NEW! JUDGE REMANDS DECISION BACK TO BOCC – 9/19/22

NEW! M3 SENDS CEASE AND DESIST LETTER – 9/2/22

COURT HEARING AUG 10TH – WHAT TO EXPECT – 8/6/22

THE BEACH INCIDENT

Camp Bay Road is a county-owned and maintained road which ends at the high water mark of Lake Pend Oreille, giving the public access to the lakeThis road bisects a very large development underway.

The land owner and the development company petitioned the county to abandon 2550 feet (2.93 acres) of this road which would deny the public access to the lake. 50 Feet, according to the developer and land owner, was the width of your access to Lake Pend Oreille. How much is that 50 feet worth to you? Because to the developer, it is worth millions!

To Bonner County, it would seem your rights are worth nothing, because in April 2021, the County gave away this extremely valuable public lake access to support this private lakefront development.

April 7th, 2021 the Board of Commissioners vote unanimously to vacate the public road, giving it to the developer for a gated lakefront development. During this hearing, The Planning department’s Staff Report concludes that vacating the road IS in the public’s interest. What? Be sure to look at the map in the staff report, provided by the developer’s engineer, that shows the public road ending at the high water mark of Lake Pend Oreille.

Fred and Jennifer Arn, who live on Camp Bay road, strongly disagreed and filed for Judicial Review on May 4th. This is basically asking a judge to look at whether the process the Commissioner’s used to determine that the road was in the public’s interest, was valid. The judge agreed with the Arn’s argument and remanded the decision back to the County.

On February 16th, Commissioner’s gave the public road back. BUT, they claimed they don’t know whether the public has lake access and said they want a judge to make that determination.

This didn’t sit well with the developer M3 and they soon filed for judicial review, claiming the public right of way ends before high water mark, and doesn’t provide public access. We the public, need to prove otherwise!

The Arns will be intervening in this upcoming court battle in order for the public to be represented. They have hired Preston Carter with Givens Pursley LLP, who have had several successful outcomes in Bonner County land use cases.

Update: There will be a new hearing July 6th where the court will decide if it has the “authority” to decide where the road terminates.  There is currently very little we can do other than to get things in place and be ready to respond accordingly when the court makes a decision. The judge can allow the request for judicial review to proceed or she can remand it back to the county to figure it out. These are just two of several options.

M3 will be filing their brief in a few weeks and at that point we will know what their argument is. We will build our case off that information and submit our rebuttal brief along with the county.

We have been in contact with a local retired surveyor/engineer who has an extensive historical knowledge of the lake an he has offered to help!

We have received some very nice donations both large and small.  They all help offset the attorneys fees and we thank everyone for their support at whatever level they help!

In the course of your day don’t be afraid to engage people as to where this disaster currently stands.  We are finding the general public is not accurately informed, if they are informed at all!  

If we lose this one, it is gone forever!

If you feel comfortable donating, even just a very small amount, it would be a greatly appreciated and helpful.

Please Join Us! Saturday June 11th from 11am -3pm!

We held a BBQ on February 5th to bring awareness to this issue and it was a GREAT SUCCESS!! So we are doing it again.

A BIG THANK YOU to everyone who attended the first BBQ, shared stories, donated, and contributed to lunch. Your support made a big difference in the Commissioner’s decision to give the road back! Unfortunately the battle is not over!

Download the community petition to keep Camp Bay public here:

Take a ride down the road…
the value of this section of the road is at least 1 million dollars ($10,000 maintenance per year for 100+years)

Under Idaho statute Title 40, Chaper 2 Section 40-203 Abandonment and Vacation of County and Highways or Public Rights-Of-Way, the county Commissioners have the right to abandon the road, so long as it is in the public’s best interest. In voting to abandon the road the Commissioners cited these issues as being in the public’s interest:

“A turn-around for school buses and snow plows at the gate”
“Easements to the other properties”
“The county will no longer be responsible for the maintenance for this section of the road”

The first two “benefits” to the public are required by law and the third is questionable because the state pays the county for the number of miles of road the county has to maintain. If you take away a half mile of road, the state pays the county less.

