Whitefish council directs staff to contest FWP denial of river path permit

The Whitefish City Council on short notice unanimously directed city staff to notify Montana Fish, Wildlife & Parks (FWP) that the city "significantly disagree[s]" with the agency—s denial of a Stream Protection Act (1-24) permit for a proposed shared-use path along the Whitefish River and to pursue whatever procedural avenues FWP provides, including arbitration or further legal options.

The decision came at a special meeting called to meet a statutory response window after the city received the permit denial about two weeks earlier. Craig Martin, a city staff member who summarized the project—s modern history, said the city has worked on the trail for decades and that the permit process recently culminated in a formal denial: "...just 2 weeks ago the permit was officially denied." Martin said the city had revised designs to address an initial easement-width issue and had been in ongoing dialogue with FWP before the denial.

City staff and the council said FWP listed five primary reasons for denial: removal of trees and vegetation that could destabilize the bank; increased impervious surface disrupting the stream bank; added load and instability from proposed retaining walls on the adjacent Lows Avenue property; concerns about helical piers proposed for a raised boardwalk; and that path decking could create shade favoring invasive fish. Staff also said the alternative FWP proposed would not meet the city—s goals, would not be ADA-equivalent to the current plan and would narrow the route to 4 feet and route pedestrians through a parking lot.

City counsel and staff described the statute that governs the permit as unusual. A staff attorney said the Stream Protection Act process allows FWP to require arbitration if the applicant refuses to accept FWP—s findings, and called the statutory procedure "a very weird statute" that "FWP very rarely denies permits." The attorney said arbitration would be binding and typically runs on a short timeline (roughly a 30-day window after a district judge-appointed panel is selected), and that arbitration can be quicker and less costly than suing the state, though it may limit later court challenges.

Council members asked staff whether the city could seek an extension to analyze FWP—s factual findings and to prepare expert responses; staff said they would seek to stipulate to an extension with FWP but that the statute itself provides a short response window. Council members also discussed informal steps before binding arbitration, including asking FWP to explain its findings and exploring mediation or other informal talks.

Public comment at the special meeting was strongly in favor of continuing to pursue the riverside boardwalk. Residents and community organizations emphasized accessibility, safety and the trail—s value as part of Whitefish—s transportation network. Bruce Booty told the council the project is "the backbone of the Whitefish trail system" and called the river trail "critical to the safety and function of our transportation network." Julie Tickle, executive director of Dream Adaptive Recreation, urged the city to aim beyond minimum ADA standards, saying, "The ADA was formed in 1990, and it was intended to be the minimum standard, not the gold standard. ADA compliance is the floor, not the ceiling."

Several commenters compared the denial to other FWP approvals in the state and asked why the city—s project appears to have faced stricter scrutiny. John Phelps, a longtime local commenter, listed other river-adjacent projects elsewhere in Montana that were permitted and urged the city to "challenge this." Multiple speakers urged the council to pursue arbitration or litigation if necessary.

After public comment, a councilmember made a motion directing staff to provide the required notice to FWP that the city does not accept FWP—s findings, to pursue whatever procedural options FWP offers (including arbitration) and to report back on the city—s legal options if FWP refuses further process. The motion was seconded by Councilmember Davis and carried unanimously.

Next steps identified by staff included: notifying FWP within the statutory window that the city disagrees with the findings; asking FWP whether it will agree to mediation or an extension to allow technical review; preparing expert responses on bank stability, pier design and aquatic effects; and returning to the council with options if FWP declines further process. Staff said construction cannot proceed without the required 1-24 permit; if FWP maintains the denial and will not arbitrate, the city—s options include redesigning the project, negotiating easements (including a previously offered Riverbend HOA easement that staff said is not currently available to the city) or pursuing formal legal action.

The council—s action places the dispute into the statutory process under Montana—s Stream Protection Act and MEPA-related review. The council did not vote on a specific litigation strategy; rather, it directed staff to begin the procedural step of notifying FWP of the city—s disagreement and to continue to explore informal and formal remedies.

The special meeting closed after the vote. Staff will return to council with updates on discussions with FWP and recommended next steps.