Archive for the ‘Law’ Category

An opinion piece published in the Spokesman-Review sheds some additional light on the Sackett case pending before the U.S. Supreme Court.

As we’ve written before, the Supreme Court is only deciding a procedural point about how and when the Sacketts can challenge an EPA wetlands determination. Even if the Sacketts win their Supreme Court case, they could still lose their challenge when both sides put their facts before a judge.  Indeed, based on the Spokesman-Review piece, the Sacketts may face an uphill battle.

In the Spokesman-Review, Michael Doherty, a retired biologist and wetland regulator with the Corps of Engineers writes fairly directly:

“I drove by the property in question for decades and know it is a wetland. It was frequently covered with standing water, soils were saturated, and it was covered with plants common to wetlands in the area. These are the three criteria used to identify wetlands under federal guidelines, and the property meets them all.

Beyond the science, an average person would see it is located at the bottom end of a large drainage and is very wet. Yet they claim the lot is not a wetland. So why did they need to haul fill with dump trucks for three days to prepare it for construction of their house?

The $23,000 price for two-thirds of an acre lot located less than 100 yards from the shore of Priest Lake speaks volumes. The typical price of vacant Priest Lake property is much higher and points to the substandard nature of the property as a home site. As excavation contractors, the Sacketts were amply equipped to fill the lot and prepare it for building.”

The wetland shows up in the USFWS wetland inventory. The Sacketts’ own consultant said it was likely a wetland. (Until they changed consultants, of course.)  Just because the property contains a wetland doesn’t necessarily mean that the EPA and the Corps of Engineers have jurisdiction.  But these facts and circumstances are obviously not very helpful to the Sacketts when the case comes back to Idaho after its trip to Washington, DC.

Doherty writes:

“Though portrayed as such, this is not a case of the Sacketts versus a big government fabricating a case against them. The EPA does not fabricate cases because there are wetland violations all around us, and only the most egregious are pursued. The facts of any case are analyzed and reviewed by managers and attorneys and, if weak, it does not go forward to any enforcement action, let alone to administrative orders with possible legal action. The analysis includes impact to private property rights as well because taking private property without just compensation is illegal and the government looks very carefully at this issue before making any regulatory decisions.”

Indeed, as the adage goes: When the law is not on your side, you argue the facts; when the facts are not on your side, you argue the law.  The Sacketts have been arguing the law fairly effectively. As this piece points out however, the facts have yet to be heard.


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The lawsuit we filed against the U.S. Army Corps of Engineers over the Rosenberry Drive trees has been almost universally well-received. Other than a few crazed online comments from the anonymously insane, we’ve received nothing but well-wishing for our effort. Even the Coeur d’Alene Press — no fan of environmental litigation — came out in favor of our lawsuit.

Despite what some people might think, going to court is not something we take lightly. A KEA lawsuit is actually quite rare. We are extremely careful that both the facts and the law are on our side, and that the issue is significant enough to expend the time and money and effort. Indeed, this is true for the vast majority of conservation organizations. It is easy to call a lawsuit frivolous, but very few of them really are. Quite literally, we can’t afford to lose many court cases.

Still, when laws are clearly violated, when the environment is clearly at stake, going to court needs to remain an option. Lawsuits should never be the first option, but they should always be available as a last resort.  Unfortunately, access to the courthouse by conservation organizations is under attack. Congress has attempted to make some laws flatly unreviewable in court. Congress has attempted to limit government payment of attorney fees, even in cases where the government loses. And there are increasing attacks on university legal clinics which, like Gonzaga Law in our case, provide pro bono representation to low income people and public interest organizations without the ability to pay.

Courtrooms are inefficient and expensive places to resolve disputes, but courts do the job with authority and finality. The rule of law is what provides civilizations with actual civilization. Courts provide an honest way of dealing with honest disputes. We’re glad that this particular lawsuit is so popular, but we’re also glad that unpopular ones can be resolved the same way.


