This article was published on: 04/8/14 12:00 AM
Move intended to avoid Bend Park & Rec court challenge
By Dylan J. Darling
The Bend man behind a proposed ballot initiative focused on Mirror Pond has pulled his original filing only to refile the exact same initiative.
Foster Fell, who drafted the initiative aimed at the Bend Park & Recreation District, said he did so Friday in an effort to avoid a court case. The original proposed ballot title, filed in mid-March, drew a legal challenge from Neil Bryant, an attorney for the park district.
If approved by voters, the ballot initiative would prohibit the park district from using public funds on any projects at the dam creating Mirror Pond if they didn’t include improvements to benefit native fish or meet other requirements. He also has filed a separate initiative, with the same language, aimed at the city of Bend.
While Fell said he didn’t change the wording of the park district initiative, he is hopeful this time he can meet with Bryant outside of court before making any needed adjustments. The formal challenge could have resulted in the two sides going before a judge.
“If you take it to court it is going to take months,” Fell said.
And such a delay could sink Fell’s attempt to have the initiative on the Nov. 5 ballot. He said he has until Aug. 7 to secure about 3,000 signatures and turn them in to the Deschutes County Clerk’s Office.
Fell said he feels like Bryant is trying to slow the process and keep the initiative off the ballot.
While Bryant is a lawyer for the park district, he challenged the proposed ballot initiative as a voter in the district. He told The Bulletin earlier this month that he made the challenge because only voters, and not government entities, are allowed to challenge proposed ballot initiatives. Bryant challenged Fell’s ballot title as unclear and critiqued the grammar in the ballot language. Deschutes County District Attorney Patrick Flaherty rewrote the ballot title, as required under state law.
Bryant did not return messages left for him Monday afternoon.
Fell also filled a proposed ballot initiative aimed at the City of Bend. He hasn’t faced any challenges on that front, and he has already begun collecting signatures. He said the goal of the initiatives is to improve the health of the Deschutes River in Bend.
Officials with the park district and city are members of an ad hoc committee trying to determine the fate of the pond and the small power-generating dam that creates it. The park district and city are negotiating with PacifiCorp, a Portland-based power company that owns the dam, about acquiring the more-than-a-century-old structure. Sediment continues to build up behind the dam, threatening to turn Mirror Pond into mudflats. Options for tackling the sediment range from dredging the pond to removing the dam and letting the river flow freely.
A collection of fish advocacy groups in February wrote the ad hoc committee and the Bend City Council, calling for any Mirror Pond project to make way for fish migration. The dam currently blocks the upstream movement of fish.
“Whatever final alternative is chosen, we know that restored biological health of the river is necessary to support a robust wild, native population of fish,” wrote leaders of the Central Oregon Flyfishers, Deschutes Chapter of Trout Unlimited, Native Fish Society and the Association of Northwest Steelheaders. “The first step toward this goal is fish passage.”
— Reporter: 541-617-7812, ddarling@bendbulletin.com