Bypass permit fight could land in supreme court

SANDPOINT — A Sandpoint marina owner challenging an encroachment permit for the U.S. Highway 95 bypass is preparing to take his case to the Idaho Supreme Court.

Ralph Sletager’s legal counsel is calling on District Judge John T. Mitchell to reconsider his refusal to stay an encroachment permit for the proposed Sand Creek Byway.

Sletager challenged the Idaho Department of Lands’ permit approval in 1st District Court in 2006. The developer and owner of Sandpoint Marina argued the Idaho Transportation Department’s permit application was inaccurate and incomplete. Sletager also maintained that the highway realignment project was likely to fail and economically devastate the marina.

The state countered that Sletager was not entitled to a judicial review of the permit decision because he did not testify at a 2006 public hearing conducted jointly by IDL and the U.S. Army Corps of Engineers. The state’s legal team said testifying at the hearing is a required element of an administrative appeal of the IDL decision.

Without the administrative appeal, the state argued Sletager had failed to exhaust all remedies before asking a court to intervene.

Mitchell agreed with the state’s interpretation of the ruling and declined to stay the permit. The judge also ruled that Sletager’s prediction that the project is doomed was merely “speculation.”

Sletager’s attorney, John Finney, subsequently moved for reconsideration of the court’s ruling. Finney questioned in his motion whether the court’s ruling was final or if there was an opportunity for further briefing on the testimony issue.

Finney also contends in the motion that the court did not address the questions regarding IDL’s jurisdiction and whether Sletager showed a likelihood of winning the permit challenge.

Finney asserts the ITD application was fatally flawed because the department had not yet secured sign-offs from BNSF Railway, which owned the littoral and riparian lands upon which the encroachment would be placed. Without the sign-offs, ITD lacked the ability to apply for the permit and IDL lacked the jurisdiction to consider it.

Finney fortified the argument with a recent ruling from District Judge Steve Verby, who remanded a permit for a marina expansion at Willow Bay back to IDL because of missing signatures from pertinent landowners.

Mary York, a special deputy attorney general representing ITD, is opposing the motion for reconsideration. York said in court documents that Sletager is not entitled to judicial review, so the court does not need to address all of the grievances Sletager raised.

Finney has filed a notice of appeal to the state’s high court in case Sletager does not prevail in the motion for reconsideration, court records show.