Anza residents speak their piece in the federal water rights case

Anza Valley residents gather at the U.S. 9th District Court Wednesday, Aug. 23, in San Diego to speak to the magistrate judge about their problems created by not being able to get community wells to bring more development to the Valley. Tony Ault photo

More than a dozen Anza Valley residents trekked down to the 9th U.S. District Court in San Diego Wednesday, Aug. 23, and for the first time were able to plead to the magistrate judge to lift stays on a 10-year-old water rights settlement case that is hindering development along state Route 371 in the Valley.

The group, led by Gordon Lanik from Lake Riverside Estates, attorney Flavia Kreig and attorneys representing the Anza-Aguanga Citizens for Water Rights were admitted to the courtroom of Magistrate Judge Ruben B. Brooks for closed settlement discussions. The group of Anza residents were told to return to his courtroom in the Edward J. Schwartz United States Courthouse in San Diego at 1:30 p.m. to state their case.

It has been more than 10 years since nearly 2,000 Anza and Aguanga landowners with properties surrounding the Cahuilla and Ramona Indian Reservation were notified that their water rights were in litigation and settlement negotiations were underway. The tribes, referring to an earlier settlement in a case titled U.S. vs. Fallbrook Public Utility that has been dragging on since 1963, filed an appeal with the court to quantify their water rights in the upper portion of the Santa Margarita River Watershed that had not be determined by the court.

Up until that time the court had only issued interlocutory decrees quantifying the water rights in the watershed to landowners and government lands from Fallbrook down to Camp Pendleton. In simple terms, it leaves the upper Margarita River Watershed River Watershed quantification of how much water is available for residents, businesses, water districts and the Cahuilla and Ramona Indian tribes that reside along the river watershed area yet to be determined by the federal court.

The Pechanga tribe, in the watershed area, has agreed to a settlement since, but the rest of the upper Margarita River Watershed quantification remains with the court, including the Anza and Aguanga Valley where the remaining tribes still want to know how much water they are entitled too. Under federal Indian Reservation treaty laws made in the early 1900s, see the case of Winters vs. United States in Jan. 6, 1908, tribes along waterways and watersheds have first rights on the water that flows on and under their lands.

With that in mind, the tribes are seeking a determination of how much water they are entitled to control before any is released to larger water users in the watershed. These include local developers who want to drill new wells or reopen older capped community wells.

Local developers like Robyn Garrison, Bob Giffin, Soji Akanwo and partners in the Thomas Mountain Ranch have spent millions in recent years to gain permits to open community wells from the county of Riverside and the State Water Resources Board for their developments, only to be turned away because the water quantification in the area remains to be “adjudicated,” or waived by the federal court. Resident landowners are still permitted by the county to drill wells for their own use so long as they meet public health standards.

Grandfathered off-reservation community wells are still pumping millions of gallons of water out of the watershed its and aquifers for agricultural use. Unfortunately, a growing number of illegal marijuana farmers is causing concern from the developers that the water table may yet shrink even more.

Brooks, at the second meeting, allowed the Valley residents including Garrison, Philip Canaday of Anza Mutual Water Co., Frank Miller, Anza Chamber of Commerce President Patricia Clark, Floyd Maxwell and real estate agent William Ameswork to speak on the need for the court to remove the stays on the settlement so developers can gain permits for the proposed developments.

Brooks, however, made it clear that he had other plans.

“This is not a hearing,” he said. “It is off the record. We are not here to make any rulings.”

He said he would give residents wishing to speak on the situation one hour.

“We are here just to listen,” he said.

Also listening to the residents in courtroom was a large contingent of attorneys representing the different parties in the legal settlement proceedings. The attorneys present included those from the Ramona Indian Tribe, the Cahuilla Tribe, Hemet Unified School District, the state of California, Agri Empire, United States Marine Corps and the new Santa Margarita River Watershed Watermaster Michael Preszler among others.

Canaday, owner of Anza Mutual Water District that serves a number of downtown Anza businesses, told the magistrate judge that a small sector of the disadvantaged residents had been denied water permits by the community. He said he had measurements of the water table in the area his company serves showing it has not dropped at all, even during the drought years.

“We can expand the water service to the downtown area,” Canaday said, and offered to provide the water use data to the court.

Garrison from ERA Realty, who is seeking to establish an Anza “Destination” development, said she had a million dollars of land she cannot develop because of the many stays in the settlement. She noted that 46 percent of the Anza community is considered low income and those residents have a very hard time getting down the hill to get their groceries and other necessary items with only a few small stores in the community.

“We need to create jobs and economic growth,” she said. “We have a plan.”

Yet, she said it was stifled by the county not being able to issue water well permits because of the stays. She noted Anza has enough water to support new businesses and create the needed jobs.

