Judge Jesus G. Bernal of the U.S. District Court for the Central District of California rejected allegations that the U.S. Forest Service (USFS) and other defendants unlawfully allowed Nestlé Waters (Nestlé) to operate water diversion and transmission facilities in San Bernardino National Forest with an expired special use permit for nearly three decades. The court concluded that Nestlé’s special use permit did not expire in 1988 as plaintiffs claimed. Although USFS never formally renewed Nestlé’s original permit, the court held that the permit remained valid by operation of law because the company contacted USFS to request renewal before the original permit expired. Ultimately, the court granted defendants’ motion for summary judgment.

The court also held that it lacked jurisdiction over the action because plaintiffs did not identify a cognizable “final agency action” subject to judicial review under the Administrative Procedure Act (APA). USFS’ annual collection of fees from Nestlé constituted a “day-to-day” operation that did not consummate a USFS decision-making process or determine legal rights, obligations, or consequences.

The U.S. District Court granted defendants’ motion for summary judgment on September 20, 2016. In a press release following the court’s decision, petitioners stated that they might consider an appeal. Although Nestlé was not a party to the case, it issued a public statement in support of the court’s decision.

Although plaintiffs’ claim failed at the U.S. District Court, the lawsuit spurred USFS to open a review of Nestlé’s application for a renewed permit and the State Water Resources Control Board to conduct an investigation into the validity of Nestlé’s claimed water right. Those USFS and State Water Resources Control Board processes are still pending.

[Center For Biological Diversity v. U.S. Forest Service, ___F.Supp.3d___, Case No. EDCV152098JGBDTBX (C.D. Cal. Sept. 20, 2016).]

(Sophie Wenzlau, Steve Anderson)