Judges say grass straw is not solid waste

SANDPOINT — A federal appeals court panel Thursday rejected claims by health advocates that grass-seed straw is solid waste subject to federal regulation.

It was a setback for North Idaho opponents of field burning, who had hoped to use federal disposal regulations to curtail the practice seed growers use to improve production prospects.

The majority on the three-judge panel of the 9th U.S. Circuit Court of Appeals ruled the straw is used in the process of Kentucky bluegrass seed production and therefore does not qualify under disposal laws enforced by the Environmental Protection Agency.

The 2-1 decision from the San Francisco-based federal court upheld U.S. District Judge Edward Lodge’s dismissal of a petition from the anti-burning group Safe Air For Everyone to prohibit field burning in 2002.

While the court said Lodge made a mistake in ruling he did not have jurisdiction over the issue, the majority said throwing the petition out was still the right call because the group failed to disprove grower claims that the straw left after the seed is harvested is clearly part of the production process.

“There is no dispute that the growers realize farming benefits from reusing grass residue in the process of open burning,” Judge Ronald Gould wrote for himself and Judge Kim Wardlaw. “There is no genuine issue of material fact as to whether grass residue is ‘discarded material.’ It is not.”

Without that classification, the panel ruled the residue cannot be considered waste under federal law.

Farmers maintained in their arguments to the court that the straw contains nutrients that help revitalize the soil when they filter into the earth after burning. They also claimed burning kills pests and fungus that would otherwise require chemical control, and the blackened soil increases sunlight absorption that improves yields.

Judge Richard Paez was the lone dissenter, arguing field burning critics made enough of a case that the straw is discarded material to justify a trial.

Safe Air for Everyone Director Patti Gora said the group may ask for a full 11-judge panel of the court to review the case based on Paez’s dissent.

Gary Baise, the attorney representing 75 individuals and corporations involved in grass-seed production in the Panhandle, called any decision in his favor a good one.

“It’s a very powerful opinion on the farmers’ behalf,” he said, despite the dissent.

Growers and anti-burning forces are also locked in a state court battle over field burning. They are awaiting a ruling from the state Supreme Court on the validity of a 2003 state law legalizing the practice.