IDL challenges ruling on pilings

SAGLE — The Idaho Department of Lands is asking a district judge to reconsider a ruling involving 78-year-old pilings in Lake Pend Oreille’s Glengary Bay.

Waterfront landowners Peter and Shelagh Kaseburg sought permits from IDL to upgrade some of the 21 pilings from wood to steel and utilize them for a dock and sailboat moorage when the lake is drawn down during winter.

The pilings had once been used to dock part of a houseboat, but have gone unused for decades, according to court documents and permit hearing testimony.

The department denied the requests because the proposed setup would impede navigation. The dock would extend anywhere from 95 to 300 feet into the bay and interfere with the line of navigability, the state concluded.

The proposal also drew objections from neighboring landowners who felt such a facility would benefit only the Kaseburgs at the expense of the public.

The Kaseburgs challenged the state’s determinations in a petition for judicial review in 1st District Court. The Kaseburgs counsel, John Finney, argued his clients’ littoral rights as waterfront landowners were disregarded and the proposal was incorrectly characterized as a non-navigational encroachment.

The state defended its determinations in the matter and said the Kaseburgs were not entitled to build any kind of encroachment without regard to impacts on navigation, neighbors or the public.

District Judge Steve Verby, however, ruled in favor of the Kaseburgs and remanded the permit requests back to IDL for further consideration. The court also awarded at least $11,000 in legal fees to the Kaseburgs.

“The Kaseburgs rights to have access are not limited to access only when Lake Pend Oreille is at ‘full pool level’ at the artificial high water mark,” Verby said in a 20-page decision issued on Nov. 19, 2010.

The state subsequently petitioned for rehearing, contending that the wooden posts are not actually piling because they support no structure and do not aid navigation. The department further argues that the posts do not establish the bay’s line of navigation and the Kaseburgs have other points on their property that can be used to access deep water.

“The important point is that the Kaseburgs own substantial shoreline that offers alternatives to the proposed moveable dock system that the Record shows would seriously restrict navigation in the bay during low water,” Deputy Attorney General Steven Schuster said in a memorandum to the court.

The state is also challenging the award of attorney fees to the Kaseburgs.

A hearing on the state’s petition is set for April 20.