Federal appeals court hears bypass case

SANDPOINT — The 9th U.S. Circuit Court of Appeals is scheduled to hear oral arguments Monday in the North Idaho Community Action Network’s federal lawsuit over the Sandpoint bypass.

The appeals court, which is hearing the case in Seattle, is not expected to issue a ruling from the bench. Three of the court’s 48 judges — Thomas G. Nelson, Michael Daly Hawkins and Jay S. Bybee — are scheduled to hear the case.

NICAN argues the U.S. Department of Transportation violated the federal charter for environmental protection when it approved the Highway 95 rerouting proposal, also known as the Sand Creek Byway.

The Western Environmental Law Center is arguing the case on behalf of NICAN, a non-profit which formed to protect Sandpoint’s waterfront.

The case comes to the appeals court fully briefed and parties on each side have been allotted 20 minutes for remarks, according to appeals court records.

NICAN is appealing a March 27 ruling from U.S. District Judge Edward Lodge, who rejected the group’s lawsuit arguing project approval violated the National Environmental Policy Act.

NICAN moved for an emergency injunction in June to halt construction of the $98.4 million bypass, which was set to begin this summer. The appeals court granted the motion last month, setting the stage for Monday’s hearing.

In its appeal, NICAN argues federal highway officials violated NEPA by failing to disclose or assess the impacts of dredging in Sand Creek, failing to consider a tunnel alternative and neglecting to take a hard look at the potential impacts to the historic Sandpoint Depot.

The group further argues that federal regulators limited their review of impacts to historic resources to only the bypass segment of the project and failed to address the three other phases of the project. NICAN also maintains that alternatives to 11 project additions were never considered. The additions include the southbound lane and off-ramp, and dredging and filling of Sand Creek for a shoreline extension.

The U.S. Department of Transportation and Idaho Transportation insist the bypass meets NEPA regulations.

“If you cut through everything, the bottom line is: Did we follow the NEPA process? We believe we did and that is what our attorneys will be arguing,” said Barbara Babic, ITD’s District 1 spokeswoman.

Liz Sedler, executive director of NICAN, was unimpressed by ITD’s response to the group’s opening brief.

“They focused entirely on the fact that there was all this public input and public committees, and this that and the other, and just kind of ignore the fact that they’re in violation of NEPA,” said Sedler.

The court has no time limit to rule on the appeal, although the 9th Circuit’s Web site said most cases are decided within three months to a year.

Although appeals court cases can take years to decide, Babic said the process, which includes expedited briefing schedules, has an aura of urgency.

“They seem to have a sense of time being critical,” she said.