Archive for August, 2010

Our great friend and office neighbor Mary Lou Reed invited us to a last minute lunch today with Keith Allred, candidate for Idaho Governor.  Allred, who was in the area for a number of events, evidently hadn’t completely filled his calendar, so a small group of “Friends of Mary Lou” got an invitation to have lunch at the Iron Horse and discuss North Idaho issues with the candidate.

(KEA, of course, has a deal with the IRS about not endorsing candidates and not being involved in elections. And we adhere scrupulously to those rules.  But we are allowed to talk to candidates about our issues, and we are allowed to inform our members about those issues and what candidates say.)

To the small gathering, Allred gave what amounted to a mini 10-minute version of a stump speech, and then opened the meeting to questions. Not surprisingly, Allred spoke about the bigger state-level issues of taxes and education, where he is attempting to distinguish his record from that of incumbent Governor Butch Otter. However, quite a bit of the question-and-answer session pertained to local issues with a conservation focus.

KEA's Cathleen O'Connor with Candidate for Governor Keith Allred today at the Iron Horse, photo by KEA BlackberryCam

Allred was first asked about the proposed 3-way land swap with developers M3 Eagle, Idaho Forest Group and the BLM, and acknowledged that he was mostly familiar with the southern portion of the deal and was less familiar with the northern portion. He noted, correctly, that in any land exchange deal, the details are very important and that a complex deal should be studied carefully to maintain a balance of values. In response to another question about state lands, he affirmed that the public interest is very important in considering how those lands should be used.

We had the opportunity to ask Allred about the state’s Clean Water Act dysfunction – the failure to do water quality monitoring, the failure to implement cleanup plans on local lakes, in particular – and Allred took a subtle swipe at his opponent saying that that rather than sitting back and railing at the federal mandates of the Clean Water Act and fighting in courts, Idaho would be better off if it invested in managing its own Clean Water Act program (like all but 4 of the other 50 states do) and coming up with Idaho solutions to Idaho problems.

Interestingly, we had a very similar conversation with Idaho DEQ Administrator Toni Hardesty at a meeting concerning the Spokane River TMDL last week. She admitted that she was in an “awkward” position to be negotiating for Idaho interests with the State of Washington when her agency does not have the authority to issue Clean Water Act permits. But she said the costs of taking over the federal program were a deterrent.

We’ll be interested in how this debate plays out in the campaign this fall. It appears to be a clear distinction between the candidates, and we know that voters take clean water issues very seriously.

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As has already been widely reported, an Idaho judge in Lewiston yesterday struck down permits issued by the Idaho Department of Transportation to allow huge trucks to ship oil refinery equipment up the Clearwater / Lochsa corridor.  The judge agreed with local plaintiffs that the shipments were a threat to public safety and that the shipments violated ITD’s own rules.  ITD could appeal the ruling, or they could go back to the permitting drawing board to try to solve the problems identified by the judge.

Although taking place a couple of drainages to the south of KEA’s Coeur d’Alene basin headquarters, the issue is one we are watching closely — in part, because KEA member and friend Peter Grubb of ROW Adventures is one of the plaintiffs in the case. Grubb operates the very popular River Dance Lodge on the Lochsa and the shipments slowing traffic on the highway for days at a time would be a major impact on the Lodge’s atmosphere and experience.

But we are also watching because the case offers an important lesson to other agencies of Idaho state government. In Judge Bradbury’s written opinion (available here) he takes issue with ITD’s decision-making process:

“It is extremely difficult to determine when the decision was made and therefore what portion of the record was relied on by the person who made the decision. The Memorandum Decision was dated August 20, 2010… The drums have been at the Port of Lewiston since May.”

The Judge goes on to say:

“The difference between making findings and conclusions to justify a decision already made and the rigor of reasoned discretion to arrive at a decision is one of kind, not degree. The U.S. Supreme Court has held that these types of “post hoc rationalizations” are not entitled to the substantial deference they otherwise would enjoy.”

This is what lawyers call dicta – words from the judge that aren’t necessary to the decision, but worth saying nonetheless. And in this case, they are words of warning about a common Idaho agency decision-making practice of “decide, announce, and defend” rather than employing careful consideration of public comment and requiring substantial evidence to support a decision.

In other words, in this case, ITD cannot issue a permit for these shipments by merely arguing, after the decision was already made, that the public’s safety and convenience are not adversely impacted, ignoring actual evidence to the contrary.

The dicta from the judge is a restatement of a fundamental tenet of due process in administrative decision-making, and his pointed reminder is one which Idaho agencies would do well to take notice.

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Thomas Midgley, Jr

Perhaps one of the more important legal decisions nobody knows about just yet. Logging roads will now require stormwater permits under the Clean Water Act. — A New Century of Forest Planning

How money to clean up the Silver Valley was lost to a politically connected British businessman  — The Johnson Post

SHT loads up the Lochsa. (That’s “super huge trucks” in case you were wondering.) — Idaho Conservation League and a great SHT-related video.

