Court Denies Field Burning Injunction But Federal Judge Agrees Children Are Being Harmed By Smoke

A federal judge has denied a clean air group’s request to block wheat stubble burning to protect sick kids in Eastern Washington and North Idaho.

In a hearing Friday, U.S. District Judge Robert Whaley said he doesn’t have jurisdiction under the Americans With Disabilities Act to issue a restraining order against field burning.

But Whaley left the door open for Save Our Summers to file an amended complaint under the federal Clean Air Act to address the issue.

“This is a case in which the facts are compelling, and strongly favor the grant of a temporary restraining order. However, the law limits this court’s authority to do so,” he said in a written order issued after the hearing.

In a courtroom packed with clean air activists, sick kids and their parents, wheat farmers and clean air regulators, Whaley said he agrees that vulnerable children are being harmed by field burning.

“You’ve proven harm,” Whaley told SOS attorney Karen Lindholdt, citing a stack of affidavits from local doctors, air quality researchers and the parents of sick children.

”I was encouraged to have a federal judge find SOS met the main elements for a temporary restraining order - irreparable harm and public interest,” Lindholt said after the hearing.

SOS attorneys had cited the Americans With Disabilities Act in their Oct. 1 complaint seeking a temporary injunction against burning.

They argued that children in the Inland Northwest with severe asthma and cystic fibrosis are being denied access to schools and playgrounds because of smoke that sickens them every fall and spring.

“This case is about the state’s failure to protect our clients,” Lindholdt told the judge Friday.

But Judge Whaley said the ADA doesn’t “trump” the federal Clean Air Act, the law used by governments from Washington, D.C., to Olympia to regulate air pollution.

Assistant Attorney General Thomas Morrill, representing the Washington Department of Ecology, argued against a temporary restraining order.

The ADA, while important, was not intended to supersede public health laws, Morrill said. SOS’s use of the act is unprecedented and “attempts to set new standards to force Ecology to rewrite its regulations,” he said.

If the court ruled for SOS, “you’d have courts running the air pollution programs of major cities,” Morrill said.

Whaley limited the hearing to the jurisdictional issues.

Had he asked for testimony from witnesses, SOS would have called Eric Skelton, director of the Spokane County Air Pollution Control Authority.

Skelton was in court and prepared to testify that the state’s February 1999 voluntary pact with wheat farmers to curb burning over seven years is too weak and threatens public health.

SCAPCA only rarely grants wheat stubble burning permits to protect public health in the state’s second largest city, but wheat is still grown in Spokane County, Skelton said Friday.

“I was prepared to say that the amount of wheat stubble burning going on in the rest of the state is unnecessary,” Skelton said.

Two children named in the lawsuit attended the hearing. Seven-year-old Alexandria Heisel of Post Falls, who has cystic fibrosis, and 10-year-old Timothy Krautkraemer of Pullman, who suffers from asthma and severe allergies, sat quietly through the legal arguments.

After the judge’s ruling, Alexandria’s mother said she was deeply disappointed. Trina Heisel said she had to rush Alexandria out of Post Falls on Wednesday after smoke from field burning reached her school.

“She’s on steroids, and we’re not sleeping. I wish the judge had at least given us 10 days without smoke,” she said.

It’s hopeful that Judge Whaley acknowledged children are being harmed by field smoke, said Patti Gora of Pullman, Timothy’s mother. “But we are still prisoners in our own home until the burning stops,” she said.

Ecology’s top air quality official in Eastern Washington said Judge Whaley’s ruling on jurisdiction was correct.

But state officials are “also listening closely to the judge’s opinion about the affidavits from physicians” that smoke harms children, said Grant Pfeifer of Ecology’s eastern regional office.

A spokeswoman for the Washington Association of Wheat Growers said the farm group is happy with Friday’s ruling.

“We’ve been operating within the law under the Clean Air Act,” said Gretchen Borck.

The next step is for the state to file a motion to dismiss the case, and for SOS to oppose that motion, possibly expanding its arguments to include the Clean Air Act, attorneys for both sides said Friday.