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Holidays are not slowing the rightward march of the Bonner County Property Rights Council. Monday night, the controversial Property Rights Council is sponsoring a “public seminar” on “The Theoretical Basis for a Property Rights Council.” The featured speaker is Sandpoint-based James L. Payne. Mr. Payne is a frequent contributor to the polluter-friendly and Koch-connected Independent Institute and the Foundation for Economic Education. It is unclear how this seminar got officially scheduled — the PRC meeting scheduled for last week was cancelled and prior meetings made no mention of the seminar.

Mr. Payne’s anti-government views are not exactly mainstream.  For example, he is critical of government spending, sure. But he’s even opposed to FEMA and government-supported disaster aid. (“The private sector can and does address all of these issues.”)  He is sharply critical of environmental regulations, sure.  But he’s opposed to regulations designed to prevent major environmental “catastrophes” like the gulf oil spill.  Instead, Payne concludes, “In the final analysis, overcoming environmental abuse is not likely to be achieved by governmental dictation. Instead, it is a process of social learning that includes everyone: friends and neighbors, reporters, pamphleteers, teachers, researchers—and companies too, as they discover how pollution hurts their image and their bottom line.”  Yeah. That’ll work.

Meanwhile, check out yet another article exposing the Bonner County Property Rights Council. This one from Boise Weekly.

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Well, it seems we’ve touched a nerve over at the Sacramento-based Pacific Legal Foundation. They are NOT pleased with our recent blog posting about the Priest Lake wetland case. Pacific Legal Foundation represents the Sacketts in their procedural fight with the EPA.

Of course, the “PLF Liberty Blog” doesn’t really take issue with our analysis. Mostly they are critical of our lack of outrage over the EPA’s use of their Clean Water Act authority. And they are critical of our emphasis on the procedural nuance lost in the broadly anti-EPA Fox News coverage.

So, to be fair we will officially admit it — we’re as ideologically-driven as they are.  But our outrage is more typically reserved for people who bulldoze wetlands without a permit.  As we wrote in our posting, the U.S. Supreme Court will tell us only how the wetland issue will get decided under the Clean Water Act.  Which is why we will reserve our outrage until a Court weighs the evidence on both sides.


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We received notice today that our colleagues at Idaho Rivers United have filed a lawsuit in federal court in Boise claiming that the U.S. Forest Service violated the Wild and Scenic Rivers Act by allowing Idaho’s Department of Transportation to issue permits for transporting megaloads up the Lochsa / Clearwater corridor.

The lawsuit claims that the Forest Service simply abdicated their authority and responsibility to protect the Wild and Scenic corridor. The lawsuit, brought by attorneys at Advocates for the West, states: “Rather than acting to prevent the establishment of a high-and-wide corridor through the Clearwater National Forest, the Forest Service has cooperated with ITD and authorized modifications to the right-of-way. As a result, the Forest Service has facilitated and effectively approved the mega-shipments to proceed up Highway 12.”

The lawsuit points out that the megaload shipments would have serious impacts on river-running tourism trade in the spring and summer. According to IRU, “Tying up the winding, narrow, two-lane road — along with its scenic pullouts — during the spring and summer tourist season would also restrict recreational access to the Wild & Scenic rivers and adjacent forest.”

In the IRU press release, Justin Walsh, an outfitter and guide says, “The amazing whitewater is only part of the reason people buy trips from me. It’s the scenery, the ambiance, the overall grandeur of the place. There’s no question that the river remains the way it is because of the Wild & Scenic Rivers Act, and there’s no question that those qualities would be impacted by these loads of super-sized equipment sitting along the river.”

As the first two megaloads were met by protesters as they passed through Missoula overnight, the oil industry and their governmental facilitators now have more explaining to do in a federal courtroom.


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For readers following the Highway 12 megaload issue, we thought we’d pass along a summary we received recently from the neighbors on the ground. The first two of ConocoPhillips megaloads traveling from Lewiston to Billings have made it through Idaho and are now traveling through Montana. (According to the most recent report, one load has reached Lolo, and one is “stuck” on the side of the road near Lolo Hot Springs.)

The loads traveling through Idaho have been monitored by an intrepid group of some four dozen night-owl volunteers, including  our colleagues at Friends of the Clearwater, observing, videotaping, and tracking the progress — and lack thereof.

