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State v. Hudson

Supreme Court of Idaho

December 4, 2017

STATE OF IDAHO, IDAHO STATE BOARD OF LAND COMMISSIONERS, and IDAHO DEPARTMENT OF LANDS, Plaintiffs-Counterdefendants-Respondents,
v.
PHILIP HUDSON, Defendant-Counterclaimant-Appellant.

         2017 Opinion No. 121

         Appeal from the District Court of the First Judicial District of the State of Idaho, Bonner County. Hon. Barbara Buchanan, District Judge.

         The district court's grant of partial summary judgment in favor of respondent is affirmed. Costs and attorney fees on appeal are awarded to respondent. This case is remanded to the district court for further action on any remaining issues.

          John F. Magnuson, Coeur d'Alene, attorney for appellant.

          Hon. Lawrence G. Wasden, Idaho Attorney General, Boise, attorney for respondent. Angela S. Kaufmann argued.

          JONES, Justice.

         I. Nature of the Case

         In a case arising out of Bonner County, Philip Hudson ("Hudson") appeals a district court's grant of partial summary judgment in favor of the State of Idaho, the Idaho State Board of Land Commissioners and the Idaho Department of Lands (collectively, the "State"). The district court found that Hudson violated the Idaho Lake Protection Act (the "LPA") when he placed fill in the bed of Priest Lake without a permit. Specifically, the district court held that the State had jurisdiction of Priest Lake up to an elevation of approximately 2437.64 feet, and Hudson's fill was placed within that elevation. Hudson disputes the location of the Ordinary High Water Mark (the "OHWM") and argues that the fill was placed on his own property to protect it from erosion. Hudson argues that there was an issue of material fact regarding the location of the OHWM, which made summary judgment improper.

         II. Factual and Procedural Background

         Priest Lake has been a navigable lake since Idaho became a state in 1890. In approximately 1950, the State of Idaho constructed a dam on Priest Lake, which has stabilized the lake elevation at approximately 2437.64 feet from July to September since 1951. In 2014, the State investigated a complaint which alleged that Hudson encroached on Priest Lake by placing fill in an area adjacent to his property. The fill extends approximately nineteen feet waterward of the 2437.64 foot elevation. Hudson did not apply for a permit prior to placing the fill, and refused the State's request that he remove it.

         On July 13, 2015, the State filed a verified complaint alleging two causes of action against Hudson: (1) that he violated that LPA by placing unauthorized fill in Priest Lake, and (2) a trespass action. Hudson answered the complaint and asserted counterclaims for declaratory relief and quiet title to the land in dispute. Hudson argued that the area in question was his property because it was located upland of the OHWM of Priest Lake at the time Idaho became a state.

         In April 2016, the State moved for partial summary judgment, arguing that the LPA grants the State regulatory authority over the fill that is the subject of this litigation, regardless of the location of the natural or ordinary high water mark of Priest Lake, because such fill is located on the bed of a navigable lake as defined by Idaho Code section 58-1302(b). In support of its motion, the State filed a memorandum which asserted that the State's regulatory authority under the LPA extends to any lands lying below the Artificial High Water Mark (the "AHWM") and above the OHWM, which would give it jurisdiction over the land beneath Hudson's fill.[1] The State argued that Priest Lake has been maintained at an approximate elevation of 2437.64 feet during the summer months since 1951, and considers that to be the high water mark, whether artificial or natural. The State asserted that the 2437.64 foot line represents the point at which the bed of the lake is regulated by the State. The State supported this argument with affidavits of Mick Schanilec and Matthew Anders. Mr. Schanilec, the area manager for the Priest Lake Supervisory Area, testified that the State administers the LPA at Priest Lake to the elevation of 2437.64 feet, which is where the State considers the natural or ordinary high water mark to be.

         Ultimately, the State argued that the material Hudson placed encroached upon State controlled land, and that the district court should issue an injunction requiring Hudson to:

(a) remove all unauthorized fill below elevation 2437.64 feet msl during the low water period of Priest Lake, between about November 1 and March 1; (b) stabilize any unstable bank or lake bed remaining landward of elevation 2437.64 feet msl of Priest Lake; and (c) perform any other measures recommended by [the State] designed to contain sediment and erosion and to restore Priest Lake to as near its condition immediately prior to the unauthorized encroachment as possible.

         The State additionally requested a permanent injunction preventing Hudson from encroaching upon, in, or above the waters of Priest Lake unless approved by the State, and that he be required to pay a $10, 000 fine for his violation of the LPA.

         Hudson filed a memorandum opposing the State's motion for partial summary judgment, disputing the location of the OHWM and arguing that a material issue of fact existed as to whether or not the encroachments at issue were located on his property or the property of the State. Hudson argued that he placed the natural improvements on his own property, which was located between 2435 and 2437.64 feet. In support of his opposition to the State's motion, Hudson provided declarations of Ernest Warner, himself, and Drew C. Dittman. Mr. Warner, a licensed surveyor, testified that he believed and concluded that the OHWM of Priest Lake, as of July 3, 1890, was at least two vertical feet lower than the 2437.64 foot elevation, the artificial level now maintained during the summer months. Further, Mr. Dittman, a professional engineer, testified that if the boundary line between the Hudson parcel and the State-owned bed of Priest Lake was extended nineteen feet waterward of the summer pool level maintained on Priest Lake, then most, if not all, of Hudson's improvements would be located on his property as opposed to the State of Idaho. Hudson argued that the State bears the burden of proving that his encroachments are located waterward of the OHWM of Priest Lake. Ultimately, Hudson concluded that the:

State has failed to show that Hudson's encroachments were located below the OHWM of Priest Lake. Defendant Hudson further submits that the State is estopped to seek relief on the basis that his encroachments are located below an AHWM of Priest Lake, having specifically and emphatically denied, under oath, that there is an AHWM on Priest Lake. Hudson requests that all relief sought by the State on summary judgment be denied and that the matter be set for trial wherein the State will be required to prove that Hudson's encroachments are in fact below the OHWM of Priest Lake as it existed on July 3, 1890.

         On June 15, 2016, the State responded with a Second Affidavit of Mr. Schanilec ("Second Schanilec Affidavit"). On June 17, 2016, Hudson moved to strike the Second Schanilec Affidavit because it did not comply with the timeframe set forth in I.R.C.P. 56(c). The State responded, arguing that a party is permitted to file a reply brief seven days before a summary judgment hearing, and that the brief may be accompanied by an affidavit in support.

         On June 22, 2016, the district court heard arguments from the parties regarding the State's motion for partial summary judgment. At the outset, the district court recognized the arguments made regarding the OHWM ...


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