Grass burning critics seek new ruling

BOISE – Field burning opponents have asked the state’s highest court to find that the state Department of Agriculture acted capriciously when it decided there was no economically viable alternative to field burning for North Idaho grass growers.

Attorney Brad Purdy – representing the American Lung Association, the Idaho Conservation League and the anti-burning group Safe Air For Everyone – presented his case to the Idaho Supreme Court on Wednesday.

The department used biased data when it concluded in 2004 that field burning was the only option for bluegrass farmers in Idaho’s five northernmost counties, Purdy argued.

Clay Smith, representing the state Agriculture Department, said the case was essentially moot because the 2004 burning season is long gone. Agriculture Department Director Pat Takasugi issued a similar finding in 2005, and that declaration superseded the previous one, Smith said.

Neither SAFE nor the other burning opponents have filed lawsuits over the 2005 ruling, Smith told the court.

Field burning has long been a contentious issue in the region.

Bluegrass farmers say they must burn grass stubble to rid the fields of fungus and shock the crop into better production the following year. Field-burning critics contend the practice increases pollution and puts the health of local residents – especially those with respiratory problems – at risk.

The conflict is being debated on several legal fronts.

On Tuesday, a settlement was reached in another case between the farmers and those with breathing problems. Under that settlement, about 280 residents will split $600,000, but farmers will continue to torch their fields.

Two more lawsuits are pending in the 9th U.S. Circuit Court of Appeals, with oral arguments scheduled for this summer. The federal cases are seeking to rescind U.S. Environmental Protection Agency approval of state and tribal burning programs in Idaho.

In the case argued Wednesday before the Idaho Supreme Court, Purdy said Takasugi reviewed only a limited number of studies before declaring field burning the economically viable option in 2004.

Takasugi ignored studies that led Washington to ban burning and Oregon to drastically cut back on grass burning, Purdy said.

Smith said Takasugi’s finding was well reasoned. In the past, Takasugi has argued that neighboring states are geographically different from Idaho. At best, dryland grass farmers in Spokane County are breaking even, Smith said.

Besides, he told the high court, the matter is exempt from judicial review because it was simply a finding, not a department action.

“The question before the court is simply whether there’s a rational basis … for the director’s finding,” Smith said.

The Idaho Supreme Court does not generally say when it will rule on a case, with decisions sometimes coming weeks or months after oral arguments.