June 18, 2012

Portion of El Garces restoration to move forward

El Garces Hotel in 2009 (Wikimedia Commons)

Needles Desert Star

NEEDLES — The transportation element of the El Garces restoration project will be getting underway as soon as possible based on Needles City Council’s decision March 13 to move forward with using federal grant money the city has for that portion of the project.

Allan Affeldt, of El Garces LLC, gave an update to the council at the March 13 meeting. He gave a brief background of the project and how the project hasn’t progressed in the last two years. He said the company and the city had been trying for a joint development agreement to allow for a transfer of the title of the building to El Garces LLC. That has been in the works for nearly two years.

Affeldt said there’s finally been a response to the letter regarding the JDA. The FTA stated they couldn’t see why the city couldn’t move forward with the project for the transportation part, such as parking and a visitors center, but indicated they weren’t likely to approve the JDA.

He said what that means is it’s highly unlikely any private investor will help with the project. It doesn’t matter how much time or money the private investor spends, they will have no security in that investment, which means no bank will back the project, he continued.

There was a conference call about a week prior to the city council meeting to see what should happen next, Affeldt said. There is still about $5 million in grant funding available, which is substantial; the catch is the city can’t spend it on anything such as restaurant or hotel. The city can spend that money on basic infrastructure and the shell of the building, he continued.

An additional challenge is Congressman Jerry Lewis is retiring at the end of the year, Affeldt said. All the funding for the project is federal and Lewis has been a big supporter. It is possible the city could lose that support once he retires, he continued.

“My advice to you as an elected official is to spend the money before you lose it,” he said. There is no expiration date on that funding, but given the economy, there is a good chance the grant money will disappear, he added.

The recommendation is to spend the money and get as far as the city can and somewhere along the line perhaps a third party will want to participate, Affeldt said. About 80 percent of the architectural engineering has been done for the building and there’s already been a process for a construction manager. It is believed the city could go to bid with all those documents within a couple of months, he added.

It’s estimated that the entire building could be completed within a year’s time since the scope of work has been reduced, Affeldt said. There isn’t any reason the city couldn’t have all the money spent within a year’s time, he continued.

Dan Lutzick, of El Garces LLC, said it is important for the city to be sure to place the proper electrical and utilities so they can expand in the future. If done correctly, they won’t have to reconfigure anything in order to expand at a later time, he added.

Tony Frazier, council member, said he wanted to thank Affeldt and Lutzick for all their time on the project. “I think that for at least a long time, Allan’s dream, Dan’s dream, was our dream,” Frazier said. They helped us along as far as they could, he added.

June 8, 2012

Supervisor Opposes Settlement with U.S. on County Roads in Mojave National Preserve

Secret settlement a disservice to the public and property owners

Highland Community News

SAN BERNARDINO – Despite leading the effort that resulted in perhaps the first-ever legal recognition of County rights of ownership of roads on federal lands, San Bernardino County Supervisor Brad Mitzelfelt ultimately opposed and voted against the resulting settlement between the county and the federal government that was announced today.

Supervisor Mitzelfelt’s opposition was based on concerns about future vehicular access and convenience of the public as well as property owners within the Mojave National Preserve.

“I recommended that the Board of Supervisors initiate this lawsuit five years ago to ensure the county’s rights to maintain the roads in the Mojave National Preserve, not to turn the roads over to the National Park Service,” Supervisor Mitzelfelt said. “The Board’s final decision was not consistent the Board's original intent and certainly not consistent with my intent to preserve access and county control of roads in the preserve on behalf of our residents and visitors.”

The Mojave National Preserve takes in 1.6 million acres between Interstates 15 and 40 west of and bordering the Nevada State Line. The roads – including Kelbaker, Ivanpah, Essex, Lanfair and Morning Star Mine Roads – are important routes for travelers and commerce across the desert. But one example of disputes over authority between the county and the Park Service was the Park Service’s action posting signs prohibiting commercial vehicles when the preserve was first established by the Desert Protection Act in 1994.

Supervisor Mitzelfelt said the county believes the settlement represents the first time the federal government has formally recognized that county roads on federal land are valid and protected rights-of-way under a federal law passed in 1866.

“While I am pleased we were able to convince the federal government to agree to recognize our road rights-of-way, it is largely a symbolic victory unless and until someone can successfully convince a federal authority that it set some kind of a precedent,” Supervisor Mitzelfelt said. “The agreement specifically says it does not set a precedent, but I still hope our county or perhaps even another county or state will be able to derive some benefit from what was agreed to in this settlement.”

Added Mitzelfelt: “I also feel that the settlement process, carried out in secret, which under federal court rules and procedures is perfectly legal and proper, has nevertheless done a disservice to the public and the property owners within the preserve by not giving them a voice in the matter until after a final decision had been made.”

In October 2006, the County filed a “quiet title” action against the United States and the U.S. Department of the Interior seeking acknowledgement that 14 county maintained roads within, and adjacent to, the Mojave National Preserve are permanent and protected rights-of-way under Revised Statute 2477, part of the Mining Act of 1866, which allowed construction of roads across public lands.

R.S. 2477 was repealed in 1976 and replaced with the Federal Land Policy and Management Act, which subjects the county to extensive environmental review and regulatory costs when it is invoked on county roads not established or authorized under R.S. 2477 before it was repealed.