The high cost of free parking — New York Times

And the winner is… The worst environmental destroyer of all time is Thomas Midgley, Jr. — the guy who invented chlorofluorcarbons AND put lead in gasoline.  Who else even comes close? — Legal Planet

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We’re SO busy here at KEA: saving Cougar Bay, fighting over mine waste cleanups and water quality, monitoring local forests and land use, and helping to create farms and gardens for people who need food. There will never be enough of us to do the work we need to do, but we do have a position available. If you’re energetic, committed to the cause, and don’t mind low non-profit pay and long non-profit hours, send us a resume and cover letter.

(Click here for a job description.)

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After some detailed study and discussion, KEA finally weighed in on the proposed land exchange between Arizona developer M3 Eagle, Idaho Forest Group (IFG), and the U.S. Bureau of Land Management (BLM), expressing serious concerns.

The complicated exchange would provide M3 with key parcels related to a development proposal just north of Eagle, it would supply BLM with some 12000 acres of M3’s surplus sagebrush steppe lands in the Boise foothills, and it would supply Idaho Forest Group with some 8000 acres of BLM forest lands in North Idaho. M3 and IFG would like the Idaho congressional delegation to jump start the process with legislation to authorize the exchange pending environmental studies. (News coverage available here and here and here.)

KEA has had the opportunity to review presentations on the proposal by BLM’s North Idaho office and by Idaho Forest Group, in which the pros and cons of the proposal were thoroughly explored. In a letter to Congressional representatives sent yesterday, KEA expressed concern with the proposal:

In sum, on the substance, we believe the present proposal drains critical public resources from BLM’s inventory in North Idaho while not providing comparable economic or environmental value in the Boise foothills. On the procedure, we believe that any such proposal should be subjected to a full environmental analysis and a comprehensive parcel-by-parcel appraisal prior to any approvals – legislated or otherwise.

The letter notes that KEA doesn’t necessarily or automatically oppose land exchange proposals with the federal government. Indeed, consolidating parcels for conservation benefit or acquiring recreational access are often accomplished through land exchanges. But this proposal would essentially exhaust BLM’s North Idaho inventory, making local exchanges much more difficult for the foreseeable future.

Most importantly, though, these complex exchanges require a great deal of study first. Each and every parcel needs a thorough environmental assessment and a thorough market appraisal, and these evaluations need to be accomplished — and released for public input — before approvals are given. In this respect, we expressed concern to our congressional delegation that legislation on this proposal would be premature, and probably prejudicially so.

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We heard earlier in the week that the EPA would probably be extending the comment period for cleanup proposal for the upper Coeur d’Alene Basin. Well, it is indeed true. Commenters will now have another 90 days to put their thoughts together. Here’s hoping that the comments are more carefully considered and better informed than what we heard at the public hearing and listening session these last couple of weeks.

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Yesterday, the Cougar Bay Osprey Association received yet another rejection letter from its least favorite correspondent, the Idaho Department of Lands. This time the letter came through their attorney in the Idaho Attorney General’s office. The letter affirmed the Department’s outright rejection of the application to protect the pilings and booms in Cougar Bay for osprey habitat and quiet recreation.

The letter rationalizes the Department’s position by stating that the Osprey Association is not a “sort of governmental or public entity” that can apply for a permit, nor is it an entity “empowered” by such a public entity to do so. Moreover, the letter insinuates that there is absolutely no circumstance under which the Osprey Association can make an application to protect wildlife and recreation values for the general public, even if quite clearly consistent with the public trust. Indeed, under the Attorney General’s interpretation, private entities, either for-profit or non-profit, are quite literally banned from doing on-the-water restoration in Idaho.

Attorney Scott Reed is reviewing his options with his Osprey Association client, but the AG interpretation appears to be clearly problematic. Stay tuned.

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Intern Trevor Frank reviews the non-water quiet recreation at Cougar Bay:

Just minutes from downtown Coeur d’Alene, The Nature Conservancy’s Cougar Bay Preserve is a great place to view wildlife.  The 88 protected acres contain more than 5 miles of trail networks for enjoyment by the public, while the bay and creek accommodate kayaks, canoes, and fishermen.  The Bay’s upland has been protected as a wildlife sanctuary for more than ten years and has been kept open for the public.

The wildlife reserve is popular among hikers, kayakers, canoeists, and fishermen due to its serenity so close to town and its huge variety of wildlife.  The towering forests and lush meadows on display attract migrating and nesting waterfowl, numerous shorebirds, songbirds, moose, beaver, otter, and deer.

There are more than five miles of intersecting hiking trails to enjoy in the Preserve.  Signs supplement the hiking trails with information about the local birds, trees, and science.  Although no trails run immediately along the shoreline due to the waterfront’s marshy wetland characteristics, there are beautiful views of the Lake from the trails above and a launch site for canoes and kayaks.  The trails, intended solely for hiking, are closed to pack animals, like horses, and all vehicles, including bicycles.

