Originally Published on Washingtontimes.com
Washington Gov. Jay Inslee’s coronavirus shutdown order has yet to deter fun-seekers from flocking to the public shoreline on Lake Chelan or protesters from descending on Seattle, but if Robert Bordner reopens his water park, he could go to jail.
Faced with a choice of closing down or landing behind bars, Mr. Bordner shuttered two weeks ago the Slidewaters Waterpark on Lake Chelan, but he refuses to go quietly, waging a legal battle against what he calls a “hypocritical” state reopening plan that threatens to sink his family-owned business.
So far, he’s swimming against the legal tide. Attorneys for the Freedom Foundation took the case last week before the 9th U.S. Circuit Court of Appeals after a federal judge dismissed the lawsuit challenging the governor’s authority to issue emergency orders in response to the COVID-19 pandemic.
“Even if Plaintiff has identified a constitutionally protected interest upon which the emergency proclamation infringes, the infringement is justified by the ongoing public health emergency caused by COVID-19,” U.S. District Judge Thomas O. Rice said in his ruling.
The day after the judge’s July 14 ruling, officials with the state Department of Labor and Industries arrived at Slidewaters with an “order and notice of immediate restraint,” hitting the company with a fine of nearly $10,000 and warning that the Bordners could face up to six months in jail.
The Bordners, who had operated the park for 30 days under a safety plan approved by the Chelan-Douglas Health District, shut down Slidewaters on July 20 and furloughed their 150 employees.
Freedom Foundation attorney Sydney Phillips argues that the governor’s emergency proclamations, including the Safe Start reopening plan, should not be allowed to determine “which businesses deserved to live and die.”
“What we have here is a situation where local officials who are trained in this sort of science are satisfied Slidewaters is safe enough to reopen,” said Ms. Phillips. “But the governor resents any challenge to his authority and made a political decision that the fate of a business that attracts tens of thousands of visitors and employs 150 local residents doesn’t matter.”
“You go there, their parking lots are overflowing, they’re parking on the streets, and then everyone congregates down lakeside, and it’s just a dense population of people,” Mr. Bordner said. “Especially on the weekends, all these parks are just overrun.”
Meanwhile, Mr. Bordner said, Slidewaters was operating at 50% capacity under a 30-page COVID-19 safety plan approved by the county.
“I have 40 employees working every day to help me implement it to keep the park safe, and I’m the problem,” he told KIRO-FM host Dori Monson. “So it’s just super-hypocritical of the governor to say, it’s OK for these government-run parks to operate, but this private-owned business can’t do it. And they have no dialogue with us.”
At the same time, thousands of protesters have descended on Seattle in recent weeks, including those who set up the no-police-allowed “autonomous zone” last month in the Capitol Hill neighborhood, which has since been cleared.
“That’s just a whole other level of hypocrisy,” Mr. Bordner said. “They’re turning a blind eye to these protests and then they’re restricting businesses and keeping them down, while over here people are running rampant.”
Many of the protesters can be seen in video wearing masks, although there appears to be little in the way of social distancing.
Inslee spokeswoman Tara Lee disputed Mr. Bordner’s description, arguing that state parks have restrictions in place and “do not have activities with long lines or large multi-household congregation, as water parks do.”
“Lake Chelan and Wenatchee Confluence State Parks are very large parks, 139 and 194 acres respectively,” Ms. Lee said in an email. “While waterfronts are the most popular parts of the park, State Parks — system-wide — has taken specific measures to deter the sort of pinch points and gathering spots that you would see in a water park.”
On Tuesday, Mr. Inslee placed an indefinite hold on his Safe Start plan, which will prohibit counties from reaching the next phase in the four-phase reopening process and require state parks to limit access to visitors.
“In all of this, Gov. Inslee’s focus has been to slow the spread of the virus and protect the health of Washingtonians,” said Ms. Lee. “He is glad that almost all of our state’s businesses have chosen to comply and are active participants in protecting the health of both their customers and their employees.”
In a July 16 statement, L&I said “Chelan County is in the modified Phase 1 of the four-phase state plan. That means waterparks should not be open.”
Anne Soiza, assistant director in charge of the Department of Labor and Industries’ division of occupational safety and health, defended the state’s actions. She said Slidewaters “clearly knows what the Safe Start requirements are, but is choosing to ignore them, putting workers and the community at risk.”
“It’s not right, and it is not fair to the thousands of businesses that are doing the right thing,” Ms. Soiza said in a statement.
For Slidewaters, however, an autumn reopening may be too late. The season lasts only from Memorial Day to Labor Day, roughly 100 days, and 70% of the business is in July and August.
Mr. Bordner said he has received strong community support, including supporters who have started a GoFundMe page for Slidewaters, but if his season ends now, it’s unclear whether the company would be able to hang in there until next summer.
“I don’t know if we’ll be able to reopen this year,” Mr. Bordner said, “and I don’t know if we don’t reopen this year if we’ll be able to reopen ever.”