Because the county was never able to secure official acknowledgment or documentation of R.S. 2477 rights from the Department of Interior, despite extraordinary efforts to do so, it decided to file suit to force the issue.

During settlement negotiations, the idea was advanced that the federal government could recognize the county’s assertion of control over the roads but then the County could turn over most of the roads to the federal government. Although the Board of Supervisors was not directly involved in the negotiations, Supervisor Mitzelfelt was briefed on the matter throughout because the preserve is located within his district. When negotiations turned toward ceding roads to the federal government despite his personal opposition to the idea, he began pushing for binding provisions that the roads would be maintained, and most importantly, kept open, in the event they were transferred to federal ownership.

The county and Park Service agreed to enter into a Memorandum of Understanding requiring the two agencies to work together on issues of maintenance and safety improvements, along with acknowledgement of the county’s need to keep the roads open for public use. But Supervisor Mitzelfelt said he feels that the MOU and settlement may not sufficiently bind the federal government to keep routes open.

“Based on my own conversations with the Park Service, I have little confidence that they will be appropriated enough funding to properly maintain and improve those roads,” Supervisor Mitzelfelt said. “As far as a process to prevent arbitrary closure of roads, such a provision exists in the settlement. But I fear the Park Service will simply go through the public process and consultations with the county and attempt to close roads anyway based on lack of funds.”

The Supervisor said he hopes that does not occur, and if it does it would be after his term of office. But if it does happen, “I hope the county will legally challenge any future road closures in the Mojave National Preserve.”

Supervisor Mitzelfelt said one favorable provision of the settlement is that the county will continue to own and maintain two roads on the edges of the Mojave National Preserve located on U.S. Bureau of Land Management property – Nipton Road and Goffs Road – under the county’s normal regulatory regimen for road maintenance in the area.

County settles suit over Mojave National Preserve roads

Supervisors sell out property owners for an annual $53,000 savings

From Staff Reports
Victorville Daily Press

Environmental groups reached a settlement with San Bernardino County this week in an ongoing legal dispute over roads in the Mojave National Preserve.

The dispute centered on how many roads the county could claim within the preserve and how the roads affected sensitive wildlife.

The county had sued the federal government in 2006 in hopes of retaining access to 14 county-maintained roads within the 1.6 million-acre preserve between Interstates 15 and 40, west of the Nevada State Line. The federal government agreed to preserve the roads — including Kelbaker, Ivanpah, Essex, Lanfair and Morning Star Mine roads — and take responsibility for maintaining them, the county said.

First District Supervisor Brad Mitzelfelt said the county believes the settlement represents the first time the federal government has formally recognized that county roads on federal land are protected rights-of-way under a federal law passed in 1866.

However, Mitzelfelt blasted the settlement, saying he did not think the National Park Service would have enough funding to maintain the roads and that he fears they may ultimately restrict access to the public.

“Based on my own conversations with the Park Service, I have little confidence that they will be appropriated enough funding to properly maintain and improve those roads,” Mitzelfelt said in a statement Friday. “As far as a process to prevent arbitrary closure of roads, such a provision exists in the settlement. But I fear the Park Service will simply go through the public process and consultations with the county and attempt to close roads anyway based on lack of funds.”

The National Parks Conservation Association, Sierra Club and Center for Biological Diversity joined the suit in an attempt to force the county to consider the impacts of the road proposal on sensitive wildlife. The groups had attempted to negotiate a settlement with the county for five years, the Center for Biological Diversity said.

The groups agreed to allow the county to claim two roads — Nipton Road and Goffs Road — on public lands bordering the preserve that were used for travel before 1976, as well as eight other roads within the preserve. But the county was required to give up claims to additional roads in the preserve that the groups say threaten sensitive species like Joshua trees and desert tortoises.

“The sweeping vistas and dark night sky in the preserve will be safeguarded — an important conservation goal as development pressures mount in the Southern California deserts,” Kim Floyd, conservation chair for the San Gorgonio Chapter of the Sierra Club, said in a statement.

County officials said they expected to save $53,000 per year by having the federal government maintain the roads.

SB County History Full Of Outside Efforts To Commandeer Desert’s Water

By Mark Gutglueck
San Bernardino Sentinel

The Cadiz Water Project is not the first effort by outside business entities to lay claim to San Bernardino County’s water resources and utilize them elsewhere in Southern California.

For nearly 120 years, speculators have sought to capture local water rights and profiteer by selling the water to local users or diverting it elsewhere within or outside of the county. Most of those efforts pertain to water which originates in the San Bernardino Mountains and front page flows northward into the Mojave River or southward into the Santa Ana River.

Between October and December of 1892, a group of investors from Minneapolis and St. Paul raised $1.5 million and before the close of the year used a portion of that money to purchase from the Hesperia Land and Water Company an option on the water rights and dam site at Victor Narrows. Working in conjunction with Dr. Joseph Jarvis from Riverside, James E. Mack of Bloomington as well as A. H. Koebig and O.J. Perkins of Los Angeles, the group was purposed to buy outright or otherwise purchase options on property that carried with it the existing water claims around the Mojave River and a suitable site for a 171-foot high and from 75-foot-to-150-foot-wide dam and reservoir above the Upper Mojave Narrows that would house enough water to irrigate 250,000 acres in the High Desert.

