TRAVERSE CITY — Construction on a two-way selective fish passage system set to replace Traverse City’s Union Street dam remains on hold following a court order.
Crews were to begin on Jan. 18, starting by fencing off the site, cutting trees and replacing a city water main that runs through the existing dam, said Emily Schaefer, public affairs specialist for the U.S. Army Corps of Engineers’ Detroit District — the agency, one of many project partners, will oversee construction.
Thirteenth Circuit Court Judge Thomas Power’s preliminary injunction, issued Jan. 15 in response to a lawsuit challenging the project, put that on hold.
Now, city Attorney Lauren Trible-Laucht will ask the judge to reconsider. He’s set on Feb. 5 to hear the city’s request to correct or complete the record in showing the city never intended to mislead the court about the fate of two massive willow trees in the park.
Power on Jan. 15 reversed his previous decision to deny city resident Rick Buckhalter’s request for a preliminary injunction. Buckhalter wanted the court to put the project on hold while considering his arguments, including one that the project amounts to disposal of city parkland and should be put to a public vote as the city charter requires.
Frank Dituri, Boardman River Restoration Project Implementation Team chairman, indicated to Power at a Dec. 9 hearing that both trees would remain. So too did Great Lakes Fishery Commission project lead Dan Zielinski — GLFC is the FishPass lead agency.
Then, a contractor marked those two willows prior to Jan. 15, and another city resident contacted Power to tell him they appeared to be marked for removal. That left Power feeling misled, he said.
Cutting trees has no bearing on whether the project amounts to disposing of parkland, Power previously said. But he wondered whether information he had about the project was accurate, or enough to determine whether Buckhalter’s lawsuit was likely to succeed on the merits — one factor in considering a preliminary injunction.
Marc Gaden, GLFC’s communications director, said the final assessment over which trees contractors should cut or keep wasn’t done prior to Jan. 15 — it has since been completed and the two willow trees in question will not be cut.
“So it was all a matter of really letting the process play out,” Gaden said.
The two willows are on the river’s south bank between the dam and Union Street Bridge, as previously reported.
Both Dituri and Zielinksi said in sworn statements they believed as of Dec. 9 that one or both of the trees would remain — Dituri believed then that both wouldn’t be cut and Zielinski thought at the time that the westernmost tree would be spared.
Past estimates put the number of mature trees to be cut in connection to the project at 63, as previously reported.
Trible-Laucht in her motion asked Power to consider requiring Buckhalter to put up a security bond if the judge lets the preliminary injunction stand.
That would reimburse the city for “costs or damages” if it were later determined the city was wrongfully enjoined.
“FishPass is a multi million dollar project that has been in preparation for years,” Trible-Laucht wrote in a court filing. “The consequences of delay are substantial.”
Spence Brothers, the contractor USACOE picked for construction, had not mobilized to the site before Power’s injunction, Schaefer said. That’s likely to help keep down costs caused by the delay.
“We are in the process of evaluating all of the implications associated with this delay,” she said.
The Traverse City company got a $19.3 million contract to build the structure, which includes a labyrinth weir and fish-sorting channel with headworks.
Buckhalter, who’s representing himself, said his reading of state court rules is that Trible-Laucht has the option to ask Power to order such a security, and she mentioned the possibility to Buckhalter before.
“So I’ve known that’s been there, but it’s up to the judge to decide whether it warrants it or no,” he said.
Buckhalter asserted the other filings with the motion were largely the same arguments project leaders have been making since its start in 2016. He raised some of his own longstanding concerns, like whether city planning commissioners asked enough questions when reviewing a draft concept in 2018.
City commissioners at their meeting Monday could talk about the lawsuit in closed session, according to the agenda.
Trible-Laucht declined to comment on ongoing litigation.
Gaden said the GLFC is optimistic that FishPass will be back on track shortly after the Feb.5 hearing, and that the city’s motion should answer Power’s questions.
“We’re not losing sight of the fact that this is a project of global significance, one that’s very exciting and has the ability to change fishery management as we know it and solve some of the biggest fishery challenges that we have,” he said.
Nor should the delay affect federal funding for the project, Gaden said.
The same is likely true for a $300,000 Michigan Department of Natural Resources grant to build the shoreside park features.
Dan Lord, who manages the DNR’s public-facing grant programs, said the state Legislature still hasn’t approved Natural Resources Trust Fund grant recommendations, of which the project is one.
That has to happen before the DNR and city can sign a grant agreement, which typically includes a two-year window to finish construction, Lord said. The trust fund board can extend that time frame a year at a time for a variety of reasons, including legal challenges holding up work.
The project has proven controversial, with objections ranging from city residents and park users decrying the proposed tree cuttings and park amenities, to concerns about the impacts migratory fish could have on the Boardman River’s brook trout populations, particularly steelhead.