Giving a million dollar asset to the developer and denying the public access to the lake they have had for over 100 years is definitely not in the public’s interest.

For this reason we requested a Judicial Review as per Idaho Statute…the judge agreed and we prevailed!

Read the judge’s decision here.

Here are just some of the supporting documents that were submitted to the Bonner County Commissioners before and at the hearing. You decide if we are right and if you agree, please chip in.

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A discussion about Easments and Public Trust Lands

Public easement 

Also found in: Dictionary, Thesaurus, Wikipedia.
Related to public easement: Servient tenement, floating easement
public easement

n. the right of the general public to use certain streets, highways, paths or airspace. In most cases the easement came about through reservation of the right when land was deeded to individuals or by dedication of the land to the government. In some cases public easements come by prescription (use for many years) such as a pathway across private property down to the ocean. Beach access has been the source of controversy between government and private owners in many seaboard states. (See: easement, prescriptive easement)
(https://legal-dictionary.thefreedictionary.com/public+easement)

PUBLIC TRUST DISCUSSION:

The states own these rivers up to the “ordinary high water mark.”the mark that people can actually see on the ground, where the high water has left debris, sand, and gravel during its ordinary annual cycle. (Not during unusual flooding.) It is not a theoretical line requiring engineering calculations. Where the river banks are fairly flat, this mark can be quite a distance from the edge of the water during medium water flows. There is often plenty of room for standing, fishing, camping, and other visits. 

States cannot sell or give away these rivers and lands up to the ordinary high water mark. Under the “Public Trust Doctrine,” they must hold them in perpetuity for public use. 

The three public uses that the courts have traditionally mentioned are navigation, fishing, and commerce. But the courts have ruled that any and all non-destructive activities on these land are legally protected, including picnics, camping, walking, and other activities. The public can fish, from the river or from the shore below the “ordinary high water mark.” (Note that the fish and wildlife are owned by the state in any case.) The public can walk, roll a baby carriage, and other activities, according to court decisions. 

States do have authority and latitude in the way they manage rivers, but their management must protect the public uses mentioned above. They can (and must) prohibit or restrict activities that conflict with the Public Trust Doctrine. “Responsible recreation” must be allowed, but activities that could be harmful, such as building fires, leaving trash, and making noise, can legally be limited, or prohibited, in various areas. Motorized trips and commercial trips can legally be limited or prohibited by state governments. 

State and local restrictions on use of navigable rivers have to be legitimately related to enhancing public trust value, not reducing it. Rivers cannot be closed or partially closed to appease adjacent landowners, or to appease people who want to dedicate the river to fishing only, or to make life easier for local law enforcement agencies. 

State governments (through state courts and legislatures) cannot reduce public rights to navigate and visit navigable rivers within their borders, but they can expand those rights, and some states have done so. They can create a floatage easement, a public right to navigate even on rivers that might not qualify for state ownership for some reason, even if it is assumed that the bed and banks of the river are private land. Note that this floatage easement is a matter of state law that varies from state to state, but the question of whether a river is navigable, for title purposes, and therefore owned by the state, is a matter of federal law, and does not vary from state to state. Note that a state floatage easement is something that comes and goes with the water: When the water is there, people have a right to be there on it, and when it dries up, people have no right to be there. But rivers that are navigable for title purposes are public land up to the ordinary high water mark, so that even when the river runs dry, people still have the right to walk along the bed of the river


