On Friday, February 8, news spread of the U.S. Coast Guard release of a draft environmental assessment (EA), not a more scientifically-rigorous, community-preferred, Sandpoint City Council-requested, draft environmental impact statement (EIS) with route and design alternatives, on Burlington Northern Santa Fe (BNSF) Railway’s proposed construction of second (in order to replace the first) railroad bridges across Sand Creek and almost one mile over Lake Pend Oreille, in Sandpoint and Bonner County, Idaho [1-3]. On the same day, district judge John Judge heard oral arguments by phone, on BNSF and state of Idaho motions to dismiss Wild Idaho Rising Tide’s (WIRT) seven-month, #No2ndBridge lawsuit, on standing, jurisdictional, and procedural issues, not the strong, meritorious arguments of our petition for judicial review of an Idaho Department of Lands (IDL)/Idaho State Board of Land Commissioners encroachment permit for BNSF’s bridge expansion [4].  The judge did not immediately rule on these complex, dispositive and other motions, responses, replies, and objections, but has been deliberating and writing his difficult, landmark decision on Lake Protection Act and Idaho standing laws, during recent and coming weeks.  As activists cautiously participating in public processes, we remain hopeful, and acquired greater respect for judge John Judge at the hearing attended by two WIRT board members.

Like the north Idaho community, WIRT activists have since been devastated by intense, sub-zero, northeast winds gusting to 50 mph and spewing railroaded coal into the lake and neighborhood tree falls during the February 8-10 weekend, deep, engulfing snows throughout the following week, and a nearby, downtown Sandpoint fire on Monday morning, February 11 [5]. Despite firefighters from several regional districts working amid snowfall, 11-degree temperatures, and aerial hose spray that coated them with ice, the fire inflicted smoke and water damages on a church and destroyed and displaced six local, small businesses (three restaurants, a pub, a salon, and a tattoo/piercing shop) in a couple of century-old buildings, at the corner of Bridge Street and First Avenue in Sandpoint’s historic district.

These Sandpoint City Beach area businesses and surrounding residences most directly, significantly impacted by BNSF’s corporate, infrastructure expansion scheme continue to suffer fire losses and/or travel restrictions since the incident at the site of one of WIRT’s most recent direct actions during the Fourth Panhandle Paddle, when Occupy Spokane and WIRT activists spotlighted #No2ndBridge, anti-fossil fuels, and other environmental, climate, and social justice messages outside China Kitchen on September 8, 2018 [6]. Sandpoint police and Idaho fire marshals are investigating the cause and origin location of the fire, and a city-hired engineer condemned both stability-compromised structures, due to fire damages estimated at $4 to $7 million.  The Sandpoint, fossil fuels frontline also lost an indigenous art store and Italian restaurant to city building condemnation last September.

Frustrated with lawsuit financial and communication oppression and limited community responses to ongoing, WIRT pleas for support of litigation expenses, we are sending this recently rare, action alert to our thousand regional contacts, about these and other situations requiring public input, drawn from WIRT’s primary modes of outreach communication, our weekly, Climate Justice Forum radio program and numerous facebook posts over the last few months.  In forthcoming newsletters, we plan to further provide court case updates and requests for your contributions toward our legal battles, and to announce #No2ndBridge presentations on March 5, 6, 8, and 9, respectively in Missoula, Moscow, Sandpoint, and Spokane.

Coast Guard Draft EA Release

As the lead, federal agency regulating proposed, BNSF infrastructure expansion via three new, permanent, rail bridges and two temporary, construction spans in the Sandpoint area, the Seattle-based, U.S. Coast Guard (USCG), District 13 office is accepting public input on the February 6, 2019, draft environmental assessment (EA) for the project, written by BNSF and contracted, Jacobs Engineering staff (EA page 111) [7]. USCG will host two public hearings at 8 am and 6 pm on March 13, at the Ponderay Events Center, 401 Bonner Mall Way in Ponderay, but not in more project-impacted Sandpoint, and will hold a comment period until 8:59 pm Pacific time on March 25, according to its Federal Register notice.  Please see the notice of availability of and the draft EA on the BNSF Sandpoint Junction Connector project, docket USCG-2018-1085, along with 12 supporting appendices offering bridge permit drawings, site photographs, a wetlands and waters of the U.S. delineation report and impact maps, hydraulic and visual impact analyses, a biological assessment, state historic preservation office and other state and local agency letters, the Pend Oreille basin emergency response plan and action reports, and the IDL encroachment permit currently litigated by WIRT. Continue reading →

