State high court takes up pilings dispute - Bonner County Daily Bee: Local News

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State high court takes up pilings dispute

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Posted: Sunday, February 17, 2013 10:00 am

SANDPOINT — The Idaho Supreme Court heard oral arguments in Boise Wednesday in a dispute over plans to replace pilings at Lake Pend Oreille’s Glengary Bay.

Waterfront landowners Peter Shelagh Kaseburg sought permission from the Idaho Department of Lands to upgrade some of the 21 pilings from wood to steel and install a dock so they could moor a sailboat when the lake is drawn down during the winter.

The pilings were originally used to moor a part of a float house and to support a water intake line, but had no other known purpose.

The state processed the Kaseburg’s request as an application for a non-navigational encroachment.

Neighboring landowners objected to the proposal, contending that the dock could extend as far as 300 feet into the bay and hinder navigation. There was also concern that granting the permit would create a precedent other landowners could use to justify longer docks.

The department ultimately denied that request and a second request for a mobile dock system and a mooring buoy.

The Kaseburgs filed a petition for judicial review and 1st District Judge Steve Verby overturned IDL’s rulings on the matter.

Verby held in a written ruling that all pilings are navigational encroachments as a matter of law, regardless of whether they have ever been used to aid navigation. The alleged error tainted the IDL’s processing of both applications.

Verby set aside both denials, prompting the state to appeal to the high court.

An Idaho Supreme Court ruling is pending.

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  • wilson posted at 9:36 pm on Thu, Feb 21, 2013.

    wilson Posts: 1066

    I think Lloyd got caught up in some of the beaurocratic (sp) B S that goes on from time to time. There are some lakefront properties that have navigable waters to the shoreline - some that do not. Those that have given flooding easements of record are for that purpose only - the right to flood that described land when the basin is filled to the declared summer pool elevation.

  • L Wallace posted at 2:20 pm on Thu, Feb 21, 2013.

    L Wallace Posts: 1365

    This may need some more research. I think you will find county planning and zoning laws apply today which were not in effect 50 - 60 years ago. Certainly any new boat dock extending out in the lake would need a permit from the Corps of Engineers who handle permits that allow impeding navigable waters.

    At one point in time (1980's) I owned water frontage and the IDFG informed me that the "public had a 10ft. easement on public waters for fishing purposes" that I could not block. I inquired at what water level did the 10' easement exist? The IDFG said 10' onshore from whatever the water level was at during the time of a public easement use.

  • reddawn posted at 10:03 am on Wed, Feb 20, 2013.

    reddawn Posts: 1698

    Wilson is right, I am one of those property owners. I do pay taxes under the the water in summer, as well as own seven acres under the todays high water mark. I use to allow people to walk those acres, however spending three years of cleaning up after hunters, folks dingging for arrow heads with rods in our banks, drinking,bringing dogs,families, it had to stop. Folks were given a choice in the 1940s, sell the land to the government or give permisson to flood it, most gave permisson, those who sold are now boat launches. The rule is you can be in a boat, however you can not get off,or set traps without permission. It is private land. I agree, if I want to use my land , create a better beach you would think I could, Nope cant, this is Idaho law,no. However you can be fined for trespass on private land if the owner does not want you there. There is plenty of land for you to walk,go talk to the court house and ask,it is welcome to the public, hundreds of acres to enjoy, just take a hour out of your day and learn where they are. Sorry you are not welcome on mine created by the mess and disrespect of the hunters mainly, and those who bring garbage,and rods to arrow head hunt with there dogs and kids.

  • Here's What I Say posted at 9:12 am on Wed, Feb 20, 2013.

    Here's What I Say Posts: 1240

    Oh, geez, I'm a thief. I guess we can look forward to all those signs along the lake reading, "Trespassers will be shot". Guess I need scuba gear now to collect rocks.

  • wilson posted at 3:16 pm on Tue, Feb 19, 2013.

    wilson Posts: 1066

    Lakeviewer is correct - title to that property passes to each new purchaser, because it is private, deeded property. Boats are technically trespassing in the summer. Boat owners need to know the law and rules of the lakes they use. Same reason they are not allowed to cause wakes near shore.

  • wilson posted at 3:10 pm on Tue, Feb 19, 2013.

    wilson Posts: 1066

    HWIS - The natural high water level before the dam was that line of vegetation along the shoreline.. The artificial high water line is that level established by the Corps of Engineers after the dam was built. The rise of the shoreline varies in degree, therefore some properties lost more land than others to the flooding easement. Property lying between the natural and artificial lines is private property, and anything removed from that land is called stealing.

  • Here's What I Say posted at 2:19 pm on Tue, Feb 19, 2013.

    Here's What I Say Posts: 1240

    So technically the property in winter cannot be accessed by the public when there's no water on it? And how far out does that go? Before the dam the water flooded First Ave. some years and receded out into the bed to expose mud flats. What is normal high water before the flood? I didn't think there was any consistent lake level before the dam. Darn I found some nice things, rocks, etc. when the high water went down. Nobody ever chased me off the rocks I walked on when the water was down. But this population is a bit different now.

  • LakeViewer posted at 9:55 am on Tue, Feb 19, 2013.

    LakeViewer Posts: 914

    Wilson is right. The rights taken by easement to flood are only for that, to flood. The other rights revert to the property owner and are passed by deed to new owners. The easement to flood rides with the property as any other easement of record.

    Fee simple title to some properties were taken by the government, and those properties belong fully to the public with agency restrictions.

    The State of Idaho has overstepped it's authority on private property where only an easement to flood was taken by the government.

  • Here's What I Say posted at 9:28 am on Tue, Feb 19, 2013.

    Here's What I Say Posts: 1240

    Wilson, wouldn't your theory only apply if you owned the property since before the dam was built? We've had enough accidents on the lake without adding to the problems by putting mooring docks out 300ft into the navigable waters. Waterfront property owners now only own to the present high water mark.

  • wilson posted at 1:43 pm on Sun, Feb 17, 2013.

    wilson Posts: 1066

    It seems to be forgotten that when the Albeni Falls Dam went in, the lands that would become subject to flooding were acquired for just that, and a flooding easement was taken from the landowners for that purpose. Then as the years went by, the Dept of Lands and Corps of Engineers began thinking that there was somehow a right of the public to navigate in those waters, and all kinds of rules have been put into place which essentially confiscated those lands which seasonally hold water for storage. There remains the right of owners of those lands which have given easements to fill or build above a certain elevation, and to replace pilings in need of repair. In the case where a landowner wishes to reclaim their property by filling, there should be no problem, as they are paying taxes on that flooded land. Counties have succumbed to the evil Dept of Lands and Corps of Engineers and lend credibility to their claims. I hope the Courts remember the true facts about those lands that used to extend to the mean high water level of the Lake before the dam went in.