WIRT Lawsuit & Petition Against State Railroad Bridges Permit

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On September 4, Wild Idaho Rising Tide (WIRT) filed an amended notice of appeal and petition for judicial review of the June 21 approval of a state, non-navigational, encroachment permit for construction of four proposed, permanent and temporary, Burlington Northern Santa Fe Railway (BNSF) bridges and associated fill in the navigable waters of Sand Creek and Lake Pend Oreille near Sandpoint, Idaho [1]. The notice requested county court analysis of the entire, Idaho Department of Lands (IDL), administrative record, including public and agency comments, hearing testimony and proceedings, and the BNSF application.  Local attorney Wendy Earle electronically filed the petition and her notice of appearance on WIRT’s behalf,  replacing and expanding the initial notice of appeal hand-delivered pro se (without lawyer representation) with a $500 bond to the Idaho First Judicial District Court in Bonner County, on July 20 [2-5].  The lawsuit names as respondents IDL director David Groeschl, IDL-appointed, May 23 hearings officer Chris Bromley, and the Idaho Board of Land Commissioners.  Copies of the documents were also sent via email to Idaho attorney general (AG) Lawrence Wasden, chief of the AG’s natural resources division Darrell Early, and the respondents’ lawyers, deputy AGs Angela Kaufmann and Joy Vega in Boise, who filed a notice of appearance on August 20.

In an opening procedural overview, the notice describes a filing time extension granted by First District Judge Barbara Buchanan, and notes that petitioner WIRT has exhausted all administrative remedies. It also references the hearing officer’s preliminary order and IDL director’s final order issuing the BNSF permit and culminating from two recorded, May 23, administrative hearings held by IDL and the land board in Ponderay and Sandpoint.  Because IDL failed to properly prepare and publish on the IDL website the final transcripts of those sessions with the legally required, attested signature of the hearings reporter, WIRT sent a request for the official transcripts and pertinent, public records, and mailed a $100 deposit for estimated copying fees to IDL [6].  We also downloaded and printed the full record, including the BNSF application and state documents, from the IDL website.

The notice’s overview of law and facts asserts that petitioner WIRT collectively has standing as an aggrieved party appealing and seeking judicial review of these state actions, because its board members and multiple, WIRT and associated members requested and appeared at the formal hearings and offered comments for the public record. Of 31 citizens who testified at the morning and evening hearings, 21 spoke in opposition to the BNSF rail bridge expansion project, and ten supported it.  As an Idaho non-profit organization, who applied for state incorporation on Friday, August 31, exactly seven years and five months after formation as a climate activist collective, WIRT works to protect environmental values such as water and air quality and habitat for fish and wildlife like threatened bull trout.  WIRT members are concerned about train derailment dangers and environmental health and safety issues arising from increased fossil fuel and hazardous materials infrastructure and traffic capacity, as we reside, recreate, and enjoy the aesthetic qualities of Lake Pend Oreille and Sand Creek.  Some WIRT activists, as registered tribal members of the Confederated Salish and Kootenai bands off the Flathead Reservation, honor the 1859 Stevens treaty granting reserved fishing rights in the Clark Fork River that flows into the lake.  Considering all of these circumstances, approval of the BNSF encroachment permit violates WIRT’s substantial rights and would inflict actual and direct harm, if the state does not vacate this challenged, permit decision. Continue reading

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Request for Amended Notice of Appeal Filing Extension in Response to Proposed Case Dismissal

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On Tuesday, August 7, Wild Idaho Rising Tide (WIRT) filed pro se (without attorney representation again) a request for an extension of at least 14 days to file an amended notice of appeal of the Idaho Department of Lands’ (IDL) June 21 final order approving an encroachment permit for Burlington Northern Santa Fe Railway’s (BNSF) Sandpoint Junction Connector application to build two temporary work spans and two permanent railroad bridges in Lake Pend Oreille and Sand Creek.  The extension request also covers filing a petition for judicial review by the Idaho First District Court in Bonner County, of the entire, almost 1000-page, public record culminating in the state permit decision, based on the preliminary and final orders of Idaho Board of Land Commissioners hearing officer Chris Bromley and IDL director David Groeschl, the lawsuit defendants.

