Idaho AG’s analysis undercuts legal argument for aerial fireworks ‘affidavit’ scheme

BOISE – A new Idaho attorney general’s opinion undercuts a legal argument that a couple of southwestern Idaho businesses have been using for years to justify selling illegal aerial fireworks to customers who sign an affidavit saying they’re buying them to take out of state – that they won’t shoot them off in Idaho, which would be illegal.

Aerial fireworks are illegal to use in Idaho; only “safe and sane” fireworks that stay on the ground can be sold at corner stands.

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 Attorney General Lawrence Wasden’s criminal law division, concludes that Idaho law contemplates the retail sale only of safe and sane fireworks within the state. Any other fireworks, the opinion finds, can only be sold to those licensed and permitted to hold public fireworks displays.

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.

The legal analysis 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 nonaerial 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’ … 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 in Idaho 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 last year in Boise. 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 nonbinding attorney general’s opinion, posing three specific questions about the use of affidavits; who can buy fireworks that are not safe and sane 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.”