No-Modification Means No-Modification: Temporary Post‑1974 Changes Defeat Grandfathered Lake Encroachment Permits; § 58‑1306 Procedures Inapplicable; Administrative Abatement Requires Judicial Enforcement

Introduction

In this amended opinion, the Idaho Supreme Court affirmed the Idaho Department of Lands’ (IDL) denial of a “grandfathered” encroachment permit for a littoral structure on Priest Lake. Gregory Wilson, a Priest Lake shoreline owner, sought an existing encroachment permit under Idaho Code § 58‑1312 for a submerged log crib he asserted predated the 1974 Lake Protection Act (LPA). After IDL concluded Wilson could not prove the structure had not been modified since 1974—and ordered abatement of the portion below 2,437.64 feet—Wilson pursued judicial review and then appealed.

The Court’s decision resolves several recurring issues in Idaho lakefront practice:

• Any post‑1974 “modification” to a pre‑LPA encroachment— including temporary height increases later removed—disqualifies the encroachment from § 58‑1312’s grandfathering path.
• The procedural publication and hearing deadlines in Idaho Code § 58‑1306 do not apply to § 58‑1312 applications for pre‑1975 encroachments.
• IDL may issue an administrative abatement order, but must seek injunctive enforcement in a separate district court action.
• Due process claims premised on a protected property interest in encroachments below the high-water mark fail under § 58‑1310.
• For Priest Lake, IDL’s regulatory authority applies below 2,437.64 feet regardless of whether that elevation is the ordinary or artificial high-water mark.

The parties were: Gregory M. Wilson (pro se appellant); the Idaho State Board of Land Commissioners and IDL (respondents); and Wilson’s southern neighbor, William Faloon (respondent).

Summary of the Opinion

The Court affirmed the district court’s decision upholding IDL’s Final Order denying Wilson’s § 58‑1312 application and awarding attorney fees to IDL on appeal.

• Issue preservation: Wilson’s newly raised argument that 2,437.64 feet is Priest Lake’s artificial (not ordinary) high-water mark was not preserved. In any event, the State’s regulatory authority extends below either mark at Priest Lake, so the distinction would not change the outcome.
• Permit denial under § 58‑1312: Substantial and competent evidence supported IDL’s finding that Wilson modified the pre‑LPA crib after 1974 by placing cobblestones and sandbags over it, thereby increasing its height—even if he later removed those materials. The statutory requirement that the encroachment “has not been modified since 1974” was not satisfied.
• Procedures: The publication and hearing timelines in § 58‑1306(b)–(c) apply only to applications described in § 58‑1306(a) (e.g., construction/enlargement/replacement of nonnavigational encroachments and certain navigational encroachments). They do not apply to § 58‑1312 “existing encroachment” applications.
• Abatement: IDL may issue an administrative abatement order, but cannot compel compliance within the permitting proceeding; it must seek injunctive relief in a separate district court action to enforce removal or restoration (I.C. §§ 58‑1308, 58‑1309).
• Constitutional claims: Wilson’s regulatory taking theory was unpreserved. His procedural due process claim failed at step one because § 58‑1310 does not confer a protected property interest in nonnavigational encroachments extending below the ordinary high-water mark; moreover, he received notice and an opportunity to be heard.
• Fees: IDL was awarded attorney fees on appeal under I.C. §§ 12‑117 and 12‑121 due to unpreserved and unreasonable arguments. Faloon, who was not adverse to IDL, was denied fees.

