9th Circuit explains rejection of NICAN claims

SANDPOINT - The 9th U.S. Circuit Court of Appeals is explaining its decision to lift an injunction stalling construction of the proposed U.S. Highway 95 bypass.

The appeals court lifted the injunction in August, but saved an explanation on its reasoning for a written opinion, which was released on Monday.

In the 22-page ruling, judges from the 9th rejected all but one of the claims raised by the North Idaho Community Action Network, which is fighting the highway rerouting plan in order to protect Sandpoint's waterfront.

NICAN argued the U.S. Department of Transportation, Federal Highway Administration, Idaho Transportation Department and other agencies involved with the project committed violations of the National Environmental Policy Act, the federal blueprint for protecting the environment.

NICAN maintained the agencies failed to consider alternatives during an Environmental Assessment of a series of project enhancements, including a southbound off-ramp. The group also claimed the agencies failed to consider a tunnel alternative or disclose and assess the impacts of dredging of 17,035 cubic yards of material from Sand Creek to make room for the project.

NICAN also asserted the agencies failed to consider the impacts the project would have on historic properties such as the Sandpoint Depot or prepare an supplemental Environmental Impact Statement.

But the three-judge panel for the 9th Circuit rejected all but one of the alleged NEPA violations.

The judges ruled that the agencies' review of two enhancement alternatives was sufficient since it was done as part of an EA, which is a less stringent review than a full-blown EIS. The court further ruled that the dredging impacts were given the "hard look" as required by NEPA.

The judges concluded that the tunnel proposal was neither new information nor a new circumstance regarding environmental impacts considered in the EIS.

NICAN argued a supplemental EIS was required because of impacts to wetlands, cumulatively significant impacts, controversial or uncertain impacts and impacts to historic resources. The court disagreed partly because the modified plan affected less than a half-acre of wetlands and the state historical preservation office had signed off on a plan to mitigate impacts to the train depot.

"Moreover, the uncertainty and controversy relied on by NICAN are not directed to the changes in the Project, but to the Sand Creek Bypass alternative itself. That alternative was discussed and evaluated in the 1999 EIS, and any challenge to the selection of that alternative has been waived," judges Thomas Nelson, Michael Hawkins and Jay Bybee added in the opinion.

The panel from the 9th did, however, affirm NICAN's claim that the agencies jumped the gun by issuing a decision on the bypass without doing archeological evaluations on the other three segments of the broader Sandpoint North & South. The other segments, which don't have funding yet, address U.S. 95 improvements from Sagle to Sandpoint, the Long Bridge, and from Sandpoint to Ponderay.

But the court ruled that the violation was insufficient to justify enjoining the entire project and could be remedied by prohibiting construction of the other three segments until all the archaeological work is done.

"The bottom line, at this point, is those other three segments won't be done until the archaeological investigation is done," said Barbara Babic, ITD's Panhandle spokeswoman.

Babic said the archaeological work on the bypass segment is in the home stretch and currently focusing on the blacksmith shop at the former site of the Humbird sawmill.

NICAN's executive director, Liz Sedler, was pleased to see the group prevailed on one of its claims, which is being remanded to U.S. District Judge Edward Lodge in Boise. She said the group may petition the court for reconsideration on the rejected claims.

"We will be looking at the possibility of asking the 9th Circuit Court to take another look at the NEPA claims on which the three-judge panel ruled against us," Sedler said in a statement.

Parsons RCI Inc., the company awarded the construction contract for the bypass, is scheduled to meet today with ITD for a pre-construction meeting, which means work on the project could be imminent.