Freedom Foundation

9th Circuit hears Slidewaters’ appeal a year too late

The Slidewaters saga continued this week, with Freedom Foundation attorney Sydney Phillips arguing on June 7 before a three-judge panel of the 9th Circuit Court of Appeals that the Chelan water park’s lawsuit against the state of Washington was mishandled a year ago.

Slidewaters became a flash point when the popular tourist destination tried to remain open in defiance of COVID regulations Gov. Jay Inslee lacked the authority to issue and the state Department of Labor and Industries could not lawfully enforce.

Because Slidewaters can operate only during the summer season, its owners recognized a shutdown of only a few weeks could force the park  which employs around 100 local residents, most of them young adults — into bankruptcy.

Consequently, the owners developed a mitigation plan on their own under which Slidewaters could open in a limited capacity. The plan was ultimately approved by the Chelan-Douglas Health District

When they opened, however, the state intervened, forcing Slidewaters to close.

Because of the state’s actions, the park generated substantially less revenue for the 2020 season, compared to the previous summer, putting its future in jeopardy.

With representation from the Freedom Foundation, the owners responded by filing a lawsuit against Inslee and L&I.

U.S. District Judge Thomas O. Rice in July issued an order dismissing the suit’s claim that Inslee and L&I lacked the authority under state law or the U.S. Constitution to issue temporary emergency rules during the pandemic.

Phillips began this week’s appeal 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 the owners had created their own protocols to prevent the spread of the virus at the park.

Phillips also argued that Rice hadn’t considered whether the park offered other activities in addition to the water rides.

The main thrust of Phillips’ argument, however, was that the district court erred by converting the water park’s original motion for preliminary injunction into one for permanent injunction without the requisite notice.

The state last summer removed the case to federal court in Washington’s Eastern District, relying on Slidewaters’ single federal claim of substantive due process.

Because the park needed to reopen as quickly as possible, Slidewaters’ owners attempted to obtain a decision from Inslee or L&I by filing a motion for preliminary injunction. The district court denied Slidewaters’ request for preliminary injunction, and Slidewaters directly after filed an appeal of the ruling to the 9th Circuit Court of Appeals, which finally got to hear the case this week — a year later.

“Justice delayed is truly justice denied,” Phillips said. “There was no reason to prevent the park from being open last summer with its Clean and Safe Plan. The local health department had signed off on the owners’ plan and said it could be operated safely.”

“But the governor decided to make an example of Slidewaters, using powers neither he nor L&I actually had. And when the court declined to make a timely decision, it imposed a significant and unfair burden on the park’s owners.”

The 9th Circuit panel took Phillips’ arguments under submission at the end of the hearing.