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.”
Besides building a second rail bridge almost a mile over Lake Pend Oreille, erecting a nearby, temporary, construction span, to hold 100- to 250-ton cranes while perilously unfinished, would reduce horizontal clearances between piers from about 100 feet to 48 feet, restricting and confusing boat navigation, despite purported project alignment of most of the new and existing bridge piers. Construction of both lake bridges would insert up to 988 piles into the lake bed for piers, and remove about 700 of them upon completion of the three-year-plus, $100 million project. Driving two to three piles during four to nine hours of 329 to 494 year-round, working days (grossly underestimated by the BNSF application) would generate surrounding, surface, and especially underwater noise extending over four miles northeast to Oden Bay and southwest to Dover, disturbing aquatic and terrestrial inhabitants, including osprey and the endangered species bull trout.
Project pile driving would also release train-spewed, lake bed coal and other railroad deposits containing arsenic, mercury, lead, and other health-risking compounds. Increased toxins, sediment, and water turbidity in the critical habitat of threatened bull trout and the drinking and recreation water source of tens of thousands of regional residents and visitors would further pollute lake, river, and aquifer water already degraded by four railroads, U.S. Highway 95, and a remediation site. A 2015-16, IDEQ report revealed that these primary pollution sources currently contaminate the largest, deepest lake in Idaho with volatile and synthetic, organic chemicals and inorganic chemicals, only exacerbated by construction and subsequent operation of additional rail bridges. IDL and other state agencies should require independent, core sample collection and analysis of lake bed sediments in proposed, pile driving locations before permitting BNSF encroachments.
In defense of Lake Pend Oreille resources essential to existence and the local, recreation, and tourism economy, WIRT and #No2ndBridge activists oppose every advance of BNSF’s Sandpoint Junction Connector Project, “because this railroad infrastructure expansion and resulting, bi-directional, train passage would significantly, cumulatively, and adversely impact many aspects of our lives and livelihoods,…[including] regional, lake and aquifer water resources,…native fish, wildlife, and threatened bull trout and their habitats, indigenous rights and cultures, human and environmental health and safety,…[and] the ongoing and potential traffic, noise, pollution, and accident and derailment dangers of the fossil fuels and hazardous materials trains that we have actively denounced…” Allied, north Idaho groups are circulating an informal petition that states these concerns and supports appeal claims, available for signing at Saturday outreach tables at Moscow and Sandpoint farmers markets and online.
The Wild Idaho Rising Tide (WIRT) collective confronts the root causes of climate change by asserting direct actions and promoting locally organized solutions, in solidarity with frontline communities of resistance and an international, volunteer, grassroots network of activists. Continuing, creative, #No2ndBridge, and anti-fossil fuels actions in regional waters, roads, and courts rely entirely on your generous support: https://www.everbutton.com/flow/options/614/. Thanks!