Appeals argument centers on whether damaged bridge may be replaced under Clark County exemption

At oral argument before the appeals panel, lawyers debated whether a deteriorated agricultural bridge may be replaced within its historic footprint and thus qualify for a county exemption from shoreline substantial-development permitting.

Counsel for the property owners, identified in the record as Mr. Erickson, told the court the existing bridge superstructure is rotted and “the bridge cannot be replaced in the same footprint with anything because if it's sat on the superstructure, which is defective and rotted, it will all fall straight down,” and argued that any replacement that relied on the old structure would be unsafe and therefore outside the permit exemption (Presenter, SEG 577–585). Erickson’s side emphasized expert declarations and photographs they say show the Connex-style replacement would either rest on the failing superstructure or extend beyond the permitted footprint into the ordinary-high-water mark, which the county’s approval forbids.

Brad Anderson, counsel for the respondents, said the respondents had moved for summary judgment and produced experts who concluded the bridge could be replaced in the same footprint or under the county’s exemption. Anderson pointed the court to earlier record entries—including a Clark County staff report and an email from Stacy Reed—that he said supported the position that replacement could proceed without disturbing the wetland or altering the footprint. “In their application, they said, we'll replace an existing bridge within the same footprint,” Anderson said, and argued the appellant had not presented evidence showing replacement was impossible (Brad Anderson, SEG 305–313, 308–316).

The attorneys also disputed how to measure necessity for an implied easement. Anderson invoked Brown and told the panel that courts must narrowly construe private-condemnation-like remedies and not consider hypothetical future uses; he urged the panel not to permit a claimed change in use to expand easement rights (Brad Anderson, SEG 421–425). Appellant’s counsel countered that, on these facts, replacement within the approved footprint is not functionally possible without disproportionate expense, and cited Woodward v. Lopez and other authorities on implied easements by necessity.

The factual record the parties discussed includes: a 1941 purchase and sale, a 1956 easement granting ingress and egress and the right to erect electric poles across the Fitzgibbons parcel to access the Whites’ land, a 2004 Hegadoren survey, and a later 2022 Clark County shoreline-exemption approval for NCNG (a sister company to FYPS) that the parties dispute the scope of. Counsel referenced a $2,200,000 construction estimate in the record for a much larger bridge design and argued about whether the parties’ experts had addressed the specific question of whether replacement could be achieved “within the same footprint.”

Both sides urged the panel to rule on the legal standard for necessity and the sufficiency of the record evidence. Respondents asked the court to affirm the trial court’s summary-judgment ruling and to award appellate attorney fees; appellant argued the summary-judgment record was incomplete because the experts did not address feasibility in the way required to resolve necessity.

The court thanked counsel and said it would take the remainder of its docket without oral argument before adjourning. The panel did not issue a ruling from the bench at the conclusion of argument.