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November 19, 2014
Calistoga Loses Bid To move O'Gorman Water Rights Case to Napa County

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Recent History of The
CALISTOGA WATER WARS

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"Calistoga Loses Bid To move O'Gorman Water Rights Case to Napa County"
November 19, 2014
By Kurt Larrecou,  Environmental, Staff Reporter
City attorney, Mathew Visick, representing the City of Calistoga in a Sacramento case known as O'Gorman v. City of Calistoga lost its bid to have the matter transferred to the Napa court due to Mr. Visick's over-zealous desire to have sanctions awarded against Ms. O'Gorman's attorney Brian R. Leighton of Clovis, California.

The court denied the City motion, during oral argument yesterday, Mr. Visick , was attempting to argue a demurrer (challenge to mechanical sufficiency of the complaint) via a motion to transfer the case to Napa, which was an improper attempt to introduce evidence not allowed to be inserted in the type of motion Mr. Visick had filed.

Visick had sought sanctions in the amount of$28,900.00 to be awarded against Mr. Leighton for filing the lawsuit in the wrong court on the
ground that the State Water Resources Control Board ("SWRCB) should be dismissed. That type of challenge should have been brought by
demurrer, not by a motion to change venue.

Presumably the City will now have to shoulder the financial responsibility for the Burke Williams mistake. All in all a good deal for Visick and the Burke Williams law firm he works for: If they win it cost the city nothing; If they lose the City pays the $28,900.00 to Leighton for the mistake.

Either way, win or lose, Burke Williams and the Burke Williams law firm he works for: gets paid and the City tax payers get the bill even if Burke Williams makes a mistake.

By Kurt Larrecou,  Environmental, Staff Reporter
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Calistoga's "Water War's", started May 5th 2008, as Matt Hickerson was checking the the cessation of water flow of the Napa River.

Matt walked upstream and found the river bed to be dewatered and dried out with a thick scum of algae.

 
Gov. Arnold Schwarzenegger was to declare a "statewide drought declaration" less that a month later.

The water rights of the, "pass through water," for all dam's in California including Hetch Hetchy is determined by the State Water Boards to ensure the streams are viable for for fish, wildlife, river canopy, and residents.

Matt's significant other, Debbie O'Gorman, had the century old water rights that she and Matt determined should be used to enable the Napa River to be flowing.
They called their long time friend
Grant Reynolds (read back ground) to help intercede with the powers that be to make it happen.

 
Grant Reynolds, a long time fly fisherman, was no stranger to water fraud as it had bitten  him in Mammoth, California, as recent rampant development dried up the stream he lived adjacent too.

Grant took the water issue to then Calistoga city manager Jim McCann who told him to pound salt, thus a suit was filed to begin the court battle.

The investigation found numerous water-users under the radar of the State Water Board and the California Department of Public Health for both domestic use,  frost protection, and irrigation frauds that ultimately led to McCann leaving the town's employment and his long time friend Richard Spitler was hired to carry the torch of defiance by Calistoga's multiple attorneys for well over a million of dollars to date and still going.
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"This the amount of water Grant Reynolds has fought for the city of Calistoga to release"
California Victim Compensation and Government Claims Board Attachment Sheet

A lawsuit seeking non-monetary damages was filed against the State

Water Resources Control Board on June 13, 2014. Because the complaint as-filed sought no non-monetary relief no claim against the state was necessary. The matter is now pending before the Sacramento Superior court. (Case No. 34-2014-00164846)

The attorney representing
Debbie O'Gorman in this action is Brian C. Leighton ("I'm a bulldog," Leighton said. "I don't give up.”) of Clovis, California (read here and here and here Have patience-Slow loading-WORTH WAITING FOR)

Recent discovery now indicates that the State Water Resources Control Board was negligent and the plaintiff will seek leave of the court to amend the complaint to allege actionable causes which do allow for monetary damages. Because money damages claims must conform to the notice requirements pertaining to state agencies, this claim is being filed after 6 months but prior to one year of the claim accruing on November 21, 2013.