Hikers generally agree that while the trails are mostly easy, they are not generally well maintained, which can make them slightly more challenging.  Some trails on the east side of the Preserve are particularly easy to lose.  There is also some elevation change, depending on where you choose to explore.  However, many enjoy the authentic feeling that comes with light use and low trail maintenance, and bearings are relatively easy to establish and maintain with Highway 95 and the bay itself always close by.  As you’re setting out from the trailhead – 2 miles south of Coeur d’Alene off of Highway 95 – the trails that go to the right are generally better maintained, but they offer fewer views of the Lake, which lies to the hiker’s left.

The bird population is particularly diverse.  Cougar Bay’s wetlands are occupied by various species of waterfowl while the forests above the Bay are home to numerous songbirds.  In all, well over 100 bird species have been identified in the area, including at least 28 protected “rare” bird species.

Cougar Bay is also a great place to kayak year round and is readily accessible from sportsman access on the northwest shore off Highway 95, the North Idaho College beach, and Blackwell Island public boat launch.  One can kayak throughout the Bay and up Cougar Creek to the small bridge in the park, which can also serve as another launching point.  Other uses include canoeing, fishing, and hunting.

However, the integrity of Cougar Bay’s shoreline habitat, which is home to much of the wildlife, is threatened by the proposed removal of the log pilings and booms in Cougar Bay. The pilings and booms serve as an unavoidable reminder of the no-wake zone, a physical barrier to reduce wave disturbances, and a deterrent to high-impact use.  Without them, if adequate steps aren’t taken to preserve the waterfront, increased noise and wake disturbances could greatly reduce not only the quiet peacefulness of the Bay, but also the amount of wildlife present, permanently degrading the Bay itself and its surrounding wildlife preserve.

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Gov. Otter and Sen. Crapo in Kellogg last night. Photo by KEA BlackberryCam

Last night, Senator Crapo and Governor Otter hosted another round of opposition to the EPA’s proposed cleanup plan for the Silver Valley. Mostly a rerun of last week’s hearing, Hecla Mining employees, local citizens, and local politicians lined up for 90 seconds at the microphone.

The same complaints – that the cleanup will (somehow) affect mining jobs, that it is an unlimited federal program with unlimited expenditures, and that citizens need more time to digest it – were thoroughly rehashed.

Senator Crapo, in opening the session, noted that this cleanup is “as difficult as anywhere in the United States” and urged the EPA to recognize the need to “simultaneously” clean up the environment and protect the local economy and jobs. Governor Otter claimed to still be “in process” vetting the plan, but then came out with his opposition to water treatment facilities included in the EPA plan. Senator Risch and Congressman Minnick provided video feeds expressing their concern for jobs and the economy in the Silver Valley.

We agreed with Senator Crapo, though, that with a “collaborative problem-solving spirit” the necessary cleanup – required by both federal law and solid science – the proposed cleanup of the Silver Valley can proceed while protecting the local economy and responsible mining operations into the future. Otherwise, the toxic wastelands that remain in the Silver Valley will simply remain in the Silver Valley.  And despite some of the rhetoric over the last week, doing nothing is not an option.

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Last week, area attorney Scott Reed responded in writing to the Idaho Department of Lands rejection of a proposal to protect the pilings in Cougar Bay. In a tough letter, Reed describes that the Department, which has now rejected the application twice without a hearing, must accept the application by the Osprey Protective Association one way or another.

On the first attempt, IDL refused to consider the application, stating that the Osprey Association application fell under the definition of a non-navigational encroachment which requires a $1000 application fee. When the Osprey Association applied again, including the $1000 fee this time, IDL again refused the application. This time, IDL cited regulations that say “noncommercial encroachments intended to improve waterways for navigation, wildlife habitat and other recreational uses by members of the public must be filed by any municipality, county, state or federal agency, or other entity empowered to make such improvements.”  IDL then said that the Osprey Association doesn’t appear to be able to satisfy the standard as a private, non-profit organization.

Reed argues that the non-profit Osprey Protective Association is, indeed, an actual “other entity,” empowered by the state as a non-profit corporation, organized for the very purpose of improving the Cougar Bay habitat for Osprey and protecting quiet recreational uses. Reed writes, “It cannot be said that in this conservative, pro-privatization, anti-government State of Idaho that a state agency would take the position that only the government could apply ‘to improve waterways … for wildlife habitat and recreational uses by members of the public.’”

Reed emphasizes that, at the very least, one way or another, the Department needs to determine the application on the merits and apply the Public Trust Doctrine according to comments by the public and a hearing if necessary. If not, Reed says, “my advice to [the Osprey Association] will be to let a judge decide.” Reed writes, “I would like to think that after accepting our application, IDL would give us a fair hearing.”

Meanwhile, our Save Cougar Bay campaign continues. Check out our Save Cougar Bay facebook page and continue checking the blog for updates.

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