Alpenhorn News, Sept. 9, 2016
by Gail Fry
While we await the decision of the United States District Court on whether the special use permit issued by the United States Forest Service to Nestlé Waters North America, allowing it access across USFS land to extract water, was an “illegal license,” the State of California opened an investigation into Nestlé’s claimed water rights.
In response to inquiries by The Alpenhorn News about a meeting held June 16 between Nestlé Waters North America (Nestlé) and the State Water Resources Control Board (SWRCB) and the ongoing investigation, SWRCB Public Information Officer Tim Moran reported on August 12, “The investigation is still underway.”
At issue are several aspects of Nestlé’s claimed water rights, according to one of the complainants Amanda Frye, with one involving Nestlé’s claim of title to the land where the water is extracted just below Rimforest through tunnels, boreholes, and vaults and transported through a 23,020 foot pipeline down to its land located in close proximity to where State Highway 18 intersects Old Waterman Canyon Road.
According to documents obtained by The Alpenhorn News, in a March 30, 2015, letter, Nestlé’s law firm Hunton & Williams, LLP represented to the United States Department of Agriculture, that Nestlé traces its rights to the “spring waters in Strawberry Canyon” to “a possessory claim by David Noble Smith recorded on March 21, 1865” and a “subsequent patent from the United States to Mr. Smith dated February 1, 1882.”
A handwritten document dated March 21, 1865, in the State of California, San Bernardino County, appears to be the possessory interest Nestlé is claiming gave them rights to the spring water in Strawberry Canyon. The document indicates D. N. Smith filed a possessory claim to a homestead and a “spring at the foot of the Arrowhead Mountains” situated on East Twin Creek in Sections 11 and 12 of Township 1 North, Range 4 West. According to a 1991 United States Forest Service (USFS) Map, Strawberry and Coldwater Creeks empty into East Twin Creek.
A search of patent records available on the United States Department of the Interior Bureau of Land Management, General Land Office Records, found two patents issued to David Noble Smith.
Both patents were dated February 1, 1882, where the United States of America, through President Chester A. Arthur, signed two patents consisting of 160 acres each in Sections 11 and 12 of Township 1 North, Range 4 West.
According to the USFS Map, Sections 11 and 12 of Township 1 North, Range 4 West is close to the intersection of State Highway 18 and Old Waterman Canyon Road, but not where Nestlé extracts its water.
According to the USFS permit and attached map diagram, nine springs are in Section 30, Township 2 North, Range 3 West and three are in Section 31, Township 2 North, Range 3 West, just below the westerly end of Rimforest.
Additionally, Nestlé claims its water rights were adjudicated in 1931, in Del Rosa Mutual Water Company v. D. J. Carpenter, and its “use of springs on public lands” were “properly obtained by prior appropriation under the laws of the State of California,” under the “authority granted by Congress in the Act of 1866 and in subsequent legislation.”
In her letter to the State Water Resources Control Board, Frye explained, “San Bernardino County recordings reflect no proof of Nestlé being grantee of the Strawberry Canyon deeded water rights.
“Unless someone can prove me wrong, I think Nestlé was sold the Brooklyn Bridge,” Frye concluded, observing, “If you don’t pony them (water rights) up to the United States Forest Service, you probably don’t have them.”