When the Panic of ‘93 hit later that year, the resolve to continue the effort dissolved. A handful of the participants reformed as another corporation headquartered in Springfield, Illinois led by J. C. Dickson of Sierra Madre and the previously referenced James E. Mack, still intent upon a venture to harness the Mojave River. That effort, too, foundered. But in 1895, J. W. Wilson, together with O. O. Howard, formed a corporation, the Columbia Colonization Company of Chicago, and bought the Victor reservoir project for a promissory note of $80,000. Later that year, Howard dropped out of the venture, to be replaced by H. P. Sweet. The Columbia Colonization Company entered into agreements with homesteaders of 320-acre ranges provided for in the Desert Land Act to permanently provide those homesteaders with water in exchange for 280 of their claimed acres. The company then sought to sell land thus obtained to investors or buyers interested in occupying it. Questions about the legality of the company’s sales of land to which the government still held title emerged, resulting in a federal district court order enjoining the Columbia Colonization Company from marketing unpatented government land or their bonds outside of California. The company subsequently faltered when it failed to deliver on its promissory note to the Springfield, Illinois company, which then attempted to reassert its water rights and possession of the dam site.

That scheme was superseded by one pursued by another group of speculators, the Appleton Land and Water Company of Los Angeles, led by P. D. Hatch. Hatch’s plan was to construct a dam much closer to the ultimate source of the water, more than 11 miles above the Victor reservoir, to not only control the flow of the Mojave River itself but to reroute a major portion of the water flow coming northward down the slopes of the San Bernardino Mountains in flumes and aqueducts eastward on the other side of Hesperia.

At that time, both wells and the Mojave River were being tapped by a handful of farmers who planted non-citrus orchards in what would eventually become known as Apple Valley.

In the 1890s, hundreds of acres in Hesperia had been converted to vineyards, which yielded fruit utilized as much for raisins as wine.

Simultaneously, up in the San Bernardino Mountains, the Arrowhead Reservoir Company had formed. That company’s goal was in no small part crosswise of what were the intentions of the Appleton Land and Water Company and other speculators in the desert, in that it had designs to dam up the water at a spot in the mountains and then divert the water through a tunnel to be dug and blasted out through the mountains southward to irrigate San Bernardino, Highland, Redlands, Colton and other growing communities well removed from the Victor Valley.

These competing designs and claims on the Mojave River’s water intensified in the late 1890s.

In 1899, Gifford Pinchot, head of the U.S. Division of Forestry, which would later become the United States Forest Service, personally came through the Victor Valley during a tour of California and its vast undeveloped wildlands. Upon his return to Washington, he commissioned a comprehensive survey of the Mojave River watershed. After President William McKinley was succeeded by the more conservation-minded Theodore Roosevelt, the Newlands Reclamation Act, authored by congressman Francis G. Newlands of Nevada, was passed by Congress in 1902, funding irrigation projects for the arid lands of the American West.

The act’s passage set off a second round of even more intensive and bitter legal battles between the Arrowhead Reservoir Company and nearly all of the water interests along the Mojave River. The Hesperia Land and Water Company, led by its then-president, W. A. Field, in both legal and bureaucratic filings maintained that the Arrowhead Reservoir Company’s proposed project would deplete, obstruct or eradicate the natural flow of water into the Mojave River.

Simultaneously, a group of small stakes West Coast investors who were backed by a syndicate of larger stakeholders from the East Coast assembled and headed by James Westwater of Ohio, employed Arthur E. Poole of Los Angeles, whose brother Charles was an engineer working on the city of Los Angeles’ Owens River Aqueduct, to purchase options on the properties and ranches lying along the lower Mojave River. By these purchases, Poole secured the lion’s share of water rights along the Mojave River through the Victor Valley, including the property that had been intended as dam and reservoir sites in the area. In 1904, the Arrowhead Reservoir Company commenced construction of a dam in the mountains.

In early 1906, Poole and Westwater announced they intended to initiate by July 1906 the construction of a dam in the Victor Valley along the Mojave River that would be used for both irrigation and power generation. By that summer, Westwater’s East Coast co-investors were expressing doubts about any large projects in California in the wake of the San Francisco Earthquake. As Westwater’s access to capital dried up and Poole failed to make good on promissory notes he had provided to secure property along the river, the duo ultimately were unable to retain control of any of the river bank property or the attendant water rights.

Over the next two-and-a-half years, The Arrowhead Reservoir Company continued to assert its Mojave River Basin water claims, making renewals on them every two months. But during the same time frame, Field and his Hesperia Land and Water Company claimed to have indisputable possession or control over 33,000 acres bordering the river. Field marshaled his company’s filing for one million miner’s inches (equal to 1.5 million cubic feet of water per minute) on both forks of the Mojave, which predated the Arrowhead Reservoir Company’s competing claims by more than two years, to assert that his company’s rights to the disputed water eclipsed the rights Arrowhead adduced. The Hesperia Land and Water Company had consistently utilized 5,000 inches of water from the East Fork every year for two decades, establishing, Field maintained, an inviolable right that would legally preclude the Arrowhead Reservoir Company or any other entity from diverting the Mojave River’s water away from the desert.

In 1909, a slew of other riparian owners along the Mojave filed suits against the Arrowhead Reservoir Company to prevent the diversion of the San Bernardino Mountain water away from the Mojave River Basin. While these suits were pending, the California Supreme Court entered a judgment in a case in the San Joaquin Valley involving a similar proposed rechanneling of water from its natural drainage area which barred such diversions where they would negatively impact existing agricultural operations.

