Ruling may put ownership of Idaho beaches in doubt

A recent ruling declaring Sanders Beach open to the public could affect private property rights on all navigable Idaho lakes and rivers.

“This could mean there are no private beaches on Lake Coeur d’Alene if you can imagine that,” said Greg Delavan of the Coeur d’Alene Lakeshore Property Owners Association.

But an Idaho conservation group applauds the opinion and thinks it could help ensure the public’s access to Idaho’s public waterways.

Both sides agree it all boils down to how Idaho courts determine the location of the ordinary high- water mark – the line where private property ends and public land begins.

Last week 1st District Judge James Judd set the ordinary high water mark for Sanders Beach at 2,130 feet above sea level, 2 vertical feet higher than summer pool and what the state considers the high- water mark. That means landowners along East Lakeshore Drive cannot legally kick people off the beach anywhere south of the seawall on the east end of the popular beach. The seawall is at 2,130 feet.

The 10 property owners between 12th and 15th streets plan to appeal, meaning the Idaho Supreme Court may make a final decision.

Judd determined that there was a lack of trees or other vegetation on Sanders Beach up to the existing seawalls, meaning water levels over the years prevented vegetation growth.

Idaho law states that the ordinary high-water mark is the line that the water impresses on the soil for long periods, depriving it of vegetation and destroying its agricultural use.

But the judge also used other information in making his determination including historic photos and the fact that Coeur d’Alene issued building permits to Sanders Beach property owners to construct seawalls down to the 2,130 elevation. He said the city would not have allowed the construction of private seawalls on land below the ordinary high-water mark.

Judd also calculated the historic elevations of Lake Coeur d’Alene, which show that the water reached 2,130 feet 69 percent of the time, or 77 years during the last 112 years.

Delavan is worried Judd is trying to redefine how the ordinary high-water mark is determined, which could put all private beaches in jeopardy.

Judd was explicit that his opinion applies only to Sanders Beach and not other areas of Lake Coeur d’Alene.

Yet at the same time, Judd also allowed the Coeur d’Alene Lakeshore Property Owners Association, which represents about 1,200 members, and the Idaho Conservation League to join the lawsuit, acknowledging that the ruling could have an impact on Lake Coeur d’Alene properties and the public’s access to Idaho’s other navigable waters.

The Sanders Beach property owners plan to appeal because they don’t agree with how Judd came up with the 2,130 elevation. The property owners argue that the high-water mark is 2,128 feet or lower. The Sanders Beach Preservation Association, which advocates for public use, claimed the mark is closer to 2,138 feet but is satisfied with Judd’s ruling.

“It’s a new methodology,” said John Magnuson, who represents the majority of the Sanders Beach property owners.

Magnuson wouldn’t get into the specifics of what he considers the flaws in Judd’s decision but he was clear that the ruling could impact all Idaho water bodies.

“It’s not limited to Lake Coeur d’Alene, it’s statewide,” he said.

Magnuson believes that the ordinary high-water mark is consistent around the entire lake and Judd is wrong in making a site-specific determination for Sanders Beach.

He said the decision means that people can now challenge the high-water mark on any part of the lake, jeopardizing private property rights.

In the ruling, Judd writes that it only makes “common sense” to make a site-specific determination.

“If there is to be only a single (ordinary high-water mark) for a lake such as Lake Coeur d’Alene where and how should the determination be made: At the outlet? At the inlet? At the midpoint of the lake?”

The Idaho Conservation League, a statewide group that advocates for public access to public waters, thinks the decision makes it clear that the public has the right to use any land or water below the ordinary high-water mark.

Attorney Bill Eddie applauded Judd for ruling that Sanders Beach property owners don’t have control of all property to the water’s edge regardless of where the ordinary high-water mark is located.

“There are very important legal questions here that could go beyond Coeur d’Alene Lake,” said Eddie who works for the nonprofit Advocates for the West and represents the ICL. “There’s plenty of public waters in Idaho where there is potential for conflict.”

He listed the Snake River, Priest Lake and Lake Pend Oreille as a few examples.

Yet the Sanders Beach Preservation Association, which has been fighting for the public use of Sanders Beach, doesn’t believe this decision will have a far-reaching impact.

Coeur d’Alene and Kootenai County filed a lawsuit in 2004 asking a judge to determine the legal high-water mark at Sanders Beach. No court has ever made the exact determination, causing annual disputes between homeowners and people using the popular beach.

The lawsuit names the Sanders Beach homeowners, the Sanders Beach Preservation Association and the Idaho Department of Lands – all parties that have stakes in the location of the high-water mark.

With Judd’s decision, the city will assume the responsibility for policing and maintaining the beach as it has all summer under a temporary court order.