ConocoPhillips said the shipments would take four nights each. The first shipment took six nights, the second shipment took seven. Including layovers, the eight days planned for the megaload shipments turned into a total of thirty-four.

Also, according to monitors, among other annoyances and permit violations, the shipments:

  • delayed traffic longer than 10 or 15 minutes multiple times during both shipments.
  • driven wheels outside the fog lines.
  • scraped a rock face.
  • diverted traffic unto unpaved turnout surfaces.
  • broken highway signs.
  • torn tree limbs throughout the corridor
  • disturbed residents along the highway with noise and lights from the 20 vehicle convoy

Idaho state police and snowplows have been diverted to accommodate the shipments. And, as if to emphasize the economic irony of it all, the ConocoPhillips shipments requested at least seven regular trucking companies avoid using the highway.

Meanwhile, perhaps watching this Highway 12 fiasco unfold, Exxon’s shipper, Mammoet, has quietly applied for and obtained permits in Washington, and have been shipping reduced-sized loads via interstate for about a month. It isn’t entirely clear whether these are the same loads originally intended for Highway 12. Exxon is also reducing the size of supposedly-irreducible loads already in Lewiston to interstate-size. In any event, Exxon shipments are moving between 10 pm and 4 am through Spokane’s I-90 corridor using the established Spokane and Spokane Valley “high route.” The shipments have Washington State Patrol escorts and are escorted by at least three pilot cars. We presume these smaller shipments then continue along I-90 through North Idaho, but we have not yet seen ITD documents or approvals.


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We got word from our friends and colleagues in the Lochsa corridor that the first of the permitted mega-load shipments by Conoco-Phillips are indeed scheduled for tonight, running from the port of Lewiston to mile marker 38.8. Local folks are expected to be along the highway as observers, but organizers are urging that the shipments not be disrupted.

The shipment, of course, represents a lost battle, but not necessarily the war over ITD’s apparent willingness to cede a Wild and Scenic River highway to industry for a permanent “high and wide” corridor.  The four permitted shipments are only for Conoco-Phillips to deliver huge coke drums to Billings, Montana.  The 200-some shipments by Imperial Oil and ExxonMobil to deliver equipment to the Alberta tar sands is another story altogether, and have not been permitted — in either Idaho or Montana. ITD has made repeated assurances that the ConocoPhillips permits do not set a precedent.

After the permits were granted by ITD hearing examiner, the residents and business owners, including ROW Adventures proprietor Peter Grubb, who intervened before the Idaho Transportation Department (ITD) to challenge the  shipments declined to to file further legal appeals of the ITD permits.

In a press release, Karen “Borg” Hendrickson, one of the intervenors said,  “We are proud of the work we have done over the last 10 months helping educate our friends and neighbors about the threats that hundreds of megaloads pose for the communities of the Highway 12 corridor.”

Her husband, Linwood Laughy, stated that the challengers intend to monitor the coke drum loads. “We think it is important for local residents to understand exactly how massive these shipments are and what their impacts may be for traffic and business on Highway 12, but we do not suggest that anyone attempt to interfere with them,” Laughy said.

Key parameters in the permits:





Oncoming traffic shall not be delayed greater than 10 minutes, except at … points listed in the traffic control plan ….There are 12 zones where Emmert will be allowed to exceed the 10 minute time frame…  [Note: ITD considers a “delay” a full stop.  ITD does not consider cars following the shipment convoys — no matter how slowly — “delayed.”]




Tires of the tractor and trailer shall stay within the fog line, except when exiting the roadway at approved turnout traffic clearing locations. The carrier has identified 5 locations where the load tires will cross the fogline but remain on the paved surface; M.P. 48.5, 48.7, 52.6, 54.3 and 157.

The outside tires will not extend closer than 1.0 foot to the face of [guard]rail at any time nor will the guardrail be allowed to be moved. Emmert will furnish … plywood to be laid down in front of the tires as the load progresses should the shoulder show distress to distribute the load as it passes bt…

The outside tires shall be illuminated to allow for inspection of this requirement.




DAY 2: MP 73.7 (KOOSKIA)






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