As one of 21 testifiers who spoke against the BNSF expansion project, besides ten who supported it, at the IDL/Idaho Land Board, administrative hearings on May 23, 2018, in Ponderay and Sandpoint, Helen Yost filed the original notice of appeal and request for judicial review, and posted a $500 bond on behalf of WIRT on July 20, within 30 days of Director Groeschl’s final order, as prompted by its concluding legal notification.  Four additional testifiers opposing rail bridge construction have since expressed interest in tentatively joining the appeal as plaintiffs.

But in a July 25 notice of proposed case dismissal and an order striking the notice of appeal on technical grounds, District Judge Barbara Buchanan addresses “several problems with this notice of appeal.”  She explains that the document “does not contain all of the information required by…Idaho Rule of Civil Procedure 84,” including more precise statements about state agency action titles, dates, records, hearings, oral presentations, and transcripts and appeal notification of defendants.  Thus, “it is not clear exactly which decision…that this Court is being asked to review.”  Judge Buchanan also indicates that, “under Idaho law, ‘a business entity … must be represented by a licensed attorney before an administrative body or a judicial body,’” and that any court documents from gratefully unincorporated, activist collective WIRT “must be filed by an attorney authorized to practice law in Idaho.”

While “diligently searching for the assistance and legal services of an attorney” within our Northwest network, to “obtain obviously required counsel for this matter,” WIRT hand-delivered the extension request within the 14 days provided to respond to Judge Buchanan’s notice of proposed case dismissal and order striking the notice of appeal.  Noting that “preparation of the detailed, amended appeal will require substantial time among [an attorney’s] current caseload and other court deadlines, especially considering the complex and technical nature of some of the record documents,…we acknowledge and plan to remedy the problems resulting from pro se filing of the initial notice of appeal.”  Voicing appreciation and respect for attorneys’ “knowledge of Idaho legal proceedings, relevant laws, and court document drafting requirements,” we confirm that “an extension of time granted by the District Court…would offer opportunities to share information with legal counsel and to clarify…which proceedings, hearings, and decisions we are asking the Court to review.”

Kalispel Canoe Journey, Sandpoint Festival Spotlight, #No2ndBridge Appeal Participation

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Second Annual Remember the Water Canoe Journey

The River Warrior Society, Kalispel tribal members, and regional canoe families are hosting the Remember the Water canoe journey again this summer, paddling traditional, wooden canoes 71 miles on Pend Oreille Lake and River, from the Hope peninsula, Idaho, to the Kalispel village north of Usk, Washington [1-3].  Tentatively meeting on Tuesday, July 31, at Sam Owen Campground near Hope, participants will discuss water, wind, and wave temperature and speed and other conditions on the lake.  The journey will put-in at Denton Slough on Wednesday, August 1, after prayers and smudging the canoes at 8 am.  Approximately nine miles into their first, 20-mile day, paddlers will stop for a lunch break at Trestle Creek.

The journey plans to land at City Beach Park in Sandpoint at 3 pm or later on Wednesday afternoon, August 1, although its timing is difficult, having never previously covered this stretch of Lake Pend Oreille.  The canoeists welcome everyone and groups like Lake Pend Oreille Waterkeeper and Wild Idaho Rising Tide (WIRT) to greet their arrival and take-out, among possible song and prayer.  Please join us for this significant event, and for canoe smudging, prayers, send-off, and re-launch from the City Beach boat ramps, at 8 am on Thursday, August 2.

Indigenous and accompanying paddlers will continue downriver 21 miles, from Sandpoint to the next, Thursday night layover on Kalispel tribal lands, at the Carey Creek Game Management Area off Dufort Road, near Priest River, Idaho.  The voyage has also scheduled a Friday, August 3, lunch break in the Newport, Washington area, next to the Rotary Park boat launch by the river bridge, in Oldtown, Idaho.  The 17-mile, Friday paddle concludes at Downs Island, just upriver of Indian Island, near the Sandy Shores boat launch.