Based upon these circumstances, but also not limited to others, this claim should be allowed to proceed if in fact it is found to have been filed late.

20. The annual acre foot amount of surface water diverted from Kimball Creek by the City divided by the total annual acre feet amount of water sold by the City's Water Enterprise Fund resulting in a pro-rata percentage of the City's annual gross income derived from the Water Enterprise Fund’s Annual income.

T
he California State Water Resources Control Board negligently issued the City’s original permit No. 5502 (A9376) on March 4, 1940 without first reviewing or including the Tubbs water transfer agreement or the Tubbs indenture within its files before issuance, referencing instead that the rights of access and right of way issues were “negotiations in progress (right of eminent domain).” (Ref: Permit check list 3/1/1940 & permit No. 5502)

The California State Water Resources Control Board (“SWRCB”) filed an
Administrative Civil Liability Complaint against the City of Calistoga on March 1, 2001 alleging
interalia:

The City has also expanded its service area beyond the place of use authorized by Licenses 9615 and
9616, and Permit 20395, and is delivering water to this expanded area from Kimball Reservoir.
During the inspection, staff was informed by Mr. Steve Anderson, the Water Systems Superintendent,
that approximately 60 customers are outside the service area, and staff was shown the extent of
service northwest of the City on Highway 128. This location was found to be about 0.8 miles outside
the authorized place of use for the City's water projects.”

On March 29, 2001 the City paid a $5,000.00 fine and applied to the SWRCB for an increase to its “place of use” (“POU”) sufficient to serve what would ultimately be included as an additional 115 water services. The City’s first attempt based upon an engineering error was rejected by the SWRCB when the City first alleged that its POU map had been erroneously drawn and requested that the “error be corrected administratively nunc pro tunc.”

On May 9, 2001, the City negotiated a 6-year land lease with Markham Vineyards for six acres of land located adjacent to the City’s reservoir property. The lease included a water supply clause, which would have been for AG use. Because this parcel was adjacent to Markham’s larger parcel, the water obtained under its lease agreement was used to irrigate the larger parcel as well.

On September 27, 2001, the City submitted a copy of the Tubbs Indenture, describing the document as:

“A water agreement dated November 3, 1939, between the City and Chapin F. Tubbs regarding water use on the section of water main between the City limits And Kimball Dam.”

Telling the SWRCB:

As previously stated, it is the City’s opinion that these documents demonstrate that the City has been serving water outside of the city limits prior to the issuance of License 9615 and 9618 and Permit 20395. Therefore the map at the State Water Resources Control Board has on file showing the City’s water service area as the City limits is in error and needs to be corrected.”

As illustrated below, the above statement is false.

Also included within the letter was the following specific request:

“As we discussed at the meeting of September 13th we would also request that the State review the conflicting bypass dialogue regarding our Permit 20395 and License 9615 and 9616.”

Given the wording of the above-described documentation, the SWRCB knew or should have known that no users, other than Tubbs/O’Gorman had a right to hook up to the City’s water main because the Indenture provided for only one 2” connection that had been in continuous use by the Tubbs since September 25, 1940, thereby making any claim that the Indenture allowed for an additional 115 users located outside the City’s POU invalid and unauthorized. (See Tubbs Indenture @ 6 below)

“Sixth, agree that the parties of the first part shall have the perpetual right to connect to said pipeline of the parties of the second part herein mentioned, for which this grant of right of way is granted, at any place on said right of way convenient to the parties of the first part, and use and take such amount of water therefrom as they may require for use upon the lands then owned by the parties of the first part, said parties of the first part to pay for said water used by them at a rate not to exceed (10c) per thousand gallons; or said parties of the first part may elect to pay for said water so used by them at the lowest established water rate affected by and/or paid by said party of the second part by way of its users within the City limits. All water shall be metered by a meter not exceeding the capacity of a two inch standard meter, furnished and maintained by the party of the second part;”

On January 15, 2002, the City submitted its application for an expanded POU to the SWRCB. During subsequent communications, the City justified its unlicensed diversion and use by stating to the SWRCB that it was bound to do so because of an old water agreement, which is the same agreement sent to the SWRCB on September 27, 2001, which makes no provision binding upon the City to provide water to anyone but the Tubbs.

