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Thread: Are PUD owned parks subject to preemption?

  1. #1
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    Are PUD owned parks subject to preemption?

    Is a park that is owned by a PUD (Public Utility District)* subject to WA state preemption? Specifically I noticed this on the rules list for Chelan County PUD parks.


    Section 9. Firearms and/or Weapons
    No person shall openly display a firearm or weapon in any park area, nor shall any person
    discharge or propel across, in, or into any park area, a firearm, bow and arrow, spear, spear gun,
    harpoon, sling shot, BB gun, air or gas weapon, or any device capable of injuring or killing any
    person or animal, or damaging or destroying any public or private property. Provided however
    that it is permissible to possess hunting equipment secured in a vehicle or transported across
    PUD property and gear used for fishing that would otherwise be in violation of this policy, (i.e.
    relocating a firearm from a vehicle to a boat in preparation to duck hunt, or possessing a fillet
    knife for the purpose of cleaning fish)

    Full rule list can be found here: http://chelanpud.org/documents/ParkRulesFINAL.pdf

    Thanks for any insights.

    * http://en.wikipedia.org/wiki/Public_utility_district

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    Regular Member j2l3's Avatar
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    Digging intothe PUD's actual website...

    They are a governemnet entity, created by the county and governed by the RCW's.

    This makes their park rule about firearms preempted. I would guess the rule is either old and has never been looked at again, o rthey have received faulty advice from legal counsel.
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    Regular Member Sparky508's Avatar
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    Awesome question.

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    Campaign Veteran gogodawgs's Avatar
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    PUBLIC utilities district.

    Enough said.
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    Regular Member jt59's Avatar
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    Tacoma power parks

    Same deal here...

    We spend some time at Taidnapam (great fishing for the next 8 weeks for Kokanee)...

    http://www.mytpu.org/tacomapower/par...park-rules.htm

    interesting writing of no "display" of.....at the far end of the rules.

    I wonder what their interpretation of that means....I have OC'd there in the past, but it was off season and we pretty much had the place to our selves....but did talk to some employee's prepping sites with no issues.

    I will ask, who should I ask, next time I'm there....and start to chase this down.
    Far better it is to dare mighty things, to win glorious triumphs, even though checkered by failure, than to take rank with those poor spirits who neither enjoy much nor suffer much, because they live in the grey twilight that knows not victory nor defeat....Teddy Roosevelt

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    Regular Member j2l3's Avatar
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    Quote Originally Posted by jt59 View Post
    I will ask, who should I ask, next time I'm there....and start to chase this down.
    Here is the management team contact info.

    http://www.mytpu.org/tacomapower/abo...ement-team.htm

    Actually, it tells who they are, not how to contact them individually.
    Last edited by j2l3; 05-25-2011 at 11:39 PM.
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    Regular Member jt59's Avatar
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    Quote Originally Posted by j2l3 View Post
    Here is the management team contact info.

    http://www.mytpu.org/tacomapower/abo...ement-team.htm

    Actually, it tells who they are, not how to contact them individually.
    Thanks,

    John and Ted, I should think, would be a good start.
    Far better it is to dare mighty things, to win glorious triumphs, even though checkered by failure, than to take rank with those poor spirits who neither enjoy much nor suffer much, because they live in the grey twilight that knows not victory nor defeat....Teddy Roosevelt

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    Emails

    Well, I encountered some initial resistance from the PUD. Here is what has been sent so far.


    date Wed, May 25, 2011 at 4:38 PM
    subject Chelan County PUD Parks Rules
    hide details May 25 (2 days ago)
    Hello,

    I am writing to you today in regards to the rules and regulations for Chelan County PUD parks, which I found at this location on the Chelan County PUD website: http://chelanpud.org/documents/ParkRulesFINAL.pdf

    Within this document, I noted that section 9, which relates to "Firearms and/or Weapons" states the following.

    Section 9. Firearms and/or Weapons
    No person shall openly display a firearm or weapon in any park area, nor shall any person
    discharge or propel across, in, or into any park area, a firearm, bow and arrow, spear, spear gun,
    harpoon, sling shot, BB gun, air or gas weapon, or any device capable of injuring or killing any
    person or animal, or damaging or destroying any public or private property. Provided however
    that it is permissible to possess hunting equipment secured in a vehicle or transported across
    PUD property and gear used for fishing that would otherwise be in violation of this policy, (i.e.
    relocating a firearm from a vehicle to a boat in preparation to duck hunt, or possessing a fillet
    knife for the purpose of cleaning fish).


