November 15, 2005 in Idaho

Field-burning lawsuit settles for $891,450

Betsy Z. Russell Staff writer

To file a claim

People who lived in Kootenai, Bonner, Boundary, Benewah or Spokane counties after August 1999 and had medically diagnosed breathing problems such as cystic fibrosis, asthma, emphysema or several other diseases, can download “proof of claim” forms to document their claims at, or can call (206) 268-9363. Claims must be postmarked by Dec. 30 to be considered.

BOISE – North Idaho and Spokane residents with breathing problems who suffered from Idaho field-burning smoke over the past six years are eligible for cash compensation, under a settlement that won preliminary approval in court Monday.

In the end, the $891,450 settlement with 70 North Idaho farmers won’t provide a fortune for many of the patients – those with cystic fibrosis will be eligible for up to $50,000, and those with asthma or other breathing problems can get only up to $1,000 apiece.

But attorneys who filed the class action over field-burning on the Rathdrum Prairie called the lawsuit a success.

“This case has never been about money per se,” said Seattle attorney R. Brent Walton. “It’s about trying to stop the practice of burning. It’s time for the farmers to find a new way to bring their crop to market, just as they do in Washington.”

He noted that the number of acres of bluegrass seed fields burned on the Rathdrum Prairie has declined precipitously since the case was first filed in June 2002 – even though Idaho lawmakers in 2003 passed a law protecting farmers from any such lawsuits in the future, as long as they follow state smoke-management rules.

“Approval of the … settlement provides some solace and affirms that what has transpired over the last four years has served as a powerful catalyst to changing and updating farming practices in Idaho,” Walton wrote in court documents. “Already, many grass farmers have acknowledged, at least behind the scenes, that they will not burn again.”

Grass seed farmers burn their fields to shock them into producing another year’s crop without reseeding. The practice makes bluegrass seed farming highly profitable – but when fields are burned on the prairie, winds often carry thick smoke northeast to Sandpoint and Hope, where physicians concerned about their patients’ breathing problems several years ago formed Safe Air For Everyone to push for an end to the practice.

At the same time, increasing development on the prairie has converted many farm fields to subdivisions.

Patti Gora, executive director of SAFE, said, “I’m really glad that there will finally be some justice for victims of the grass burning who’ve had to seek medical attention, who’ve had their life spans shortened, who were prisoners in their own homes. … We at SAFE are going to continue to make the case to both state and federal officials that dumping millions of pounds of toxic pollutants upon the public is bad for Idaho’s public health, it’s bad for Idaho’s businesses, and from the photos we took this year … it’s really bad for travel on Idaho roads.”

Washington phased out bluegrass burning after similar concerns surfaced there.

The case, Lawrence “Bud” Moon et al. v. North Idaho Farmers Association et al., initially resulted in a loss for the farmers as a district judge ordered field-burning stopped, but the Idaho Supreme Court overruled that order. The district court also held the 2002 “safe harbor” law for farmers unconstitutional, but that, too, was reversed by the state Supreme Court, and the U.S. Supreme Court declined to hear an appeal.

Some farmers initially said they preferred not to settle and felt they were following state law, but their insurance companies made the call, based on balancing the cost of continued litigation against the cost of settlement. In court on Monday, a group of insurance company attorneys represented the farmers.

“I think we’re fine with it – everybody’s happy,” said Coeur d’Alene attorney Jed Whitaker, who represented about 20 farmers and the Grange insurance firm. “It is what it is.”

Whitaker told retired Judge William Woodland, who’s handling the case, “We’ve been over this a thousand times, the settlement agreement. I do think it’s fair.”

Attorney Michael McNichols, who represented about five farmers insured with Farm Bureau insurance, said, “I think it’s a fair settlement.”

There’s still one defendant left that hasn’t agreed to settle – the North Idaho Farmers Association, which argued in court last summer that it didn’t burn fields, and is merely an association of farmers. Don Farley, attorney for the association, has filed a motion to dismiss the case against the association. “We’re hopeful of getting a ruling before the first part of December,” he said Monday.

The same class-action plaintiffs also have sued the state of Idaho for negligence and “taking” of private property by authorizing farmers to send smoke onto the property of others. That case is pending.

Under the settlement, the cystic fibrosis patients get more money because medical testimony showed that the smoke caused them permanent damage, while it caused temporary damage to the other patients, Walton said.

The settlement calls for the money, minus litigation and court costs of about $275,000, to be split between the cystic fibrosis patients and the other group. First priority will go to those affected by smoke from 1999 to 2002, before the passage of the “safe-harbor” bill. If there’s still money left, those affected from 2003 to this year would be considered.

Lawyers estimated in court documents that “hundreds or thousands” of patients are potentially eligible for payments. There are just under 100 cystic fibrosis sufferers in the area, many of them children. There are thousands with asthma.

By taking the payments, the patients give up all rights to sue the farmers over smoke during the years in question. Patients also have the option of “opting out” of the settlement, which would mean they’d receive no money, but would preserve their right to sue.

Walton said the $275,000 that his firm, Hagens Berman, will receive covers only direct costs of the lawsuit, such as payments to expert witnesses. The firm waived all attorney fees, he said, because “this is something that we as people and attorneys believe in.”

Claims for payments from the settlement are due by Dec. 30. The court will then hold a final approval hearing on the settlement on Jan. 31 in Coeur d’Alene.

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