‘At the absolute 11th hour… we risk renewing litigation after having years of it’

By Soncirey Mitchell
Reader Staff

The public flooded into the Oct. 15 Bonner County board of commissioners meeting to witness what could have been the final step in achieving the Camp Bay public easement, which has been fiercely debated and litigated over the past two years. The commissioners dedicated the majority of the three-hour meeting to deliberation and public comment on the issue, ultimately deciding to table their decision until a date to be determined, as of press time.

The previous board — composed of Dan McDonald, Jeff Connolly and Steve Bradshaw — approved a petition in April 2021 to vacate the last 2,550 feet of Camp Bay Road to Arizona-based developers M3 ID Camp Bay, LLC. Neighboring residents Fred and Jennifer Arn subsequently challenged the decision, arguing that the road provided public access to 50 feet of Lake Pend Oreille and, after legal review, the district court remanded the issue back to the commissioners.

Sunset at Camp Bay. Photo by Dan Eskelson.

The BOCC then voted against the road vacation in a second hearing in February 2022, sending the matter back to the court, which remanded the file back to the commissioners with its approval. The board held a marathon public hearing in December 2022 and ultimately approved the road vacation on the condition that M3 create and maintain a public trail on a “permanent, perpetual, non-exclusive pedestrian easement,” which guarantees access to a 50-foot-wide section of shoreline.

Given the previous board’s approval, Deputy Prosecutor Bill Wilson said that the Oct. 15 action item was “essentially a ministerial step.”

“After almost two years of litigation, the district court determined that this agreement was enforceable and valid, and so the purpose for the agenda item today is more of a formality because this decision has already been agreed to and approved by a previous board,” said Wilson.

“If we, for some reason, didn’t do this — I don’t believe we have a legal justification not to — I think we would be subject to litigation quickly and we would lose,” he later added.

Wilson counseled the board that their only duty was to confirm that M3 completed the agreed-upon trail and sign the permanent easement declaration, allowing the developers to officially file the easement and open the trail, with a proposed date of Nov. 1. The declaration technically only requires the grantor’s — M3’s — signature; however, county legal counsel felt the addition of the board’s signatures would make the paperwork clearer for posterity.

“This is all part of being able to look back and make sure that we all know exactly what was agreed to and when and by whom,” said Wilson.

During deliberation, BOCC Chair Asia Williams initially pushed to open the trail early, questioning why the public had to wait until Nov. 1 if the board approved the easement Oct. 15. The official deadline for the developers to provide public access is February 2025.

M3 Co-Owner and Managing Partner William Brownlee said that the Nov. 1 date was meant to give developers time to pave the adjacent road, hydroseed and finish other projects that required heavy truck traffic, and, providing that all the tasks were complete, he agreed to open the trail early.

The opening date was later complicated by testimony from Sheriff Daryl Wheeler regarding Subsection 9 of the Permanent Easement Declaration, titled “Remedies,” which states that “Bonner County will police the Trail Easement in a manner fully commensurate with its general efforts through the County and in accordance with the Use Conditions.”

It goes on to state that, should members of the public violate the use conditions or stipulations in the declaration, M3 will provide written notice to the county and, if no action is taken after five notifications, “shall have the authority to take reasonable measures to remedy the same, including but not limited to employing private security, placing a gate and/or barriers or signage preventing the prohibited use, as may be reasonably required to enforce Grantor’s rights.”

As part of the agreed-upon use conditions, the public cannot visit at night, smoke, drink, litter, erect permanent or temporary structures, ride motorized vehicles or have any kind of open flame on the property.

“I just want to make clear that there is no statutory authority, either in state code or county code, for me or my deputies to enforce violations of this agreement, so that if there is a dispute happening on that trail or at the water’s edge concerning some of those detailed facts in this agreement, the sheriff’s office will not be responding,” said Wheeler.

“If there is a crime occurring then we will respond and investigate.”

Wilson stated he did not believe that the language of the agreement required anything outside of the BCSO’s normal duties, and all other enforcement would be covered by typical trespass laws. 

Both Williams and Commissioner Ron Korn requested further clarification from legal counsel to confirm that the language did not put a financial burden on the county or require law enforcement to overstep their authority.

“I can’t sign something that has me doing something that I don’t have the authority to do,” said Williams.

“If we need to negotiate those terms, I guess that’s something you can entertain. But, my concern is we risk — at the absolute 11th hour, 11 hours and 59 minutes — we risk renewing litigation after having years of it,” said Wilson, adding that he did not believe the county would incur costs from the agreement.

Williams asked Brownlee if, given that they were ahead of schedule, the board could table the decision until an unspecified date to give legal counsel time to further research the easement requirements and advise the commissioners.

Brownlee agreed to postpone, adding, “Even if I said no, I’m sure you could still go ahead and table it.”

The commissioners voted unanimously to table the decision. Bradshaw, the only sitting commissioner from the previous board, was absent from the meeting.

“It’s fostering relationships and making sure that, when we sign something that people are still not going to agree with — because people are not going to agree with this easement — that we’ve done our due diligence as a board to say, ‘We went through it. We had questions, we got the answers, and this is what we could come up with as the best response to this road vacation easement,’” said Williams.