    I am concerned because this wording would suggest that it is not permissible for a park patron to legally "open carry," that is carry a firearm on their person which is openly visible to others, while visiting Chelan County PUD operated parks.

    However, according to RCW 9.41.290 "The state of Washington hereby fully occupies and preempts the entire field of firearms regulation within the boundaries of the state, including the registration, licensing, possession, purchase, sale, acquisition, transfer, discharge, and transportation of firearms, or any other element relating to firearms or parts thereof, including ammunition and reloader components. Cities, towns, and counties or other municipalities may enact only those laws and ordinances relating to firearms that are specifically authorized by state law, as in RCW 9.41.300, and are consistent with this chapter. Such local ordinances shall have the same penalty as provided for by state law. Local laws and ordinances that are inconsistent with, more restrictive than, or exceed the requirements of state law shall not be enacted and are preempted and repealed, regardless of the nature of the code, charter, or home rule status of such city, town, county, or municipality."
    http://apps.leg.wa.gov/rcw/default.aspx?cite=9.41.290

    It is well within Chelan County PUDs rights to restrict the discharge of said firearms, as is stated within RCW 9.41.300, however the mere visible possession of a firearm should not be prohibited.


    I appreciate your attention and input on this matter.

    Thank you,
    Alan *******



    date Fri, May 27, 2011 at 9:58 AM
    subject Park Rule Concern
    mailed-by chelanpud.org
    hide details 9:58 AM (1 hour ago)

    Alan
    In response to your concern about section 9 of the Chelan PUD Park rules document:
    It is our intention to provide a safe environment for the public to recreate in.
    In doing so we; through the guidance of our Board of Commissioners, adopted the rules you are referring to.
    In drafting these rules we used the following RCW as our guide when considering weapons in the parks.
    If you have any further questions concerning this matter I am available by phone and would be happy to discuss this with you.


    Thanks for your interest in the Parks



    Ray Heit
    Parks Manager
    (w) 509 661 4133
    (f) 509 661 8152
    (c) 509 669 2140
    ray.heit@chelanpud.org



    RCW 9.41.270
    Weapons apparently capable of producing bodily harm Unlawful carrying or handling Penalty Exceptions.
    1) It shall be unlawful for any person to carry, exhibit, display, or draw any firearm, dagger, sword, knife or other cutting or stabbing instrument, club, or any other weapon apparently capable of producing bodily harm, in a manner, under circumstances, and at a time and place that either manifests an intent to intimidate another or that warrants alarm for the safety of other persons.

    (2) Any person violating the provisions of subsection (1) above shall be guilty of a gross misdemeanor. If any person is convicted of a violation of subsection (1) of this section, the person shall lose his or her concealed pistol license, if any. The court shall send notice of the revocation to the department of licensing, and the city, town, or county which issued the license.

    (3) Subsection (1) of this section shall not apply to or affect the following:

    (a) Any act committed by a person while in his or her place of abode or fixed place of business;

    (b) Any person who by virtue of his or her office or public employment is vested by law with a duty to preserve public safety, maintain public order, or to make arrests for offenses, while in the performance of such duty;

    (c) Any person acting for the purpose of protecting himself or herself against the use of presently threatened unlawful force by another, or for the purpose of protecting another against the use of such unlawful force by a third person;

    (d) Any person making or assisting in making a lawful arrest for the commission of a felony; or

    (e) Any person engaged in military activities sponsored by the federal or state governments.
    [1994 sp.s. c 7 426; 1969 c 8 1.]
    Notes:
    Finding -- Intent -- Severability -- 1994 sp.s. c 7: See notes following RCW 43.70.540.
    Effective date -- 1994 sp.s. c 7 401-410, 413-416, 418-437, and 439-460: See note following RCW 9.41.010.





    date Fri, May 27, 2011 at 11:45 AM
    subject Re: Park Rule Concern
    hide details 11:45 AM (6 minutes ago)
    Hello Ray,

    Thank you for taking the time to respond to my inquiry. I can understand that at first glance RCW 9.41.270 may appear to make it illegal for a citizen to openly carry a firearm, however when looking more closely at the language it becomes apparent that the mere possession of a firearm is not sufficient to be in violation of state law.

