City responds to river trail permit denial

At a special meeting of the Whitefish City Council on Monday night, councilors voted unanimously to notify Montana Fish, Wildlife and Parks it disagrees with its decision to deny a permit to build a pedestrian trail along a section of the Whitefish River. 

Whitefish City Attorney Angela Jacobs explained the city’s options are to do nothing, accept the alternative path proposed by Fish, Wildlife and Parks, or move toward arbitration. The city has 14 days to respond to the state agency. 

“We have to notify them whether or not we will accept their recommendations or modify our plans in accordance with the recommendations,” Jacobs said. “Upon the receipt of a refusal to modify, FWP shall determine if it wants the disagreement arbitrated.”  

If the matter goes to arbitration, the decision is put in the hands of three citizens and is binding. 

Jacobs said the process is unusual, but the advantages of arbitration are that it is cost effective and quicker than a lawsuit. Further, she said, a lawsuit against Fish, Wildlife and Parks would degrade the relationship between the agency and the city.  

“I would move that we give whatever notice is required to give to Fish, Wildlife and Parks that we significantly disagree,” Councilor Frank Sweeney said. “We would like to pursue whatever avenue they provide for us to further manage this problem. No is not an option.”  

He also directed Jacobs to investigate any options the city would have, should the state refuse to acknowledge the disagreement. The council voted 5-0 in favor of Sweeney’s motion. 

The reason cited for the permit denial was that the “project would fundamentally change the natural, existing state of fish habitat in the project area,” according to Fisheries Division Administrator Adam Strainer.  

The section of trail would connect the river trail from the Veteran’s Memorial Bridge underpass to the BNSF Railway loop trail. 

Along with the denial, the state agency suggested an alternative route that runs along the top of the bank west of the Miles Avenue Condominiums and east of the Riverbend Condominiums and includes two switchbacks to connect the new section to the existing trail. 

Whitefish Public Works Director Craig Workman said the city analyzed the alternative path and determined it would not meet the city’s goals. 

“It will not be an ADA compliant path, and it also reduces the path to a 4-foot width and sends pedestrian traffic through a parking lot,” Workman said. “We don’t feel their proposed alternative really even comes close to meeting the goals of the city and the public.” 

Jacobs added that the alternative route proposed by the state is not reasonable because the city does not have the easement needed to build it. 

Each of the dozen community members who spoke were in favor of taking steps necessary to move forward with the trail building. 

“We are talking about this Riverbend Condo segment of trail, but really what we’re talking about here is the whole backbone of the Whitefish trail system because it’s designed along the river. It’s designed to not be in traffic,” Bruce Boody, designer of the trail section, said. “It’s one of the few ways we can get through Whitefish with an ADA grade and to make this trail universal design for everybody.” 

John Phelps, former Whitefish City Attorney, gave several examples of other projects approved by the state that are, in his estimation, far more dangerous to fish habitats than the Riverbend trail section. Whitefish resident Richard Hildner called the environmental review “incomplete,” “inadequate” and “inaccurate.”  

“When we first started the trail, we ran into a roadblock, and we got through it,” Mike Fitzgerald said. “We need to get through this.” 

The state's 30-day window for providing decisions on permit requests does not allow time for public input, nor has it given time for the city to talk to Fish, Wildlife and Parks about its findings. Jacobs suggested one option before going to binding arbitration is to see if the state wants to have some informal discussions or mediation with the city to talk about some of the issues.