NICAN suing corps over bypass approval

"As the agency entrusted with protecting the region's aquatic resources, the corps shouldn't just rubber stamp the application to dredge and fill Sand Creek," said Matthew Bishop, an attorney with the Western Environmental Law Center.

SANDPOINT -- Another legal front is opening in the U.S. Highway 95 bypass saga.

The North Idaho Community Action Network filed suit in federal court on Monday challenging the U.S. Army Corps' decision to issue a permit for the proposed Sand Creek Byway. The suit alleges the agency's issuance of the permit violates the National Environmental Policy Act and the Clean Water Act.

Counsel for NICAN accuses the corps of failing to conduct its own environmental analysis of the proposal and simply relying on the environmental review done by the Idaho Transportation Department.

"As the agency entrusted with protecting the region's aquatic resources, the corps shouldn't just rubber stamp ITD's application to dredge and fill Sand Creek," Matthew Bishop, an attorney with the Western Environmental Law Center, said in a statement announcing the suit.

The Western Environmental Law Center filed the suit in U.S. District Court on behalf of NICAN, a non-profit group. Named as defendants are the corps and its top brass in the Northwest, in addition to Robert Van Antwerp, the corps' commander and chief. The plaintiffs are listed as NICAN and Bill R. Lewis, a longtime opponent of the Sand Creek alignment.

The corps approved a discharge permit for the highway re-routing project in September 2007, following about 10 months of review. The permit would allow ITD to dredge approximately 17,000 cubic yards of material from the creek and discharge some 77,000 cubic yards of crushed rock, concrete and sand to construct the highway project and an adjacent pedestrian path.

NICAN's suit seeks to overturn the corps' approval and force the corps to conduct the NEPA review it allegedly failed to do originally.

Efforts to reach a spokesman from the corps' Walla Walla District were not successful on Tuesday.

NICAN contends the information ITD provided to the corps was faulty, biased and incomplete. It also accuses the corps of blindly accepting ITD's declaration that no practicable, less damaging alignment alternatives exist.

The group further asserts the corps caved into political pressure instead of conducting a thorough review of the project. Liz Sedler, NICAN's executive director, said pressure came not only from lawmakers in Boise, but Idaho's congressional delegation in Washington, D.C.

"Apparently the political pressure superseded common sense and the mandate to meet the requirements of federal regulations that apply to corps permits," Sedler said in a prepared statement.

NICAN, which is already suing the Federal Highway Administration over its approval of the project, argues there are less destructive alignment options and that the byway will irreparably harm the waterfront, environmental resources and the downtown economy.

"NICAN has over 200 members, many of whom are downtown business owners who would be devastated by the loss of tourism during the projected three to five years of construction," Linda Tauber, a NICAN board member, said in a statement.

Barbara Babic, ITD's Panhandle region spokeswoman, said the department intends to finalize an agreement with BNSF Railway for rights of way and put the project out to bid despite the lawsuit.

"Frankly, we're not going to stop until we're told to stop," Babic said on Tuesday.

Sedler said NICAN could arrange for such a directive.

"If and when they go out for bids, then we will consider filing a motion for a preliminary injunction," Sedler said.