On Saturday, August 4, after breakfast, canoe smudges, and prayer at 8 am, the canoe journey will travel 14 miles from Downs Island, breaking at the Usk boat launch under the bridge, and reaching the Kalispel village boat launch and yearly Kalispel Tribe Pow Wow.  The destination offers buffalo burgers, camping, and Wellness Center showers.

WIRT activists are grateful for the Remember the Water canoe journey, as we resist reckless railroad coal pollution, potential oil spills, and proposed bridge construction in the life-giving waters of Lake Pend Oreille.  Please contact River Warrior Society organizer Nathan Piengkham at npiengkham@kalispeltribe.com, for finalized event itineraries.

Spotlight Messaging at the Festival at Sandpoint

As the sun sets over Sandpoint, Idaho, between 8 and 9 pm on Friday, August 3, Occupy comrades from Spokane, Washington, will graciously offer a brief, light projection display of social and climate justice messages on tall structures around the Festival at Sandpoint.  Meet in or near Lakeview Park, wherever you see this light show, for discussions among curious passersby, about #No2ndBridge and Northwest coal and oil train and terminal issues.

#No2ndBridge State Permit Appeal Participation

Unwilling to miss the Friday, July 20, deadline for challenging a state permit, Wild Idaho Rising Tide (WIRT) filed pro se (without attorney representation) a notice of appeal in Idaho’s First District Court, of the Idaho Department of Lands (IDL) encroachment permit granted to Burlington Northern Santa Fe Railway (BNSF) for its proposed rail bridge and track expansion across Lake Pend Oreille and Sandpoint, the “Sandpoint Junction Connector” project [4-9].

The 12-page appeal calls for a judicial review of the permit’s issuance and public record, considering the Lake Protection Act and other state and federal laws.  It argues that the project jeopardizes water resources, air quality, wildlife habitat, indigenous rights, health and safety, navigation, tourism, and recreation, and would increase noise, pollution, and potential accidents and derailments of fossil fuels and hazardous materials trains.  The petition also states that the project would increase chemical pollution of Idaho’s largest, deepest lake, the drinking water source for over 10,000 people in the Sandpoint and north Idaho area. Continue reading

Activists Appeal State Permit for Lake Railroad Expansion

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On July 20, 2018, Wild Idaho Rising Tide (WIRT) filed a notice of appeal of the preliminary and final orders approving Burlington Northern Santa Fe Railway’s (BNSF) application for an encroachment permit for its proposed Sandpoint Junction Connector Project.  David Groeschl, acting director of the Idaho Department of Lands (IDL) in Boise, granted the five-year encroachment permit on June 21, 2018.  BNSF plans to construct 2.2 miles of doubled tracks, two temporary, work spans, and three permanent, parallel bridges adjacent to the existing rail route across Lake Pend Oreille, Sand Creek, Bridge Street, and downtown Sandpoint, Idaho.

As aggrieved parties who spoke at two public, administrative hearings held before hearing officer/coordinator Chris Bromley for the Idaho Board of Land Commissioners, on May 23, 2018, in Ponderay and Sandpoint, Idaho, WIRT activists filed the 11-page appeal in the First Judicial District Court of Idaho in Bonner County.  Prompted by the legal notification concluding the final order, the climate activist collective requested rigorous reviews and analyses by the district court “of the entire record, proceedings, findings of fact, conclusions of law, preliminary order, and final order of this application, [hearing] case, and permit,” including approximately 1,100 written comments and dozens of oral testimonies.  WIRT invites other hearing participants harmed by this permit decision to join the appeal, as “plaintiffs, testifiers, witnesses, and amicus partners” calling for “appropriate revision, denial, and/or revocation of the negligent and culpable, BNSF Sandpoint Junction Connector Project application and permit.”

