Law360 (February 2, 2021, 5:54 PM EST) -- Washington has asked the Ninth Circuit to toss a waterpark's appeal in its case that Gov. Jay Inslee overreached by closing nonessential businesses during the COVID-19 pandemic, arguing that the governor took emergency action to safeguard public health.
A federal judge properly dismissed waterpark Slidewaters LLC's claims that Inslee and the Washington Department of Labor and Industries didn't have the right under state law or the U.S. Constitution to issue temporary emergency rules during the pandemic, the state said Friday in its appellate brief. The Ninth Circuit also should toss Slidewaters' "idiosyncratic" plans to stay open in defiance of public health measures developed by experts, the state said.
"The waterpark's claims that neither the governor nor L&I had legal authority to respond to the pandemic emergency are at odds with Washington statutes and state supreme court authority," Inslee and the department argued in the brief. "And Slidewaters' federal constitutional claims fail because it has asserted no right requiring heightened scrutiny, and the challenged laws easily pass rational basis review."
Slidewaters, based in the small city of Chelan, Washington, filed its notice of appeal on July 16, challenging U.S. District Judge Thomas O. Rice's final judgment two days earlier rejecting the family-owned business' arguments that Inslee lacked authority to declare an emergency in his efforts to rein in the COVID-19 pandemic.
"The court was willing to give dictatorial powers to the governor, at the expense of the rights of Washington citizens," the Freedom Foundation, which is representing Slidewaters, said in a statement to Law360 on July 16. "The Freedom Foundation stands by our clients' rights to operate their business in a safe manner, and the local health department deemed their reopening plan was sound (before the state government got involved)."
At the start of the virus outbreak, Inslee declared a state of emergency on Feb. 29 and issued the first of his proclamations with a "Stay Home, Stay Healthy" order on March 23, according to Inslee and the department's appellate brief. A later proclamation on May 31 imposed a four-phase county-by-county reopening plan.
The waterpark filed its complaint on June 4, but Judge Rice's July 14 decision denied Slidewaters' bid for a permanent injunction against the state restrictions and dismissed the suit. The court also threw out the company's motion for a temporary restraining order, but the waterpark reopened anyway in defiance of state law, Inslee and the department said in their appellate brief.
When Judge Rice issued his final judgment in July, Chelan County, where Slidewaters is based, was subject to a "modified phase 1" of a state Safe Start Plan, with some outdoor recreation permitted, according to the brief. In the fall of 2020, swimming pools were allowed to reopen at reduced capacity, but waterpark features were not permitted, the brief said.
Inslee and the department said Judge Rice rejected Slidewaters' claims on the merits and didn't consider any remaining factors for an injunction. The judge also kicked to Chelan County Superior Court the state's counterclaim that the waterpark opened for business anyway despite closure orders, violating the government's limitation on nonessential activities.
The governor later voluntarily dismissed its counterclaim, the brief noted. L&I had issued a fine of $9,639 against Slidewaters for reopening in defiance of state law, but the department later agreed to drop the fine on the condition that the waterpark would meet with health authorities to establish reopening protocols, according to the brief.
Slidewaters' opening appellate brief says a county health inspector in June approved the company's own safe opening plan after the state failed to respond.
"The inspector approved Slidewaters to open with 50% occupancy, in addition to a strict adherence to [the company's] Clean and Safe Plan," the brief said. "Two days after this approval was received, Slidewaters opened with limited occupancy, and adhered to their Clean and Safe plan, as was required."
A spokesperson for the Washington attorney general's office told Law360 on Tuesday that the office had nothing to add to its brief, and counsel for Slidewaters declined to comment.
Representatives for Inslee did not respond immediately to a request for comment.
Slidewaters is represented by Sydney Phillips and Robert Bouvatte of the Freedom Foundation.
The state is represented by Zachary Pekelis Jones, Brendan Selby and Jeffrey T. Even of the Washington attorney general's office.
The district court case is Slidewaters LLC v. Washington State Department of Labor and Industries et al., case number 2:20-cv-00210, in the U.S. District Court for the Eastern District of Washington.
The appellate case is Slidewaters LLC v. Washington State Department of Labor and Industries et al., case number 20-35634, in the U.S. Court of Appeals for the Ninth Circuit.
--Additional reporting by Adam Lidgett. Editing by Jay Jackson Jr.
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