Land Board votes to continue lake suit

BOISE – Idaho’s state Land Board voted Tuesday to press on in court to determine the high-water mark at Sanders Beach on Lake Coeur d’Alene.

“It is going to be litigated one way or the other,” Gov. Dirk Kempthorne said. “We believe it’s most expedient to continue in court where it ultimately will be decided.”

On Monday, senior Judge James Judd rejected a motion for a preliminary injunction to block the Land Board from signing over the beach above a certain point to adjoining landowners. The judge said the board has that authority. But in his ruling, the judge made it clear that the high-water mark will be determined in court – not by legislative or executive pronouncement.

Kempthorne said the Land Board isn’t going to sign anything over now. “We may be reading something into this, but I think the judge felt that a courtroom was going to be the proper venue to decide this,” he told the Idaho Press Club.

In December, the deputy attorney general for the Idaho Department of Lands sent a letter stating “that the Department of Lands is willing to recommend the Land Board disclaim title to land above 2,128 elevation to the private property owners along Sanders Beach.”

That’s the heart of the issue in the lawsuit – where the private property owners’ land ends and the public’s lakefront begins. The letter prompted the motion for a preliminary injunction blocking the Land Board from that move.

“The offer was proposed to the city and the county, and they rejected that offer,” said Nick Krema, the deputy Idaho attorney general now handling the case.

The city of Coeur d’Alene and Kootenai County Prosecutor Bill Douglas sued to determine the high-water mark, naming Sanders Beach homeowners between 12th and 15th streets, Sanders Beach Preservation Association, and Idaho Department of Lands in the suit.

Because the state owns Lake Coeur d’Alene off Sanders Beach, any area below the ordinary high-water mark at statehood, when the lake became state property, is public. Advocates of public access to the beach, used by the public for a century, maintain the high water mark is higher than the 2,128 elevation, making more of the beach public.

Judd wrote in his ruling this week, “The one thing to which the parties agree is that the ordinary high-water mark in question has not been adjudicated.” Earlier court cases, he wrote, just “skirted the issue.”

The Land Board, which includes the governor, attorney general, secretary of state, state controller and state superintendent of schools, was briefed by Krema on the case Tuesday in executive session. The board then reconvened in open session and voted to continue with the litigation.