The appeal challenges several errors of the final order, most notably its failures to uphold the state Lake Protection Act and Rules for the Regulation of Beds, Waters, and Airspace over Navigable Lakes.  Both mandate regulators to “give due consideration and weigh…the protection of property, navigation, fish and wildlife habitat, aquatic life, recreation, aesthetic beauty, and water quality” against the economic necessity, justification, or benefit derived from any proposed encroachment on, in, or above navigable lake beds or waters.  Although “public health, interest, safety, and welfare require” this balance, WIRT activists argue that Idaho officials inadequately examined and compared these “lake values” with project outcomes, discussing environmental concerns offered by individuals and agencies in only two of 42 pages of their permit decision.

The plaintiffs question the legality of sidestepping these stricter state regulations, in deference to an antiquated, U.S., railroad land grant law and hundreds of pro-project, BNSF, form letters from out-of-state commenters.  The 1864 act gives railroad companies unusual power to retain exclusive possession and “complete dominion” over their 400-foot-wide, privately owned route “adjacent to and crossing Lake Pend Oreille,” since before 1890 statehood.  IDL director Groeschl asserts that his final order must only “recognize BNSF’s right to utilize the right-of-way for construction of a railroad bridge and associated fill,” thus dismissing his obligations to the environmental and economic wellbeing and public trust of the Idaho Panhandle community, in preference for the railroad pursuit of profit.

In their lawsuit, WIRT activists also cite examples of BNSF application errors and admitted project impacts to an endangered species and other public interests.  Accordingly, they dispute BNSF encroachment permit approval prior to any application modifications or amendments required by IDL, and before the Idaho Department of Environmental Quality (IDEQ) issues, waives, or denies Clean Water Act-mandated, final, water quality certification and associated restrictions on BNSF plans.  The appeal filers ask the Bonner County District Court “to defer to pending, state and federal, public participation processes and agency decisions resulting from environmental reviews, assessments, and/or impact statements and studies of this project that still requires…dredge, fill, and wetland impact approval from the U.S. Army Corps of Engineers, and bridge permits from the lead, federal agency, the U.S. Coast Guard.” Continue reading

Climate Justice Forum: Minnesota Acquittal of Valve Turners, Indigenous Peoples Day, Sioux Letter to TransCanada, Tribe Lawsuit Against Keystone XL Pipeline, Bayou Bridge & Line 3 Lock-Downs 10-10-18


The Wednesday, October 10, 2018 Climate Justice Forum radio program, produced by regional, climate activist collective Wild Idaho Rising Tide, features news, reflections, and recordings of Indigenous Peoples Day, a Cheyenne River Sioux tribe cease and desist letter to TransCanada, a Fort Belknap and Rosebud tribe lawsuit against the Keystone XL pipeline, water protector lock-downs opposing the Minnesota Line 3 and Louisiana Bayou Bridge pipelines, Minnesota court acquittal of tar sands pipeline valve turners, and other topics.  Broadcast for six years on progressive, volunteer, community station KRFP Radio Free Moscow, every Wednesday between 1:30 and 3 pm Pacific time, on-air at 90.3 FM and online, the show describes continent-wide resistance to fossil fuel projects, the root causes of climate change, thanks to the generous, anonymous listener who adopted program host Helen Yost as her KRFP DJ.

Climate Justice Forum: Railroad Bridges Lawsuit & Petition, Coal Derailments into Rivers, Relaxed Oil Train & Methane Release Rules, Montana Keystone XL Protesters as Terrorists, Solar Roadway Problems 10-3-18


The Wednesday, October 3, 2018 Climate Justice Forum radio program, produced by regional, climate activist collective Wild Idaho Rising Tide, features news and reflections on a lawsuit and petition against a state railroad bridges permit, coal train derailments into Montana and Utah rivers, Northwest governor reactions to changed federal oil train safety rules, relaxed national methane release laws, Montana plans to treat Keystone XL pipeline protesters as terrorists, solar-paneled roadway problems, and other topics.  Broadcast for six years on progressive, volunteer, community station KRFP Radio Free Moscow, every Wednesday between 1:30 and 3 pm Pacific time, on-air at 90.3 FM and online, the show describes continent-wide resistance to fossil fuel projects, the root causes of climate change, thanks to the generous, anonymous listener who adopted program host Helen Yost as her KRFP DJ.

