Does Phil Wreck Your Fun? (Burnett County Sentinel)

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Phil article phto LARGE for articleWEBSTER–It’s been 20 years since the Ekdall Church Fire in West Marshland Township that charred over 4,000 acres forest. Today, determined trees stand 20 feet tall. It’s as if the fire could be wiped from the county’s collective memory, save for good-natured reminiscences at the coffee table.

But the fire is clear as a flame in Webster DNR Ranger Phil Stromberg’s mind. For eight hours, Stromberg, then just a young ranger, worked to contain the fire at its right flank. He and his fellow rangers did all they could, he says, to manage the fire that caused heat at temperatures high enough to explode trees as if they were bottle rockets in jars. “There’s no break where you just stop what you’re doing,” he said.

The vision remains so clear because Stromberg and other DNR rangers were sued for $15 million after the fire. Don Webster, whose land and a hunting shack were destroyed in the fire, claimed the DNR was negligent in preventing it. They mishandled tree slash left-over from logging, Webster accused, citing statutes governing slash written in the early 1900s. In West Marshland Township, a group gathered to organize themselves against the DNR that fought the fire. The county board even formed a committee to study the DNR’s handing of the fire.

Stromberg won the lawsuit, but it changed him.

“When you’re held under this kind of scrutiny,” he paused, “I could just as well have started the fire.”

He keeps a map of the Ekdall Fire site on the wall next to his desk. A cloud of red designates the area wiped out.

“That fire set the direction of my career,” he says.

 

It’s with the weight of the Ekdall Church Fire in his memory that Phil Stromberg deals with the problem of illegal fireworks selling in Burnett County. The Ekdall fire didn’t begin with fireworks. But picture the parching weather of just a few weeks ago. Then picture a kid with a lit match and bottle rockets headed for mischief in the woods. It’s that kind of vision that sparks Stromberg’s worry about the massive potential of illegal fireworks sales in April and May. As a DNR ranger, its his job, he says, to prevent fires any which way he can. He says people have called this dedication “a personal vendetta against fireworks.”

“If I have a personal vendetta, it’s to prevent forest fires,” he said.

That’s why last week he asked the county’s law enforcement committee to support filing injunctions against two fireworks vendors in Burnett County. In the last 10 years, the vendors have been convicted of selling restricted fireworks illegally in Burnett County. So far, the convictions have meant forfeiting a few hundred dollars each time. Injunctions would order the vendors not to sell illegally again, which means no more April and May sales. If the vendors did continue to sell in the face of an injunction and get caught, the punishment would be a misdemeanor crime punishable by up to a year in jail and a $5,000 fine.

Stromberg thinks it’s time to up the ante. Some county officials agree with Stromberg. The idea of losing close to a million dollars of timber revenues to forest fires caused by illegal fireworks is unsettling. Other county officials disagree. They think it’s the state’s problem to deal with delinquent vendors. In addition, they fear fireworks companies would appeal the injunctions and cost the county hundreds of thousands in lawyers’ fees.

Stromberg recognizes this potential. But he believes it boils down to the county having two choices: uphold the law or “roll over.”

It’s time to use the enforcement that will get their attention, he said.

 

‘Go and Blow’ Fireworks Illegal

Surprisingly, some people still don’t know: in Wisconsin there are two types of fireworks, those that are legal for anyone to buy, and those that only certain people can buy.

In 1984, legislators who wanted to liberalize fireworks law, State Statute 167.10, backed legislation that legalized the “safer” type of fireworks.

Since then, the legislation on what’s legal has basically remained the same. Legal fireworks are, for the most part, stationary fireworks. They include cone and cylindrical fountains that emit smoke and sparks. Low-hazard fireworks including sparklers and smoke bombs are okay, too.

Restricted fireworks are those that “go or blow.” Devices that spin or move after ignition are prohibited. Some are bottle rockets, firecrackers and Roman candles. They may emit balls fire or let off loud booms or shrieking whistles.

To buy restricted fireworks in Wisconsin, you must have a permit signed by a town chair or village president or mayor. Permits aren’t issues to individuals. Rather, they are designed for legitimate groups that intend to buy and use fireworks for display purposes. July 4 shows and the Grantsburg Watercross show are examples. The only exception is farmers, who are allowed permits for fireworks to scare away pesky birds and wildlife from precious crops.

