Arrow-right Camera
The Spokesman-Review Newspaper
Spokane, Washington  Est. May 19, 1883

Eye On Boise

New legal opinion undercuts aerial fireworks ‘loophole’ argument

There’s lots of talk today about a new Idaho Attorney General’s opinion on Idaho fireworks laws, particularly because it was issued just weeks before the Fourth of July holiday. The legal opinion, written in response to a request from a state lawmaker, isn’t legally binding on anyone, but it undercuts a legal argument that a handful of southwestern Idaho businesses have been using for years to justify selling illegal aerial fireworks to customers who agree to sign an affidavit saying they’re buying them for export – that they won’t shoot them off in Idaho, which would be illegal.

Idaho’s fireworks law doesn’t say anything about affidavits. It does, however, include an exception from the state’s fireworks laws for “the importation, storage and sale of fireworks for export from this state, or interstate commerce in fireworks.”

The legal theory has never been tested in court; the six-page Attorney General's opinion, authored by Paul Panther, chief of the AG’s criminal law division, concludes that Idaho law contemplates the retail sale only of “safe and sane” fireworks within the state – those that don’t fly off the ground. Any other fireworks, the opinion finds, can only be sold to those licensed and permitted to hold public fireworks displays. You can read my full story here at spokesman.com.

Boise Fire Chief Dennis Doan welcomed the legal opinion. “I have always believed there was never a loophole,” he said. “I thought the language in the state code was very clear and that you couldn’t sell illegal fireworks in Idaho.” He added that it never made sense to him that there would be something that’s illegal to use in Idaho, but it could legally be sold in the state. “Is there anything out there that we allow the sale of that’s illegal? I can’t think of anything,” he said.

In a news release, Doan said, “This clarification from the Attorney General’s office makes it clear that the sale of aerial fireworks to the general public is not allowed in Idaho. I, along with the Idaho Fire Chiefs Association, know that keeping aerial fireworks from being sold in Idaho to the general public will further protect citizens, their property, and our firefighters who risk their lives battling fires caused by aerial fireworks.”

The legal analysis – you can read it here – doesn’t specifically mention the clause that’s been cited by proponents of the loophole, which is found in Idaho Code Section 39-2610(6). But it does conclude that there are just two categories of fireworks in Idaho: The non-aerial common fireworks, or “safe and sane” fireworks, which are the only type for which Idaho permits retail sales and are the type sold at stands that pop up at places like grocery store parking lots prior to the Fourth of July holiday; and all other fireworks, which it concludes fall under the public display permitting laws.

“Fireworks that are not ‘safe and sane’ or nonaerial common fireworks can be sold throughout the year,” the analysis states. “However, they may only be sold to a person with a permit to use them at a public display or event to take place on a date certain, and they must be sold only within a reasonable time period before such a display or event.”

Safe and sane fireworks can be sold only from midnight June 23 to midnight July 5 each year, and from midnight Dec. 26 to midnight Jan. 1.

Fire chiefs from around the state, led by Doan, urged state lawmakers this year to remove the wording that’s given rise to the legal loophole argument, after an illegal aerial firework ignited the destructive Table Rock Fire. But the House State Affairs Committee voted 9-6 against even introducing the bill and allowing a hearing on it.

Rep. Mat Erpelding, D-Boise, the lead sponsor of this year’s unsuccessful legislation, requested the Attorney General’s opinion, posing three specific questions about the use of affidavits; who can buy non-safe and sane fireworks in Idaho and where; and whether the Idaho Legislature can regulate fireworks sales on tribal land. The answer to the final question was “no.”

When state lawmakers rejected the bill this year, some said they didn’t want to address fireworks laws unless they also addressed fireworks sales on Idaho tribal reservations.

Businesses in just two southwestern Idaho counties, Elmore and Canyon, have been using the affidavit scheme; Doan said they started just over a decade ago. “I’m glad the Attorney General’s office cleared this up,” he said. “I wish it would’ve been a few weeks ago.”



Betsy Z. Russell
Betsy Z. Russell joined The Spokesman-Review in 1991. She currently is a reporter in the Boise Bureau covering Idaho state government and politics, and other news from Idaho's state capital.

Follow Betsy online: