ID Supreme Court affirms Festival’s right to ban guns at War Memorial Field

Unanimous decision dismisses appeal from Dist. 1 Sen. Scott Herndon, who promises ‘legislative solution’ to ‘loophole’ in Idaho gun protections

By Zach Hagadone Reader Staff

The yearslong legal controversy over the Festival at Sandpoint’s prohibition of firearms at War Memorial Field during its yearly summer concert series has ended with the Idaho Supreme Court, which handed down a unanimous ruling June 22 upholding the nonprofit’s right as a lessee to bar guns from the publicly owned venue.

According to the published opinion of the court, Justice John R.Stegner wrote that the issue concerned “whether a private party that leases public property from an Idaho municipality may govern those who come and go from its property during the lease. The short answer is yes.”

That decision concurs with the 2021 ruling in District Court that dismissed with prejudice a lawsuit brought by Scott Herndon — now District 1 senator — and area resident Jeff Avery, with support from Boise-based lobby group Idaho Second Amendment Alliance and Washington-based Second Amendment Foundation.

Herndon and Avery were at the center of the issue, which arose in 2019 when the two men attempted to gain entry to the Festival carrying firearms and were told of the event’s no-weapons policy and to leave their guns in their vehicles or be trespassed. War Memorial Field is owned by the city of Sandpoint and leased to the Festival for two weeks each year.

Initially, the incident prompted Bonner County and Sheriff Daryl Wheeler to sue the city, claiming that the Festival’s policy created uncertainty for law enforcement.

Judge Lansing B. Haynes dismissed that suit in 2020 citing lack of standing — but not before costing the county and city in excess of a combined $320,000, with the county being ordered to reimburse Sandpoint more than $71,000.

Herndon, Avery, ISAA and ISAF filed their own suit, based on alleged constitutional violations as well as centering the argument on whether Idaho Code allowed a public entity to convey authority on a leaseholder to bar firearms possession on public property. State statute explicitly limits government entities from prohibiting firearms in public spaces.

Again, Haynes ruled in 2021 in the Herndon et al. case that the city of Sandpoint had made no such policy banning weapons at War Memorial Field, and it was the Festival’s prerogative as the private lessee to do so.

The plaintiffs filed an appeal to the Idaho Supreme Court in February, arguing, “[T]hey were entitled to a declaratory judgment and summary judgment on the civil rights claims, and the district court erred in applying judicial estoppel. The Plaintiffs also argue the district court erred in denying their motion for an extension of time to object to attorney fees,” according to the court filing.

In the June 22 ruling, justices wrote that Idaho’s firearms “preemption” law — keeping any political subdivision of the state “from adopting or enforcing a rule or regulation that regulates, among other things, firearm ownership, possession or carrying” — “[d]oes not apply to private entities.”

That was the “fundamental” issue at the center of the case, the court decided. With the Festival’s lease with the city determined “valid,” the private tenant, “had full authority to govern and set limits on those who visited the premises of its leasehold.”

“The Festival was granted a possessory interest in War Memorial Field as the lessee of the property.

As the holder of the possessory interest, The Festival had the right to the use and benefit of the leased property, which includes the authority to set limitations on those who come onto the property,” the decision stated. “These principles do not morph depending on the nature of the third-party rights at play.”

Finally, the court wrote that Herndon et al. overshot their constitutional argument, “Relying on sweeping claims grounded in the

Second Amendment,” asking the court “to second guess, not what is stated in the lease contract (which makes no mention of weapons at all), but the actions of the City’s mayor and city council in making their determination to lease to a private entity.

“Nothing within the terms of the lease between the City and The Festival addresses carrying firearms or restricts the rules that The Festival may adopt while using the park for its private concerts,” justices added.

“Beyond that, both the Second Amendment and Article I, Section 11 of the Idaho Constitution apply only to government actors, not private parties,” the ruling stated. “Thus, the lease does not violate the public policy stated in Idaho Code section 18-3302J, the Second Amendment or the Idaho Constitution, Article 1, section 11.”

Furthermore, the court ruled, “The Appellants claim that the City and The Festival used a corrupt and illegal process to enter contracts and leases, which establishes a claim under 42 U.S.C. section 1985. As we have held, nothing in the City’s conduct in granting The Festival a lease violated the City’s vast discretion. Thus, the process was not ‘illegal.’”

In a statement issued June 22, the city of Sandpoint expressed its satisfaction with the ruling and “look[ed] forward to a successful Festival at Sandpoint concert season next month,” according to Mayor Shelby Rognstad.

The Festival will celebrate its 40th annual season Thursday, July 27-Sunday, Aug. 6, bringing artists from around the country to War Memorial Field. In previous statements, Festival officials have said that without a no-weapons policy, many musical acts would be contractually obligated not to perform at the venue — potentially threatening the estimated $3.8 million or more that the event generates in regional economic activity. The city in its statement went further, adding that in addition the Festival is responsible for more than $1.7 million gross regional product and more than $1 million in total compensation along with 37 full-time-equivalent jobs.