Officials signing the permits have the right to decide when and where the fireworks can be ignited. They don’t allow use during April and May during the fire season.

According to Stromberg, most town and village authorities are simply reluctant to issue permits, for liability reasons. Statute 167.10 was written with the intent to prevent injuries caused by fireworks within Wisconsin District III, appellate judges have said. Therefore, some towns or villages may even require groups that want permits to sign statements accepting liability.

The only place in the county where these rules change is on St. Croix Tribal land. The appellate court has ruled that tribal vendors can sell restricted fireworks to nonpermitted residents and nonresidents of Wisconsin. As soon as buyers of tribal fireworks leave tribal lands with fireworks, though, they are in violation of the law for possessing and/or using the fireworks.

The DNR can fine people on county land $150 for setting a fire with restricted fireworks or for using the fireworks when fire danger is high.

It is legal for fireworks wholesalers in Burnett County to sell restricted fireworks to people who carry the valid permits. Statute 167.10 says wholesalers can sell fireworks “to a person outside of this state” as well.

Wholesalers who sell restricted fireworks must “package and ship the fireworks in accordance with applicable state and federal law by (statute numbers deleted) common motor carrier or private motor carrier,” the statute says.

Stromberg calls it a misinterpretation of the law. So have appellate judges, but at least two vendors in Burnett County had interpreted the part of the fireworks statute pertaining to out-of-state sales to mean that they can sell nonresidents, driving through Wisconsin, restricted fireworks. The vendors only require that purchasers sign a waiver.

By signing, the purchaser says, “I will ship or transport this merchandise unopened directly and immediately out of Wisconsin, and the merchandise purchased will be used strictly in conformance with the laws of the state of designation.”

Buyers promise, therefore, that they won’t light the fireworks in Wisconsin.

The waiver also says the sale doesn’t actually take place until the buyer reaches “a destination outside of the State of Wisconsin.”

In a lawsuit against Victory Fireworks in Siren, District Attorney Ken Kutz challenged the legality of the waivers. The case was thrown out of Burnett County in 1998. But District III Appellate Court judges sided with Kutz; the fireworks companies were wrong.

“The language regarding sales to a ‘person outside of this state’ is not synonymous with a ‘non-resident,’” judges wrote.

And later, “We conclude that the language in (Statute 167.10) regarding sales to ‘a person outside of this state’ means exactly what it provides: that the purchaser must be outside of the boundaries of Wisconsin.”

Appellate judges decided to publish their State v. Victory Fireworks decision in the Wisconsin Courts Official Reports.

“That’s the law of this land on that issue of fireworks,” he said.

He expects the decision to cause a ripple through the waters of Wisconsin fireworks lawsuits. Many vendors throughout the state use the nonresident waivers, which will be considered illegal.

 

13 Years of Breaking the Law

So far, the county has employed a gradual escalation of steps in dealing with vendors who violate the law, Stromberg explained.

He began studying fireworks law in 1987, when fireworks causes an alarming 55 county fires. He first learned which fireworks were legal for nonpermitted people to purchase. He discovered around 33 vendors in Burnett County were selling items illegally.

Working with District Attorney Ken Kutz, Stromberg warned the vendors about their illegal activity and weeded out most of the violators.

“That left a handful of vendors in the county that continued to sell them,” Stromberg said.

Four years later, in April of 1991, the month when a year’s fire hazard is usually at its peak, an event occurred that drove the fireworks issue back into Stromberg’s plain sight. A juvenile using illegal fireworks purchased by his mother started a forest fire. The mother was traumatized. She told Stromberg she didn’t know that the fireworks she so easily purchased from a local vendor were illegal.

“Now I’m faced with a situation,” said Stromberg. He could have issued the mother a citation. But he figured the blame lay elsewhere. Kutz agreed. So instead they arranged a successful buy from the vendor again. The vendor was convicted.

The controlled buy had little effect on vendors’ sales. That year, over the July 4 holiday, the remaining “handful” kept breaking the law, were convicted and wrote checks for citations for a few hundred dollars a piece.

After several fines, a few of the vendors backed off on illegal sales. For the rest, Kutz decided to take the next step and seized fireworks, a provision allowed for in State Statute 167.10, the law that governs fireworks sales.

