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State of Idaho, Board of Land v. Peter Kaseburg

May 2, 2013


Appeal from the district court of the First Judicial District of the State of Idaho, Bonner County. Hon. Steve Verby, District Judge.

The opinion of the court was delivered by: W. Jones, Justice

2013 Opinion No. 56

Stephen W. Kenyon, Clerk

The decision of the district court is reversed as to application 219B and affirmed as to application 219C and this case is remanded for action consistent with this Opinion. No costs or fees are awarded.


Peter Kaseburg*fn1 is a littoral owner on Lake Pend Oreille who holds an encroachment permit for a series of decaying wooden pilings that were driven into the lakebed in the 1930s. With the exception of a single piling that a neighboring marina uses to anchor one of its docks, the pilings have never had any known navigational purpose. Kaseburg applied to the Idaho Department of Lands ("IDL") for a permit to replace ten of the wooden pilings with steel pilings, but failed to specify any navigational purpose for this proposal. The IDL considered the application a request for a nonnavigational encroachment permit and denied it after receiving several objections.

While a final decision was still pending on the first permit application, Kaseburg filed a second application for a permit to install a mobile dock system and mooring buoy. The IDL considered the second application a request for a permit for a navigational encroachment extending beyond the line of navigability. Again, the IDL received many objections and denied the application.

Kaseburg petitioned for judicial review by the First District Court for Bonner County, which reversed the IDL. The court held that all pilings are navigational encroachments as a matter of law, regardless of whether they have ever been used to aid navigation. This supposed error tainted the IDL's processing of both applications. Therefore, the district court set aside both denials. The IDL appealed to this Court. We reverse the district court with respect to the first application, but affirm the district court with respect to the second application.


Peter Kaseburg is a relative newcomer to Glengary Bay on Lake Pend Oreille in Bonner County, Idaho. He recently purchased a vacation home on a small sub-bay (the "Bay") which is part of the larger Glengary Bay. Kaseburg shares the Bay's shoreline with several other property owners: Gerald Bringhurst; Mark and Laurence Nelson; Tom and Marjorie Trulock; and George Congleton. Kaseburg's property extends to the north, around the corner of a point that defines the mouth of the Bay.

The area was originally homesteaded by the Nelson family. In 1937, the McLean family purchased land that included most of the Bay's shoreline. In the mid-1940s, Marjorie Trulock's father, Hennrick Heitman, purchased land that fronted on the remaining shoreline and began operating a marina there. The McLean and Heitman families owned all of the shoreline until the mid-1990s. To this day, the Heitman Docks marina continues to operate under the Trulocks' ownership.

In the water near Kaseburg's property stand a set of decaying wooden pilings. They are arranged in an L-shaped configuration. Seven individual pilings extend roughly perpendicular from the shoreline and to the south-southeast, terminating in a cluster of three pilings that stands at the corner of the "L." Another cluster of three pilings is adjacent to it to the west-southwest, and, together with six more individual pilings, forms the other leg of the "L." In 1974 there were an additional two pilings above the low water mark. These two pilings have apparently rotted away entirely, and no longer exist.

The pilings were driven in the early 1930s, although their exact purpose is unknown. Due to their height, it is unlikely they were intended to support a dock. Around 1937, while a home was being constructed on what is now Kaseburg's land, the living room portion of a float house was towed from another location and was tied to one of the pilings. The pilings may originally have been intended to hold the portion of the float house in place. Later, they were used as a destination for swimmers. One of the pilings was also used to support a now-defunct water intake pipe. There is no evidence that the pilings were ever used to support a dock or to moor any craft capable of traveling under its own power, with the exception of a single piling that the Trulocks use to anchor one of their marina's docks.

In the early 1950s, the United States Army Corps of Engineers constructed the Albeni Falls dam on Lake Pend Oreille, thereby creating an artificial high water mark ("AHWM")*fn2 approximately eleven and a half feet above the natural high water mark.