Analysis

Precedents Cited and Their Influence

• Byrd v. Idaho State Board of Land Commissioners, 169 Idaho 922, 505 P.3d 708 (2022): Reiterated the public trust doctrine and littoral boundary principles: the State holds title to navigable lakebeds up to the ordinary high-water mark (OHWM), while littoral owners take title to the 1890 OHWM. The Court invoked Byrd to frame the State’s ownership and regulatory authority and to explain how littoral access rights relate to high-water boundaries.
• State v. Hudson, 162 Idaho 888, 407 P.3d 202 (2017): Critical for Priest Lake. The Court again emphasized that IDL may regulate encroachments below either the OHWM or the artificial high-water mark (AHWM). Thus, disputes over whether 2,437.64 feet is the OHWM or the AHWM do not impair the State’s regulatory power below that elevation.
• Taylor v. Taylor, 169 Idaho 806, 504 P.3d 342 (2022); Siercke v. Siercke, 167 Idaho 709, 476 P.3d 376 (2020); Skehan v. Idaho State Police, 173 Idaho 321, 541 P.3d 679 (2024): Preservation doctrine. New issues may not be raised on appeal, and only refined arguments on preserved issues are allowed. This foreclosed Wilson’s late-breaking AHWM framing and regulatory taking claim.
• Newton v. MJK/BJK, LLC, 167 Idaho 236, 469 P.3d 23 (2020); Guzman v. Piercy, 155 Idaho 928, 318 P.3d 918 (2014): Two-step procedural due process analysis: (1) identify a protected property or liberty interest; (2) determine what process is due. The Court used this framework to conclude that § 58‑1310 did not create a protectable property interest in Wilson’s below‑mark encroachment; regardless, he received constitutionally adequate process.
• Bradbury v. Idaho Judicial Council, 136 Idaho 63, 28 P.3d 1006 (2001): Property interests arise from state law; courts examine the specific statute. Supported the Court’s conclusion that § 58‑1310 does not itself create property rights in below‑OHWM encroachments.
• Rhoades, 121 Idaho 63, 822 P.2d 960 (1991); Boise Orthopedic Clinic v. ISIF (In re Wilson), 128 Idaho 161, 911 P.2d 754 (1996): Due process requires fair procedures—notice and an opportunity to be heard—and is flexible. Bolstered the finding that the IDL hearing and judicial review satisfied due process.
• Vickers v. Lowe, 150 Idaho 439, 247 P.3d 666 (2011); Two Jinn, Inc. v. IDOI, 154 Idaho 1, 293 P.3d 150 (2013); Elias‑Cruz v. IDOT, 153 Idaho 200, 280 P.3d 703 (2012): Agency review standards. Appellate courts do not reweigh evidence; they affirm unless statutory grounds exist for reversal. This framed the substantial evidence review of IDL’s “modification” finding.
• Coeur d’Alene Tribe v. Denney, 161 Idaho 508, 387 P.3d 761 (2015): Standard for fees under I.C. §§ 12‑117, 12‑121—frivolous, unreasonable, or unfounded litigation. Supported awarding fees to IDL.
• Hill v. Blaine County, 173 Idaho 856, 550 P.3d 264 (2024): A party aligned with a governmental entity is not “adverse” for purposes of § 12‑117 fee awards. Drove the denial of fees to Faloon.

Legal Reasoning

1) “Has not been modified since 1974” under § 58‑1312 means exactly that

The 2006 version of § 58‑1312 required applicants to provide “substantive documentation of the age of the encroachment and documentation that the encroachment has not been modified since 1974.” IDL ultimately credited Wilson’s showing that the log crib predates 1974, but found (based on Wilson’s own admissions and photographs) that he added cobbles/sandbags atop the crib, increasing its height, and later removed them.

The Court held that those additions were “modifications” after 1974—and that later “undoing” them does not retroactively negate the fact of modification. Because the statute’s plain text requires proof of no modification since 1974, any post‑1974 change in height, footprint, orientation, or location defeats eligibility for an existing encroachment permit. The Court noted that the Legislature’s 2024 amendment now expressly defines “has not been modified” to mean no expansion “in dimension or height or change in orientation or location,” a definition that aligns with the Court’s reading, even though the pre‑amendment case was resolved on the older statutory text.

2) § 58‑1306’s publication and hearing deadlines do not govern § 58‑1312 applications

Wilson argued he was entitled to the publication and 90‑day hearing timelines in § 58‑1306(b)–(c). The Court rejected this, emphasizing that § 58‑1306 procedures apply only to applications specified in § 58‑1306(a) (construction, enlargement, or replacement of certain encroachments). Applications for “existing” pre‑1975 encroachments are governed by § 58‑1312, which contains its own requirements. There is no textual cross‑reference imposing § 58‑1306 timelines on § 58‑1312 proceedings.

