Court affirms law shielding field burners

BOISE – Idaho’s Supreme Court upheld on Monday a controversial law that protects farmers who burn their fields from lawsuits over the resulting smoke.

In a 4-1 decision, the justices overturned a District Court ruling that found the law unconstitutional on multiple grounds.

North Idaho farmers “are all pretty excited” about the court victory, said Linda Clovis, director of the North Idaho Farmers Association.

“We’ve been fighting this for so long – this is an absolutely wonderful breath of fresh air,” said Paul Stearns, a farmer near Rockford, Wash., who grows bluegrass and other crops in Idaho and Washington.

But Steve Berman, the class-action attorney who argued the case against the law, said the fight isn’t over, saying he plans both to appeal to the U.S. Supreme Court and file a new lawsuit in federal court.

“This decision is absolutely shocking,” Berman said. “It goes against 100 years of U.S. Supreme Court precedent.”

Patti Gora, executive director of Safe Air For Everyone, a Sandpoint group that opposes Rathdrum Prairie field-burning on health grounds, said she found the decision “appalling.”

“Clearly we’re disappointed that the courts are placing the profits of about 100 people above the public health interest of nearly half a million who breathe in this airshed,” she said.

Justice Roger Burdick, writing for the majority, said banning neighbors from suing for trespass or nuisance when thick smoke flows onto their property from burning fields doesn’t equal an unpaid “taking” of their property rights. “The mere interruption of the use of one’s property, as it is less than a permanent, complete deprivation, does not mandate compensation,” Burdick wrote.

The justices also decided that the law, known as House Bill 391 when it was passed in 2003, didn’t violate the public interest and wasn’t an unconstitutional “local or special” law.

In a sharp dissent, Justice Wayne Kidwell disagreed. “The majority opinion has misinterpreted and misapplied the Idaho Constitution,” Kidwell wrote. He said the law was a “local or special” law because it protected only farmers in the state’s 10 northernmost counties. They are the only ones who must comply with smoke-management rules including advance registration of their fields. Under the law, farmers who comply with those smoke-management rules can’t be sued over their field-burning smoke.

“It seems clear,” Kidwell wrote, “…that the statute does not apply equally to all areas of the state.” Kidwell wrote that he found the local and special law argument so compelling that he didn’t even need to examine the other two constitutional issues.

State Sen. Shawn Keough, R-Sandpoint, said she agreed with Kidwell. “I thought it was unconstitutional,” she said. “The bill was a blatant attempt to protect the farmers, without any regard to those that suffered from the smoke, and that’s why I opposed it.”

But state Rep. Wayne Meyer, R-Rathdrum, a bluegrass farmer who supported the bill, said, “I’m tickled to death. It sure takes a load off the farmers’ backs.”

Meyer added, “It’s actually changed one of my brothers’ mind on what he was going to do. He wasn’t going to burn, but now that this has happened, he says, ‘I’m going to go ahead and burn.’ “

Meyer said his brother farms about 900 acres of bluegrass seed that could be burned this summer.

Meyer, a five-term lawmaker and committee chairman, lost his re-election bid in the May Republican primary, and field burning was among the issues that divided the candidates. The primary victor, Phil Hart, opposed the practice.

“I wouldn’t be surprised if there isn’t some kind of legislation put forward this year to ban field burning,” Meyer said. But he said he wouldn’t expect such legislation to succeed. “There are just too many legislators that have that farm background,” he said, and the GOP-controlled Legislature has been vigilant about protecting farming practices. “I just don’t see it getting anywhere.”

Keough agreed. “There’s a recognition that anything that’s perceived as anti-farmer won’t go anywhere,” she said. “I have been and continue to be supportive of farming and agriculture, and I recognize fire is a tool. But my district continues to be the dumping ground for the smoke, and that is patently unfair. So I’ll continue to try to defend my district.”

Rathdrum Prairie field burning tends to send smoke north to Bonner County and beyond, which has aroused strong feelings between the two regions. Residents have complained about health problems from breathing the smoke, which has been tied to several deaths; and also about damage to their late-summer tourist industry.

But Keough said she expects field burning to be a diminishing issue in North Idaho, as more prairie acres are eaten up by subdivisions and increasing populations object to the smoke.

Meyer agreed. “The development pressure now will push this issue on the Rathdrum Prairie more than anything else,” he said. “I’ve had offers this summer. … I’ve always thought that the open space of the prairie is part of the reason that people move here. It’s not just the lakes and the mountains. Ten, 15 minutes you’re out of town, and you’re in the country.”

Stearns said he quit growing bluegrass on his fields in southern Spokane County after the Washington Department of Ecology, citing public health concerns, phased out field burning there by 1999. Without burning, Stearns said his yields dropped to a third of what they had been.

Stearns, who still grows 800 acres of bluegrass in southern Kootenai County on the Coeur d’Alene Indian Reservation, said farmers in Idaho have been complying with new rules designed to disperse their smoke. “In spite of what our opponents say, we actually do care about what people say about us, and we care about the potential (health) effects of smoke,” he said.