The first seizure was a collection of around $10,000 worth of fireworks inventory taken from a few different businesses. But the same day the fireworks were seized, the judge ordered them back to the wholesalers. Photographs of the items could be used as evidence, he said.

“We had a real problem with that,” Kutz said. He felt the decision was contrary to 167.10, which said that seized fireworks “shall be destroyed.” (The statute has since changed to read that seized fireworks “may” be destroyed.)

Fireworks taken the next year during two seizures did get destroyed. The DNR footed the bill. It cost $1,500 to hire the Minneapolis Bomb Squad to take the fireworks to their facilities and dispose of them properly.

Stromberg said he and the DNR handled the destruction in order to “hold up their end of the stick” in fighting illegal sales.

Such an escalation in enforcement from warnings to seizures Stromberg calls fair.

But two vendors still aren’t playing fair, he says. For now, Stromberg is keeping the vendors unnamed, although they have broken fireworks law multiple times.

During the Sentinel’s search through Burnett County Court documents, two county fireworks companies’ legal histories surfaced.

One history belongs to Victory Fireworks, which has been convicted at least three times on multiple counts of selling illegally. The latest case, the appellate case that’s coming back to the county, still has to be heard at the county level.

Some Burnett County cases pertain selling to nonresidents via the waivers. Some are straight illegal sales of restricted fireworks to Wisconsin residents who don’t have permits. Restricted fireworks have more than once been seized from Victory when the county suspected illegal sales; some of that inventory has been destroyed.

Under 167.10, fireworks vendors can be charged a maximum of $1,000 for violating the law.

For its first convictions in 1994, Victory paid out $203 a piece for two counts. A 1995 case landed Victory $326 fines for each of three counts. It’s unknown whether the latest case, the 1998 appellate case, will bring about fines.

Shooting Star Fireworks, of Siren, has been convicted twice on charges of illegal sales. Three times Kutz has bargained and dismissed charges in order to get Shooting Star to plead guilty for the two convictions.

Shooting Star paid out $332 for one case. For another, it had to pay $947.

With all the convictions, Stromberg still wants to give county vendors one more chance before filing injunctions. Why, after a decade of battling, is Stromberg attempting to be generous?

A recent decision passed down by the Wisconsin Supreme Court on the Burnett County case involving Victory Fireworks could be the key. It leads Stromberg to hope the two vendors holding out will change their ways. But if they don’t, Stromberg wants to threaten them with the injunctions, in the hopes that a criminal record just might make them more willing to abide by the law.

 

The Victory Fireworks Case

Victory Fireworks tried to take its 1998 case one step further, to the Wisconsin Supreme Court. But on April 26, the court announced it refused to hear the appeal. That means the District III Appeals Court decision stands.

Washburn County Judge Eugene Harrington originally threw out the case in 1999, deeming the state fireworks statute allows the sale of proscribed fireworks to nonresidents within Wisconsin boundaries. Since the appeals court disagreed with Harrington, the case comes back to him in Burnett County.

Harrington told the Sentinel via his assistant that he cannot comment on cases before him.

According to Kutz, Harrington must schedule the case for a hearing. Victory Fireworks is still entitled to a trial.

By reversing Harrington’s order, the appellate court instructed him to again consider the case, keeping in mind the appellate judges’ opinions–that Victory has been in violation of the law by selling to nonresidents using the waiver system.

When Harrington does schedule a hearing, Kutz intends to move for summary judgment. By doing so, he’s telling the court the two sides aren’t disputing facts: Victory admits to selling to nonpermit-holding nonresidents. But Kutz challenged the legality of these sales, and the appellate court agreed with him. Therefore, the summary judgment asks the court to make a quick conviction, on the matter of the law.

Victory Fireworks owner Wayne Schulte declined the Sentinel’s offer to comment on the reversal of his case or the matter of the injunctions. Neither Stromberg nor Kutz have indicated whether Victory is a target of the injunctions.

“I don’t have any secrets,” Schulte said, but said he has fears of being misquoted or his words being misconstrued.

Schulte said he knows nothing about the matter of the injunctions.

Perhaps the injunctions will never be filed. The question remains: Will the county support them?

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