In 1974, Douglas McLean, the owner of what is now both Kaseburg and Congleton's respective properties, submitted a notice of existing encroachments (the "Notice").*fn3 On a hand- drawn schematic of the area, McLean noted the existence of a small dock, which he kept beached at the high water mark; a juniper tree, which was "used to moor small boats"; and the aforementioned L-shaped series of pilings. In the margin, not next to any particular structure on the drawing, McLean wrote, "Purpose: Private swimming & boat moorage area; & private water source." He did not specify which purpose related to which structure. A neighbor who knew McLean stated that McLean submitted the Notice in order to be able to continue to use the pilings to support his water intake pipe. There is no evidence that McLean intended the phrase "boat moorage area" to apply to the pilings, rather than the dock and tree.

It is undisputed that the pilings currently serve little or no useful purpose. Indeed, it is undisputed that the pilings are a navigational hazard because they increase crowding on the Bay; are nearly completely submerged when the water level is high; and are difficult to see, especially at night. The Trulocks anchor one of their marina's docks with one of the pilings, but they could adequately anchor the dock without using the piling. Additionally, neighbors have installed lights on one or more of the pilings, but did so only to warn boaters of the pilings' presence.

In August of 2008, Kaseburg submitted a "Request for Assignment of Encroachment Permit" on behalf of "Douglas C. McLean (Deceased)." McLean was Kaseburg's predecessor in interest; however, he was also Congleton's predecessor in interest, and the pilings are adjacent to Congleton's land, not Kaseburg's. Nonetheless, the IDL granted the request and transferred McLean's permit to Kaseburg. It does not appear that the IDL made any determination of Congleton and Kaseburg's littoral boundaries, or that Congleton was ever notified of the permit transfer.*fn4

Later in 2008, Kaseburg communicated with the IDL via email. The IDL informed him that the wooden pilings were "not something we would normally permit anymore" and that, unless used to "hold a floating dock in location," any new pilings "would be considered a nonnavigational encroachment and would have to provide a benefit to the public to be permitted." In February of 2009, Kaseburg stated his desire to install a dock with an area of between 1,590 and 2,120 square feet. The IDL responded that it did not permit single-family docks exceeding 700 square feet, except for properties accessible only by boat.*fn5

In March of 2009, Kaseburg filed an application with the IDL ("Application 219-B") requesting permission to remove all of the pilings and to replace ten of them with steel pilings. Kaseburg's application did not explain why he wanted to install the pilings or mention any additional structures that he wanted to attach to them. He instead characterized his proposed activity as a "maintenance operation." The IDL processed Kaseburg's application as a request to replace a nonnavigational encroachment.

At this point, it is useful to note the statutory definitions of "navigational" and "nonnavigational" encroachments. Pursuant to the Lake Protection Act:*fn6

"Encroachments in aid of navigation" means and includes docks, piers, floats, pilings, breakwaters, boat ramps, channels or basins, and other such aids to the navigability of the lake, on, in or above the beds or waters of a navigable lake. The term "encroachments in aid of navigation" may be used interchangeably herein with the term "navigational encroachments."

"Encroachments not in aid of navigation" means and includes all other encroachments on, in or above the beds or waters of a navigable lake, including landfills or other structures not constructed primarily for use in aid of the navigability of the lake. The term "encroachments not in aid of navigation" may be used interchangeably herein with the term "nonnavigational encroachments."

I.C. § 58-1302(h)-(i). The distinction between navigational and nonnavigational encroachments, as well as the distinction between encroachments inside and outside of the line of navigability, significantly impact how permit applications are processed. I.C. § 58-1305(a) states:

Applications for construction or enlargement of navigational encroachments not extending beyond the line of navigability nor intended primarily for commercial or community use shall be processed by the board with a minimum of procedural requirements and shall not be denied nor appearance required except in the most unusual of circumstances or if the proposed encroachment infringes ...

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