“[W]e are pleased to have finally reached a resolution in the courts,” Rognstad added. “The city has leased War Memorial Field to the Festival of Sandpoint for its concert series for almost 40 years. The Festival sets the rules for its concerts. The city of Sandpoint does not have a policy restricting the public carrying guns on public property and the Sandpoint Police Department does not enforce rules established by the Festival for its events.”

Festival officials also applauded the decision, stating that, “As the original lawsuits against the city of Sandpoint and the Festival at Sandpoint were deemed to not have merit, we at the Festival at Sandpoint were confident that the Idaho Supreme Court would have a similar and favorable decision.

“We are grateful for the conclusion of this nearly four-year process, which unnecessarily demanded resources from both the city of Sandpoint, as well as our nonprofit organization,” the statement added. “The safety of our fans, volunteers, staff and artists is of the utmost importance and continues to be at the forefront of everything we do at the Festival at Sandpoint.”

Herndon issued his own statement June 22, reiterating the facts of the case and summarizing, “The entire purpose of our lawsuit was to gain clarity on the current state of the law in Idaho for Idaho’s many hundreds of thousands of gun owners,” after the Festival in 2019 instituted a screening process for attendees to ensure they were not carrying weapons, including firearms.

The statement went on to claim that Herndon and Avery set out to “test whether the firearm ban would be enforced.”

Despite the ruling by the District Court and unanimous decision by the Idaho Supreme Court, Herndon’s statement continued that the latter “has revealed a massive legal loophole in Idaho’s firearm laws. According to the court’s decision today, government can now easily ban gun owners in Idaho from carrying firearms on traditional public property,” by leasing to a private party.

Based on previous reporting, it has already been established that private entities in Sandpoint and elsewhere in Idaho lease public property and have instituted weapons bans — including Bonner General Health.

Herndon’s statement speculated that political subdivisions may rent public spaces such as national forests, state parks, county fairs and the like to private parties, then ban firearms.

Midway through his second term in the Idaho Senate, Herndon vowed to “go to the mat to find a legislative solution for Idaho’s gun owners.”

“While property rights are fundamental, gun rights are equally fundamental, and the right of self-defense must be protected on public property,” he stated. “I look forward to finding a solution with Idaho’s conservative Republicans, the Idaho Freedom Caucus, the Idaho Second Amendment Alliance and all those who treasure public safety and the Second Amendment.”

Herndon did not respond by press time to a request for additional details on what his legislative solution might include. District 1B Rep. Sage Dixon, R-Ponderay, also did not respond for a request for comment.

District 1A Rep. Mark Sauter, R-Sandpoint, told the Reader in an email June 28 that, “Last week’s Supreme Court decision confirmed Idaho private property rights, local control and state oversight are all important factors in public policy. Untold resources and taxpayer funds have been spent on this issue over the last few years. The calls for a costly special session for an attempt to remedy this issue are premature.”

Idaho is heating up and drying out for Fourth of July Weekend

By Reader Staff

Though Idaho enjoyed a cool, wet spring, there have already been a number of wildfires in the southern part of the state, prompting Recreate Responsibly Idaho to remind outdoor recreationists to be mindful of fire safety — regardless of where they are in the Gem State.

The statewide campaign — launched in March 2020 during the COVID-19 pandemic — is intended to ensure that visitors and residents alike stay safe in Idaho’s outdoors, especially as the state’s population has continued to grow exponentially in recent years.

Ahead of the Fourth of July weekend, Recreate Responsibly Idaho noted that fire officials each year record a spike in human-caused wildfires, most often from unattended campfires, fireworks, dragging tow chains, driving on dry grass, and improper disposal of hot ashes and barbecue coals.

“On average, 80% of wildfires are caused by humans,” the campaign stated.

Of particular concern for summer 2023, the wet spring caused grasses and plants to grow tall, creating an abundance of fuels. Now rangelands and forests are starting to dry out, which increases wildfire risk.

“Please remember that all fireworks — and even the possession of fireworks — are prohibited on federal public lands, regardless of weather conditions or if a person believes they are using fireworks safely,” stated Recreate Responsibly Idaho Campaign Coordinator Robbie Johnson. “Recreate Responsibly Idaho is here to support the public with resources, guides, and reminders that we all must do our part to stay vigilant to avoid the destruction of catastrophic wildfire.”

The campaign noted a number of available resources and provided tips to prepare for the holiday weekend:

• Know before you go — Visit the BLM Idaho Fire Information website at idahofireinfo.com and the Idaho Department of Lands Fire Information and Resources website at idl.idaho.gov/fire-management for wildland fire information near your destination.

•Drown your campfire — Make sure your fire is “dead out” and cold to the touch before leaving your campsite or going to bed. Keep your campfire small and use a designated campfire ring when available and permissible.

•Leave fireworks at home — Fire-