City could decide on FishPass appeal
May 15—TRAVERSE CITY — A legal controversy holding up FishPass could be headed to the Michigan Court of Appeals.
Traverse City commissioners on Monday could vote to challenge 13th Circuit Court Judge Thomas Power's ruling in the higher court. They could also ask the Michigan Municipal League for help from the organization's legal defense fund to do so.
Power on April 29 ruled the 400-foot fish-sorting channel planned as part of a replacement of the Union Street Dam wouldn't serve a parkland purpose, and that the dam sits within a city park.
That would trigger city charter provisions requiring a public vote on disposing of parkland or changing it to a different use, Power said. He rejected the city's claims that those requirements only affect parkland with a formal dedication, like a deed restriction or city commission resolution.
City Attorney Lauren Trible-Laucht said in an email that she believes Power's ruling about dedicated parkland could have implications for many cities around the state with similar charter restrictions. The ruling could impact how they manage and operate property and critical infrastructure they own, among other possibilities.
The finality of Power's order means the city can appeal it by right, Trible-Laucht said.
Michigan court rules grant that right for most cases that start and end in circuit courts, and it means the appeals court must review a properly filed appeal.
Two commissioners, Brian McGillivary and Tim Werner, said they're in favor of appealing the ruling.
McGillivary said he didn't follow Power's logic on what constitutes parkland use or not, and that the ruling opened up any number of questions on what would. He argued the ruling could potentially tie the city's hands on any new use not currently an approved parkland use.
"I want to find out if three other judges follow his logic better than I do," he said.
Werner echoed those concerns, and said the possibility the state Court of Appeals could act quickly is worth pursuing, even if it's only a small one.
Rick Buckhalter, the city resident who filed the suit, said he isn't sure on what grounds the city could appeal. He credited Power for carefully laying out his reasoning and wondered where the city would try to find fault.
"To me, adding the legal defense fund is like adding one more passengers to a car speeding off the cliff," he said. "It doesn't change the facts or the outcome."
And appeals court cases can take a year or more to even reach oral arguments, unless they're expedited, Buckhalter said.
Lead agency Great Lakes Fishery Commission and numerous others wanted to build the fish-sorting channel to look for solutions to a waterway connectivity problem seen far and wide: how to keep out invasive species like sea lamprey while letting native species upstream, especially migratory ones that can't jump a fish ladder.
That need is greater than ever, agency Director of Communications Marc Gaden said. That's why the agency, which joined the suit as a codefendant, is weighing an appeal.
Great Lakes Fishery Commission is looking to the city's lead, as the lawsuit focuses on a city issue, he said. While he said federal, state and other funding for the project — estimated to cost around $20 million to build — is secure for months, if not years, the agency would assess how long an appeal could take before joining or launching one.
Gaden acknowledged that some cases can take months or more, but pointed out others can be decided much more quickly.
"The point is, we would not be a part of an appeal if we thought the funding were in jeopardy," he said.