Included within the application’s proposed expanded POU were several additional wineries that had been using water for agricultural purposes [“AG use” (11/3/1939 Indenture)] which was then and is still, inconsistent with the City’s SWRCB’s licenses that limit the city’s water use to “municipal purposes” only. (AG use excluded) The color-coded map submitted with the application admitted that the City had been illegally provided these vineyard parcels with Ag water for many years in violation of the City license terms.

The California Department of Fish & Game and NOAA filed protests in order to kill the City’s request to expand its POU. Each of these protests was a complete submission with no further information required. At this point in time the City and SWRCB confronted three barriers that would potentially harm the City’s efforts to “legally” sell water outside their POU and for AG use:

The DFG protest;

The NOAA protest; and

The fact that the Indenture language relied upon by the City to sell water for AG was not present, since the Indenture allowed for only one (1) two inch (2”) water hookup to the City’s water main between Kimball Dam and City limits, which had been in continuous use by the Tubbs since 1940.

Notwithstanding the completeness of the DFG and NOAA protests, on September 17, 2002, the SWRCB drafted letters to DFG and NOAA, giving them 30-days to provide additional information to their protest documents, with the caveat that:

“As a result of a compliance inspection, it came to the Division's attention, that 60 existing homes that the City has been servicing for over 30 years, were left off of the place of use maps for the four applications. Therefore, the City filed Petitions to Change the place of use to match the City's service area for all four applications. Whereas NMFS's letter expresses concerns regarding Kimball Creek Reservoir, it does not address impacts caused solely by the addition of the 60 existing homes to the City's service area. The Division is, therefore, assuming that NMFS is only formally protesting the Cyrus Creek Reservoir extension of time and NMFS protest, as such, is accepted. If, however, it is NMFS intention to protest the Petitions for Change, please provide, within 30 days, a statement of facts documenting impacts that will occur as a result of the addition of the existing homes to the service area. If the Division does not receive a statement of fact, the Division will assume it is NMFS intention to only protest the Petition for Extension of Time and will proceed accordingly.”

The letter signed by Dr. Stacy Li was placed in the SWRCB’s file however neither DFG nor NMFS received a copy of this letter, leaving the SWRCB free to dismiss the protests of an expanded City POU on the basis that neither agency had responded within the 30-day window allowed by the SWRCB letter.

During the pendency of the City’s application for an expanded POU, and although it had already been provided with a copy of the Tubbs Indenture by the City years earlier, the SWRCB requested that the City provide a copy of the water contract to justify the increase to the City’s existing POU.

The City informed the SWRCB that it was unable to locate the “old water agreement,” while at the same time the City was negotiating water supply contracts with the wineries based on the same the agreement that had been sent to the SWRCB years earlier on September 27, 2001 by the City.

Between the time that the original POU violation was discovered and the date that the SWRCB issued its first order granting the City’s petition for an expanded POU, the City negotiated no fewer than six (6) water contracts with wineries. (Chateau Montelana, Rombauer Vineyards, Ranch Alto Vineyards, Pecota Vineyard, Premo, and Markham Vineyards) All of these agreements were based upon the original November 3, 1939 Tubbs - City Indenture, which the City supplied to SWRCB on September 27, 2001.

SWRCB thereafter negligently suggested to the City that it could supply it with water billings to prove that it had been selling water to parties outside its POU in lieu of the “old water agreement.”

Had the SWRCB either reviewed its own files or required the City to substantiate its right to take water by using the Tubbs Indenture it had in its possession, or obtain the chain of title history to the City’s reservoir parcel of which it had been made aware, the SWRCB would have realized (as the Napa Court did) that the Tubbs Indenture did run with the land, but provided no basis for the City to sell water to users located outside the City’s original POU defined by the City limits in 1939 other than Tubbs with one 2” pipeline.

