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Archive for July, 2010

As if the Idaho Department of Lands (IDL) knew that the Save Cougar Bay campaign was gathering a head of steam, the Department, we learned yesterday, returned the application submitted by the Osprey Protective Association for a permit to simply protect the pilings and booms in Cougar Bay.  This is the second time the agency has returned the application without addressing it on the merits.

We are still gathering information, and we haven’t seen a copy of the IDL rejection letter yet, but from what we can tell, the IDL decision appears to be without any reasonable legal basis. According to this clip, the Department of Lands claims that applications of this sort can only be submitted by municipalities or other government agencies. Yet, we understand that IDL has previously granted a number of comparable permits to other non-governmental entities.

We get it that the agency just doesn’t want this application to move forward. But frankly, the words arbitrary and capricious come to mind. Stay tuned – this isn’t a decision that will stand.

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Roots CSA Mural by Annie Stranger, Under Construction

This week, New York graphic artist Annie Stranger will be completing a mural at the Roots CSA, our charitable community supported agriculture project growing quite beautifully in Dalton Gardens.  The mural, on the side of a shed abutting the CSA, is bringing yet more life to the remarkable project which brings fresh local food to subscribers at all income levels.

Annie Stranger is the talented daughter of Linda and Scott Stranger, the Dalton Gardens landowners who have allowed a portion of their property to be used by the CSA to grow food. Annie, who also maintains an excellent food blog (www.chewonthis.org), was inspired to complete the mural during a visit home, where she was impressed by the CSA project in her parents’ back yard.

Thanks Annie!

UPDATE 8/3:  The Coeur d’Alene Press has a very nice article (and a finished-product photo) in today’s paper.

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Legal intern Trevor Frank supplies this first of two reports:

Preserving Cougar Bay will implicate “the public trust doctrine” – a legal doctrine that holds, basically, that natural resources should be maintained for the public’s interest. It is a doctrine that applies in Idaho because of a case brought by Kootenai Environmental Alliance.

Historically, water bodies have been thought of as a public resource under the management of the state. For example, dating all the way back to the Roman Empire, seashores not appropriated for private use were open to all. The Magna Carta subsequently provided for the opening of rivers for public navigation. English law continued to strengthen public water rights and, in 1892, the public trust doctrine was formally recognized in the United States by the Supreme Court in the case of Illinois Central Railroad v. Illinois, 146 U.S. 387 (1892). It is a common law doctrine – governed by previous judicial decisions rather than by legislative statute – and certain specifics of the doctrine vary from state to state.

The public trust doctrine was established in Idaho in the case Kootenai Environmental Alliance, Inc. v. Panhandle Yacht Club, Inc., 105 Idaho 622 (1983). In that case, Kootenai Environmental Alliance (KEA), represented by attorney Scott Reed, appealed a decision to grant Panhandle Yacht Club an encroachment permit for a marina. KEA argued that granting the permit violated the public trust doctrine because the private marina would not serve the public at large. More specifically, KEA argued that the yacht club would benefit only a handful of private members, that the marina would impair aesthetics, that the marina impair fishing access, and that the marina would be detrimental to water quality, fish, and aquatic habitat.

KEA lost the case. The court upheld the decision to allow the marina, finding the original hearing officer had determined that an economic need existed for sailboat moorage and that “little or no adverse effect will be registered against property, navigation, fish and wildlife habitat, aquatic life, recreation, aesthetic beauty or water quality.” However, although the original decision to allow the yacht club was upheld, the court noted that the public trust doctrine applied, and that the marina approval would remain subject to the public trust.

Since that case, in Idaho, the public trust doctrine states that lakebeds and streambeds below the natural high-water mark are owned by the state and must be held in public trust for the benefit and use of its citizens. States are allowed to privately lease this public property for private use docks, marinas, etc., but the lease must still preserve the public trust interest in the public resource. Essentially, the doctrine gives the State the power and responsibility to regulate waterways in a manner that is consistent with public interests.

The state has a set of statutes that apply to the permitting of docks and regulating waterways, but these statutes are in addition to the public trust doctrine. The decision in the Kootenai Environmental Alliance, Inc. v. Panhandle Yacht Club, Inc. case is still cited as the bedrock of the Idaho public trust doctrine. This critically important legal doctrine will be directly applicable to our efforts to Save Cougar Bay.