Thereafter, the company’s subsidiary, the Arrowhead Lake Company, pursued transforming the once-contemplated reservoir site into a resort, completing that project, which had only minimal impact on the flow of water northward into the Mojave Desert, in 1922.

In October 1913, a San Francisco corporation, of which J. R. Wilbur was president, Ray K. Barrows vice president and A. L. Dahl secretary and treasurer, filed an application at the San Francisco office of the U.S. Forestry Service for a right-of-way to dig a tunnel twenty miles long through a portion of the San Bernardino Mountains to divert flood waters from the Mojave River to provide power and irrigation to citrus orchards in and around the cities of San Bernardino, Redlands, Riverside and that vicinity, where water would be used for citrus groves. One of the corporation’s board members was A. E. Boynton, at that time the speaker pro tem of the California State Senate. Wilbur’s corporation proposed locating a reservoir for the water at Victorville and a powerhouse to be driven by the gravity-fed water in San Bernardino.

Opposition to that undertaking involving the Victor Chamber of Commerce and local agricultural interests formed. The Victor Chamber of Commerce reclamation committee, led by its chairman, John D. Reavis, moved, according to a report in the Victor News-Herald, “to retain the most competent water attorney and engineer available” and immediately filed a protest with the government against the granting of a permit for right-of-way for a tunnel to divert water from the Victor Valley’s watershed to the San Bernardino Valley “on the grounds that it is contrary to law.” The tunnel project was not undertaken.

In 1921, the city of Pasadena filed with the California Water Commission to divert Mojave River water to Los Angeles County, spurring the Mojave River Irrigation District to take action to ensure that water rights along the river be secured by interests which would not allow the water to be appropriated by irrigation or municipal uses outside the local area. In the spring of 1922, the Mojave River Irrigation District asked a judge to set for trial the district’s request for condemnation of the Arrowhead Reservoir & Power Company’s land holdings along the Mojave River, which had gone unused since 1909, when the Arrowhead Reservoir & Power Company had abandoned its plans to divert a large portion of Mojave River water southward. Throughout late 1921 and early 1922, the Mojave Irrigation District along with a collection of Victor Valley residents lobbied San Bernardino County officials to use the authority of the county to oppose the city of Pasadena’s effort. In June 1922, interests in San Bernardino, in apparent reaction to Pasadena’s effort to secure water from the Mojave River, undertook an effort to divert an annual flow of 2,000 inches of water from Lake Arrowhead and an additional 4,000 inches from Deep Creek to San Bernardino, Redlands, Colton, Rialto and other cities south of the Cajon Pass.

In November 1926, a dispute within the Victor Valley over the use and monopolization of Mojave River water erupted when land owners along the lower Mojave River, objecting to the proposed use of river water in the Apple Valley region, filed suit to test the validity of the state water commission’s granting of a permit to the Mojave Irrigation District to impound the headwaters of the Mojave and use that supply in Apple Valley for agricultural purposes. The suit alleged the use of the water in Apple Valley would cause a shortage in the lower region.

In August 1927, sixteen cities located in Riverside, Orange, Los Angles and lower San Bernardino counties organized to form a metropolitan water district to undertake a $150,000,000 project to bring water to thirsty Southern California from the Colorado River. The effort represented a landmark in terms of lessening, though not eliminating, the threat that entities outside of the Victor Valley would divert Mojave River water away from the High Desert.

In December 1930, residents of the Victor Valley were shocked to learn that Ralph E. Swing, the attorney who was hired to represent the county before the state water commission to resist the city of Pasadena’s attempts to appropriate water rights along the Mojave River in 1921 and who was now a state senator, was assisting the city of San Bernardino in its filing to obtain 1,000 inches of surplus water in the Mojave river basin and transport it through the mountains in a three-mile tunnel and an aqueduct as part of a $3 million project to deliver the water to San Bernardino, Riverside, Rialto and Redlands to provide irrigation for citrus groves. The proposal also entailed plans to utilize the water to generate electrical power at a powerhouse in Devil Canyon as well as a 160- foot high dam near the junction of the east and west fork of the Mojave River to impound water at an elevation of 3,800 feet. The Victor Valley Chamber of Commerce immediately went on record against the project proposal.

Less than two weeks later the chamber hastily formed a committee composed of E. E. Kiggins of Oro Grande, L. G. Merritt of Helendale, T. J. Thomas of Apple Valley, Frank Hubbard and C. M. Moon of Victorville with Judge J. P. Hoffman elected as temporary chairman, to formulate some method of organization which would guard against encroachments on Mojave River water.

In February 1931, the Mojave River Irrigation District filed with the California Department of Water Resources to divert 85,000 acre feet per annum from Deep Creek and the West Fork tributary to the Mojave River for irrigation and domestic purposes onto 26,878 acres. This application was made as part of an effort to protect the Mojave River basin and forestall any diversion to the Mojave River water south of the mountains by establishing rights of priority over any applications which were to follow, subject to existing rights. The same month, 23 ranchers, well owners, riparian rights holders and other citizens formed the Mojave River Valley Protective Association with Judge J.P. Hoffman as chairman to safeguard the waters of the Mojave River from diversion. The association engaged attorneys Grant Holcomb and Byron Waters to protect its members’ water rights.

In June 1931 the Mojave River Valley Protective Association lodged a petition to the county board of supervisors for an election for the formation of a county water district, resulting in just such an election on August 21, at which the creation of a local water district passed by a vote of 183 to 41.

