Boundary Backpackers v. Boundary County, 21287

Decision Date18 March 1996
Docket NumberNo. 21287,21287
Citation913 P.2d 1141,128 Idaho 371
PartiesBOUNDARY BACKPACKERS, an unincorporated association; North Idaho Audubon Society, Inc., an Idaho corporation; Bonners Ferry Forest Watch, an unincorporated association; Jerry Pavia; Paul R. Sieracki; Will Venard; Jan Wathen; Allen H. Rose and Jan Rose, husband and wife; Laurel McGuire; Lew Langness and Linda Langness, husband and wife; John O'Connor; Shaela Conner; Cherie Bronstein; Robert Moir; David W. Bodner and Meeche Bodner, husband and wife; Dan J. Misciagna; Daniel Krmpotich and Michael S. Powers, Plaintiffs-Respondents, v. BOUNDARY COUNTY, a governmental subdivision; Ronald Smith, Merle Dinning and Orrin Everhart, in their official capacities as members of the Boundary County Board of Commissioners, Defendants-Appellants. Coeur d'Alene, April 1995 Term
CourtIdaho Supreme Court

Randall W. Day, Bonners Ferry, for appellants.

Scott Reed, Coeur d'Alene, for respondents.

Peter D. Coppelman, Washington, DC, for Amicus Curiae United States.

JOHNSON, Justice.

This case concerns a county ordinance that requires all federal and state agencies to comply with a county land use policy plan. We conclude that the ordinance violates the U.S. Constitution because federal law preempts portions of the ordinance and that the entire ordinance is invalid because these portions are not severable. We also conclude that the one individual who has standing to challenge the ordinance is not entitled to attorney fees under the private attorney general doctrine.


In 1992, the Boundary County Board of Commissioners (the board) enacted an ordinance (the ordinance), entitled Boundary County Interim Land Use Policy Plan (the plan). The ordinance declares that the scope and purpose of the plan is "to guide the use of public lands and public resources in Boundary County and to protect the rights of private landowners." The ordinance directs that "all federal and state agencies shall comply with" the plan. The plan contains the following edicts to state and federal agencies:

Federal and state agencies proposing actions that will impact [the plan] shall prepare and submit in writing, and in a timely manner, report(s) on the purposes, objectives and estimated impacts of such actions, including economic, to [the board]. These report(s) shall be provided to [the board] for review and coordination prior to federal or state initiation of action ....

Federal land agencies shall not acquire any private lands or rights in private lands within Boundary County without first assuring:

a. That as a minimum, parity in land ownership status is maintained; and

b. That private property interests are protected and enhanced.

... Federally managed lands that are difficult to manage or which lie in isolated tracts shall be targeted for disposal.

... Boundary County concurrence shall be required prior to any [federal and state land] adjustments.

... Boundary County shall determine land withdrawals for hazardous and non-hazardous waste storage as well as the types and points of origin of such waste.

... Before federal and state land agencies can change land use, adverse impact studies on uses shall be conducted and mitigation measures adopted with concurrence from Boundary County.


... Any federally proposed designation of Wild and Scenic Rivers and all federal policies regarding riparian management in Boundary County shall be coordinated with [the board] and shall comply with any County water use plan.


... Boundary County may develop Wild and Scenic River Designations of its own design and shall require full federal compliance in the acceptance and enforcement of such designations.


... No wilderness areas shall be designated in Boundary County.

The ordinance directs enforcement of the plan: "Boundary County shall enforce compliance with [the plan] and shall monitor consistency between federal and state actions and activities and the land use requirements enumerated herein."

The board sent copies of the plan to all federal, state, and local governmental agencies, together with a form letter requesting that each agency give the board ninety days notice prior to taking any proposed actions that would affect the economic stability, custom, or culture of Boundary County (the county).

