‘No is Not an Option’: Whitefish to Stay the Course on River Trail Design

Whitefish city leaders on Monday voted to “stay the course” and proceed with plans to complete a missing section of path along the Whitefish River near downtown, a decades-long project that recently grew more complicated when a state agency denied the city’s application for a stream permit.

The city councilors assembled March 31 for a special meeting to determine the fate of the pedestrian and bicycle path following notification by Montana Fish, Wildlife and Parks (FWP) that it was denying the city’s application for a stream permit. The permit would allow the city to connect existing segments of the Whitefish River Trail at Railway Street and Veterans Memorial Bridge using an ADA-compliant design, including an elevated boardwalk over the Whitefish River. Currently, pedestrians must either cross U.S. Highway 93 at Kay Beller Park or navigate a set of corrugated steel stairs beneath the bridge before continuing up Miles Avenue to continue along the path.

The path project as proposed by Whitefish would allow the city to develop a safe and ADA accessible path between these points, according to city staff, while the elevated boardwalk takes advantage of an easement the city holds on property owned by the Riverbend Condominium Homeowners Association.

In FWP’s environmental assessment of the path, however, fisheries biologists determined that its construction would destabilize the streambank, negatively affect aquatic wildlife and have other “adverse impacts to fish and wildlife and their associated habitats.” Instead, FWP proposed an alternate design that would require construction of a switchback ramp to bypass the staircase.

City officials said the alternate design did not meet their standards and is not ADA compliant.

“They did propose an alternative, which we analyzed and determined not to meet our goals,” Whitefish Public Works Director Craig Workman told council on Monday. “It’s not ADA compliant, it reduces the path to a four-foot width and sends pedestrian traffic through a parking lot. We don’t feel that their proposed alternative really even comes close to meeting the goals of the city and the public.”

City Councilor Frank Sweeney concurred, instructing city officials in a motion to notify FWP “that we significantly disagree and we would like to pursue whatever avenue they provide for us to further manage this problem.”

“‘No’ is not an option,” Sweeney said before his motion passed unanimously.

But Whitefish City Attorney Angela Jacobs said the next steps are procedurally murky, due in part to the infrequency with which projects are denied and arbitrated under the 60-year-old Montana Stream Protection Act, as well as a dearth of case law to provide legal framework.

The 1965 Montana Stream Protection Act is a statute designed to protect fish and wildlife resources. It requires projects that could alter the natural state of the stream to obtain what’s called a 124 permit. According to Jacobs, once the city received notification denying its permit application, officials have a 15-day window to notify the agency “whether or not we accept their recommendations.” In the event Whitefish does not accept the agency’s recommendations, Jacobs said, the agency must determine whether to proceed to arbitration.

Jacobs said that even FWP’s legal counsel confessed he couldn’t remember an instance when the agency denied a permit and proceeded to arbitration, a process that requires a district judge to appoint a three-person panel consisting of members of the public.

“It is a very weird process but I think it’s one we have to go through,” Jacobs told council, explaining that the panel of civilians could determine FWP’s denial was arbitrary and capricious, or it could determine its action was allowed under statute.

“The downside of arbitration is that it’s binding,” Jacobs said. “If they don’t find in our favor, there is no appeals process. The upside is it’s less expensive than litigation.”

Members of the public who spoke during the special meeting — a proceeding that was necessary given the narrow timeframe provided by FWP and the strictures of Whitefish City Council’s biweekly meeting schedule — encouraged council to pursue the project “by all means necessary.”

Bruce Boody, the Whitefish landscape architect who designed the concept for the elevated path on a pro bono basis, characterized the missing section of path as a critical hinge point to connect the entire Whitefish River Trail system, and reminded council that it’s been under consideration for four decades.

“This was certainly unpredicted,” Boody said. “We’re talking about this Riverbend Condo segment of trail, but really what we are talking about here is the whole backbone of the Whitefish River Trail system, because it’s designed along the river … To say that the decision by FWP to deny the 124 permit is disheartening is a gross understatement.”

John Phelps, a former city councilor who served on the Pedestrian and Bicycle Path Advisory Committee, accused FWP of singling out the city’s project while approving other projects with greater environmental impacts.

“We have been treated so differently by this agency. Every medium- to large-size city that has a river has a pedestrian and bike path down the river, and usually that’s fine. Why we are experiencing this when others don’t is beyond me. I’m real confident that we will prevail if we go to arbitration or if we go to court.”

Diane Conradi, a Whitefish attorney who has long advocated for the trail’s completion, said “the intractability of the state in this process has left us and you with very few choices, so I would encourage you to zealously pursue your constituents’ needs in a way that meets the environmental law, which I believe it can.”

According to Workman, the city’s public works director, the application’s denial came as a shock, particularly as city officials had previously attempted to meet with FWP “to iron some of this out.”

“What we heard from them was we cannot talk to you about this project unless we have a permit application in front of us, and so that’s why we submitted the permit application. There’s been no discussion since the permit application was submitted last summer, and then we get a denial.”

Whitefish Mayor John Muhlfeld, who works as a professional hydrologist, said he was surprised by the agency’s “checklist” environmental review.

“It’s interesting that the state decided to shuttle this through via checklist, which to me speaks volumes about this project,” he said. “I don’t want to spend a lot of time picking apart this environmental assessment, but for the record I question some of what they take aim at. My personal opinion is the EA is lackluster at best.”

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