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Posts Tagged ‘public trust doctrine’

We are in the process of developing our detailed comments to Team McEuen regarding the proposals for McEuen Park. Over the next few days, we’ll roll out some of our thoughts and concerns relating to the proposal here on the blog. Today: the ball fields and the boat launch.

Other than parking, the loss of the boat launch and the ball fields are the largest changes in use at the new proposal for McEuen Park. For these amenities, Team McEuen’s mission statement to provide the “greatest number of uses for the greatest number of people, of all ages and abilities, throughout all seasons” is perhaps somewhat in tension with the City’s constraint to “ensure the replacement of any displaced facilities with equal or better facilities.”

While not taking specific positions on the specific proposals for these specific amenities, we believe, generally, that the mission statement needs to be served with clear and convincing evidence, and the constraint needs to be met with concrete plans without a significant gap in service. Only then will Team McEuen’s charge be met.

With respect to the boat launch in particular, KEA has always been at the very forefront of the challenge to acquire more public access to the state’s waterways, particularly Coeur d’Alene Lake.  It is a huge lake with extremely limited access for the general public. This is particularly true for boats, but also for fishing, swimming, and just playing by the shoreline. It is for this reason that any elimination of access, of any use, needs to be accompanied by substantial new opportunities for that use. Merely trading a boating use for a more general-purpose public and aesthetic access at 3rd street is not, in itself, a sufficient trade. That said, the addition of a boat launch at the NIC campus is an intriguing potential solution which deserves consideration. And, clearly, the removal of the parking set aside for the boat-launching use is a huge improvement.

Of course, just as KEA has been at the forefront of access issues on the lake, KEA has also been long concerned with the impacts of shoreline and marina construction. For example, KEA along with fellow regional conservation organizations supplied detailed comments in the permitting process of the renovation of the nearby Blackwell Island marina. Permitting of a new boat launch at the NIC location will not be easy, nor will it be cheap. We will certainly insist that the construction and its use be consistent with sound environmental protection principles. These complications are too easily dismissed at this conceptual level, with the engineering details left to later stages of design. We would urge Team McEuen and the City to provide realistic assessment of these difficulties as part of the decision-making process.

 

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Although things have been quiet recently on the Save Cougar Bay battlefront, new shots were fired yesterday by the Cougar Bay Osprey Protective Association, which filed a lawsuit challenging the Idaho Department of Lands’ rejection of their application to protect the pilings and booms in Cougar Bay. Having been rejected twice by the Department, without so much as a hearing, the Osprey Association filed a “Petition for Writ of Mandate” to have the Court order that IDL accept the application and hold a hearing.

A most unlikely pair of attorneys — Scott Reed and John Magnuson, who are usually on the opposite sides of land use and waterways cases — filed the case late Thursday afternoon on behalf of the Osprey Association.

The petition describes the attempts by the Osprey Association to bring their application for a hearing only to be arbitrarily and somewhat absurdly rejected by IDL. The petition says:

The basis for the rejection of the permit application by respondents and their attorney was the determination that only a government agency is empowered to improve waterways for wildlife habitat and other non recreational uses by members of the public. This interpretation would prohibit other non-profit organizations such as the Idaho Nature Conservency, Ducks Unlimited and the Coeur d’Alene Lakeshore Property Owners Association from seeking to improve waterways for navigational, wildlife habitat or other recreational uses …

The afore-described duties [to accept the application and hold a hearing] incumbent upon [IDL] constitute plain official duties and require no exercise of discretion. [IDL] had no legal right to reject the non-commercial encroachment permit application

The petition points out that “Cougar Bay represents only 1.3 percent (417 surface acres) of the lake where kayaks and smaller water craft can safely enjoy the quiet scenery without risk of being swamped or overrun by larger faster water craft.”

The petition goes into some detail concerning the benefits to recreation and habitat inherent in protecting the pilings and booms. And the petition notes that a great deal of public, private, and non-profit investment has permanently preserved much of the shoreline. The application, the petition says, is consistent with Idaho’s Public Trust Doctrine.

It will be interesting to see what this legal wrinkle does to the recent agreement between Kootenai County and IDL over piling removal.

We remain convinced that Cougar Bay is an extraordinary place, deserving of much more protection than currently exists. The pilings and booms are a remarkable historic and wildlife and recreational resource, but they are, perhaps, the last line of defense. Good luck to the Osprey Association and its lawyers. And stay tuned.

 

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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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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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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.

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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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