to the fashion scene making it 2017’s top hair accessory trend. They come in monochromatic for the classic chic and printed textiles for the boho gypsy. Some turbans are quite stunning, and there are the elastic headpieces that wrap around your noggin. You can find them at Forever 21 ($5.00), and if you’re an online shopper there’s a site out of California which offers a nice selection ($25.00):https://swoongirl.com/. I’m awaiting my turban delivery by Swoon Girl, and will be purchasing one from Forever 21. I hope you have a nice spring as you rapture your head with an accessory of your choice.

“In this market every head has a different fancy: everyone winds his turban in a different fashion.” -Saib Tabrizi