Some sources

Search: “public access to public trust lands”
http://www.beachapedia.org/Beach_Access
https://www.monmouth.edu/uci/documents/2018/10/beach-access-report.pdf/
++++++++++++++++++++++++++++++++++++++++++++++++
Search “Public Roads”
https://plwa.org/know-your-rights/what-is-a-public-road/
https://www.lawinsider.com/dictionary/public-road
https://www.lawinsider.com/documents/iLvpmLxOiTH#public-road-end
++++++++++++++++++++++++++++++++++++++++++++++++
Search: “public trust doctrine”
https://www.law.cornell.edu/wex/public_trust_doctrine
https://en.wikipedia.org/wiki/Public_trust_doctrine
https://www.watereducation.org/aquapedia/public-trust-doctrine
https://legal-dictionary.thefreedictionary.com/public+trust+doctrine
https://www.perc.org/2019/06/19/the-limits-of-the-public-trust-doctrine/
https://ir.law.fsu.edu/cgi/viewcontent.cgi?article=1047&context=jluel
++++++++++++++++++++++++++++++++++++++++++++++++
Search: idaho fish and game laws for public right of ways to fish
https://www.idl.idaho.gov/wp-content/uploads/sites/2/2020/01/list-navigable-lakes-rivers-1-1.pdf
https://idfg.idaho.gov/press/know-idahos-trespassing-laws-you-go-hunting-or-fishing
++++++++++++++++++++++++++++++++++++++++++++++++
Search: Idaho highway distribution account for county road funds
https://www.lawserver.com/law/state/idaho/id-code/idaho_code_40-709

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One of several letters in opposing the abandonment

March 29, 2021 

Board of County Commissioners Bonner County Idaho 

I am writing to object to the proposed vacation of the public right of way for a portion of Camp Bay Road as requested in file VS002-21. 

Background 

In 1908 John van Schravendyk, the grandfather of the current owners of the Green property, petitioned Bonner County to make Camp Bay Road a public street. I assume the county has legal records of these events, but if not See Idaho Supreme Court Docket 47296, Matthew V. Latvala and Bonnie A. Latvala v. Green Enterprises, March 20, 2021 where this history is discussed on page 6 of the opinion. The history demonstrates that the easement for that portion of the road that traverses the Green property was freely granted by the ancestors of the current owners. 

In the ensuing years Bonner County has constructed and maintained a public street through this easement at taxpayer expense. It must be recognized that the primary beneficiary of this taxpayer expense has been Green Enterprises and the Green family. By voluntarily granting this easement the Green family was relieved of the cost of building and/or maintaining an access road/driveway through their property, including for their own use, the use of their tenants, as well as to provide access to those property owners beyond the Green’s property along the south shore of Camp Bay. In short, by granting the easement to the county the Green family transferred significant costs from themselves to the Bonner County taxpayers. 

That portion of roadbed itself that traverses the Green property represents a capital asset, paid for and owned by the county. It has real monetary value, and must be treated as such in any consideration of whether to vacate the easement through the Green’s property. 
Decision Criteria for Vacating Public Right-of-Ways 

Idaho law provides clear guidance for how decisions to vacate public right-of-ways shall be decided. See Title 40, Chapter 2, Section 40-203 Abandonment and Vacation of County and Highway District System Highways or Public Rights-Of-Way, which reads in part: 

(c) (i) That said highway or public right-of-way has not been used by the public and has not been maintained at the expense of the public in at least three (3) years during the previous fifteen (15) years; or 

(ii) Said highway or right-of-way was never constructed and at least twenty(20)years have elapsed since the common law dedication. 

All other highways or public rights-of-way may be abandoned and vacated only upon a formal determination by the commissioners pursuant to this section that retaining the highway or public right-of-way for use by the public is not in the public interest 

Neither condition C (i) or C (ii) applies in the case of Camp Bay Road since this public roadway has been paid for by 

the taxpayers and has been open to and used by the public for over a century. Therefore, in order to reach a 

decision to vacate this easement it must be found that it is not in the public interest to maintain this easement. 
What is in the Public Interest?

I believe there are three factors to be considered in evaluating what is in the public interest in this matter: 

• The value of the capital asset represented by the Camp Bay roadbed 
• The value to the general public of public access to Lake Pend Orielle 
• The assertion by the applicant that the road must be vacated to achieve increased property tax “revenues” to the county 
•  

First, as noted above, the existing roadbed represents a capital asset owned by the county which has been paid for by the taxpayers. It seems obvious that it is not in the public interest to simply give this capital asset to the owners of the Green property as a gift. 