3) Administrative abatement orders are permissible, but enforcement requires a separate judicial action

The Court harmonized §§ 58‑1308 and 58‑1309. The Board may issue cease‑and‑desist orders and assess civil penalties administratively. It may also seek injunctive relief, but only by filing a separate action in district court. In that judicial action, the court can order restoration of the lake to its prior condition. Thus, IDL’s inclusion of an abatement directive in its Final Order was not ultra vires; rather, IDL must pursue a separate judicial action to compel compliance if voluntary removal does not occur.

4) State regulatory authority below 2,437.64 feet does not depend on whether that elevation is the OHWM or AHWM

Reaffirming Hudson, the Court explained that Priest Lake’s OHWM has not been adjudicated, but the State’s regulatory authority indisputably encompasses areas below 2,437.64 feet whether that is labeled the OHWM or AHWM. Wilson’s attempt to reframe 2,437.64 feet as the AHWM on appeal was unpreserved and would not have altered IDL’s authority.

5) Due process: no protected property interest in this below‑mark encroachment

Under the due process “two‑step,” the Court first asked whether state law conferred a protected property interest. Section 58‑1310 protects “existing nonnavigational encroachments not extending beyond the natural or ordinary high water mark” and, in limited circumstances, other existing nonnavigational encroachments unless timely abated after the LPA’s effective date. Because Wilson’s encroachment extends below 2,437.64 feet (within the State’s regulatory zone), § 58‑1310 did not create a protected property interest in that structure. Even if a property interest were assumed, the process afforded—notice, administrative hearing, and judicial review—was constitutionally adequate.

6) Fees

The Court awarded IDL attorney fees under §§ 12‑117 and 12‑121 because Wilson raised unpreserved arguments, challenged settled regulatory authority, and sought reweighing of evidence contrary to the record. Faloon was denied fees because he was not “adverse” to IDL under § 12‑117 and was not a necessary or proper party for purposes of resolving the appeal.

Impact and Future Application

• Grandfathering under § 58‑1312 is unforgiving: Any post‑1974 modification to a pre‑LPA structure—height increases through riprap, stones, sandbags, dimensional expansions, or relocation—irreversibly forfeits eligibility. After 2024, the statute clarifies this expressly; this opinion confirms that interpretation applies in substance even under the prior text.
• Procedural expectations: Applicants seeking to “grandfather” pre‑1975 encroachments should not expect publication and 90‑day hearing timelines from § 58‑1306. Their path is documentary and adjudicatory under § 58‑1312 alone.
• Enforcement posture: IDL may issue abatement directives administratively but must file a separate court action to compel removal/restoration. Expect more follow‑on district court suits where voluntary compliance is not forthcoming.
• Property-rights litigation: Due process and takings claims grounded in § 58‑1310 will be difficult where structures extend below the OHWM/AHWM. This decision tightens the window for such constitutional claims in the navigable lake context.
• Priest Lake specifics: The Court again sidestepped adjudicating the exact OHWM but reiterated that regulation below 2,437.64 feet is secure. This practical rule will continue to guide IDL and lakefront owners until a definitive OHWM adjudication occurs.
• Fee exposure: Parties pressing unpreserved issues or urging appellate reweighing of agency fact findings risk fee awards against them under §§ 12‑117 and 12‑121.

