                  IN THE SUPREME COURT OF THE STATE OF IDAHO
                                 Docket No. 44418


 STATE OF IDAHO, IDAHO STATE                          )
 BOARD OF LAND COMMISSIONERS,                         )
 and IDAHO DEPARTMENT OF LANDS,                       )   Boise, September 2017 Term
                                                      )
        Plaintiffs-Counterdefendants-                 )   2017 Opinion No. 121
        Respondents,                                  )
                                                      )   Filed: December 4, 2017
 v.                                                   )
                                                      )   Karel A. Lehrman, Clerk
 PHILIP HUDSON,                                       )
                                                      )
       Defendant-Counterclaimant-                     )
      Appellant.                                      )
 _____________________________________                )

               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


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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
1
  The State disputed the presence of an AHWM on Priest Lake. However, the State maintained that the distinction
between the OHWM and the AHWM was not germane to its argument because the State controlled the area in
dispute under either.

                                                      2
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
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       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 and the AHWM of Priest Lake, and advised the parties as
follows:
       I looked at the statute that requires the lake to be kept up the additional three feet
       during the summer months. But I guess what I’m most struck by is Idaho Code
       58-1302 and the issue of navigability and encroachments. And I’m not sure
       whether it matters whether we’re talking about the [OHWM] or the [AHWM]
       when you look at 58-1302(b) and (h) and (i).
       During oral argument the State reiterated what it set forth in its briefing, and reasoned
that for the purposes of its motion, it was irrelevant whether they were talking about the OHWM
or the AHWM, because under the LPA, parties are required to obtain a permit before
encroaching on a navigable lake. The State argued that because Hudson failed to obtain a permit
prior to placing fill in the lake bed, he violated the LPA. Hudson argued that the OHWM at
statehood was two and one half feet lower than the summer level, which would result in his
property extending approximately nineteen feet further into Priest Lake, and nearly all of his
encroachments fall within those nineteen feet. Hudson argued that the State was in a unique
procedural posture because it had specifically denied the existence of an AHWM, and had
testified that the OHWM is 2437.64 feet. Hudson contended that he had offered evidence to
contradict the State’s location of the OHWM and that if the State was going to allege that
Hudson’s encroachments were waterward of the OHWM, the dispute regarding the location
creates an issue of material fact.
       On June 30, 2016, the district court issued its memorandum decision and order granting
the State’s motion for partial summary judgment. The district court first determined that the fill
placed by Hudson was an encroachment not in aid of navigation. The district court next found
that the State has the power to regulate and control navigational and non-navigational

                                                 4
encroachments, and that a permit is required before a person may place an encroachment into the
bed of Priest Lake. In response to Hudson’s argument that the AHWM is higher than the OHWM
in the summer months, and his property extends to the OHWM as it existed in 1890, the district
court found:
           [T]hat pursuant to the definition of a lakebed in Idaho Code § 58-1302, it does not
           matter whether the fill is located below the OHWM, or between the OHWM and
           the AHWM, if there is one; because the statute makes clear that the State of Idaho
           has the power to regulate and control encroachments on land lying between the
           OHWM and the AHWM.
                   Accordingly, the State of Idaho has the power, as a matter of law, to
           regulate and control encroachments in or above the bed of Priest Lake by
           requiring that a lake encroachment permit be obtained before construction of a
           nonnavigational encroachment such as the fill at issue here.
Additionally, the district court acknowledged that it did not utilize the Second Schanilec
Affidavit in rendering its decision, and as a result, considered Hudson’s motion to strike moot.
           The district court issued a mandatory injunction requiring Hudson to: (1) remove all
unauthorized fill below the high water mark, regardless of whether it is natural or artificial; (2)
stabilize any unstable bank or lake bed; and (3) perform any other measures recommended by the
State to restore the lake to as close to its original condition as possible. The district court also
issued a permanent injunction requiring Hudson to refrain from encroaching upon, in, or above
the beds or waters of Priest Lake, absent prior approval from the State. 2
           The parties stipulated to a stay of further action on the remaining claims pending an
appeal, and the district court entered an amended partial judgment certified as final pursuant to
I.R.C.P. 54(b). Hudson timely appealed.
                                               III. ISSUES ON APPEAL
1.         Whether the district court erred when it granted the State’s motion for partial summary
           judgment despite the dispute regarding the location of the OHWM.
2.         Whether the State is entitled to attorney fees and costs on appeal.
                                             IV. STANDARD OF REVIEW
           This Court reviews a district court’s decision to grant summary judgment under the same
standard employed by the district court. In re Sanders Beach, 143 Idaho 443, 446, 147 P.3d 75,
78 (2006) (internal citation omitted). Summary judgment is proper “if the pleadings, depositions
on file, together with the affidavits, if any, show that there is no genuine issue as to any material

