Dismissal mulled in bridge appeal

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SANDPOINT — A 2nd District judge is mulling a motion to dismiss an appeal challenging an Idaho Department of Lands encroachment permit for a second BNSF Railway bridge across Lake Pend Oreille, court records show.

Wild Idaho Rising Tide, a North Idaho environmental protection group, petitioned for judicial review of IDL’s permit approval last summer, but the litigation was initially stalled because of procedural errors. However, the petition was allowed to advance after the errors were corrected, court records show.

WIRT argues a second bridge across the lake jeopardizes water resources, air quality, wildlife habitat, Native American rights, navigation and tourism. The group further argued that another bridge will increase noise and pollution, heighten derailment risks and accelerate climate change via fossil fuel consumption.

BSNF Railway was allowed to enter the legal fray on grounds it had an uncontested interest in the bridge project, the denial of which would deny the company use of its property and impair its obligations to shippers. BSNF’s counsel also contends that a successful appeal would diminish rights it obtained through acts of Congress.

BNSF moved to dismiss the petition last month because WIRT was not a party to the underlying administrative permitting process. The company’s counsel also maintains that WIRT did not exist in the eyes of the Idaho Secretary of State until months after the petition was filed.

“Petitioner WIRT Inc. was not formed until September 2018 and failed to file its amended petition until well after the statutory and jurisdictional deadlines had passed in July 2018,” Stephen Thomas, BSNF’s Boise attorney, said in court documents.

Counsel for WIRT objected to the dismissal motion, emphasizing that it has been an active nonprofit for at least eight years. WIRT’s Sandpoint attorney, Wendy Earle, said a dismissal would have a chilling effect on not-for-profit litigants who seek judicial review.

“It is no secret to any of the parties herein or to the court that WIRT is a small nonprofit environmental organization. By contrast, BSNF is a hugely profitable national railroad railway carrier and IDL is represented by the Idaho Attorney General’s Office, a well funded state agency,” Earle said in court documents.

Judge John Judge was assigned to preside over the case and heard oral arguments on the motion to dismiss on Feb. 2.

A written ruling on the motion is pending.

Keith Kinnaird can be reached by email at kkinnaird@bonnercountydailybee.com and follow him on Twitter @KeithDailyBee.

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