Another chapter opens in Glengary Bay piling saga

SANDPOINT — The Idaho Supreme Court is affirming the Idaho Department of Lands’ denial of a controversial piling proposal at Lake Pend Oreille’s Glengary Bay, but is remanding a companion dock proposal back to IDL for further review.

The department denied Peter and Shelagh Kaseburg’s simultaneous permit requests in 2009 to either replace or alter decaying wooden pilings so a dock system could be installed for a pair of wooden sailboats.

Neighboring landowners in the small bay objected to the proposals, arguing that the pilings already posed a hazard to navigation and the doctk would extend too far into the bay and increase silt deposition and Eurasian milfoil growth.

Opponents further contended that such an extensive dock system would encourage waterfront landowners on Lake Pend Oreille to propose similar docks.

The lands department processed the piling component as a request to replace a non-navigational encroachment and the 700-square-foot movable dock system component as a navigational encroachment beyond the line of navigability in the bay.

Both requests were denied by IDL.

The department held the piling replacement project would perpetuate a navigational hazard without any benefit to the general public. The dock, which would be anchored by remnants of the pilings, was rejected because the established line of navigability in the bay is 55-feet waterward of the artificial high-water mark.

The dock would extend up to 300 feet into the bay due to fluctuating lake levels.

The Kaseburgs petitioned for judicial review in 2010 and 1st District Judge Steve Verby set aside both of IDL’s rulings. Verby held that IDL erroneously considered the pilings as non-navigational because all pilings are navigational encroachments as a matter of law.

The high court, however, reversed Verby’s ruling on the pilings on Thursday. Justice Warren Jones held that the pilings were not per se navigational and there was substantial evidence in the record to support IDL’s denial, according to a 16-page opinion.

Jones affirmed Verby’s setting aside of the dock ruling, but for different reasons than those cited by Verby. Jones concluded that IDL erroneously placed the line of navigability landward, rather than waterward, of the lake’s low-water mark.

Jones ruled that the 55-foot buffer was merely a belief about IDL guidelines in the bay and there is no evidence in the record that supporting such a conclusion.

“At oral argument, counsel for the IDL was unable to specify when, or by whom, the line of navigability was established,” Jones wrote.

Jones emphasized there was a narrow scope to the supreme court’s holding. The court recommended that IDL create a record of specific facts that establish the line of navigability, which must lie waterward of the low-water mark.

Justice Jim Jones concurred with his colleagues, although he urged IDL not to limit its options by allowing the department to only establish a line of navigability waterward of the low-water mark when a line has not already been established on the lake.

“IDL should have the option of trying to show that the line of navigability was established for Glengary Bay prior to the enactment of the Lake Protection Act, and that, when established, the line was landward of the low water mark,” Jim Jones wrote in the opinion.