On August 4, 1932, the state filed a suit to cancel the rights of the Arrowhead Lake Company granted 18 years previously. According to the action, the rights in question pertained to the proposed construction of a 150-foot dam on the Mojave River for irrigating the 35,000 acres of land near Victorville. The state asserted in its suit that the Arrowhead Company failed to carry out provisions of the agreement on which the rights were granted, specifically undertaking the $3.25 million dam and reservoir construction project.

In December 1933 the directors of the Orange County Water District in Tustin advanced a $6 million-to-$10 million plan to purchase land along the Mojave River and develop a water project near Victorville and divert water to the Santa Ana River in Orange County.

While the Orange County water officials alleged in excess of 100,000 acre feet of water from the Mojave River was available annually and that only 6,000 acres in the Victor Valley were being irrigated with the available water, water owners and the communities in the Mojave Basin held a different viewpoint regarding the surplus water of the Mojave River and its availability for any use on the south side of the mountains. On Sunday, January 7, 1934, the Mojave Basin Protective Association authorized the expediting of conservation measures on the Mojave River, including the construction of dams at several points, as part of an effort to utilize the water locally and stave off the attempts of outside interests to seize a portion of the river’s water.

In July 1934, as the High Desert was gripped by a drought and Mojave Valley farmers and stockmen were applying through the county to the federal government for drought relief funding, Orange County water interests renewed their effort, which had lain dormant for several months, to divert to their county a portion of the Mojave River’s flow. At a meeting in Anaheim held under the auspices of the Orange County Chamber of Commerce, a resolution seeking an engineering survey to determine the cost of such a venture and the amount of water it might yield was passed.

In December 1934, before the interests in Orange and Riverside counties could themselves appropriate Mojave River water, the city of Los Angeles filed for 400,000 cubic feet of water from Seeley Creek, a tributary of the West Fork of the Mojave. Los Angeles’ stated intention for the water was to use it for domestic purposes at the “city playground at Camp Seeley,” owned by the city of Los Angeles. By establishing water usage there, the city of Los Angeles could at some indefinite future date discontinue its local utilization of the water and then divert a like amount to Los Angeles.

On January 12 1935 the Mojave Basin Protective Association met at the office of A. S. Amaral to ready protests of the Los Angeles filing and the anticipated filing by the Riverside, Orange and lower San Bernardino county interests.
On February 16, 1935 a meeting of the Mojave River Basin Protective Association was held in Helendale and an effort was initiated to organize all of the territory along the Mojave River from Yermo to the mountains into a county water district, incorporating the communities of Barstow, Helendale, Oro Grande, Victorville and Hesperia.

On June 12, 1935, the California state assembly, at the importuning of Assemblyman Gordon Corwin, amended legislation related to the Orange County Water District, Senate Bill 112, to prevent Mojave River basin water from being diverted to the headwaters of the Santa Ana River for use in Orange County. As originally drafted and passed by the state senate, Senate Bill 112 granted the Orange County Water District the power of eminent domain in areas beyond its jurisdiction, permitting that entity to condemn lands and water rights along the Mojave River. Though the measure passed the senate, it was amended and eventually defeated in the assembly.

In September 1935, a report by irrigation engineer Harry F. Blaney and irrigation economist Paul A. Ewing made at the request of the Riverside Water Company and other water organizations in Orange and Riverside counties entitled Utilization of the Waters of the Mojave River became public. Although the Orange County and Riverside County interests had hoped the report would serve them in an effort to appropriate a portion of the High Desert’s water, Blaney and Ewing made findings that any substantial diversion of water from the Mojave River at its headwaters would produce a small deficiency between the forks and Victorville, some deficiency between Victorville and Bastow and very likely a substantial deficiency below Barstow. According to the report, “Any diversion of Mojave River water outside its watershed should be made only after care is taken of the normal agricultural, domestic and industrial needs (including those of railroads) of the valley itself. The valley’s rights should stand in the preferred position, and outside claimants should be satisfied with what is left. Hence, provision should be made to protect the present water needs of the valley before the diversion is begun in any year.”

In the first week of October 1935, the San Bernardino County Board of Supervisors and San Bernardino County District Attorney James L. King filed upon all the surplus water of the Mojave River with the proviso that the filing would within sixty days be turned over to a water district to be formed within the Mojave River Basin. The action was taken in response to reports that water interests in Riverside and Orange counties were planning to file on a portion of the Mojave River’s water for diversion into the Santa Ana River.

On October 9, 1935 a meeting of Orange and Riverside county’s governmental officials and public and private water interests was held in Riverside. San Bernardino County First District Supervisor Arthur Doran and district attorney James L. King attended the meeting to represent San Bernardino County. Also present were San Bernardino mayor C. T. Johnson and a number of water users from the Mojave basin. Discussion at the meeting centered around a report by federal engineers regarding the amount of water that might be diverted from the Mojave River. After the San Bernardino County contingent went on record as being opposed to any diversion of Mojave River water to Riverside or Orange counties, the other attendees of the meeting protested the San Bernardino County delegation’s continued participation, and Doran and King left the confab.

On January 21, 1936 voters within the boundaries of the proposed 60,000-acre Mojave River County Water District between Victorville and Barstow ratified its creation 149 to 28.