    RCW 9.41.270
    Weapons apparently capable of producing bodily harm Unlawful carrying or handling Penalty Exceptions.
    1) It shall be unlawful for any person to carry, exhibit, display, or draw any firearm, dagger, sword, knife or other cutting or stabbing instrument, club, or any other weapon apparently capable of producing bodily harm, in a manner, under circumstances, and at a time and place that either manifests an intent to intimidate another or that warrants alarm for the safety of other persons.

    It has been generally held this law is not intended to prohibit the open carry of firearms in Washington state, but rather to prevent people from carrying weapons in a threatening manner so as to intimidate others. Waving a firearm around in ones hand, for example, may warrant alarm for the safety of other persons. But walking through park with my family while a handgun is on my hip is an entirely different story.


    Additionally, you may see the Washington State Attorney General's statement regarding the authority of local governments to regulate the possession of firearms here.
    http://www.atg.wa.gov/AGOOpinions/Op...chive&id=21188

    Also, the city of Wenatchee enacted a similar ban in their parks several years ago, but that ban has since been lifted because it was found to be in violation of state law. See the Wenatchee World article for details.
    http://www.wenatcheeworld.com/news/2...oke-state-law/

    Furthermore, a similar "gun ban" was put in place in Seattle city parks and was subsequently found to be in violation of state law and repealed, you can find more information about this here: http://seattletimes.nwsource.com/htm...rksgun13m.html
    and here: http://www.saf.org/viewpr-new.asp?id=312



    Thank you for your time.
    Alan ********




    Is there anything I'm missing so far? This is the first time I've ever worked at getting a rule changed relating to open carry so I would appreciate any advice anyone has.

    Thanks.

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    Looks like you're doing a fine job of smacking them about the head and shoulders with good information and the law. Hopefully they will see the light. Worse case scenario is they call the cops when you OC there and the cop writes you up. Then you'll have a court battle on your hands.

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    Regular Member Ajetpilot's Avatar
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    You might do well to point out that their rule has already been repealed, and does not exist. You are only requesting that they change the wording to reflect that fact.

    Local laws and ordinances that are inconsistent with, more restrictive than, or exceed the requirements of state law shall not be enacted and are preempted and repealed, regardless of the nature of the code, charter, or home rule status of such city, town, county, or municipality."
    Then, you might invite them to our next picnic in their park. We are having a picnic, aren't we?
    Last edited by Ajetpilot; 05-27-2011 at 03:15 PM. Reason: missing period

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    Regular Member amlevin's Avatar
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    Quote Originally Posted by sirpuma View Post
    Worse case scenario is they call the cops when you OC there and the cop writes you up. Then you'll have a court battle on your hands.
    Or on the other hand a cop that either knows State Law, or calls his Supervisor who does, and they just say something like "bunch of dumb@ss comissioners", and sends you on your way.
    "If I shoot all the ammo I am carrying I either won't need anymore or more won't help"

    "If you refuse to stand up for others now, who will stand up for you when your time comes?"

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    Might want to reference state vs Casad

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    Regular Member hermannr's Avatar
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    They use the word "display", as does the RCW. As you already know, OC is not "displaying" a firearm. Why do you read more there then there is?

    Chelan PUD answered they follow state law. Do you need any more?

    BTW: I carried in a Chelan (and Douglas) PUD Park a couple weeks ago, without any problems. I don't see why the wording bothers you?

    Also, If someone calls the Chelan Sheriff, not a problem, they are cool. I have personal experience to know that BTW.
    Last edited by hermannr; 05-27-2011 at 10:48 PM.

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    You might do well to point out that their rule has already been repealed, and does not exist.
    Laws and Ordinances, not administrative rules, like the one in question in this thread.

    The Chan decision is really only enforceable in King County, unless it has been upheld by an appellate court (???)

    The preemption law as it applies to administrative rules is not settled law. We've been over this ground so many times before. Good arguments on both sides, but until the Chan case goes further, or another case is brought, they can enforce those rules.

