By Dorothy Atkins

Law360 (June 7, 2021, 10:36 PM EDT) -- A Ninth Circuit judge appeared skeptical Monday of a Washington state water park's efforts to revive allegations that Gov. Jay Inslee overreached by closing nonessential businesses during the COVID-19 pandemic, saying the water park wants a "complete do-over," even though the park never raised its objections at the trial court.

During a hearing before a three-judge panel, Slidewaters LLC's counsel, Sydney Paige Phillips of the Freedom Foundation, argued that the district judge erred by converting the water park's preliminary injunction request into a permanent injunction bid, and that the judge's order denying the motion was "hasty and ambiguous" and didn't give the park enough time.

But U.S. Circuit Court Judge Richard Clifton repeatedly pointed out that the water park didn't raise its objections to the trial court's decision before the lower court.

"It's all well and good to say, 'Well, we might have objected,' but if you didn't, where did the district court go wrong?" the judge said, adding later, "It sounds like you want a complete do-over having struck out in front of the district court. You want us to pump life back into it so you can have another chance, even though you never raised these objections to the district court."

Judge Clifton also doubted Phillips' argument that the water park's own COVID-19 safety protocols were enough to prevent the spread of the virus at the park.

"The statute and case law doesn't give us the authority to decide whether or not Slidewaters has a good plan," the judge said. "What action can we possibly take based on this particular argument?"

Phillips acknowledged that the law doesn't address the issue of differing plans, but she replied that the fact the park had a plan gives the panel a "better understanding" of the park's status and pandemic efforts in June 2020 when the suit was filed.

The discussion came during a hearing on Slidewaters' appeal of U.S. District Judge Thomas O. Rice's July order dismissing the Chelan, Washington-based water park'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.

Phillips began the hearing by noting that Slidewaters is a small, family-owned business on 15 acres that operates 100-day seasons each year. She said it sued the state over the restrictions and a fine levied against it for violating them, because it had created its own protocols to prevent the spread of the virus at the park, which she said should have allowed it to remain open.

Phillips also argued that Judge Rice didn't consider that the water park had other activities going on aside from the water rides, but Judge Clifton asked what difference that would have made to the outcome of the litigation.

"I want some substance here, if you're going to argue the district court erred. … I need to know what the problem was," he said.

Phillips said the problem was that Slidewaters isn't only a water-park business, and it was treated differently than other businesses that were allowed to remain partially open under the state's orders.

"It was unfairly punished for also being a water park," she said.

She added that the issue matters because the water park may have been given the opportunity for discovery and it could have amended its claims.

But counsel for the state, Brendan Selby, argued that the case is about whether the state has the authority to issue public health restrictions during a pandemic and "not about whether a single water park could open last summer."

Selby noted that nearly 600,000 Americans have lost their lives to the virus and Washington state was one of the earliest and hardest-hit states. He said "each and every legal argument" made by the park is "entirely without merit," and most weren't raised before the lower court and therefore they have been waived. Selby added that the water park can't currently challenge the state's new restrictions, which are more lenient than the restrictions in place when the park initially sued last summer.

But Judge Clifton doubted Selby's last point, noting that "if they couldn't, it'd be a little bit like the dog chasing the mechanical rabbit," because the state's public health regulations are constantly changing.

Selby clarified that the water park could still challenge the authority of the governor to implement restrictions under the older policies that have expired and a ruling on it would impact the current, more lenient restrictions. Ultimately, however, the courts should reject the water park's argument that its own COVID-19 plan was sufficient to combat the spread of the virus, he said.

"Whether it can disregard public health laws during a global pandemic based on its own determination and necessity, I don't think this court or any court has ever endorsed or would want to endorse [that policy]," Selby said.

At the end of the hearing, the panel took the arguments under submission.

U.S. Circuit Court Judges Ronald Gould, Richard Clifton and Eric Miller sat on the panel.

Slidewaters is represented by Sydney Paige Phillips of the Freedom Foundation.

The state is represented by Brendan Selby of the Washington attorney general's office.

The case is Slidewaters LLC v. Washington State Department et al., case number 20-35634, in the U.S. Court of Appeals for the Ninth Circuit.

--Additional reporting by Joyce Hanson. Editing by Michael Watanabe.

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