The Goldendale Sentinel - Headlines & History since 1879

By Donald W. Myers
The Yakima Herald Republic 

County attempt to shut down stand is blocked


File photo

OUNCE OF PREVENTION: Klickitat County tried to shut down a Yakama Nation fireworks stand to prevent a fire of the likes of last year's Eagle Creek fire.

For nearly 40 years, Valarie Hiler's family operated a fireworks stand near Wishram. But last Tuesday, she was one of several fireworks stand operators given a day to close their stands or risk arrest and seizure of their merchandise by Klickitat County officials.

"I'm still in shock," Hiler said in a phone interview Wednesday. "It's very scary and frustrating."

Klickitat County Prosecuting Attorney David Quesnel said the county is enforcing its law after determining it can do so on tribal land that is outside the Yakama Nation's 1.2 million-acre reservation.

"We're just trying to protect people from all these fires," Quesnel said. "You saw what happened with the fireworks in the Gorge last year. We don't want that happening again."

Tribal officials did not respond to requests for comment. But Hiler said as of Wednesday, Yakama Nation tribal police had stationed officers at the fireworks stands and posted signs noting the businesses are on tribal property.

Hiler said she knew of three other stands that received letters from Klickitat County Sheriff Bob Songer on Tuesday giving them 24 hours to comply. The letters state the stands are violating state law by selling fireworks before the June 28 start date established under state law, as well as selling sky rockets and firecrackers, which are illegal under state law.

The letters also said operators lack licenses to sell fireworks, a statement with which Hiler disagrees.

Hiler's stand has a permit from the Yakama Nation, which Hiler said she let a Klickitat County Sheriff's deputy take a picture of when he came by Tuesday.

"When we realized what (the deputy was there for), we were shocked, appalled by what they were doing," Hiler said. "We know they are not allowed on this land, and it is not right."

The stands are outside the Yakama reservation, but on land along the Columbia that the tribe has long held authority over.

For years, Klickitat County officials believed they didn't have the authority to enforce laws on that property, Quesnel said. But in recent years, he has conferred with the U.S. Attorney's Office and the state Attorney General's Office to clarify the extent of the county's jurisdiction.

Federal law restricts local governments' jurisdiction within the reservation, where firework sales are permitted. The stands are at least 20 miles south of the reservation, and Klickitat County has jurisdiction, Quesnel said.

Quesnel said his office gave the tribe notice last year that Klickitat County would enforce laws on those lands. County officials pointed to the Eagle Creek Fire that blackened 75 square miles in the Columbia River Gorge that was started by a 15-year-old Vancouver, Wash., boy shooting off fireworks.

"We cannot take a risk of those bottle rockets and firecrackers causing another

$30 million fire," Quesnel said.

Jack W. Fiander, an attorney and tribal member who has previously represented the Yakama Nation, said he has been contacted by some of the stand owners. Fiander, who is not representing the tribe in the matter, believes the fear of wildfire is driving the matter more than questions of jurisdiction, which he said is not entirely settled law.

The block:

A federal judge has temporarily blocked Klickitat County from shutting down four tribal fireworks stands along the Columbia River, saying the Yakamas are likely to prevail in a court battle.

Klickitat County authorities told the stand's operators the sales violated state law and they risked arrest and seizure of inventory if they did not close the stands in Wishram, a small tribal community under Yakama Nation authority about 15 miles southwest of Goldendale.

Late last Wednesday, tribal leaders filed a motion in U.S. District Court seeking a restraining order to block the county from taking any enforcement action against stand owners.

On Thursday, U.S. District Court Judge Thomas O. Rice granted a temporary order preventing the county from taking any action in the matter for two weeks, saying Klickitat County lacks authority on tribal lands.

"Plaintiff is ... likely to succeed on the merits because defendants likely do not have jurisdiction to enforce Washington's fireworks regulations within Indian Country, as the Legislature makes clear that it is not a criminal or prohibitory state law," Rice wrote.

Klickitat County officials argued that they had jurisdiction, as the tribal land was not within the Yakama Nation's official boundaries.

Tribal Chairman JoDe Goudy, who visited the stands Wednesday, praised Rice's ruling in a news release issued by the tribe.

"We are pleased that the court recognized and affirmed the nation's jurisdiction over Yakama trust allotments, regardless of whether they are located within or outside the Yakama Reservation," Goudy said.

Klickitat County officials moved against the stands Tuesday, with sheriff's deputies giving operators letters stating they had 24 hours to shut down.

In the letters to operators, Sheriff Bob Songer said they lacked the necessary permits to sell fireworks, were conducting sales outside the times allowed by state law and were selling fireworks illegal under state law.

The stands are on tribal land along the Columbia River, and the operators have permits issued by the Yakama Nation, which is a sovereign nation bound by federal law, but not state law.

Klickitat County's "threats to arrest Yakama members and seize Yakama member-owned personal property in violation of the Yakama Nation's inherent sovereign and treaty-reserved rights and jurisdiction poses an imminent threat of harm to the Yakama Nation and its members," Yakama Nation attorney Ethan Jones wrote in court documents.

In court papers filed Thursday, Klickitat County Prosecuting Attorney David Quesnel said the harm to Klickitat County residents from the fire danger posed by fireworks far outweighs the losses the stand owners would face if they were shut down.

"In 2017 a single firework destroyed over 75 square miles of the Columbia River Gorge, devastating the natural habitat and severally impacting the livelihoods of the thousands who call the region home, including Yakama Tribal members," the court papers said. "While (the Yakima Nation is) concerned about financial impact which would be limited in scope, the repercussions from granting the requested relief could impact tens of thousands of lives."

In his response to the tribe's request for a temporary restraining order, Quesnel said the state Supreme Court ruled in 2011 that the state had jurisdiction on Indian land outside reservations. Based on that and other court rulings, Quesnel said the tribe is unlikely to win its case and should not have a restraining order issued.

In an earlier interview, Quesnel said the county allowed the stands in prior years because of a misunderstanding of sovereignty issues, but he said his office has since clarified it with the U.S. attorney and the state attorney general, and are proceeding.

But Rice said there were arguments that the fireworks laws were regulatory and did not fall within the laws that could be enforced on Indian land.


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