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    Quote Originally Posted by hermannr View Post
    They use the word "display", as does the RCW. As you already know, OC is not "displaying" a firearm. Why do you read more there then there is?

    Chelan PUD answered they follow state law. Do you need any more?

    BTW: I carried in a Chelan (and Douglas) PUD Park a couple weeks ago, without any problems. I don't see why the wording bothers you?

    Also, If someone calls the Chelan Sheriff, not a problem, they are cool. I have personal experience to know that BTW.
    Having walked by and stood by and sat by 2 Chelan Co. Sheriff last Saturday, I would say they are good with OC.
    Live Free or Die!

  16. #16
    Regular Member jbone's Avatar
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    Quote Originally Posted by hermannr View Post
    Chelan PUD answered they follow state law. Do you need any more?.
    +1
    Have the final say in the matter. Send a response of ; thank you for following state law and providing for my safety.
    Their words "It is our intention to provide a safe environment for the public to recreate in.
    In drafting these rules we used the following RCW as our guide when considering weapons in the parks."

    Matter closed! I'd leave it at that as their own words should protect you in court.

  17. #17
    Regular Member jt59's Avatar
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    Quote Originally Posted by FrayedString View Post
    date Fri, May 27, 2011 at 9:58 AM
    subject Park Rule Concern
    mailed-by chelanpud.org
    hide details 9:58 AM (1 hour ago)

    Alan
    In response to your concern about section 9 of the Chelan PUD Park rules document:
    It is our intention to provide a safe environment for the public to recreate in.
    In doing so we; through the guidance of our Board of Commissioners, adopted the rules you are referring to.


    In drafting these rules we used the following RCW as our guide when considering weapons in the parks.
    If you have any further questions concerning this matter I am available by phone and would be happy to discuss this with you.


    Thanks for your interest in the Parks



    Ray Heit
    Parks Manager
    (w) 509 661 4133
    (f) 509 661 8152
    (c) 509 669 2140
    ray.heit@chelanpud.org



    Is there anything I'm missing so far? This is the first time I've ever worked at getting a rule changed relating to open carry so I would appreciate any advice anyone has.

    Thanks.
    You have to read his "code words". He is clearly stating that the decision to do this "is not my job, man, I just do what they tell me"....

    ...he is also clearly telling you (IMHO) that he is powerless to do anything about it, and wants to keep his job.....and is directing you to the commission.

    This is where most all of these end up, at the local commissioners panel...Add Pierce County to the list stated above where change in the code was adopted, but it doesn't end there ....you need to write to the head of the commission, ask to get it put on the agenda, show up to speak, request that it be put in "process" and that they get a ruling and advice from the prosecuting attn'y or whoever gives them legal guidance and stay on it until you get the results you want.

    I went through this process with Pierce County starting last August with the same level of managment you have here...the parks guy....it got referred to another committee, and finally in November after everyone had their say and the commisioners asses were covered with advice from the PA, they unanimously passed a revision to the language of the code (which had no power anyway), to bring it into line.

    Now, nearly a year later, I am back with the parks guy to force him to change the signage, and after his BS letter about no $$ in the budget, I went straight back to the Chair of the County Commissioners to get "personally invovled" to make the local parks guy actually make the sign change. The (new) parks guy tried to beg out of it by an aknowledgement of the rule change but "we don't have the budget to do it, so we'll have to wait until the signs wear out and we need to replace them".

    The President and another commissioner stepped up to enforce what they had adopted and personally contacted him and said to get it done.....it will be a full year to bring this full cycle....you just have to be tenacious and it will work itself out.

    I encourage you to see this thru to the end, and make it happen. If you don't, they win by simply ignoring you, and or putting you off with the BS responses that you have above.

    Hang in there......after it goes to the commisioners level, a pic-nic in the park at question would be appropriate, with a visit from the local constables...just like was done in Vancouver last year.
    Last edited by jt59; 06-03-2011 at 11:29 PM.
    Far better it is to dare mighty things, to win glorious triumphs, even though checkered by failure, than to take rank with those poor spirits who neither enjoy much nor suffer much, because they live in the grey twilight that knows not victory nor defeat....Teddy Roosevelt

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