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The Story of Stuff Project, California-based Courage Campaign Institute and Center for Biological Diversity have repeated their frustration over a Nestlé subsidiary’s continuing to remove tens of millions of water annually from the San Bernardino mountains. The three environmental groups formally gave notice on Thursday of their intent to appeal a federal court ruling, issued in September, that allows Nestlé to extract some 36 million gallons of water from Strawberry Creek on a permit that expired 28 years ago.
The appeal comes after a U.S. District Court, in the courtroom of federal Judge Jesus G. Bernal, ruled that Nestlé could continue to remove water annually without restrictions. The three plaintiffs have stated that they intend to challenge the alleged misunderstanding of what the law requires. When he ruled in September Judge Bernal stated that the U.S. Forest Service (USFS) had not broken federal procedures in allowing Nestlé to remove water from the remote West Fork of Strawberry Creek.
The plaintiffs had argued in a lower court that the special use permit for four miles of pipeline tapping Strawberry Canyon’s water had expired Aug. 2, 1988, and was never properly renewed. Bernal countered that complaint saying the Forest Service did receive “timely and sufficient application for renewal” in May 1987.
Judge Bernal wrote in his 12-page decision filed in U.S. District Court for the Central Division of California that, “Plaintiff’s do not identify, and the court cannot find, any authority holding that an agency’s failure to act within a reasonable time” invalidates a special use permit.
In filing the intent to appeal Ileene Anderson with the Center for Biological Diversity stated that, “This appeal is absolutely necessary in order to ensure that the U.S. Forest Service does not continue to allow precious water to be siphoned off our public lands without any limits or conditions to protect wildlife, water and other public-trust resources. After nearly three decades since the permit expired, and with California entering its sixth year of drought, this situation must be remedied now.”
The three environmental groups pointed to a lower court ruling had allowed Nestlé’s four-mile pipeline — that siphons water from San Bernardino National Forest to its Arrowhead bottling operations in Ontario, Calif. — to remain in operation despite the fact that the permit to do so expired in 1988. In exchange for allowing Nestlé to continue pulling water from the creek, the Forest Service receives a mere $630 a year — less than the average Californian’s water bill.
“We Californians have dramatically reduced our water use over the past year in the face of an historic drought, but Nestlé has refused to step up and do its part,” said Michael O’Heaney, executive director of the Story of Stuff Project. “The court’s bad ruling forces us to appeal the decision.”
Eddie Kurtz, executive director of the California-based Courage Campaign Institute, echoed his fellow environmentalists saying, “The Forest Service has been enabling Nestlé to destroy the delicate ecosystems of Strawberry Creek for 28 years, and it has to stop. This appeal challenges a justice system that lets massive corporations play by a different set of rules than the rest of us. Taking a public resource and selling it at an obscene profit without the legal right to do so is unacceptable.”
“Although not a party to this matter, we would welcome the 9th Circuit’s review of the District Court’s decision, which reflects established 9th Circuit precedent,” said Nestlé Spokesman Chris Rieck. “We continue to work cooperatively with the USFS on the permit renewal process and to manage the Arrowhead Springs in Strawberry Canyon sustainably for the long-term.”
