The second of two parts from legal intern Trevor Frank:
Although the application is in a bit of limbo at the moment, Kootenai Environmental Alliance has expressed support for the Osprey Protective Association’s application for an encroachment permit in Cougar Bay to preserve the log pilings and booms. The encroachment permit would essentially allow the Osprey Association to keep the pilings and booms in place.
Approval of the application will require that the proposal be consistent with the Public Trust Doctrine. The Osprey Association must demonstrate to the decision-makers – the Idaho Department of Lands (IDL) – that their permit application to preserve the pilings and booms will facilitate use by and create benefits for the public.
The doctrine involves a two-part test when a state is considering a grant of public trust property, as would be the case in Cougar Bay. The first part is whether the grant aids navigation, commerce, or other just purposes. The second part of the test is whether the grant will substantially impair the public interest.
A court, if called upon, would review the IDL decision according to five criteria for public trust decisions in Idaho. These are (1) the degree of effect of the project on public trust uses (like navigation, fishing, recreation, and commerce), (2) the impact of the individual project on the public trust resource, (3) the impact of the individual project when examined cumulatively along with existing impediments to full use of the public trust resource, (4) the impact of the project on the public trust resource when that resource is examined in light of the primary purpose for which the resource is suited (like navigation, recreation, fishing, or commerce), and (5) the degree to which broad public uses are set aside in favor of more limited or private ones.
In the unique case of the Osprey Association’s application, the Public Trust Doctrine works in its favor. The pilings and booms in Cougar Bay do not limit navigation or commerce. Powerboats can still navigate through Cougar Bay, but they must move slowly, obeying the no-wake designation and allowing for quiet recreation. In fact, the presence of the pilings and booms is largely what enforces the no-wake zone, which actually aids the navigation of non-motorized watercraft such as kayaks and canoes. Moreover, the pilings and booms do not inhibit commerce. Rather, they enhance it, allowing for quiet recreation on a small percentage of the entire lake, and conserving a cultural community vestige, adding value to our strong tourism sector of the local economy.
Leaving the pilings and booms in place certainly won’t impair the public interest in the lands and waters remaining. Instead, the pilings and booms serve the public interest in the public trust property by providing for access to public recreation, preserving and enhancing wildlife habitat, and saving remnants from our community’s past.
How IDL will actually treat the Osprey Association’s application remains to be seen. The application seems to meet the Public Trust criteria, but it is completely unlike other encroachment permit applications, which typically propose the construction of a dock or marina. If the application is rejected, it will likely be because IDL determines that the pilings and booms impair navigation, but who then will remove them?
As established in Kootenai Environmental Alliance, v. Panhandle Yacht Club, decisions made by agencies like IDL, rather than democratically elected officials, will be subject to greater scrutiny. Even so, as is evident in Kootenai Environmental Alliance, Inc., the Court likely will not overrule a previous decision unless there is a procedural deficiency or a complete lack of rationale for the decision.
So, proponents must make the strongest possible case to the Idaho Department of Lands that the Osprey Association’s permit application is in accordance with the Public Trust Doctrine. Proponents should first and foremost demonstrate that the pilings and booms do not impair navigation or commerce or, ideally, that they aid navigation and commerce. Afterwards, proponents should illuminate all of the benefits they serve to the public in terms of public recreation, wildlife habitat, and historical significance.