Drought can’t stop fireworks in most of South Dakota

KELOLAND.com Original

SIOUX FALLS, S.D. (KELO) — South Dakota is in the midst of a drought but those conditions can’t stop fireworks in the state.

Gov. Kristi Noem still wants fireworks at Mount Rushmore and fireworks are allowed throughout out much of the state.

It’s complicated.

South Dakota law allows the public to discharge fireworks between June 27 and the first Sunday after July 4.

The law itself and a Feb. 8, 2013 opinion by then South Dakota Attorney General Marty Jackley appear to direct the course on fireworks during a drought.

Based on the law and Jackley’s opinion, until the Legislature changes the fireworks laws, counties don’t have the ability to regulate fireworks use from July 3 through the first Sunday after July 4, even in a drought.

“Even if the grassland fire danger is extreme, the county has zero authority to halt fireworks (after July 2),” said Jerome Harvey, the fire administrator for Pennington County.

34-37-19. County regulation of fireworks–Use of South Dakota grassland fire danger index–Violation as misdemeanor. Any county may, by resolution, regulate or prohibit the use of fireworks outside the boundaries of any municipality in those areas where the fire danger, as determined by use of the South Dakota grassland fire danger index published by the National Weather Service, has reached the extreme category in that county during the period from June twentieth to July second, inclusive, and during the period from December twenty-eighth to January first, inclusive. During any such period, the county’s action is suspended if the grassland fire danger index falls below the very high category and again becomes effective if the grassland fire danger index reaches the extreme category. Any violation of a resolution adopted pursuant to this section is a Class 2 misdemeanor.

The South Dakota Association of County Commissioners asked Jackley for an opinion on the state fireworks laws because of concerns about drought conditions and potential fire danger in the summer of 2012.

The law allows counties to ban or regulate fireworks from June 20 to July 2 if the South Dakota grassland fire danger index published by the National Weather Service has reached the extreme category in the county from June 20 to July 2. Jackley said in his opinion that those dates and conditions are very specific.

When Jackley wrote his opinion in 2013, he said the law would not allow counties to regulate fireworks from July 2 through July 5. Jackley’s opinion would apply to the law as it is today, from July 2 through July 11, which is the first Sunday after July 4.

“Finally, had the Legislature intended to allow a county to regulate or prohibit the use of fireworks beyond July 2, it easily could have done so,” Jackley said in his February 2013 opinion. “The lack of express regulatory authority over fireworks for this time period (July 3 through July 5), given the specificity of the dates included in the statutes, is clearly intentional,” Jackley said in his opinion.

Minnehaha County Emergency Management Director Jason Gearman said the county commissioners discussed a possible fireworks and burn ban at its June 22 meeting. The commissioners rejected a fireworks and/or burn ban for several reasons. The county even consulted the state attorney general’s office, he said.

On June 22, more rain was expected in the coming days, Gearman said.

Also, the county was not in a very high wildland fire danger based on several factors including the NWS’s percentage of green.

But the expected rainfall didn’t happen, Gearman said.

Conditions did prompt the commissioners to consider a special meeting last week but that would not have applied to fireworks, Gearman said.

Gearman and Harvey said cities have more flexibility to regulate fireworks.

But banning fireworks in a city can push people to rural areas of a county, Gearman said.

For example, the city of Tea recently reversed its decision to ban fireworks. If the city had kept its ban, it would likely have prompted people to head into rural areas of Lincoln County to set off fireworks, Gearman said.

There’s brush, grass and other material that can catch fire in rural areas, Gearman said.

In town, people are using fireworks on concrete and in backyards, near water and other protection, Gearman said.

If Minnehaha County imposed a fireworks ban, it would also create a situation where law enforcement would need to enforce it and Gearman said that may not be the best use of law enforcement time.

Fireworks fill the air

“I drove back last night from Scenic last night on Highway 44. You could smell the fireworks. It reeked from the stench of fireworks,” Harvey said.

The use of fireworks is banned in the Black Hills Fire Protection District. But in cities and areas outside that area, fireworks use is prevalent.

The areas of Rapid Valley, Box Elder and other nearby areas are known for their fireworks use, Harvey said.

Harvey finds it tough to understand that when there are safe, public fireworks displays options available, people still spend money on their own fireworks.

“It’s amazing,” Harvey said of what is spent on fireworks in South Dakota. He cited a 2014 report where $12 million in total taxable sales was recorded in 39 counties.

South Dakota spends $6,249 per 1,000 residents on fireworks, according to Allegiant Fire Protection.

Harvey said the injuries associated with private fireworks use don’t deter the public from using them.

South Dakota ranks first in increased injuries related to fireworks during the summer, according to Allegiant Fire Protection.

Firefighters must be ready for fireworks use

Fireworks use “puts considerable strain on our volunteer forces,” Harvey said.

Rural fire departments will be “responding to ditch fires,” Gearman said. “It happens every year.”

The public discharges fireworks and leaves its trash behind, Gearman said.

“But it’s legal,” Gearman said of discharging fireworks.

Harvey said fire officials plan for the discharge of fireworks and fire dangers.

“We encourage our volunteer firefighters to man stations…,” Harvey said. If firefighters are at the stations, they can respond quicker to any fires, he said.

“The fireworks watch starts at 6 p.m. July 2 and continues through midnight on July 5,” Harvey said.

If needed, the watch plan will be similar for July 9 through the 11, Harvey said.

“It’s already ramped up,” Harvey said of fires. “We have seen calls already ramp up.”

Gearman said because it’s a “very, very dry year” the public should have water and an extinguisher handy when they discharge fireworks.

Changing the state’s fireworks law

“It will take a grassroots movement in the state to change the legislation,” Harvey said.

It would be an uphill battle because of the sales tax money generated by fireworks sales, he said.

Meanwhile, Harvey said the public should attend professional fireworks displays.

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