2
    The district court did not impose the $10,000 fine requested by the State.

                                                             5
fact and that the moving party is entitled to judgment as a matter of law.” I.R.C.P. 56(c) 3. “A
material issue of fact, for summary judgment purposes, is one that is relevant to an element of
the claim or defense and whose existence might affect the outcome of the case.” Rife v. Long,
127 Idaho 841, 849–50, 908 P.2d 143, 151–52 (1995) (citing United States v. Grayson, 879 F.2d
620 (9th Cir. 1989)). “[T]his Court construes disputed facts, and all reasonable inferences that
can be drawn from the record, in favor of the non-moving party.” Grabicki v. City of Lewiston,
154 Idaho 686, 690, 302 P.3d 26, 30 (2013) (internal citation omitted).
                                                V. ANALYSIS
A.       The district court did not err in granting partial summary judgment because the
         dispute regarding the true location of the OHWM is not a material fact in
         determining whether Hudson violated the LPA.
         Hudson argues that the district court erred in concluding that it did not matter whether
2437.64 feet was the OHWM or the AHWM of Priest Lake. Hudson argues that his evidence
proves that the OHWM was at 2435.64 feet at the time Idaho became a state, and that most, if
not all, of the fill was placed within the nineteen feet between elevations 2435.64 and 2437.64. 4
Hudson argues that summary judgment is only appropriate when there is no genuine issue of a
material fact, and that because there was a dispute regarding the actual location of the OHWM,
and whether or not his encroachment was located upland of the OHWM, the district court erred
when it granted the State’s motion for partial summary judgment. Further, Hudson reasons that
because the State denied the existence of the AHWM on Priest Lake, it needed to prove that the
OHWM of Priest Lake at the time Idaho became a state was located at 2437.64 feet. Hudson
claims that the district court impermissibly resolved an issue of fact based on the State’s denial
that Priest Lake has an AHWM. Additionally, Hudson alleges that the Second Schanilec
Affidavit should not be considered on appeal because it was not timely filed with the district
court.
         In response, the State reasons that whether 2437.64 feet is the OHWM or the AHWM is
immaterial because the State has the authority under the LPA to regulate encroachments below


3
 The district court granted summary judgment in June 2016. Effective July 1, 2016, Idaho Rule of Civil Procedure
56 was amended. The relevant portion of the rule now provides: “The court must grant summary judgment if the
movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” I.R.C.P. 56(a).
4
  The difference between the 2435.64 and 2437.64 water marks results in approximately nineteen feet of sloping
land extending waterward from the 2437.64 water mark.

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either the OHWM or the AHWM. Accordingly, the State asserts the district court did not err in
granting the motion for partial summary judgment because, regardless of whether 2437.64 feet is
an ordinary or an artificial high water mark, the State has authority to regulate Hudson’s
encroachment, and he was required to obtain an encroachment permit prior to placing fill in the
bed of Priest Lake. The State continues, arguing that while Hudson’s fill might benefit his own
property, it does not provide major environmental, economic, or social benefits to the general
public, and that under the LPA, any person who is found to be wrongfully encroaching on, in or
above the beds of a navigable lake shall be directed to restore the lake to the condition it was in
prior to the unauthorized encroachment. Further, the State alleges that Hudson’s concern
regarding the Second Schanilec Affidavit is not properly before this Court because the district
court specifically noted that it did not consider it when rendering its decision.
       Idaho law provides that “a riparian owner (on a navigable river or stream) or a
littoral owner (on a navigable lake) takes title down to the natural high water mark.” In re
Sanders Beach, 143 Idaho 443, 453, 147 P.3d 75, 85 (2006) (citing West v. Smith, 95 Idaho
550, 554, 511 P.2d 1326, 1330 (1973)). The State of Idaho then owns, “in trust for the
public title to the bed of the navigable water below the OHWM as it existed at the time the
State was admitted into the Union.” Id. (citing Erickson v. State, 132 Idaho 208, 210, 970
P.2d 1, 3 (1998)). The Idaho legislature enacted the LPA, which is codified as Idaho Code
58, chapter 13, to regulate encroachments and activities that occur in, on, or above
navigable lakes in the State of Idaho. See generally I.C. §§ 58-1301 et. seq.
       The LPA provides that:
       [T]he public health, interest, safety and welfare requires that all encroachments
       upon, in or above the beds or waters of navigable lakes of the state be regulated in
       order that the protection of property, navigation, fish and wildlife habitat, aquatic
       life, recreation, aesthetic beauty and water quality be given due consideration and
       weighed against the navigational or economic necessity or justification for, or
       benefit to be derived from the proposed encroachment. No encroachment on, in or
       above the beds or waters of any navigable lake in the state shall hereafter be made
       unless approval therefor has been given as provided in this act.
I.C. § 58-1301.
       The LPA defines a navigable lake as: “any permanent body of relatively still or slack
water, including man-made reservoirs, not privately owned and not a mere marsh or stream
eddy, and capable of accommodating boats or canoes.” I.C. § 58-1302(a).


