We’ve been told that the spread of the coronavirus becomes more likely, the larger the gathering. As a result of this belief, state governments have been passing emergency orders limiting the size of public events. For example, Colorado Governor Jared Polis ordered the state’s ski areas to close last March, right in the middle of the busy Spring Break season.
Not everyone believes these emergency public health orders are constitutional.
One of the more important skills an attorney develops, I understand — when dealing with federal court cases — is the ability to pick which US district in which to file your case, and thus pick which judge will rule on the case. That skill may have been in play recently, when a group of businessmen and politicians asked Judge William Stickman IV, a 41-year-old judge put on the federal bench last year by Donald Trump and Senate Republicans, to rule on public health orders in Pennsylvania that limit the size of gatherings, mandate mask wearing, shutter certain types of businesses, and require people to ‘stay-at-home’.
Judge Stickman found that Governor Tom Wolf’s administration policy limiting indoor and outdoor gatherings and events to 25 and 250 people, respectively, violates “the right of assembly enshrined in the First Amendment.” The Pittsburgh-based judge also found Wolf and Health Secretary Rachel Levine’s stay-at-home and business closure orders to be unconstitutional. The ruling is considered an outlier, however, as most courts have so far upheld the power of governors and mayors to impose restrictions that address the public health emergency. Just two weeks ago, a federal judge in Philadelphia took the opposite stance in a case focused solely on business closure orders.
The Wolf administration is appealing the Stickman decision.
Some folks quickly embraced the September 14 decision by Judge Stickman. The Karns City Area School District, for example, has announced that spectators must still follow the requirement to wear a mask and social distance, but they are not restricting attendance to a specific number — at football games, for example?
“We are not restricting attendance to a specific number at our events, based on the recent federal court ruling. We are permitting spectators to attend and have shared that they must follow the requirement to wear a face mask and social distance while on school grounds,” Superintendent Eric D. Ritzert said.
The topic of how to allow thousands of people to gather in one place, here in Colorado, was discussed — at some length — at the Tuesday, September 15 work session of the Archuleta Board of County Commissioners. The central question was whether the BOCC might support an effort by Wolf Creek Ski Area to open its operations, in some manner, as soon as the snow hits the San Juan Mountains. Wolf Creek Ski Area is not located in Archuleta County but rather in adjacent Mineral County. Wolf Creek additionally sits in the Silver Thread Public Health district, rather than in the San Juan Basin Public Health district which serves Pagosa Springs and Archuleta County.
We are listening here to Wolf Creek Ski Area owner Davey Pitcher:
“I really appreciate your time today. I know there’s some question about why we’re approaching Archuleta County… we’re reaching out to both Silver Thread and San Juan Basin Health District…
“I’m not actually asking for an approval, as such, from Archuleta County as much as a letter of support.”
Mr. Pitcher then referred to Colorado Counties Incorporated, an association of county governments in which Archuleta County participates.
“What I’ve been informed is… the Governor’s office is maybe behind the curve a little, regarding guidelines for opening ski areas, and they’re talking about forming a committee in October. That’s possibly a little late. I mean, we might have an Indian Summer… but Wolf Creek is known for its early season openings, and we want to be prepared. The strategy that I determined maybe to use, working with Tara Hardy from Silver Thread — she’s the Director there — was to do a new proposal for a pre-season opening, where we don’t have any of our indoor facilities open. Just skiing. With just our bathrooms, with our hourly cleanings that we have on our plan.
“I think it’s important for us to communicate to both sides [of Wolf Creek Pass] given that a lot of our guests come to Archuleta County.”
“The Governor also made… It seems there is some [health order] or something coming down the pike, that will mandate that, if a tourist is screened and they are tested positive, that they will be required to quarantine within the county for 14 days. They won’t be allowed to go home.”
I found this comment by Mr. Pitcher to be provocative, and wondered whether this mandate has actually been put in place, because I’d not heard of such a requirement. I read through the September 5 public health order from Colorado Department of Public Health & Environment, and didn’t see any mention of tourists being forced to quarantine in Colorado. But I did find the following statement on the state’s COVID information website:
If you become sick or are exposed to COVID-19 while traveling in Colorado… Public health orders may limit your travel or even require you to stay in Colorado during your quarantine or isolation, at your own expense. This means you may not be able to leave the state, regardless of how you travel (e.g. private car or airplane). This ensures not only your safety but the safety of those you may come in contact with on your trip home.
Davey Pitcher:
“I know you have a million things on your plate, and since we’re not in your jurisdiction, it may not be worth going through the process of asking for your letter of support — but it may be that that would accomplish something when we get in front of this committee in October.”
Commissioner Ronnie Maez:
“I don’t see any problem, us doing a letter of support for this, unless my fellow commissioners decide not to. I think it’s very important…”
Mr. Pitcher noted that the state of Colorado appears to be embracing the idea of tourist visitation, and he has developed a plan — with the help of Silver Thread — that limits the number of people allowed in the ski area restaurant and other indoor spaces, mimicking the operation of similar businesses in town. The plan also includes ideas for operations at a reduced level, in case the snow arrives before the state finishes putting together statewide guidelines. Additionally, the Season Passes have been broken down into three tiers, with varying numbers of ‘blackout dates’ — a system aimed at reducing the number of skiers during the busiest days of the season.
I emailed Rosanne Pitcher at Wolf Creek Ski Area to see if they have a copy of their “opening” plan available, but was told they are still working on revisions, and the plan is not yet ready for public viewing. However, they have posted their Season Pass price schedule, here. Reduced price “pre-season” passes — available Saturday, September 26 through Sunday, October 4 — vary in price, for an adult, from $1,543 (Adult “Premier” pass, no blackout dates) to $723 (Adult ‘Super Saver’ pass with 48 blackout dates). Family passes are also available. Season Pass prices go up substantially after October 4.