UPDATE 8/27/2011:  Here’s an interesting article on Nevada’s recent adoption of the public trust doctrine. Relying, of course, on Idaho’s precedent.

 

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After some careful consideration, Kootenai Environmental Alliance has, as part of our new Save Cougar Bay campaign,  joined forces with the Cougar Bay Osprey Protective Association to preserve the log pilings in Cougar Bay. The pilings represent cultural, recreational, and biological values that are important in Cougar Bay – the last quiet Bay on Coeur d’Alene Lake. We are supporting an Osprey Association application to the Idaho Department of Lands which would keep the existing log pilings and log booms in Cougar Bay for osprey habitat consistent with quiet recreation.

 As most local residents know, Cougar Bay provides a unique refuge for quiet enjoyment within minutes of downtown Coeur d’Alene. As the last undeveloped shallow bay in Coeur d’Alene Lake’s northern end, Cougar Bay contains rich wildlife habitat in its water, wetlands, and upland. But the pilings and booms in the Bay are also a historical testament to the community’s cultural logging roots.

 Cougar Bay provides a unique opportunity for quiet recreation on a lake otherwise bustling with noise and excitement. Cougar Bay represents less than 2% of Coeur d’Alene Lake’s surface area. This small portion of the lake is crucial to kayakers and other smaller watercraft users who desire an escape from the noise and wakes of powerboats, which are present on the other 98%. Powerboats are still allowed in Cougar Bay, but they must obey the no-wake designation, which is emphasized by the presence of the pilings and booms.

 On behalf of the Cougar Bay Osprey Protective Association, area attorney Scott Reed filed an application with the Idaho Department of Lands that requests an encroachment permit for the pilings and booms, abandoned by the long-gone timber mills. The permit asks that IDL approve the encroachment primarily for osprey nesting, but also “to keep existing resting and nesting habitat for other waterfowl, to provide quiet water for small watercraft and non-motorized boats, and to preserve the heritage of the logging industry for public viewing.”

 In what is probably a first for IDL, the proposal to maintain the status quo has no environmental impact whatsoever.  Indeed, as the application points out, “any impact upon the waters occurred over 100 years ago” and thus requires no “mitigation plan” for such impacts.  The application notes simply, “The entire project is mitigation in itself.” 

 The Osprey Association is signing on for long-term maintenance of the pilings and booms, and has agreed to maintain insurance.

 In our view, the existing log booms and pilings in Cougar Bay remain quite valuable even though the historic timber mills are gone. Protecting the pilings and booms in Cougar Bay will serve residents and tourists by protecting valued existing recreational opportunities, preserving existing wildlife habitat and biological integrity, and conserving a cultural and historical community artifact.

 The pilings provide nesting and perching sites for osprey and other wildlife, while the booms protect non-motorized recreation and shoreline habitat by vastly diminishing wave and noise disturbances. Additionally, they serve as a constant and forceful reminder of the area’s no-wake designation. This protection from wave and noise disturbances creates a place on the Lake where wildlife can flourish in their natural habitat.

 The pilings and booms themselves are an increasingly rare historical and cultural remnant, which will continue to remind the community where we came from. The removal of pilings near the mouth of the St. Joe River, along with planned removals along the Spokane River, make the existence of booms and pilings in Cougar Bay even more important, both for the protection of wildlife habitat and as a historical and cultural artifact.

 The alternative to preserving the pilings is, of course, removing them. But the cost of removing Cougar Bay pilings is estimated at more than one million dollars – money that doesn’t seem to exist anywhere anymore. Besides, removing the pilings and booms will not only be expensive but could also disturb the lakebed.  This would allow dangerous heavy metal sediment, which is presently contained underneath the water, to escape into the Lake and flow down the Spokane River.  By simply preserving the pilings and booms, costs can be avoided, environmental damage can be avoided, and wildlife habitat, recreational opportunities, and community heritage can be preserved.

 What You Can Do:

 Send a card or letter to Idaho Department of Lands to express your support for the preservation of the pilings in Cougar Bay. Be sure to emphasize how and why fish and wildlife habitat, aquatic life, recreation, aesthetic beauty and water quality in Cougar Bay is important to you. (Refer to IDL Docket Number: L95-SS-5386)

 Write:           Idaho Department of Lands

                     Mica Supervisory Area

                     3258 W. Industrial Loop

                     Coeur d’Alene, ID 83815

Our excellent legal intern Trevor Frank contributed to this article.

