FishPass Update: A New Party in the Lawsuit and a Change from the City

The Fish Pass project in Traverse City is back before a judge – with a new defendant asking to join in the lawsuit.  And the latest update includes a change in strategy from the city: whether the site is even on city parkland after all.

The Great Lakes Fishery Commission wants to join in on the suit, brought forward by a Traverse City resident who is suing the city.  Construction on the 20 million dollar project was put on hold as the court hears the arguments about whether FishPass should require approval of city voters.

FishpassAttorney Scott Howard represents the Great Lakes Fishery Commission. He says, “We aren’t asking for any new claims or extension of timelines… we would agree the case should move forward as it is scheduled and wouldn’t ask for any delay or changes to the court’s scheduling order.”

Howard says with the Commission as a principle funder of the project, they have a vested interest in seeing Fish Pass move forward. But resident Rick Buckhalter (and the Plaintiff in the lawsuit)  is against the idea of them joining Traverse City in defending the case. “This trial and the hearings we’ve been having are about Charter Section 126 and 128 [about requiring a vote of city residents] and I don’t know if they have standing. They aren’t a voter. They aren’t a resident.”

But the judge pointed out that the Commission has been involved in the project – and the lawsuit – already. 13th Circuit Court Judge Thomas Power says, “I’m going to allow the Great Lakes Fishery Commission to intervene there. They’re already here… they want to defend their interests.”

The city has also filed a motion arguing that the area known as Union Street Dam Park isn’t actually city parkland at all – and they think the case should be dismissed.  Judge Power says, “This lawsuit was filed on the grounds that under City Charter the disposition of park property require a vote of the public.” He later added, “The city has now filed a motion contesting its parkland status. But I’m not making that conclusion today. But at least for the purpose of these proceedings until now it’s been regarded as a park.”

There have been numerous examples in the past where the city does refer to this property as a park. And the City Attorney discussed the park use at a hearing in February. At the time, Traverse City Attorney Lauren Trible-Laucht said, “The FishPass project is not going to change the use of the park. It is going to make it more accessible to the public, it is going to add amenities.” Union Street Dam Park Map

In the city’s filing, they argue the Union Street Dam property was never dedicated as official parkland. And they point out the City’s Master Plan doesn’t directly reference a Union Street Park. The City also argues that historic use as a park doesn’t mean there’s a “dedicated parkland status.”

Union Street Dam Park Map 2But the City’s own website shows a map of city parks, including Union Street Dam Park. It’s also listed in the city’s Recreation Guide under “TC Parks.”

Rick Buckhalter quotes the city in its legal response to his request for an injunction: “For purposes of this response, the City does not contestTraverse City Park Guide that Union Street Dam Park is parkland.” And Buckhalter says other city parks have also not had formal dedications. He believes this argument could have widespread implications for all parkland or park properties.

Judge Power says, “The city has taken a position now that this is not parkland after all. So that’ll be one of the issues to be resolved.” The ruling on the city’s motion is expected later this month – a trial is still set for May.