Bypass suit venue moved to Idaho

SANDPOINT — Less than a month after a federal judge shot down a lawsuit filed by the North Idaho Community Action Network over the legality of the proposed U.S. Highway 95 bypass, the group is again on the losing end of legal decisions.

U.S. District Court Judge Robert Whaley sided with the Idaho Transportation Department on Monday, approving its motion to intervene as a defendant in NICAN’s lawsuit against the Army Corps of Engineers. He also approved the corps’ change of venue request to move the proceedings from Washington to Idaho.

In the lawsuit, NICAN alleges the corps violated the National Environmental Policy Act and the Clean Water Act when it issued a discharge permit for the Sand Creek Byway.

The permit would allow the Idaho Transportation Department to dredge approximately 17,000 cubic yards of material from the creek and discharge some 77,000 cubic yards of crushed rock, concrete and sand to construct the highway project and an adjacent pedestrian path.

The motion to intervene adds ITD as a defendant in the suit and gives them the ability to argue its merits in court, said Barbara Babic, ITD’s District 1 spokeswoman.

The change of venue ruling will move the lawsuit from Washington, where the corps’ regional offices are headquarted, to Idaho District Court and possibly back to Judge Edward Lodge, who ruled against NICAN in its previous lawsuit against the Federal Highway Administration.

Whaley ruled to grant the change of venue because the outcome of the lawsuit will mainly affect Idaho residents and has little relevance to the affairs of Washington, which makes the district of Idaho a more appropriate forum for the litigation, according to court documents.

ITD officials said Whaley took the appropriate actions and are pleased with the ruling.

“Our view is that it’s an Idaho project so we want it heard in an Idaho court,” said Babic.

NICAN did not oppose ITD’s motion to intervene, but argued against changing the venue.

“We’re disappointed,” said Liz Sedler, executive director of NICAN. “We just got a bad ruling from (Judge) Lodge and we expect another one if this ends up in front of him.”

Sedler said NICAN would have had a better chance for a positive ruling had the suit stayed in Washington, and she is already prepared to appeal another of Lodge’s decisions.

“If Lodge does rule against us we’ll take it up to the Ninth (Circuit Court of Appeals),” Sedler said. “We anticipate that whatever case winds up in front of Lodge will be appealed.”