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Spokane, Washington  Est. May 19, 1883
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News >  Idaho

Grass burning lawsuit finally settled

After nearly six years of legal wrangling, the battle between North Idaho grass farmers and 283 Inland Northwest residents with breathing problems came to an end Tuesday in a Coeur d’Alene courtroom.

Neither side seemed particularly satisfied.

After court costs and expenses, about $600,000 will be divided among those who say they’ve been harmed from grass smoke. A typical asthmatic will get about $1,000.

If anything, a lawsuit that the plaintiffs hoped would end field burning ended up sparking decisions that helped protect the practice.

But farmers weren’t exactly thrilled with agreeing to a payout, even if the money came from their insurance company. The settlement was seen as the quickest way to end the case, said Peter Erbland, a Coeur d’Alene lawyer who represents many of the 60 grass farmer defendants in the case.

“Insurers have decided that it’s the best thing to do,” Erbland said after the brief court hearing to approve the settlement.

Bluegrass seed farmers in North Idaho burn their fields each year to clear them. The fire also stimulates the plants into sending up another seed-bearing stalk the next season – effectively saving farmers the cost of replanting each year. Brown smoke from the fires contains several pollutants that irritate the throat and lungs.

After the case was filed in June 2002, a judge initially halted field burning and declared unconstitutional a shield law that protected farmers from lawsuits. The Idaho Supreme Court reversed the ban and restored the shield law. The U.S. Supreme Court declined to hear an appeal.

“The legal fight is essentially over,” Erbland said, adding later, “It has ended with a whimper as far as we’re concerned.”

The 51 cystic fibrosis sufferers included in the lawsuit are eligible for up to $50,000 each, depending on a detailed formula approved by retired state district Judge William Woodland. But the group will have to divvy up half of the roughly $600,000 settlement; this averages out to about $6,000 per person with the chronic lung condition. The other half of the settlement will go to 232 asthmatics and others harmed by smoke. Only residents of Spokane County and Idaho’s five northern counties were eligible to join the class action suit.

Hagens Berman, the Seattle law firm that brought the case, will collect roughly $250,000. Attorney Steve Berman previously stated the firm was waiving its normal fees and that the money will be used to cover the case’s extensive court costs, including hiring medical experts. A representative of the defense team said 61,000 pages of documents were generated during the case.

Only one victim appeared to be in the courtroom gallery Tuesday. Alex Heisel, a 14-year-old Post Falls resident with cystic fibrosis, and her father had mixed emotions about the settlement.

“We’re not jumping around for joy,” Jim Heisel said. “We didn’t stop field burning and that was our ultimate goal. … But with the new laws, it’s almost all we can hope for.”

Heisel said his daughter, whose share of the settlement has yet to be determined, must leave the area for days at a time during the late summer burning season. Every breath of smoky air exacerbates her condition, he said.

“We accommodate field burning as opposed to them accommodating us,” Jim Heisel said. “We can’t continue to do things that hurt people, even if it’s what our dads did.”

People often ask him why the family stays in North Idaho. Heisel said his daughter’s doctor, Mike McCarthy, is one of the best in the world for treating cystic fibrosis. The family also has deep roots in the area. Apart from the relatively brief burning season, the air in the Inland Northwest is ideal for those with bad lungs, Heisel said.

“We’re dug in,” he said.

Heisel’s daughter didn’t have much to say about the court proceeding. “A lot of big words,” she said, her breaths betraying a slight raspiness. After thinking for a few moments about the long legal fight against field burning, she added, “Well, it didn’t stop it. I can’t do anything about that.”

Field burning opponents now have their hopes hinging on two lawsuits pending in the 9th U.S. Circuit Court of Appeals. The federal cases are seeking to rescind the Environmental Protection Agency’s approval of state and tribal burning programs in Idaho. Oral arguments are scheduled for summer.

Patti Gora, director of Safe Air For Everyone, one of the groups that filed the federal lawsuits, said the fight against field burning will continue.

“We’re committed to keep working on this until not one more person needs to be hospitalized,” Gora said outside the courtroom. “A lot of people continue to be hurt by this practice.”

She said her 16-year-old son, who suffers from asthma, has broken “every blood vessel in his eyes” from breathing and coughing during burning season. But Gora lives in Pullman, outside the area eligible for joining the suit.

Erbland called the federal challenges “desperate measures.” He said the practice of field burning will not be settled by a judge.

The region’s real estate gold rush is prompting grass fields to be turned into housing developments. The trend eventually might put an end to smoke, but it also means an end to green open spaces, farmers say.

Erbland also said housing developments and businesses could pollute the massive drinking water aquifer under the Rathdrum Prairie.

Rather than be criticized, grass farmers “should be protected and they should be lauded,” he said. “There will be a day when people will regret not having stood up for their neighbors.”

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