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We had heard this through our excellent regional enviro-grapevine, but it became official today.  Bart Mihailovich, best known as one of the bloggers at the excellent Down To Earth, was appointed as Riverkeeper for the Spokane River.  Bart replaces founding Riverkeeper Rick Eichstadt who will still be handling legal and support work for the organization.   

The Spokane Riverkeeper, a project of Spokane’s Center for Justice, is one of a growing network of waterkeepers, an organizational structure pioneered by Robert F. Kennedy, Jr. that acts as the eyes, ears, sometimes nose, and always an enforcement arm for waterbodies across the globe.  

Welcome, Bart. We look forward to working with you.

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Intern and Congress-watcher Jordin Jacobs helps with this report:

Full and dedicated funding for the federal Land and Water Conservation Fund is expected to be considered this week in the context of comprehensive oil spill legislation being considered by the US Congress.

Since its inception in 1965, the Land and Water Conservation Fund (LWCF) has helped state agencies and local communities acquire millions of acres of land for conservation, including Idaho’s Sawtooth National Recreation Area. LWCF grants to states have distributed funds to almost every single county in America for over 41,000 projects including parks, sports fields, swimming pools, playgrounds, and trails. LWCF has also funded the protection of over 1.5 million acres of working forests in over 30 states. Idaho Conservation League’s Susan Drumheller tells us that  local BLM has used LWCF frequently for their waterfront acquisitions an North Idaho spots that have benefited from LWCF include Cougar Bay and Blue Creek Bay.

 LWCF is financed largely through revenue generated in oil and gas leasing. When the LWCF was established, Congress intended that a portion of the oil and gas receipts be dedicated and reinvested in conservation assets across the nation in exchange for the environmental risks inherent in developing finite offshore oil resources. However, in most years, due to tight budgets, Congress and various administrations have diverted funds from their intended purpose.

This year, through the oil spill legislation, it may be possible to fully support of the Land and Water Conservation Fund. We are hopeful that full and dedicated funding will finally be given to conservation for National Parks, forests, wildlife refuges, parks and recreation projects, and other federal lands.

Since it was enacted, LWCF has been the only conservation offset for offshore oil drilling. This year, of all years, it should be fully funded. Give your member of Congress a phone call this week.

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After some careful consideration and some grassroots encouragement, Kootenai Environmental Alliance is launching a new campaign this week to Save Cougar Bay 

We think Cougar Bay is essentially the Tubbs Hill of Coeur d’Alene Lake.

Cougar Bay, the last quiet bay on Coeur d’Alene Lake, is rich with fish and wildlife habitat, historic significance, and is an important haven for quiet recreation close to the city. Currently, Cougar Bay has an incomplete patchwork of land protections to preserve much of the shoreline and uplands. And the Bay itself has a “no wake zone” to protect the water from intrusive boating. 

But the threats continue and the pressures remain, and we worry that without greater protection, what makes Cougar Bay so exceptional now can easily be lost – and can be lost forever. On the other hand, we believe that there is a strong grassroots constituency for preserving Cougar Bay in a more comprehensive and lasting manner.

 We hope to bring this constituency to the forefront. In the next several weeks, we will focus a great deal of KEA’s organizational efforts on saving Cougar Bay.  As our campaign develops, we hope you will join us in supporting a unique and creative proposal to protect the historic pilings in Cougar Bay for osprey habitat. We hope you will join us in supporting efforts to enhance and enforce the no wake provisions in the Bay and efforts to prevent the Bay from being overrun by commercialization and big boats. And we hope you will join us in finding additional permanent protections for the undeveloped shorelines and uplands.

The campaign kicks off this Wednesday at an informational meeting at the Coeur d’Alene Public Library at 6pm. Local attorney Scott Reed and others will describe the ongoing efforts to protect Cougar Bay and why our campaign is so necessary.

As the Save Cougar Bay campaign develops, we will be updating the blog frequently, and we’ve created a new facebook page for the campaign. Please join us, and stay tuned for the ways you can help.

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