Climate Justice Forum: Silicon Smelter Hearing Testimony, Train Derailments, Diminished Train Brake Rules, Railroad-Funded Ambulance, Coal Ash Pond Flooding, Line 3 Pipeline Blockade 9-26-18


The Wednesday, September 26, 2018 Climate Justice Forum radio program, produced by regional, climate activist collective Wild Idaho Rising Tide, features testimony excerpts of an Idaho scoping hearing on a proposed Newport silicon smelter, and news and reflections on coal, oil, and other train derailments, diminished federal rules for oil train brakes, a railroad-funded, Bonner County, off-road ambulance, hurricane flooding of coal ash ponds and toxic sites, and a Line 3 tar sands pipeline blockade in Minnesota.  Broadcast for six years on progressive, volunteer, community station KRFP Radio Free Moscow, every Wednesday between 1:30 and 3 pm Pacific time, on-air at 90.3 FM and online, the show describes continent-wide resistance to fossil fuel projects, the root causes of climate change, thanks to the generous, anonymous listener who adopted program host Helen Yost as her KRFP DJ.

Climate Justice Forum: Newport Silicon Smelter Hearings, ACLU Idaho Activist Trainings, Lake Railroad Bridges Permit Lawsuit, California Climate Summit Protests 9-19-18


The Wednesday, September 19, 2018 Climate Justice Forum radio program, produced by regional, climate activist collective Wild Idaho Rising Tide, features news and reflections on Washington scoping hearings and comments on a Newport silicon smelter, statewide Idaho activist training workshops, a lawsuit against a state permit for Lake Pend Oreille railroad bridges, and indigenous and frontline protests of San Francisco climate capitalism talks.  Broadcast for six years on progressive, volunteer, community station KRFP Radio Free Moscow, every Wednesday between 1:30 and 3 pm Pacific time, on-air at 90.3 FM and online, the show describes continent-wide resistance to fossil fuel projects, the root causes of climate change, thanks to the generous, anonymous listener who adopted program host Helen Yost as her KRFP DJ.

Silicon Smelter Hearings, Sandpoint WIRT Meeting, ACLU Activist Academy


September 18-20: Newport Silicon Smelter Hearings

The Washington Department of Ecology is conducting a September 11 to October 26 environmental review of the PacWest Silicon smelter proposed for 180 acres near Newport, on the Washington-Idaho border [1-3].  The facility would produce up to 73,000 tons of silicon metal each year, from B.C. quartz rock heated to extremely high temperatures with wood chips, coal, and charcoal.  The Ecology Department is seeking public input on the scope of its environmental impact study and statement (EIS), analyzing potential project effects and options for protection of the natural environment and nearby communities, including air and water quality, plant and animal habitat, cultural resources, and regional transportation.

The state agency will provide its subsequent, draft EIS for public review and comment next summer, followed by a final, impartial, comprehensive EIS in late 2019, for decision-makers and the public to evaluate PacWest Silicon’s permit applications.  Various organizations have compiled information to assist public and expert testimony asking that the department address the widest possible range of concerns in its EIS [4-6].  The public can examine proposal information, request comment period extension to 90 days, and offer scoping comments in-person at four public meetings and/or online:

* Tuesday, September 18, 6 to 9 pm, Spokane Convention Center, 334 W. Spokane Falls Boulevard, Spokane, Washington

* Wednesday, September 19, 6 to 9 pm, Newport High School, 1400 Fifth Street, Newport, Washington

* Thursday, September 20, 6 to 9 pm, Priest River Event Center, 5399 U.S. Highway 2, Priest River, Idaho

* Thursday, September 27, 3 pm, online webinar

September 19: Monthly Sandpoint WIRT Meeting

Invite your friends and families, and join the regional, climate activist community, #No2ndBridge group members, and Wild Idaho Rising Tide (WIRT) organizers for the September, third-Wednesday, monthly, WIRT gathering at the Gardenia Center, 400 Church Street in Sandpoint, Idaho, at 7 pm on Wednesday, September 19.  Action planning will discuss #No2ndBridge information and public records research, petition, coal collection, benefit concert, and crowdfunding, in support of the WIRT lawsuit opposing the state permit for Burlington Northern Santa Fe Railway (BNSF) bridge expansion, facilitating fossil fuels and hazmat pipelines-on-wheels across Lake Pend Oreille and Sand Creek. Continue reading