In 2001, Los Angeles-based Cadiz, Inc. proposed a project calling for pumping water from the Colorado River during wet years, storing it in an underground aquifer beneath the Cadiz Valley in the Eastern Mojave, and selling as much as 60,000 acre-feet of the native groundwater and Colorado River water mix to the Metropolitan Water District (MWD) in Los Angeles during dry years. That proposal was ultimately rejected by the Metropolitan Water District’s board of directors after conservationists raised concerns over possible environmental damage.

In 2009, the city of Riverside proposed laying claim to a considerable amount of Santa Ana River water at the south end of San Bernardino County through an undertaking to be known as the Riverside North Aquifer Storage and Recovery Project.

Through its public utilities division, Riverside has plans to construct a 700-foot wide dam extending across the Santa Ana River north of the Riverside County Line on 30 acres of unincorporated San Bernardino County land owned by the city of Riverside just beyond the outskirts of Colton to capture the river’s flow and provide a ready supply of millions of gallons of water that originates in the San Bernardino Mountains to be conveyed by aqueducts or pipes to areas of the city of Riverside’s choosing for use in recharging groundwater basins.

The part concrete, part vulcanized rubber dam, has been designed to be retracted, i.e., deflated, at will to allow the river to continue its southward flow.

Plans are that the $15 million project’s cost would be borne entirely by the city of Riverside. The undertaking would be of primary benefit to the Western Municipal Water District in Riverside, which is to be the recipient of over 80 percent of the water to be collected by the dam. The city of Riverside intends to sell some of the water to the city of Colton and the San Bernardino Valley Municipal Water District. The project has not yet proceeded to completion and Riverside is yet working on the environmental impact report for the project, according to Kevin Milligan, the chief financial officer and interim chief assistant general manager of Riverside’s utility division.

County Faces Lawsuit Over Desert Water Project Approval

San Bernardino Sentinel

San Bernardino, CA -- A salt mining company in the Cadiz Valley has lodged a lawsuit against the county of San Bernardino over the proposed Cadiz Water Project, maintaining a memorandum of understanding the county entered into with the project’s proponents bypasses crucial components of the environmental certification process.

Referred to by its proponents as the Cadiz Valley Conservation, Recovery and Storage Project, the undertaking is an $878 million proposal by Los Angeles-based Cadiz, Inc. to sink 34 wells into the desert and construct a 44-mile pipeline along a railroad right-of-way until it meets up with the aqueduct that carries Colorado River water to the Los Angeles and Orange County metropolitan areas. That system will be used to draw an average of 50,000 acre-feet of water annually from the Cadiz Aquifer for use by the Santa Margarita Water District, the second largest water agency in Orange County; the Three Valleys Water District, which provides water to the Pomona Valley, Walnut Valley, and Eastern San Gabriel Valley; the Golden State Water Company, which serves several communities in Southern California, including Claremont; Suburban Water Systems, which serves Covina, West Covina and La Mirada; and the Jurupa Community Services District, which serves Mira Loma in Riverside County.

Cadiz has arranged for the Santa Margarita Water District, which lies 217 miles from the Cadiz Valley and will be the recipient of the lion’s share of the water to be obtained under the plan, to serve as the lead agency in the environmental certification of the project. Reportedly, county officials considered petitioning the California Office of Planning and Research to regain oversight of the project but rejected that option and on May 1 entered into a memorandum of understanding with Cadiz, Inc., the Santa Margarita Water District and the Fenner Valley Mutual Water Company, a corporate entity created by and wholly owned by Cadiz, Inc., which ceded to the Santa Margarita Water District lead agency status for the consideration of the project and its environmental review.

On May 25, the law firm of Rutan & Tucker filed on behalf of Tetra Technologies a petition for a writ of mandate and a complaint for injunctive relief against the county of San Bernardino and its board of supervisors that named Cadiz, Inc., the Santa Margarita Water District and the Fenner Valley Mutual Water Company as real parties in interest.
The Cadiz Valley lies just south of the Marble Mountains and northeast of the Sheep Hole Mountains near the National Trails Highway. Cadiz is home to a former railroad stop along the Santa Fe line, 17 miles east of Amboy and 70 miles from Needles.

Tetra's mining operations in the Cadiz Valley consist of the use of surface collection pits into which underground brines percolate as well as the pumping of underground brines into evaporation ponds.

According to Rutan & Tucker, “By ceding lead agency status to the Santa Margarita Water District (SMWD), the county violated its Desert Groundwater Management Ordinance and turned the California Environmental Quality Act (CEQA) on its head. The ordinance provides that an applicant who wishes to construct a groundwater well in the desert area must either get a permit from the county, after complying with CEQA, or be "excluded" from the ordinance. Rather than comply with the California Environmental Quality Act and seek permits from the county to construct its wells, Cadiz and SMWD seek to exclude themselves from the ordinance. The ordinance expressly contemplates that an applicant seeking to exclude itself from the ordinance must follow a particular order: First, a groundwater management, monitoring and mitigation plan must be adopted which adheres to the ordinance's ‘groundwater safe yield’ limitations. Thereafter, the applicant must execute a memorandum of understanding or other binding agreement with the county which, among other things, ensures that the measures identified in the county approved groundwater management, monitoring and mitigation plan are fully implemented and enforced. By approving the memorandum of understanding before the groundwater management, monitoring and mitigation plan was prepared and approved, the county flipped this prescribed order.”

