State’s high court hears Sanders arguments

The key to who owns Coeur d’Alene’s popular Sanders Beach is a stump.

At least that was one of the arguments heard Tuesday by the Idaho Supreme Court, which was in town for a hearing about the location of the invisible line where private property ends and public land begins.

The high court likely won’t make a ruling until spring 2007. At issue is whether a 1st District Court judge was correct in establishing the ordinary high-water mark at 2,130 feet above sea level.

Attorney John Magnuson, who represents nearly all the homeowners between 12th and 15th streets, argued that the invisible line is actually 2,128 feet, the summertime level of the lake and what the state considers the high-water mark. That would eliminate all public access to the beach that has been used by swimmers and sunbathers for a century.

His proof is a box of tree stumps collected from bays around Lake Coeur d’Alene at elevations of 2,128 feet or higher. None of the stumps are from Sanders Beach.

Magnuson lugged four slices of tree to court, making the point that there is no evidence of trees below the summer pool. That means Judge James Judd allegedly erred when he made the 2,130-foot ruling in September 2005. Magnuson said in that scenario the trees would have grown under water, which isn’t possible.

In Idaho, the test for the high-water mark revolves around where the water impresses on the soil for long periods, depriving it of vegetation and destroying its agricultural use.

Attorney Scott Reed, who represents the Sanders Beach Preservation Association, which advocates public use of Sanders Beach, countered that the stumps mean nothing. He maintains that vegetation has never grown on Sanders Beach, or at least not for thousands of years. He believes the high-water mark is closer to 2,138 feet but is satisfied with Judd’s ruling because it leaves some public access to the beach.

Giving the justices a brief history of how the Coeur d’Alene area was reshaped 11,000 years ago, Reed said that flood waters from Glacial Lake Missoula deposited rock and sand on what is now Sanders Beach. Eventually soils blown in from the Palouse Prairie covered the sand. But the soil didn’t last because the water washed it away, no plants grew and all that’s left is the sandy beach people enjoy today.

Reed made what he called an uncomfortable suggestion to the justices – noting it’s likely that no court can determine the ordinary high-water mark for the entire lake. He said the invisible line varies depending on its location, and that’s why his group and Coeur d’Alene want to know the high-water mark for Sanders Beach. Judge Judd’s 2,130-foot ruling only applied to Sanders Beach.

The uncertainty of the invisible mark prompted annual summertime squabbles between property owners and beachgoers, and ultimately the city and Kootenai County filed a lawsuit in 2004 asking the court to determine the high-water mark once and for all.

Magnuson and the Coeur d’Alene Lakeshore Property Owners Association argue that the court can’t make a site-specific determination of the high-water mark and that the invisible line remains constant around the lake, like a bathtub. If the court agrees to a site-specific mark, they argue it will affect every property owner along Lake Coeur d’Alene and likely private property rights on all navigable Idaho lakes and rivers.

Calling it a “horror story,” attorney Peter Erbland said that the 1,000 waterfront owners will launch lawsuits to protect their beaches.

Deputy Idaho Attorney General Nick Krema, who represents the Idaho Land Board that manages state trust lands, said the result could mean Idahoans actually lose access to public land.

Reed countered that the invisible line hasn’t been established on Hayden Lake, Pend Oreille, Priest Lake or many other navigable bodies of water in Idaho and that there haven’t been problems. He said waterfront property values continue to escalate even though nobody knows for sure the exact high-water mark. He said people are content with the summer storage level of the lakes.