Stay of bypass permit rejected

SANDPOINT - A 1st District judge is shutting down a Sandpoint marina owner's attempt to halt an encroachment permit for the proposed U.S. Highway 95 bypass.

Ralph Sletager called on the court to stay an Idaho Department of Lands permit for the Sand Creek Byway because the project is likely to fail and Sandpoint Marina would be devastated economically as a result.

But in a ruling filed on Thursday, Judge John T. Mitchell declined to stay the permit because Sletager's challenge was without evidence to demonstrate that the project will probably fail and how he would suffer if it did.

“Petitioners have only engaged in speculation on all fronts,” Mitchell said in the order denying the stay, noting that Sletager's challenge failed to indicate how the project would fail, the magnitude of the failure, the means by which harm could result and the likelihood of harm occurring.

The Idaho Transportation Department argued in court documents that putting off the bypass for another year would cost taxpayers $5 million because of rapidly escalating construction costs and potential permit expirations. The state further argued that public safety would remain imperiled because the highway would continue to snake through a congested downtown core.

“Because Petitioners fail to give specific evidence of injury that denying the stay would entail and there is strong evidence of injury that the Respondent would sustain, the stay must be denied,” Mitchell wrote.

Mitchell further concluded that Sletager did not exhaust all of his administrative relief options prior to filing the court action. Sletager submitted numerous comments to IDL and the U.S. Army Corps of Engineers during the permit's public review, but he did not attend a 2006 public hearing to voice his objections.

Sletager's legal counsel, John Finney, argued the written comment satisfied the appearance requirement, but Mitchell ruled that Sletager's attendance was compulsory if he planned on filing an administrative appeal of the permit.

Last month, the Association of Concerned Sandpoint Businesses lost an administrative appeal of a state water quality permit and a U.S. District Court judge rejected a lawsuit in April which alleged the Federal Highway Administration violated the National Environmental Policy Act by approving the project.

The Idaho Transportation Board awarded the $98.4 million construction contract in June to Parsons RCI of Sumner, Wash. Pre-construction staking is under way and work is scheduled to start this summer.

However, the North Idaho Community Action Network is suing the corps of engineers in federal court and appealing the ruling on the FHWA suit to the U.S. 9th Circuit Court of Appeals.

NICAN, which contends the project will destroy the waterfront without improving traffic flow, filed an emergency injunction in the federal appeals court. The group is asking the court to rule on the injunction by Tuesday.