NICAN in limbo until court issues decision

SANDPOINT - The North Idaho Community Action Network said it's unclear what the group's next move will be in its lawsuit to thwart the U.S. Highway 95 bypass.

"This is definitely a setback, but it's not the end," NICAN Executive Director Liz Sedler said on Thursday.

The 9th U.S. Circuit Court of Appeals lifted NICAN's injunction on Wednesday, but the court has not yet issued a decision concerning the merits of NICAN's appeal.

Absent the decision, Sedler said it's impossible to say what NICAN intends to do next. The group could petition for a rehearing before the federal appeals court, but it has no way to fashion an argument without knowing why the circuit judges decided to lift the injunction.

In its order, the court said it would explain its rationale for lifting the injunction  at a later date.

"We can't make any moves until we get their ruling on the case and they could sit on it for a while. There's no deadline," said Sedler.

The injunction's removal clears the way for the Idaho Transportation Department to begin construction of the $98 million highway re-routing project. But it does not necessarily mean the appeal has been dealt a fatal blow, Sedler said.

It's still not even known why the court granted the injunction in the first place.

"Obviously, some of our claims had validity or they would not have given us the injunction. So to this day, we don't know the basis for that," said Sedler, noting that its the second time the appeals court has issued an order without stating why it was doing so.

NICAN sought the appeal after Idaho U.S. District Judge Edward Lodge dismissed the group's lawsuit alleging numerous violations of the National Environmental Policy Act. The group also has a federal lawsuit pending against the U.S. Army Corps of Engineers, which is also being heard by Lodge.

That litigation alleges the proposed Sand Creek Byway violates the federal Clean Water Act.