TRAVERSE CITY — The fate of a project aimed at replacing Union Street Dam in Traverse City with a new dam and fish passageway could be up to city voters.
City resident Rick Buckhalter said he hopes that’s what city commissioners decide after 13th Circuit Court Judge Thomas Power ruled in his favor Thursday.
Power agreed that Union Street Dam is on parkland, and that building a 400-foot-long channel to research fish-sorting techniques and technologies there isn’t a parkland use. That would run afoul of city charter requirements that require a three-fifths majority approve any disposal of parkland, or changing it from a park use.
Great Lakes Fishery Commission is the lead agency for the multi-partner project, and GLFC Communications Director Marc Gaden said the ruling is disappointing but project partners aren’t deterred.
Meanwhile, Buckhalter said he was grateful Power carefully reviewed all the details and made a ruling that’s a win for more than just him.
“The rest of Traverse City are the winners of this, it’s preserving a park that’s going to be destroyed,” he said.
Power on Thursday read through some of the proposed shoreside amenities in the overall plan, like a kayak portage and amphitheater. The part of those plans at issue, though, was the 400-foot-long fish-sorting channel aimed at sorting out invasive species and letting desirable fish through.
Power saw no question as to whether voters should have a say in building that fish-sorting channel in what he ruled is clearly a park. City ordinances define park uses as being focused on public recreation, and a fish-sorting channel looked more like a laboratory, which Power again ruled is not a park use.
It’s the same call he made in February in keeping a preliminary injunction on construction, earth moving or tree cutting.
Power agreed there are arguments for and against building the passageway, and that the public well could approve of what’s billed as a “world-class” project.
“That’s not really the issue in this case,” he said. “The issue is who gets to decide, the city commission or the public, and under the city charter, this responsibility is allocated to the public.”
Power rejected arguments from City Attorney Lauren Trible-Laucht that Union Street Dam was never dedicated as a park, and that two city charter sections only required votes for dedicated parkland.
Power said if that interpretation was correct, the only parks that would require a vote have a restricted use through their deed or the plat setting them aside as parks. The city apparently doesn’t have a policy or procedure for formally designating parks if they don’t have a legal restriction on their deed, or from the plat creating them.
Those deed or plat restrictions are burdensome to lift, and a public vote to sell, lease or switch uses for a park wouldn’t matter unless they were, Power said.
Buckhalter represented himself and said Thursday he has had help from friends and a few attorneys on a pro-bono basis.
Jay Zelenock said he’s one of those attorneys, and was disturbed by the city’s position on parkland designation. If it were up to city commissioners to decide which parkland gets protected or not, he wondered what rights city residents would have.
A memorandum of understanding between the city, Great Lakes Fishery Commission and other partners would leave that fish-sorting channel in place if the city, GLFC or others were to back out, Power said. He noted it could be blocked off at either end and there are no provisions for its removal.
Power contrasted that with the Traverse City Film Festival organization leasing the Bijou Theater. The agreement states the former museum in Clinch Park is to be emptied if either the city or festival organization withdraws or doesn’t renew when its 10-year term is up.
Gaden said the next step is to confer with the project partners and their legal counsel. Appealing the decision to a higher court is one option, although he acknowledged that would be time-consuming.
Asking voters is another option, Gaden said, adding the GLFC would defer to the city on that call.
It’s the option Buckhalter said he would prefer.
“They have the choice of going to a vote of the people probably in August, which is something I feel they should’ve done four years ago,” he said, referring to the start of the FishPass planning process.
A message for Trible-Laucht wasn’t returned Thursday.
Meanwhile, the project is still on hold, and Gaden said the need to keep lamprey out of the river is as pressing as ever.
The existing fish ladder on the dam is closed and has been since the Sabin Dam came down in 2018. Sabin was the last of three removed for the Boardman River Restoration Project that could block any fish that reach Boardman Lake from moving upstream.
Gaden said the Union Street Dam fish ladder is not a total barrier to sea lamprey.
It’s also best at passing steelhead, a species that has many FishPass skeptics on edge over fears the Department of Natural Resources could opt to let them through, as previously reported.
The DNR is consulting with the Grand Traverse Band of Ottawa and Chippewa Indians on which fish would be passed, and the tribal government has made it known it’s interested in letting through native fish only.
One such fish — a lake sturgeon — was spotted in recent days in the Boardman River, likely trying to make its way to spawning grounds that have been blocked to its species since the 1860s when the dam was built, Gaden said.
“That surgeon should have access to that river,” he said. “She’s doing what’s natural to her, and that’s trying to get in there and reach the spawning grounds. We can never help to restore our fisheries if we turn a blind eye to things that are inhibiting fish reproduction and fish migration.”