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       Beds of navigable lakes are defined as: “the lands lying under or below the ‘natural or
ordinary high water mark’ of a navigable lake and, for purposes of this act only, the lands lying
between the natural or ordinary high water mark and the artificial high water mark, if there be
one.” Id. at (b). Encroachments not in aid of navigation include “encroachments on, in or
above the beds or waters of a navigable lake, including landfills or other structures not
constructed primarily for use in aid of the navigability of the lake.” I.C. § 58-1302(i).
       An OHWM is defined as: “the high water elevation in a lake over a period of years,
uninfluenced by man-made dams or works, at which elevation the water impresses a line on the
soil by covering it for sufficient periods to deprive the soil of its vegetation and destroy its value
for agricultural purposes.” Id. at (c).
       An AHWM is defined as: “the high water elevation above the natural or ordinary high
water mark resulting from construction of man-made dams or control works and impressing a
new and higher vegetation line.” Id. at (d).
       The crux of this appeal is whether the true location of the OHWM on Priest Lake is a
material fact. If it is a material fact, the district court’s award of partial summary judgment was
improper. We hold that the location of the OHWM is not a material fact in determining whether
Hudson violated the LPA. The State alleges that Hudson violated the LPA by placing fill in an
area waterward of the OHWM of Priest Lake, while Hudson maintains that the OHWM is two
feet lower and the fill was placed on his own property. Under either argument, it is undisputed
that Hudson placed fill that extends into the navigable bed of Priest Lake. It is undisputed that
Hudson’s fill constitutes an encroachment.
       The LPA requires that, in order to protect public health, interest, safety and welfare:
       all encroachments upon, in or above the beds or waters of navigable lakes of the
       state be regulated in order that the protection of property, navigation, fish and
       wildlife habitat, aquatic life, recreation, aesthetic beauty and water quality be
       given due consideration and weighed against the navigational or economic
       necessity or justification for, or benefit to be derived from the proposed
       encroachment.
I.C. § 58-1301. As a result, the State must provide approval before any encroachment can be
placed on, in, or above the beds or waters of any navigable lakes. Id. The LPA defines the beds
of navigable lakes as “the lands lying between the natural or ordinary high water mark and the
artificial high water mark, if there be one.” I.C. § 58-1302(b). In sum, whether 2437.64 feet was
the OHWM or the AHWM is not an issue of material fact because the State has the authority to

                                                  8
regulate encroachments under both marks. Accordingly, the district court did not err in granting
partial summary judgment in favor of the State. Separately, because the district court did not
consider the Second Schanilec Affidavit in reaching its decision, Hudson’s request that it not be
considered for purposes of resolving this appeal is moot.
B.     The State is entitled to costs and attorney fees on appeal.
       The State requests costs and attorney fees on appeal pursuant to Idaho Code section 12-
117. The State argues that whether 2437.64 feet is the OHWM or the AHWM is irrelevant under
the LPA, and that Hudson’s appeal was brought without a reasonable basis in fact or law.
Hudson argues that it would be improper to award the State attorney fees regardless of which
party prevailed, because his position is supported by facts and law.
       Idaho Appellate Rule 40 provides that “[w]ith the exception of post-conviction appeals
and appeals from proceedings involving the termination of parental rights or an adoption, costs
shall be allowed as a matter of course to the prevailing party unless otherwise provided by law or
order of the Court.” I.A.R. 40. Idaho Code section 12-117 provides that:
       Unless otherwise provided by statute, in any proceeding involving as adverse
       parties a state agency or a political subdivision and a person, the state agency,
       political subdivision or the court hearing the proceeding, including on appeal,
       shall award the prevailing party reasonable attorney’s fees, witness fees and other
       reasonable expenses, if it finds that the nonprevailing party acted without a
       reasonable basis in fact or law.
I.C. § 12-117(1). This Court has awarded attorney fees pursuant to Idaho Code section 12-117
when a nonprevailing party “continued to rely on the same arguments used in front of the district
court, without providing any additional persuasive law or bringing into doubt the existing law on
which the district court based its decision.” City of Blackfoot v. Spackman, 162 Idaho 302, __,
396 P.3d 1184, 1192 (2017) (citing Rangen, Inc. v. Idaho Dep’t of Water Res., 159 Idaho 798,
812, 367 P.3d 193, 207 (2015)).
       The State is the prevailing party on appeal and is awarded costs and attorney fees
pursuant to Idaho Code section 12-117(1). On appeal, Hudson proffered substantially the same
argument that previously failed before the district court. Hudson did not present any new
persuasive law, nor did he significantly challenge the existing law upon which the district court
relied in granting partial summary judgment in favor of the State. See Blackfoot, 162 Idaho 302,
396 P.3d at 1192. As a result, we award the State attorney fees on appeal.
                                        VI. CONCLUSION

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          We hereby affirm the district court’s grant of partial summary judgment in favor of the
State and award costs and attorney fees on appeal to the State. This case is remanded to the
district court for further action on any remaining issues.
          Chief Justice BURDICK and Justices HORTON, BRODY and Justice pro tem TROUT,
concur.




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