Judge: Traverse City needs voter approval for FishPass river project

July 12: With dam removal on hold, Traverse City residents face a hefty repair tab

Traverse City officials need voters’ permission before they can launch the final project in the decades-long effort to restore the Boardman River, a judge ruled Thursday.

The ruling casts further doubt about the fate of the $19.3 million FishPass project, which was supposed to break ground this past January. It comes after a local resident sued the city just days before construction was set to begin, arguing the project amounted to an improper disposal of city parkland without input from city residents.

Related: Last dam standing: Traverse City fish restoration project on the ropes

Under the FishPass plan, city officials in partnership with a host of groups were to replace downtown Traverse City’s Union Street Dam with a new facility where scientists would test sorting technology to allow some fish species to pass upstream beyond the dam, while locking less desirable fish downstream.

If successful in the Boardman, they envisioned exporting the technology to other rivers around the globe where dams have devastated fish populations by blocking access to rivers and streams.

But first, Circuit Court Judge Thomas Power ruled Thursday, the city charter requires them to get three-fifths of city voters to agree that the project is worthwhile.

Rick Buckhalter, the Traverse City resident who brought the lawsuit challenging the project, lauded Power’s ruling as vindication against public officials “who just would not listen to public objections” about FishPass.

Marc Gaden, a spokesman for the Great Lakes Fishery Commission, a U.S-Canadian fishery management entity that is leading the project and is a party to the lawsuit, said FishPass proponents are “weighing our options, and one of those options does include an appeal.”

Project proponents see the project as the crucial culmination of a decades-long effort to restore the Boardman, a storied trout stream where Native American tribes, local governments and other groups have worked for decades to remove upstream dams and improve fish habitat. The 28-mile-long river originates in Kalkaska County and runs west through Traverse City before emptying into Grand Traverse Bay.

The Union Street Dam is the last dam standing along the waterway. While it helps keep invasive sea lamprey and other undesired species out of the Boardman, it also blocks native fish from migrating upstream. If the FishPass technology works as planned, state fish managers would be able to keep lamprey out, while granting passage to the species they want in the Boardman.

But Buckhalter and his allies question whether FishPass is the right approach. He sees the planned project as an eyesore that would change the quiet tranquility of the grassy park surrounding the dam by adding long, concrete-lined flumes where fish would travel upstream, a massive gantry crane, a scientific research building and other structures.

Some native fish advocates have also raised concerns that FishPass could be a first step toward allowing non-native salmon species upstream in the Boardman, with potentially harmful consequences for the river’s trout populations.

At legal issue in the case: Whether the area surrounding the old mill dam in downtown Traverse City, is indeed a park. Traverse City’s charter prohibits city officials from using park land for anything other than designated park purposes, and Buckhalter alleged in his lawsuit that FishPass is not an official park purpose.

City officials originally argued that FishPass fits squarely within the definition of a park purpose. But they later changed their argument, contending the area around the dam is not a park at all, and therefore isn’t subject to the charter provision.

They argued that in order to be a park, the property would have to be formally dedicated through a deed restriction, a vote by city officials, or some other legally-binding commitment. That never happened. The city bought the property in 1966 from Consumers Power, with no stipulation about how it could use the property.

But, Judge Power noted, residents have used the property as a park for decades, and the city’s own website, maps and parks and recreation plan all characterize the dam site as a park.

Conclusion?

“It is, in fact, a park,” Power said at a hearing broadcast on YouTube. And the FishPass laboratory, a building alongside the dam where scientists would conduct their research, is “not a park purpose.” As such, he concluded, the city cannot build it without voters’ consent.

“It doesn’t mean this is a bad idea,” he added of the FishPass project. But that’s up to Traverse City residents to decide.

FishPass proponents said they were disappointed with the ruling, which they said will drive up project costs and delay needed replacement of the aging dam. Gaden, of the Great Lakes Fishery Commission, estimated costs could rise by as much as $250,000, depending upon the length of the delay.

But if the project must go to a local vote, he said, he is confident voters will approve the project.

“There's a small vocal minority that opposes this,” he said, “but for the most part this is something that has widespread support in the community...to connect the Boardman River and take full advantage of the investments that have been made over the past 30 years to improve that river system.”

Buckhalter said he is equally confident that voters would reject the project.

“City residents are very protective of their parkland,” he said, “so I have every confidence we will prevail.”