The writ continues, “The Santa Margarita Water District and Cadiz, Inc. were complicit in this inversion of the sequence prescribed in the ordinance, which inversion allowed the county and SMWD to evade meaningful compliance with the California Environmental Quality Act. Specifically, the Santa Margarita Water District has proposed to construct up to 35 wells on Cadiz's land and to pump a massive amount of groundwater from the underlying aquifer. Whereas Cadiz had been using only approximately 1,500 acre feet per year for its agricultural operations in recent years, the Cadiz Project proposes to pump 50 times that amount (75,000 acre feet per year) for over 33 years or 33.3 times that amount (50,000 acre feet per year) for 50 years.”

Furthermore, according to the writ, “Instead of applying to the county for a groundwater management, monitoring and mitigation plan to exclude itself from the ordinance, a scenario under which the county would have been the lead agency in processing an environmental impact report for the groundwater management, monitoring and mitigation plan, the Santa Margarita Water District usurped the role of lead agency and went forward with the preparation of its own environmental impact report without procuring either a permit or a groundwater management, monitoring and mitigation plan from the county. In preparing its environmental impact report, however, the Santa Margarita Water District engaged in sleight of hand. It attached a ‘Groundwater Management, Monitoring, and Mitigation Plan’ as an appendix to its draft environmental impact report, and made that document the linchpin of the entire environmental analysis, as if the groundwater management, monitoring and mitigation plan had already been approved by the county.

Indeed, this ‘phantom groundwater management, monitoring and mitigation plan’ was even dated (November 29, 2011), suggesting it had been approved then, and was referred to throughout the draft environmental impact report as having already been developed, even though the document had never been approved by the county or subjected to environmental review of any kind. Specifically, the Santa Margarita Water District’s draft environmental impact report relied on the phantom 2011 Groundwater Management, Monitoring and Mitigation Plan for certain project design features and mitigation measures even though the 2011 Groundwater Management Monitoring and Mitigation Plan had never been adopted by the county. Thus, the draft environmental impact report’s conclusion that those project design features and mitigation measures would reduce the project's hydrology impacts to ‘less than significant’ is specious, as an environmental impact report cannot base such a conclusion on an unenforceable, unadopted document within the jurisdiction of another public agency. In short, the entire California Environmental Quality Act process was reduced to a sham exercise that significantly misled the public.”

According to the writ, “By forcing the county into the role of a mere responsible agency, the Santa Margarita Water District also has circumscribed the discretionary power of the county, and by accepting that role, the county has shirked its responsibilities under the California Environmental Quality Act.”

According to Rutan & Tucker, “the Cadiz Project would result in overdraft, and thus exceed the ‘safe yield’ of affected aquifers … because the project proposes to extract an average of 50,000 acre feet per year of groundwater for 50 years (and up to 75,000 acre feet per year for over 33 years), while the maximum assumed recharge is only 32,000 acre feet per year.”

And, according to the writ, the county in drafting the memorandum of understanding cut Cadiz, Inc. an unlawful break by altering the time standard for considering a state of overdraft from gauging whether more water is extracted in a given year than is replenished by that year’s rainfall to considering the average of this difference over a period of ten years, such that a determination of whether such an overdraft exists cannot be made for a decade after the project is initiated.

“The identification, evaluation, and mitigation of potentially significant effects of the project have been unlawfully deferred to a future date, without specific performance standards that must be met and without assurance that any potential mitigation measures will be effective or enforceable,” the writ states. “Moreover, by approving the memorandum of understanding, which contractually binds the county to various obligations, including the preparation of the real groundwater management, monitoring and mitigation plan, the county took another step in the process of approving the Cadiz Project, giving impetus to the project without the benefit of environmental evaluation or meaningful public input.”

David Wert, the official spokesman for the county said, “The county doesn’t have any response to the writ of mandate at this point and will reserve any comment until it has the opportunity to make a response in court. I can tell you the county disagrees with the contention made by the plaintiffs that the county violated the county’s ordinance and CEQA and will be prepared to argue those points.”

Cadiz, Inc. spokesperson Courtney Degener offered her company’s reaction to Tetra Technologies’ legal filing.

“Cadiz, Inc. is developing a sustainable project on its property that will safely capture groundwater that is lost to evaporation and provide a new municipal water supply in Southern California,” Degener said. “Project deliveries of approximately 50,000 acre-feet per year would consist of natural recharge and temporary surplus and not result in overdraft. For many years, Tetra Technologies, an oil and gas enterprise, has operated a salt mining operation at the nearby Cadiz and Bristol Dry Lakes at the low point of the surrounding watershed. This operation removes the surface crust of the dry lakes to expose and evaporate saline water below so that the residual salts can be mined and sold. This process demonstrates that substantial quantities of hyper-saline groundwater exist beneath the dry lakes and underscores the goal of the project to prevent the degradation of fresh water. Tetra’s operations would continue throughout the life of the project and, under the proposed management plan, mitigation measures will be enforced to ensure there are no adverse impacts to third parties, including Tetra.

“We believe,” Degener continued, “this lawsuit has no merit but cannot comment any further on the specifics of this pending litigation.”

June 7, 2012

County Road Claims in Preserve Settled

Legal Settlement Between Feds, County, Conservationists
Will Curb Road Threat to Mojave National Preserve

Press Release
Center for Biological Diversity

BARSTOW, Calif.— Ending five years of settlement negotiations, parties to a lawsuit involving Revised Statute 2477 road claims in California’s Mojave National Preserve filed an agreement today that protects species and fragile desert lands while recognizing claims to some roads that have long been used to cross the Mojave Desert. The settlement between the National Park Service, Bureau of Land Management, San Bernardino County and three conservation groups balances the county’s interest in public access while protecting sensitive desert lands.

