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Group sues county over wake issue

by MADISON HARDY
Staff Writer | June 10, 2021 1:00 AM

COEUR d'ALENE — Thirteen people are suing Kootenai County and the board of commissioners over what they call an "illegal wake surfing ban."   

The complaint, signed June 8 by Paul W. Daugharty of Daugharty Law Group, states that the commissioners' proposed resolution and ordinance:

• Violates Idaho Code 67-7031

• Violates the Fourteenth Amendment to the U.S. Constitution

• Violates Article I, Section 13 of the State of Idaho Constitution

• Violates due process, and

• Is void for vagueness

Parks and Waterways Resolution 2020-38, which established a 150-foot no excessive wake zone on the Spokane River, Fernan, and Lower Twin lakes, was rescinded by commissioners on May 24. The 2-1 vote, Commissioner Leslie Duncan dissenting, effectively prohibited any vessel from creating an "excessive wake" on the three waterways. 

Since that decision, the board and legal counsel have been amending the resolution provisions for law enforcement. 

"I believe the definition we assembled for excessive wake is an effort to define excessive wake where the state code doesn't," Commissioner Chris Fillios said Wednesday. "What we did craft is something workable and enforceable."

The draft ordinance was expected to be discussed by commissioners Tuesday. However, Commissioner Bill Brooks said it was pulled from the agenda at the last minute by the recommendation of attorney Jamila Holmes.

Brooks told The Press that he had not read the lawsuit as of Wednesday afternoon but was not surprised by it.

"I've been getting calls from both sides. One wants to ban all wakes, especially on the river. The other wants to do whatever they want," Brooks said. "Neither side is going to be happy." 

Citing a comment made by Brooks in a May 27 Press article, the complaint said Brooks "openly admitted the new ordinance seeks to outlaw wake surfing" through related quotes about wakeboarding on the Spokane River.

Brooks said Wednesday that he thinks people should have the right to enjoy Kootenai County waterways, but it needs to be controlled for the benefit of all. 

Brooks told The Press, "Can't we all be considerate of each other?"

He said it should be the responsibility of the Kootenai County Sheriff's Office and marine deputies to decide how to enforce the excessive wake resolution. 

"If someone is doing something that creates a large wake in the opinion of a marine deputy, then he should take action, and it is up to them what that action will be," Brooks said. "It's not something that the commissioners should be involved in."

Pulling from the former definition of an excessive wake, the complaint suggests specific language and terms have the effect of "unreasonably restricting boat access and use." 

"It will be impossible for any boat operator to legally go through the necessary transition to get a vessel on a plane, making the entire Spokane River from Lake Coeur d'Alene to the Post Falls Dam effectively a no-wake zone," the complaint reads. 

The document also states that the resolution as a whole is "vague, ambiguous, uncertain, and indefinite" and, therefore, unconstitutional. 

"The proposed Resolution and Ordinance is void for vagueness under Idaho law because the Resolution and Ordinance do not clearly define the prohibited conduct and creates the likelihood for arbitrary and discriminatory enforcement," the complaint reads. 

The complaint argues that the special meeting regarding the resolution did not provide sufficient notice to individuals who could see an "imminent, foreseeable and consequential threat posed by the new law to their economic and legal interests." 

Within the document, the 13 individuals expressed how the prohibition of wakes would impact their lives. All said they either own real estate on the Spokane River or recreate on it. 

"Plaintiffs' will suffer immediate and irreparable harm if Kootenai County and the BOC is allowed to proceed with proposed Resolution and Ordinance," the complaint reads. 

The lawsuit seeks to prohibit Kootenai County and the commissioners from taking any action to enact or enforce the no excessive wake rule.