Second, there are only a small number of public access points to Lake Pend Oreille throughout the portion of Sagle east of Hwy 95 – roughly 30 miles of shoreline. Those that are developed, namely the county park at Garfield Bay and the campground at Green Bay, are heavily used during the busy summer months. Green Bay is full most weekends, and the Garfield Bay parking area and roadside parking nearby are often full if one does not arrive early in the morning. It seems clear that there are insufficient public access points to meet the current demand for recreational access to the lake. With the ongoing and anticipated growth in the county this situation will only become worse. It is worth noting that recreation is perhaps the largest segment of the local economy. 

Before addressing other small undeveloped access points, I would like to point out that contrary to the applicant’s narrative statement, there is no true public access to the lake at Bottle Bay. I assume the applicant is referring to the Bottle Bay Resort & Marina, which operates a for-fee boat ramp on their private property during certain months of the year. The general public, meaning those other than guests of the resort, are not permitted any other uses at this location such as fishing or swimming. Given that the public uses are limited to launching boats, only available for a few months of the year, and subject to future policy changes by the owner of this private property, this cannot be considered a public access point to the lake. 

In addition to these developed locations, there are a small number of undeveloped access points to the lake. Typically, these are locations where public roadways meet the high-water mark of the lake, and where there is sufficient room in the easement to park out of the traffic flow. They are suitable locations where local residents may swim or fish. Developed sites are not required to enjoy these activities, and while they may only allow small numbers of people at any one time, these are sites that can be and are enjoyed by neighborhood residents. Given that the developed locations are so heavily used each of these smaller locations provide important recreational opportunities to local residents. 

The terminus of the Camp Bay Road easement at the lake represents one such location. Since it has historically been disputed by the Green family, I will be clear about why this location is a public access point to Lake Pend Oreille: Both Federal and Idaho law are clear that with respect to navigable lakes, any portion of the lake bed that lies below the ordinary high-water mark is public property and is held in public trust by the state. The fact that the easement for the Camp Bay public right of way meets the ordinary high-water mark of Lake Pend Oreille at the terminus of Camp Bay Road is stipulated by the applicant in their application. The public has the right to use public streets such as Camp Bay 

Road on foot, bicycle, or motor vehicle. It is therefore clear that the width of the easement at the terminus of Camp Bay Road represents a public access point to Lake Pend Oreille since one can step from the public street directly onto the lake bed below the ordinary high water mark without crossing private property. 

Given the small number of public access points to Lake Pend Oreille in eastern Sagle, the fact that the developed access locations are frequently oversubscribed, and in considering how future population growth in the area is likely to increase demand for recreational access to Lake Pend Oreille, it seems clear that it is not in the public’s interest to vacate this easement back to the applicant thereby removing one of a small number of public access points to the lake. 

Third, I would like to address the applicant’s assertion that vacation of this easement is necessary for the property to be developed in such a way to increase property tax revenue to the county. I do recognize the public interest in the increased property tax revenue that may result from the development of this property, but quite frankly, I find the suggestion that this is dependent on vacating the road easement to be absurd. The existence of numerous lakeside homes on public streets outside gated communities with valuations of over $1M demonstrates that building homes on private roads or in gated communities is not necessary to realize the asserted increased tax revenue. 

In summary, I do not believe it is in the public interest to vacate this easement for the following reasons: 
The roadbed itself is a capital asset paid for by the taxpayers and should not be given to the property owner Public access to Lake Pend Oreille is a significant driver of Bonner County’s recreational economy, and such locations are already insufficient to meet current demand let alone allow for future growth. Vacating this portion of Camp Bay Road is not necessary to achieve increased tax revenue resulting from the development of this property. Thank you for your consideration. 

Questions?

Fred Arn
fredarn@50feet.net