FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT SLIDEWATERS LLC, No. 20-35634 Plaintiff-Appellant, D.C. No. v. 2:20-cv-00210- TOR WASHINGTON STATE DEPARTMENT OF LABOR AND INDUSTRIES; JAY ROBERT INSLEE, Governor, in his OPINION official capacity, Defendants-Appellees. Appeal from the United States District Court for the Eastern District of Washington Thomas O. Rice, District Judge, Presiding Argued and Submitted June 7, 2021 Seattle, Washington Filed July 8, 2021 Before: Ronald M. Gould, Richard R. Clifton, and Eric D. Miller, Circuit Judges. Opinion by Judge Clifton 2 SLIDEWATERS V. WASH. STATE DEP’T OF LABOR SUMMARY* Civil Rights The panel affirmed the district court’s denial of injunctive relief and dismissal of state and federal claims in an action brought by the owner of a waterpark in Chelan County, Washington who challenged the State’s restrictions, imposed in response to the COVID-19 pandemic, prohibiting the waterpark from operating during 2020 and imposing capacity limits in 2021. The panel held that defendants had the authority under Washington law to impose the restrictions and that doing so did not violate plaintiff’s asserted rights under the U.S. Constitution. Addressing the state law claims, the panel held that the governor had the lawful authority under Revised Code of Washington § 43.06.010(12) to issue Proclamation 20-05, as the pandemic was both a public disorder and a disaster affecting life and health in Washington. The panel further held that the State Department of Labor and Industries, in promulgating an emergency rule as part of the state’s efforts to curb the pandemic, Washington Administrative Code § 296-800-14035, acted within its scope of authority. The panel held that the executive branch’s actions did not violate the principle of separation of powers with regard to the legislative branch; and the actions of defendants also did not violate the principle of separation of powers with regard to the judicial branch. The panel rejected plaintiff’s argument that state-level entities were not the * This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. SLIDEWATERS V. WASH. STATE DEP’T OF LABOR 3 proper entities to address the pandemic and that the state of emergency and resulting state actions unlawfully impinged on the authority of county health officials. The panel held that the substantive due process rights of the waterpark, its owners, and its employees were not violated by defendants’ actions. The panel held that the right to pursue a common calling or use property as one wishes are not considered fundamental rights and defendants provided a rational basis for the proclamations and related rules. The panel held that plaintiff’s application for injunctive relief was properly denied, and the district court did not err in consolidating plaintiff’s motion for a preliminary injunction with a hearing on the merits or in reaching plaintiff’s state law claims. The panel noted that the district court gave clear and unambiguous notice to the parties of its intent to consolidate under Federal Rule of Civil Procedure 65(a)(2) …
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