Complex Concepts Simplified

• Littoral rights: Rights incident to ownership of land along a lake. The State owns the bed up to the ordinary high-water mark under the public trust doctrine; the upland owner’s title generally runs down to that mark.
• OHWM vs AHWM: OHWM is the natural high-water line imprinted over years; AHWM is a higher, human‑controlled elevation (e.g., from dams). Idaho’s regulatory authority extends at least to the AHWM zone. At Priest Lake, 2,437.64 feet is the long‑stable summer elevation; the State can regulate below that level whether it is technically the OHWM or AHWM.
• Encroachment categories: “Existing” or “pre‑LPA” encroachments predate 1/1/1975 and can be “grandfathered” only if the owner proves the structure exists from pre‑1975 and has not been modified since 1974 (I.C. § 58‑1312). “New” encroachments (post‑1974) must satisfy § 58‑1306 procedures and standards.
• Modification (post‑2024 definition): Expanding the footprint, increasing height, or changing orientation or location counts as modification—even temporarily. Returning a structure to its former condition does not erase the fact that a modification occurred.
• Substantial evidence: A deferential standard. Courts ask whether a reasonable mind could accept the evidence as adequate to support the agency’s conclusion; they do not reweigh evidence or assess credibility anew.
• Abatement vs injunctive relief: IDL can order abatement administratively (e.g., “remove below 2,437.64 feet”) but must file a separate district court action to obtain an injunction or restoration order if the owner does not voluntarily comply.
• Necessary vs proper party: A necessary party is essential to adjudication; a proper party’s presence might clarify matters but is not required. Aligned intervenors are generally not “adverse” to the State for fee purposes under § 12‑117.

Practical Guidance for Stakeholders

For littoral owners with pre‑1975 structures

• Audit your shoreline encroachments for any post‑1974 changes in height, dimensions, orientation, or location; even temporary additions count.
• If any post‑1974 modification occurred, a § 58‑1312 grandfathering permit is likely unavailable. Consider applying under § 58‑1306 (and anticipate public‑interest scrutiny and neighbor objections).
• Gather robust “substantive documentation” for both the age and the continuous non‑modification of the encroachment—e.g., dated aerials, tax records, historic surveys, contemporaneous photographs, and credible third‑party documentation.
• Engage IDL early to clarify the applicable mark and regulatory scope; for Priest Lake, assume regulation applies below 2,437.64 feet.
• Preserve issues at the agency level; failure to raise them there (e.g., challenging the relevant water mark) will likely bar them on appeal.
• Weigh the fee risks on appeal. Unpreserved or frivolous arguments can trigger fee awards against you.

For agencies and practitioners

• Apply § 58‑1312 strictly; any evidence of post‑1974 modification is disqualifying. The 2024 definition of “has not been modified” provides helpful clarity for future cases.
• Do not import § 58‑1306 publication/hearing deadlines into § 58‑1312 proceedings absent statutory text.
• Where abatement is ordered and resisted, file a separate district court action for injunctive relief and restoration under §§ 58‑1308–09.
• Build an administrative record that clearly distinguishes pre‑1974 conditions from post‑1974 changes, including photographic evidence and party admissions.

Unresolved Questions and Observations

• Priest Lake’s exact OHWM remains unadjudicated. The Court’s reiteration that regulatory authority attaches below 2,437.64 feet preserves enforcement continuity but leaves final boundary questions for a future adjudication or legislative action.
• The opinion does not address what happens if post‑1974 changes were de minimis or entirely attributable to natural processes rather than owner actions; the 2024 definition suggests the focus is on the encroachment’s “footprint,” but edge cases may arise.
• Section 58‑1310’s three‑year abatement window for “other existing nonnavigational encroachments” was not outcome‑determinative here, but future litigants may test how that provision interacts with below‑OHWM structures and IDL’s regulatory reach.

Conclusion

Wilson v. Idaho State Board of Land Commissioners firmly cements three practical rules for Idaho’s navigable lake regime:

• Grandfathering under § 58‑1312 is lost by any post‑1974 modification—even if later reversed.
• Section 58‑1306’s procedural timelines do not govern § 58‑1312 applications for existing encroachments.
• Administrative abatement orders are valid but must be enforced via separate judicial proceedings.

Coupled with the Court’s renewed statement that IDL regulates below 2,437.64 feet at Priest Lake regardless of whether that level is the OHWM or AHWM, and its narrow view of property interests under § 58‑1310 in the below‑mark zone, this opinion strengthens the State’s stewardship of public trust resources while providing clear compliance markers for littoral owners. The decision also underscores the importance of issue preservation and the risks of pursuing unmeritorious appeals in Idaho’s administrative law landscape.