“This settlement will help protect the preserve’s fragile desert resources, including Joshua tree forests, desert tortoise habitat, the ‘singing’ Kelso Dunes and several areas important to bighorn sheep,” said Lisa Belenky of the Center for Biological Diversity. “The settlement recognizes some of the county’s road claims while protecting the preserve from future claims.”

Under the settlement, the county’s right-of-way claims on two roads bordering the preserve on public lands will be recognized limited to their existing footprints; both were paved, two-lane highways used for cross-desert travel before 1976. The county’s claims to eight other roads within the preserve will be recognized in exchange for the county’s agreement to relinquish those claims and all other claims to roads in the preserve to the federal government, consolidating federal management. The county withdrew its claim to two short rights-of-way providing access to I-15.

“We strongly support consolidating management authority in the National Park Service which will ensure that the world-class biological and cultural resources of the Mojave National Preserve will be protected while the settlement also acknowledges that these paved and graded roads have long been used to provide public access to the preserve and across the Mojave desert,” said David Lamfrom, California desert senior program manager at National Parks Conservation Association.

The Mojave National Preserve, located in California’s Mojave Desert, covers 1.6 million acres of fragile desert. It was established in 1994 with passage of the California Desert Protection Act and is home to more than 2,500 native species, of which approximately 100 are considered imperiled.

“The sweeping vistas and dark night sky in the preserve will be safeguarded — an important conservation goal as development pressures mount in the Southern California deserts,” said Kim Floyd, conservation chair for the San Gorgonio Chapter of the Sierra Club.

The three conservation groups that joined the lawsuit as intervenors and are parties to the settlement are the National Parks Conservation Association, Center for Biological Diversity and Sierra Club.

In related news, a federal judge on Wednesday dismissed a lawsuit by Inyo County that claimed roads in Death Valley National Park.

BLM burro roundup in Arizona starts amid criticism

By FOX 10 News - Staff Report

YUMA, Ariz. - The Bureau of Land Management is conducting a burro roundup in southern Arizona despite objections from animal advocates as well as a congressman.

BLM spokeswoman Deborah Stevens said the agency started a two-week roundup Wednesday of 350 wild Arizona burros in the Yuma desert.

The roundups are done using a helicopter. In a video of a roundup that took place in southern Arizona, a burro was chased in circles and even knocked over at one point.

The BLM says there's a good reason for this -- overgrazing is preventing the regrowth of vegetation. Some are calling it abuse.

"It is everything that I have in me to watch animal abuse. For the BLM to claim there is no abuse. You actually see the skids of the helicopter and exhausted confused tired burro. This is very very upsetting," said Julianne French.

Rep. Raul Grijalva and animal preservation groups have criticized the BLM for not postponing the roundup. They say roundup activity should stop at 90 degrees because of possible dehydration and other dangers.

Stevens says workers will cease the operation if temperatures rise above 95 degrees. She says a safety officer will monitor the temperature on an hourly basis. There will also be a veterinarian on site.

Stevens says the BLM believes it can gather the burros humanely and will stop if they are in stress.

June 5, 2012

RS 2477 fight is important

One of the state's RS 2477 claims in the Glen Canyon National Recreation Area. (SUWA)

The Richfield Reaper

The fight over Revised Statute 2477 roads has been long and arduous, but it is also important.

In all, 13 lawsuits were filed last month by the Utah Office of the Attorney General on the behalf of counties in Utah with RS 2477 claims. The goal of the lawsuits is to protect access to roads that have been in use since before 1976.

An 1866 law designed to validate a system of highways and roads that traversed federal and private lands in the western United States established the RS 2477 roads. The law was repealed in 1976, but Congress granted right of way for roads used prior to the repeal.

In the years since then, there have been attempts to close several RS 2477 roads. One of the biggest examples of closures occurred with the declaration of the Grand Staircase-Escalante National Monument in 1996.

Environmental groups have argued for a different interpretation of RS 2477, as closing roads would allow for more wilderness areas to be designated.

While some may be under the impression that RS 2477 roads are all obscure dirt roads in the middle of nowhere, that is not the case. Looking over the list of recorded RS 2477 roads in Sevier County, one may be surprised to find names like Black Knoll Road, Hepplers Pond Road, Lost Creek Road and Upper Redmond Lake Road.

In all, 713 roads in Sevier County have been included in the lawsuit, as well as 101 in Piute, 341 in Wayne and 329 in Sanpete.

The goal of the attorney general’s office in filing lawsuits is to preserve access to roads so that they cannot be arbitrarily closed in the future. While some may never face the danger of being closed, others could be without warning.

Right of way is something that should be protected with zeal. It’s difficult to reopen roads that are closed, and even more so to establish new roads.

Closures of some roads may mean not being able to access a favorite fishing hole, while other closures could have severe economic and transportation consequences. In an area where the vast majority of terrain is federally owned and administered, being able to traverse the land is vital.

The attorney general’s office was right to file lawsuits in an effort to bring the RS 2477 issue to a resolu-tion. Hopefully, once the litigation is complete, access to public areas will be preserved for generations to come.