A federal court recently suspended the Forest Service temporarily from enforcing its decision to deny an application for a special use permit. The Forest Service’s decision not only denied an application for a new permit, it required the permittee to stop current activities under the permit and remove or alter its existing infrastructure which had been authorized under the prior permit. The court found that the Forest Service’s denial and its demands of the permittee were unreasonable.
The case involved the long-disputed diversion of water in Arrowhead Springs on the San Bernardino National Forest. The current permittee and its predecessors have diverted water from the springs using tunnels and boreholes since before the San Bernardino National Forest was created. The permit provided a right-of-way and authorized the pipeline structure for diversion of the water. In 2024, the Forest Service denied the permittee’s most recent request for a new permit. In that denial, the agency also required the permittee to remove the infrastructure located on the national forest and cover up its existing boreholes and tunnels.
The court noted that the permittee holds a vested water right to the water and that, while the Forest Service may issue regulations regarding that water right, those regulations must be reasonable. The court found that the order to remove the infrastructure and cover the existing boreholes and tunnels was a regulation of the water right and that, because the agency’s basis for ordering the removal was unreasonable, the regulation was therefore unreasonable. The court also noted that the Forest Service’s decision failed to address the ongoing litigation in state court as to the extent of the permittee’s water rights.
