Latest field burn suit in hands of judge

BOISE – A judge is considering whether Idaho may have been negligent when it allowed field burning on the Rathdrum Prairie in 2002 without sufficient warning, leaving parents unsure when to pull asthmatic kids out of school and people with breathing disorders uncertain when to travel certain roads.

People in North Idaho relied on state burn announcements “to avoid the adverse health effects of the smoke,” attorney Ivy Arai told retired District Judge William Woodland on Tuesday. But, she said, the state announcements kept changing, they weren’t specific as to where the burning would happen, and sometimes burning was approved when it shouldn’t have been.

“One of the many criticisms of the program was getting timely and accurate notification to the public on the times and locations of burns,” Arai told the court.

Idaho Deputy Attorney General Clay Smith argued that the state couldn’t be held liable – that either it had no legal duty to provide more warnings, or, if it did, it’s immune from lawsuits under an exception that covers “discretionary” government activity.

Smith also argued that under an Idaho Supreme Court ruling, the people who brought the class-action lawsuit on behalf of residents with breathing problems would have to prove that the state had a special duty to them, beyond what it had to the general public.

“The whole purpose was to try to manage air within the ambient air quality regulation and limits,” Smith said. “These … are not set with people with special sensitivities in mind,” he said, but instead are designed to “protect the general public.”

The case is an offshoot of an earlier case in which the same plaintiffs – a group of residents led by East Hope Mayor Lawrence “Bud” Moon – sued North Idaho grass seed farmers over the health effects of the smoke from the farmers’ annual late-summer field burning. That class-action lawsuit resulted in an $891,450 settlement last year, with the payments going to cystic fibrosis patients and people with asthma or other breathing problems.

The current case has the same plaintiffs, but instead of targeting farmers, it targets the state.

Originally, the case contained constitutional claims, including that the state was “taking” residents’ property value by allowing smoke to invade their property.

But those claims were dismissed, leaving just the negligence issue regarding whether Idaho adequately trained its smoke managers and adequately warned people about the burning.

Now, the state has filed a motion for summary judgment to dismiss the remaining negligence case.

On Tuesday, Woodland heard arguments from both sides on that motion, then took the case under advisement.

“I will be reviewing these matters further, and you will be hearing from me,” he told the attorneys.

The case was filed in district court in Kootenai County, but Tuesday’s hearing was held in Boise because Woodland is from Pocatello, and the attorneys are from Boise and Seattle.

A separate lawsuit against the state over field burning, filed by Sandpoint-based Safe Air For Everyone, is pending in federal court.

In 2003, the Idaho Legislature passed a law banning future nuisance lawsuits against farmers over smoke from field burning, if they burn in accordance with state regulations. But that protects only farmers – not the state.

Arai, who is with the Seattle law firm of Hagens Berman, argued in court papers that the state employed a retired schoolteacher, rather than a certified meteorologist, to predict weather and smoke dispersion patterns and make the call each day on whether to allow field burning on the Rathdrum Prairie.

She also argued that the state posted only the county where burning would occur on its Web site, rather than the specific location; that the number of acres to be burned was changed frequently throughout the day; and that the state didn’t always comply with its own regulations to post burn or no-burn calls by 7:30 a.m.

Arai said the state was aware that the smoke was causing health problems and therefore had a duty to warn people.

“Safety concerns could not be more apparent,” she told the court.