While the City was negotiating its contract with Chateau Montelana Vineyard at the end of May 2995, SWRCB on June 10, 2005 wrote to the City advising of the following circumstances:

The City responded to SWRCB on the 16th , to Ross Swinerton, advising that it wished to proceed and also attached copies of the September 17, 2001 letters purportedly sent to DFG and NMFS as backup exhibits that could be used as a basis to dismiss those agencies protests.

On the same day the City instructed its outside consulting engineer to prepare POU maps, excerpt below:

SWRCB issued its first order expanding the City’s POU on March 30, 2007. Number 4 of the order stated:

On August 30, 2007, SWRCB issued an amended order which deleted the above-stated provision from the original.

As a direct result of the SWRCB’s negligence in failing to verify the City’s claim to water rights, the SWRCB increased the geographical size of the City’s POU and deprived O’Gorman of the ability to engage in water sales to the vineyards to which only she had a right to sell water.

After several revisions the Summit POU map was originally submitted on September 29, 2005, was finally accepted on or about July 13, 2006.

SWRCB has been provided with judicially noticeable transcripts and documents indicating that in a prior court action, (Napa Case No. 26-26468) the court opined “That the Tubbs agreement does not run with the land.” Because the effect of the Tubbs Agreement, the deed restrictions inherited by O’Gorman prohibiting the City from taking water from its parcel had been held in abeyance since 1939. The Napa court’s dismissal of this earlier action based on its perception that the contract did not run with the land, formed the basis for O’Gorman’s request SWRCB to transfer title to the City’s licenses to her pursuant to Water Code 1016.


Editor: More - Calistoga Water Wars
Reference, Grand Jury Report
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THE LOCAL GOVERNMENT
EFFICIENCY MACHINE

Received from an anonymous source. Portions redacted to protect source. Links provided for clarification and background by editor.

Chris Canning, as an employee under Spitler for a non profit Chamber CEO negotiated the Spitler employment contract(see below), in three capacities the other two being a Mayor and a Calistoga TBID Board Member.

The City Managers contract should have been done by the other Council Members with Canning refusing to participate due to a conflict.

The overriding necessity that Canning participate is not justified as this is a blatant violation of
FPPC Laws. 

The
Calistoga TBID minutes attached will show multiple instance's where Canning votes for a financial benefit of the Calistoga Chamber in which he is enriching the actual budget, or a business he promotes as the Chamber CEO and in the capacity of the Mayor who votes for a project that is also a chamber member.

These minutes will allow ......... to see the impropriety's are serious and overlapping to project's promoted by Chris Canning and
City Manager Richard Spitler serves to advocate for developers.

There is no oversight from anyone.

This demands a full
FPPC investigation, of Calistoga politics that have been keenly maligned for massive infill by Richard Spitler's employment as of January 2010.

Richard Spitler is also the
City Clerk. He has the duties to oversee Conflict of Interest Laws and file the Form 700's with regards to upholding the regulations of the State as defined by FPPC.

Richard Spitler was caught as a City Planner in 1989 serving developers and his own interest's. As a result he quit Calistoga employment, in March 15 1990. Reported in a Calistoga newspaper article, stating his intention to work for the very same developer.

 The fact is,
Richard Spitler, currently has a  employment contract (read all) which allows him to consult as a planner for developers such as Silver Rose Development LLC.(here) (and here) This is a Boston  Massachusetts partnership that sent  a non California licensed, engineer, Michael Perrault to stay at the Marriott Hotel in Napa paid by the City Coffers (see payment attachment ).

Mr. Spitler, hired an outside Planner to oversee the very same project and did a fast track
Negative Declaration, while our employed planners watched.

Mr.Spitler serves in many capacities with series  of openly blank form 700's, with regard to revenue or
honorarium, even though he has his own planning business known as the Calistoga Planning Associates. This business was originally called Richard Spitler Planning  was in place since 2008. 

The municipal code states Richard Spitler, has power to initiate an investigation regarding his own actions?