Soon after Wild Idaho Rising Tide (WIRT) filed our opening brief challenging an Idaho Department of Lands/Land Board encroachment permit for Burlington Northern Santa Fe (BNSF) Railway’s Sandpoint Junction Connector project, U.S. Coast Guard (USCG) District 13 bridge program chief Steven Fischer released public notices on December 18, 2018, acknowledging that the USCG has received an application from BNSF, which requests approval of proposed construction locations and plans for second, parallel bridges across Sand Creek and almost one mile over Lake Pend Oreille, both navigable waterways of the United States [1-3].  The lead, federal agency regulating this project is currently asking for public comments exclusively on the “reasonable needs of navigation” potentially affected by the new railroad bridges, encouraging boaters, maritime stakeholders, and the public to carefully review its notice and bridge expansion project summary, plans, diagrams, maps, and locations [4-6].

Please view the searchable, PDF copies of official, signed versions of BNSF applications, as well as the USCG bridge permit application guide and WIRT’s draft comment suggestions describing information missing from the Coast Guard-provided documents and navigation impacted by the proposed, BNSF bridges [7-9].  In your comments, specifically address the compromised safety of navigation around bridge structures and explain other possible, bridge effects on navigation in “sufficient detail to establish a clear understanding of reasons for support of, or opposition to, the proposed work.”  Express your views on or before January 17, 2019, by writing, calling, and sending mail to Commander, Thirteenth Coast Guard District, 915 Second Avenue, Room 3510, Seattle, WA 98174-1067, email to D13-PF-D13BRIDGES@uscg.mil, and/or a call to 206-220-7282.

Request inclusion of your comments in the public record for this winter-inappropriate, navigation comment period offering limited, public information and for the forthcoming environmental assessment or more community-preferred and scientifically rigorous, draft environmental impact statement for the BNSF Sandpoint Junction Connector project.  The Coast Guard has not yet completed this separate, environmental review document nor published public and Federal Register notices announcing its availability for review.  WIRT and regional allies will alert you when the USCG releases it, so you can contribute further, effective comments on the socioeconomic and environmental factors and implications of this industrial invasion of the Pend Oreille watershed.

Thanks for your resistance to this fossil fuels-facilitating, railroad scheme and your support of the WIRT collective’s #No2ndBridge litigation of the Idaho encroachment permit for this project, as we continue to work together to protect the health, beauty, and enjoyment of beloved Lake Pend Oreille and interior Northwest air, waters, and lands. Continue reading →

On Tuesday, October 23, registered, Idaho, non-profit Wild Idaho Rising Tide (WIRT) launched the live, 90-day, crowdfunding campaign No Second Railroad Bridge over Idaho’s Largest Lake! on CrowdJustice [1].  We urgently need your help raising funds and organizing support for our petition for judicial review of the June 21, 2018, Idaho Department of Lands (IDL) permit for Burlington Northern Santa Fe Railway’s (BNSF) proposed construction and operation of two permanent and two temporary, parallel, railroad bridges adjacent to the present rail route across Sand Creek and almost a mile over Lake Pend Oreille, near Sandpoint.

Numerous citizens, groups, and government officials have offered written comments, hearing testimonies, public protests, and media articles during the last few years, expressing our concerns over BNSF’s Sandpoint Junction Connector project.  Dismissing this broad input, the state of Idaho approved BNSF’s encroachment permit.  So we are requesting that the Idaho First District Court in Bonner County conduct a rigorous, judicial review of the IDL record, and remand this agency decision for further IDL consideration.  And we are asking for your financial and outreach assistance of grassroots, volunteer, WIRT activists directly engaged in this legal effort.

WIRT greatly appreciates your physical and fiscal support of our extensive, fossil fuels resistance work over the last eight years.  Your essential participation has contributed to a continent-wide movement that is confronting the root causes of climate change, water degradation, and air pollution, through frontline resistance and solidarity and community solutions.  Among our many successful campaigns, WIRT has never faced such enormous, current, and upcoming expenses needed to access the courts and proceed with this case, including attorney, administrative record, bond, filing, and printing fees.

Please pursue these easy actions that will help us win this crucial litigation aimed at protecting our regional water, environment, and economy from the ongoing and potentially increased traffic, noise, pollution, derailment and collision risks, and catastrophic spills of coal, oil, tar sands, hazardous materials, and other “pipeline-on-wheels” trains in north Idaho and throughout the Northwest: Continue reading →

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 →

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.”

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 →

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 →