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.”