. Investigations. The City Manager shall investigate into the affairs of the City and any department or division thereof, and any contract or the proper performance of any obligations of the City. Further, it shall be the duty of the City Manager to investigate all complaints in relation to matters concerning the administration of the City government and in regard to the service maintained by public utilities in the City.


There is rampant overlap as to incompatible office's, that Chris Canning, receives  an honorarium, Americas Cup tickets and events , SF Lodging , Dinners, Wine, Air Travel is also non existent on his form 700 forms.

The Calistoga Beverage Company is a Calistoga Business that is owned by
Nestle's and Chris Canning was the Calistoga plants CEO. 

This Business donates money  to the
Chamber of Commerce  which then is spent by Chris Canning as CEO of the Chamber as he sees fit.

He had stated, that he had Nestles stock but it also is not on is form 700.( Canning was a European Employee of the Swiss owned Company, and may have his financial interest's in Europe)

This business is an Industrial  Dis-Charger that outfalls
class two toxins such antimony, arsenic,boron manganese, sulfate and salts to our publicly owned waste-water plant.

City of Calistoga was
fined recently for antimony. that is paid by a municipal tax which is part of the revenue that pays, Chris Canning. He is paid multiple times a year and provides for a performance bonus for the Chamber Budget.

I ......... TBID Minutes and "Action Items" are Submitted by Chris Canning for the benefit of the Chamber and them he votes on them
(see web info).

The last Calistoga TBID Committee meeting was held May 19,2014. Canning had 4 action items for Chamber funding that totaled $43,200. He prepared the items and voted for the funding to be used by the Calistoga Chamber of Commerce that he is CEO of.
(See Attached Agenda and Minutes) of the conflict of interest violation.

This is a clever illegal manipulation of Mayor Canning, to deceive the record. I am sure a broad based e-mail request and records request would ................ to open this corruption up for criminal prosecution by the State Attorney General.

A recently written, public request, for the 2013 Calistoga "Municipal Beverage Tax", paid by the Calistoga Beverage Company  was not provided and was labeled as "Proprietary" by the
City Clerk

There is also a TBID conflict of interest that involves,
Michael Dunsford, a city councilman that voted $5000 for a TBID expenditure that ultimately funded a "Groupon" package deal to stay at the Calistoga Inn . 

The actual TBID vote on this by Dunsford was in the Calistoga minutes and has been removed or edited by Chris Canning.

They also made Dunsford a signer on the West American checking account .The committee also decided to bifurcate their Banking Interest's to, Bank of the West, as they stated West American Bank the primary Bank for the City of Calistoga may be a risk.

I believe an audit would show the check and may even have Dunsford's signature on it.

This groupon deal was a one time web advertisement for the The Calistoga INN and a gift from the Calistoga TBID  for the winter of 2013 to early 2014.

Dunsford and Canning also enjoyed several trips to Chicago as late as 2014, by Alan Harkin a resident of that city.

They both voted for massive infill project from Mr. Harkin, developer of the
The Enchanted Hills Resort , now known as Calistoga Hills (more info) (and more)

This project included many guaranteed entitlements for water and sewer we do not have.
(Short recap here) 10/2012 (complete presentation here)

The catalyst for this fraud involved Richard Spitler who was consulting for the project and managing the town as CEO.

The resort is now listed for sale and Spitler is most likely on the Harkin payroll as they are marketing it worldwide. Mr. Spitler was known to travel to the far east within the last year as it is hoped the
Chinese may be able to purchase.

The problems of Calistoga residents are a result of a complex circle of deceit, that started with Richard Spitler as of January 2010 and have with Chris Canning's stealth of multiple indiscretions, have reached a point that now escalated to a dangerous management of the resources of the town providing political perks, personal wealth, and financial backing by creative fraud.

I .......... ....... with evidence of wrong doing as to California Statues and the rule of law.

I must remain anonymous as I would be subject to reprisals in the City of Calistoga.
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Previous civic experience left us discouraged
I wanted to respond to your recent editorial "To the few who are active, I applaud you" (Aug. 7).
If you attended city council meetings during the time the huge projects were approved, (more-Read Comments)
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