IDL rules in favor of Idaho Club community dock near Trestle Creek

By Soncirey Mitchell
Reader Staff

Idaho Department of Lands Director Dustin Miller handed down a decision Oct. 27 approving the Idaho Club’s request for an encroachment permit for its 105-slip North Lake community dock near the mouth of Trestle Creek — the first step in a proposed development that’s been in the works since 2008. 

Conservation groups and members of the public have spoken out against the project in an effort to preserve the native habitat of protected bull trout and other wildlife, as well as the aesthetics of the area.

“We must not forget how important Trestle Creek is,” Idaho Conservation League North Idaho Director Brad Smith told the Reader. “In most years, over half of the bull trout spawning in the Pend Oreille Basin occurs in Trestle Creek, and it’s a place where families can easily take their kids to see kokanee. If we lose sight of what’s at stake, then what are we saving for the future?”

Bull trout are protected by the Endangered Species Act and are listed as threatened in all of their known habitats, including Idaho, Montana, Nevada, Oregon and Washington.

“According to testimony from Idaho Fish and Game, [Trestle Creek] is one of the most prominent bull trout streams in all of the northern Rockies,” said Mike Ahmer, IDL lands resource supervisor for the Mica Supervisory Area at the Sept. 6 public hearing on the development.

Miller’s ruling upheld the recommendation of Deputy Chief Administrative Hearing Officer Leslie Hayes — who oversaw a Sept. 6 hearing — in which she stated that “the project is unlikely to negatively impact the bull trout population.”

Trestle Creek by canoe. Photo courtesy Idaho Conservation League.

This finding is in part because the developers entered into a bargain sale agreement to transfer approximately 5.8 acres of the property to the Kalispel Tribe. The lot, which includes the final quarter mile of the main branch of Trestle Creek and one eighth of a mile of the north branch, will be held “in conservation into perpetuity,” according to the applicant’s closing statement.

The developers also plan to remove a culvert, called the North Branch Outlet, to redirect juvenile bull trout back into the main branch and away from predators. 

Hayes indicated that conservation efforts by Avista Utilities and the Idaho Department of Fish and Game, in conjunction with the aforementioned work by developers, will support the rejuvenation of the bull trout population.

According to Smith, studies by Avista and the IDFG explicitly label development as “the No. 1 threat to the creek and the fish that use it.”

Despite Hayes’ findings, ICL maintains that the Idaho Club North Lake development as a whole will negatively impact the bull trout population by blocking off the creek’s access to its historic flood plain, eliminating much of the habitat that the fish need to survive. The final development will include five residential lots and a community beach.

“The marina will also create favorable conditions for species of fish that compete with bull trout for food. The warmer water will be favorable to fish that prey on juvenile bull trout as they migrate out to the lake,” said Smith.

ICL argues that the Idaho Club’s planned 105 boat slips qualify as a marina, not a community dock — a critical distinction, as Idaho law requires that marinas make at least 50% of their moorage available to the public.

According to a brochure put out by the IDL, “A community dock is a structure that provides private moorage for more than two adjacent littoral owners (lake front property owners or their lessees/grantees), or other littoral owners possessing a littoral common area such as a homeowner’s association.” 

The residents of the golf course community neither live on the water, nor will they own “more than two” waterfront properties once they finalize the sale of the third lot to the Kalispel Tribe, according to a letter submitted to the IDL by the ICL.

“We hope this won’t be the first of many community docks approved by IDL that subvert the public interest in favor of developers and wealthy people who don’t even live here,” Smith told the Reader.

According to Idaho Code cited in the opening statement of the DL decision, any party who appeared at the Sept. 6 hearing has the right to appeal the decision to the Bonner County District Court within 30 days of the Oct. 27 ruling.

“ICL is currently reviewing the decision to determine whether or not the IDL violated the Lake Protection Act or any other state laws or rules,” Smith said. “If we think we have a winning case, then ICL would seek to appeal the decision in state court.” 

He clarified that conservation groups have a greater chance of stopping the development on a federal level due to the more stringent environmental protection laws.

Developers will need a permit from the U.S. Army Corps of Engineers in order to move forward with their plan to dredge the lakebed and fill the wetlands on the five residential lots, according to Smith.

“The applicant will also need to obtain a water quality certification of the 404 permit [section 404 of the Clean Water Act, which requires builders to apply for permission before discharging dredged or fill material into U.S. waters] from the Department of Environmental Quality. IDL may only act within the sideboards of its own statutory authority and allow the other required agencies to do the same,” said Deputy Attorney General J.J. Winters in the IDL’s post-hearing closing statement.

Additionally, the U.S. Fish and Wildlife Service will prepare a new biological opinion to determine whether the project complies with the Endangered Species Act. The 2022 biological opinion was technically rescinded following litigation by the ICL and the Center for Biological Diversity; however, the plaintiffs dropped the lawsuit before Judge Candy Dale, of the U.S. District Court for the District of Idaho, ruled on the validity of the document.

“There is zero evidence, presented to the hearing officer by IDL, IDEQ or any other credible witness at the hearing, or that otherwise exists to the best of applicant’s knowledge, that USFW or USACE has ever revoked, rescinded, retracted or otherwise disavowed the conclusions reached in the 2022 USFW Biological Opinion or 2022 USACE Biological Assessment,” said William Haberman, president of the Idaho Club, in the applicant’s closing statement.

To account for issues raised at the Sept. 6 hearing, the developers agreed to four amendments in their closing statement: the addition of a black-and-gray water pump out-station for the community dock, a breakwater to direct boat traffic away from Trestle Creek and a full-time dock attendant. They will also work with local and federal government agencies to implement a no-wake zone of 300 feet or more around the dock.

To review documents and recordings pertaining to the Idaho Club North Lake development and the Sept. 6 hearing, as well as the final decision, visit idl.idaho.gov/lakes-rivers/administrative-hearings/trestle-creek-public-hearing.