Boundary Backpackers, the North Idaho Audubon Society, and Bonners Ferry Forest Watch (the organizations) are non-profit membership groups located in the county. In 1993, the organizations and eighteen individuals (the individuals) who are residents of the county sued the county and the members of the board, seeking (1) a declaratory judgment that the ordinance is unconstitutional and void, (2) an injunction enjoining the board members from enforcing the ordinance and directing that they repeal the ordinance, (3) damages, and (4) attorney fees and costs. The organizations and the individuals alleged that the ordinance threatens their individual and collective environmental, aesthetic, and recreational interests in the state and federal lands, waters, and natural resources in the county.

The organizations and the individuals moved for summary judgment. The county and the board moved to dismiss the suit. The board members submitted an affidavit in which they stated that the board "deemed that it would not be proper to seek enforcement of the ordinance by fines or penalties." The organizations and several of the individuals submitted affidavits stating the effect the ordinance has on them.

The trial court granted summary judgment to the organizations and the individuals, ruling that one or more of them had standing and that the issues presented were ripe for review. The trial court concluded that the ordinance requires the federal government to maintain ownership parity in the disposition and acquisition of federal properties and, consequently, conflicts with article I, section 8, clause 17 of the U.S. Constitution (the Property Clause), as well as the Federal Land Policy Management Act of 1976, 43 U.S.C. § 1715(a) (1986). The trial court ruled that under article VI, clause 2 of the U.S. Constitution (the Supremacy Clause), the ordinance is preempted by federal law. The trial court also concluded that the board exceeded its authority in enacting the ordinance based upon article IX, sections 7 and 8 of the Idaho Constitution and related statutes which vest the state board of land commissioners with management authority over state lands. The trial court declared the entire ordinance void on the basis that the invalid provisions were pervasive and awarded the organizations and the individuals attorney fees under the private attorney general doctrine.

The county and the board members appealed.



The county and the board members assert that the trial court incorrectly determined that one or more of the organizations and individuals had standing. We disagree.

In Miles v. Idaho Power Co., 116 Idaho 635, 778 P.2d 757 (1989), the Court stated three basic propositions concerning standing that guide our decision here:

1. "The doctrine of standing focuses on the party seeking relief and not on the issues the party wishes to have adjudicated."

2. "[T]o satisfy the case or controversy requirement of standing, litigants generally must allege or demonstrate an injury in fact and a substantial likelihood that the judicial relief requested will prevent or redress the claimed injury."

3. "[A] citizen and taxpayer may not challenge a governmental enactment where the injury is one suffered alike by all citizens and taxpayers of the jurisdiction."

Id. at 641, 778 P.2d at 763.

In the present case, the county and the board members objected to various portions of the affidavits submitted by the organizations and the individuals concerning their standing to bring this action. The trial court sustained most of these objections, overruling only a few. We review those portions of the affidavits to which the county and the board members objected to determine whether they are admissible as required by I.R.C.P. 56(e). Hecla Mining Co. v. Star-Morning Mining Co., 122 Idaho 778, 782-87, 839 P.2d 1192, 1196-1201 (1992). We agree with the trial court in sustaining most of the county's and the board members' objections. Therefore, we do not consider these portions of the affidavits in determining whether the organizations and the individuals have standing.

Considering the remaining portions of the affidavits submitted on behalf of the organizations and all but one of the individuals, they do not demonstrate an injury in fact or a substantial likelihood that the judicial relief requested will prevent or redress the claimed injury. Likewise, with regard to the organizations and all but one of the individuals, we do not find an injury that is not suffered alike by all citizens of the county.

The affidavit of Dan Krmpotich, a commercial guide in the county, contains the following statement that establishes his standing to challenge the ordinance: "If Boundary County succeeds in enforcing the ordinance ..., I shall lose a very substantial portion of my existing available open space usable for high quality recreation related to wildlife and wild lands." The county and the board members objected on the grounds that this statement lacked foundation, was an inadmissible opinion, and constituted speculation. There are other portions of the affidavit to which the county and the board members did not object, except to say that they were self-serving. So far as we can understand this objection, it does not render these statements inadmissible. These statements provide an ample foundation to support...

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