A decision is expected Tuesday on whether to lift an injunction on the FishPass project at the Union Street Dam, a ruling that could potentially allow construction to move forward at the site. Attorneys for the project argued Thursday that continued delays will rack up tens of thousands of dollars in damages and could jeopardize the entire $19.3 million project.

Judge Thomas Power scheduled a virtual hearing for Tuesday at 4pm to issue a decision on lifting the preliminary injunction he handed down January 15 halting construction at the FishPass site. Work to replace the deteriorating Union Street Dam with an experimental fish-sorting channel – and to improve the surrounding park with new kayak portage features, an amphitheater, landscaping enhancements, and other upgrades – was originally set to begin January 18. Traverse City-based firm Spence Brothers Construction has been hired to oversee construction, which is expected to be complete in spring 2023.

Power’s injunction, however, has pushed back the construction start date by at least a month. The preliminary injunction was issued in response to a lawsuit filed against the City of Traverse City by resident Rick Buckhalter, who is arguing that as city parkland the Union Street Dam site cannot be “disposed” of without a vote of residents under the city charter. Buckhalter contends that the major, long-lasting changes being made to the park constitute a disposal of parkland.

Buckhalter told Power he had tried to mount a referendum campaign to force the project to be put on the ballot for a public vote, but that COVID restrictions made gathering enough signatures impossible. He said that “the only thing left to do” was file a lawsuit to try to stop FishPass, which he worried could have negative impacts including changing the character of the Union Street Dam park and potentially allowing harmful fish species to be passed upstream. “If things aren't handled well...(there are) some serious impactful things that can happen in a negative way,” he said.

Power initially indicated he did not think Buckhalter’s lawsuit was likely to be successful on its merits and thus did not warrant a preliminary injunction. However, the judge changed his mind in January when trees were flagged for potential removal at the project site – notably two large willows – that city staff previously told Power would not be cut down. Staff blamed the tree taggings on an incomplete review process at the site and later told Power the willows definitively won’t be removed. However, the temporary confusion caused Power to doubt whether he had all the facts on the project and to order construction to be halted until those issues could be resolved.

Buckhalter and city and project attorneys have since met for multiple hearings to hash out outstanding questions Power has about the project, including whether it meets the city’s tree ordinance and if the city’s agreement with other government partners like the Great Lakes Fishery Commission and Department of Natural Resources to operate FishPass constitutes a “lease.” The Traverse City charter says the city can’t sell, exchange, lease, or otherwise dispose of park property without a public vote. At the latest hearing Thursday, City Attorney Lauren Trible-Laucht said the tree issue was a “red herring” that had no bearing on the merits of Buckhalter’s lawsuit, noting that the city zoning administrator has reviewed the project and issued a permit that confirms planned work complies with the tree ordinance.

Regarding a potential lease, Trible-Laucht said the memorandum of understanding between project partners specifically states that FishPass and all park-related improvements at the Union Street Dam site will be owned by the city. “All of the new parkland that will be created and all of the amenities that will be added will belong to the city,” she said, noting there would be no disposal or transfer of any property to other entities. Having an agreement for other agencies to help operate FishPass is not considered a lease, Trible-Laucht said, noting that the city contracts with multiple outside groups to manage city park space, from Hickory Hills Ski Area to Brown Bridge Quiet Area to the Bijou by the Bay to the Clinch Park concessions stand. Considering an operating agreement at FishPass to be a lease would ignore past precedent and could negate the operating agreements at other city parks, Trible-Laucht said.

At a previous hearing, Trible-Laucht pointed to a recent decision by city commissioners to refuse to give Grand Traverse County a 50-year lease for the city-owned Traverse City Senior Center without a public vote as evidence the city takes the disposal of parkland “very seriously,” including leases. Trible-Laucht said that making improvements at a park, or changing from one park use to another park use, does not violate the city charter, even if the project is significant in scale.

“There’s not a blanket requirement of, this is a big project and everybody gets to vote on it,” she said. “That’s not what the charter says.” Scott Howard, an attorney representing the Great Lakes Fishery Commission, reiterated that argument Thursday, saying “there's no (property) conveyance of any kind” at FishPass and that the project was utilizing millions of dollars in funding from other government entities to improve a city-owned park for the benefit of residents. Howard said that while “some folks may not agree this is the right thing to do with this particular park,” those decisions were policy-based and between voters and their elected representatives on the city commission. “They don't result in a violation of (the charter),” he said.

After hearing arguments Thursday, Power said he would soon be ready to make a decision and – acknowledging concerns from the city that the project is time-sensitive – set a hearing for the soonest available date Tuesday, with Monday being a federal holiday. Trible-Laucht said the construction delay was accruing damages of more than $9,000 a day and urged the court to lift the preliminary injunction so work could begin. “A delay in this project is critical,” she said. “It's causing damages currently, and it could put the entire project at risk…it's time to allow this project to proceed before it's too late.”