Climate Justice Forum: Rise for Climate Actions & Flotillas, Statewide Activist Trainings, Increasing Tar Sands Trains, Idaho Response to Forced Pooling Court Rejection, Gem County Oil & Gas Ordinance, Newport Silicon Smelter Hearings, Louisiana Pipeline Injunction & Police Corruption 9-12-18


The Wednesday, September 12, 2018 Climate Justice Forum radio program, produced by regional, climate activist collective Wild Idaho Rising Tide, features news and reflections on inland Northwest, Rise for Climate actions and kayaktivist flotillas, statewide activist training workshops, pipeline delays increasing Canadian tar sands trains, Idaho agency responses to a federal court decision against forced, oil and gas leases, a Gem County oil and gas ordinance, Washington scoping hearings and comments on a Newport silicon smelter, and a Louisiana pipeline court injunction, police corruption, and protester felony arrests.  Broadcast for six years on progressive, volunteer, community station KRFP Radio Free Moscow, every Wednesday between 1:30 and 3 pm Pacific time, on-air at 90.3 FM and online, the show describes continent-wide resistance to fossil fuel projects, the root causes of climate change, thanks to the generous, anonymous listener who adopted program host Helen Yost as her KRFP DJ.

Fourth Panhandle Paddle


Wild Idaho Rising Tide (WIRT) and allied, #No2ndBridge activists, friends, and supporters invite and heartily welcome your input and involvement during an upcoming weekend of opportunities to discuss, train for, and stage resistance to the fossil fuel and railroad industry degraders of basic, global, human, environmental, and climate health and rights.  Interior Northwest residents are organizing and co-hosting fourth annual, Panhandle Paddle activities, to stand against Burlington Northern Santa Fe Railway’s (BNSF) proposed bridge and track construction across Lake Pend Oreille, Sand Creek, and Sandpoint, and regional trains hauling volatile, Alberta tar sands, fracked, Bakken crude oil, dusty, Powder River Basin coal, and other hazardous materials that recklessly endanger our lives, communities, lands, water, air, and climate.  This fossil fuel infrastructure use, expansion, and deterioration has resulted in multiple, recent, train derailments and collisions in north Idaho, northwest Montana, and beyond, including disastrous, coal and oil train wrecks, spills, fires, and pollution of the Clark Fork River near Heron, Montana, and the Columbia River Gorge in Mosier, Oregon.  Please join us at these annual, Panhandle Paddle events at the Gardenia Center, City Beach Park, and Dog Beach Park in Sandpoint, Idaho, on September 7 to 9! Continue reading

Climate Justice Forum: Railroad Bridge Permit Appeal, Court Repeal of Forced Oil & Gas Leases, Sandpoint Corn Train Spill, Lochsa River Crane Accident, Waste Well Regulation Transfer, Boise Fracking Jobs 8-15-18


The Wednesday, August 15, 2018 Climate Justice Forum radio program, produced by regional, climate activist collective Wild Idaho Rising Tide, features news and reflections on an appeal of an Idaho permit for Lake Pend Oreille railroad expansion, a Sandpoint corn train spill, a Highway 12 crane accident along the Lochsa River, transfer of oil and gas waste injection well regulation from Idaho to federal agencies, an employment ad for Boise frackers, a federal court decision blocking forced oil and gas leases of Idaho home owners, and other topics.  Broadcast for six years on progressive, volunteer, community station KRFP Radio Free Moscow, every Wednesday between 1:30 and 3 pm Pacific time, on-air at 90.3 FM and online, the show describes continent-wide resistance to fossil fuel projects, the root causes of climate change, thanks to the generous, anonymous listener who adopted program host Helen Yost as her KRFP DJ.