Miller said his family has been a defendant in the case for the past 61 years, and it has been a hardship on his family and the entire community. He said of the water rights case, “The goalpost keeps getting moved. We urge the court to get a resolution to this case soon.”

He brought up the problem of the illegal pot growers stealing and using more and more water every day without permits.

Patricia Clark said Anza has not had any new commercial development for years.

“It’s hard to encourage businesses to come here because of the water situation,” Clark said.

She said the unemployed in Anza need jobs and without new businesses coming in “they are going to find jobs with the pot growers. They are sucking our water dry.”

Maxwell, a military veteran, said he was not in the court as a developer but as a homeowner who supports new business development and the need for water.

“Our people are really in a bad financial state,” Maxwell said. “It’s been 11 years, and here we are still talking, talking. Somebody has to take a stand. No more stays!”

Amesworth said the continuing stays in the settlement have been “a financial burden on the Valley. People are really in a financial state.”

He said his water wells have remained at 50 feet for the past six years, and it only took 30 days in the height of the drought to recharge his well back up to 50 feet.

Brooks interjected during the remarks and said that “one thing we agree on is the problem of pot growers using the water.”

He said the issue is of great concern to the entire staff and the attorneys in the case. He said the residents could be sure their comments were heard by the litigants in the case and would be discussed.

Before dismissing the resident speakers, Cahuilla tribal attorney Les Marston told the residents and their representatives that he had heard from the tribe that they would be happy to work with the developers in gaining water permits from the county, and he offered to sit down with county counsel and other interested parties to seek a solution to the situation. He said the Anza-Aguanga Citizens for Water Rights and those present would be receiving a letter about a meeting from the tribe.

“I would like to see that letter too,” Brooks said.

He has set Jan. 18, 2018, as the date for the next settlement conference. It did appear as though Brooks held a sympathetic ear to the resident’s plea, according to some of those attending.

At the end of the courtroom meeting, Lanik said, “I heard some good things from the Cahuilla attorney but whether or not he can make it happen is another issue altogether. But, if what he said, which is getting the water imported in the neighborhood of 3,000 acre-feet a year brought up to Anza, he feels he can make it happen with the right cooperation with the county and state. Now, whether he can make it happen is yet to be seen. I like what I heard.”

He said the information given by the residents “will be a lasting impression on the judge of all the people thinking this way.”

Krieg, speaking not as an attorney, commented on the residents coming to the court.

“I think it was very impressive, and I think everybody handled themselves unbelievably well and they were very concise and to the point about what the real issues are for people that live there and what the problem is with this case continuing without resolution for so many years.

“I think it really impressed him. I’ve seen his face and watched his eyes for many years now, and I think he (Brooks) was very impressed,” Krieg said.

One Response to "Anza residents speak their piece in the federal water rights case"

  1. Robert Kinkade   September 8, 2017 at 8:49 pm

    Robert Kinkade

    The Cahuilla Indian reservation was established in 1875 by a presidential executive order, not a treaty approved by U.S. Congress as required by federal law. Their reservation could be enlarge or reduced in size or terminated by a new presidential executive order, to this day.

    This has happen to this reservation in the past, it was made smaller when to the number of Indians living on it was so small. Thus, there is no treaty approved by U.S. Congress that established this reservation, any such notion is nonsense.

    Further, much of the Anza Valley was settled under the Federal Homestead Act of 1862, other parcels were established by the federal government for the early railroads by act of congress (both are Federal Laws, not executive orders) which extinguished Indian claims to the land.

    Further the Cahuilla Indians reservation was not recognized until 1875 many years after these Federal laws that established Anza Valley property rights (including Water rights) to their owners went into effect.

    This passage from the 1862 homestead act establishes that fact!

    note:
    (That nothing contained in this act shall be so construed as to impair or interfere in any manner whatever with existing preemption rights.And provided, further, that all persons who may have filed their applications for a preemption right prior to the passage of this act.) this appears in section 6 of the the 1862 homestead act.

    (There were none were, since the indians and their reservation were not recognized by the Federal Government until 1875, 13 years after the Federal Homestead Act of 1862)
    Why haven’t any of federal courts taken this into account? Here the land was purchased from the federal government with all its property rights in place including water rights, now the federal government wants to take these property rights back and give them to someone else?

    This seems to be an unlawful taking noted under the 5th amendment of U.S. Constitution which requires just compensation for taking personal property by the Federal Government. Thus, if the federal government is going to take our water rights we must be compensated for that taking!

    All defendant’s and their attorney’s in this case should do a title search to determine if their property was first purchased under the Federal Homestead Act of 1862, if it was the terms of that federal statute apply to their property. and excludes everyone who has not file preemption rights, prior to the passage of the Federal Homestead Act of 1862, by May 20, 1862.

    Google:

    https://www.ourdocuments.gov/doc.php?flash=true&doc=31&page=transcript

    Reply

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