SAFE asks court to clarify burn ruling

BOISE – A clean air group has asked the 9th U.S. Circuit Court of Appeals to clarify whether it meant to block field-burning in Idaho.

Safe Air For Everyone filed the motion Monday – the deadline for such motions – shortly before Idaho Gov. Butch Otter issued a press release calling for all sides in the case to suspend all litigation and come to the negotiating table.

“I guess we’ll wait and see how that plays out in court,” said Jon Hanian, press secretary for Otter. “We’re not going to speculate on what might happen, because this is a fluid situation, obviously.”

But Hanian said Otter’s offer to broker negotiations still stands. “We’re not going to let … an action that may be pending derail our effort to get all sides and parties in this thing to sit down and talk,” Hanian said. “That’s what he’s trying to do.”

Patti Gora, executive director of Safe Air For Everyone, a Sandpoint-based group started by physicians concerned about the health impacts of field-burning on their respiratory patients, said the group’s board hasn’t yet had a chance to meet and decide how to respond to the governor’s call.

“I’m sure we’ll have some kind of a response for him by Friday. What it is, I don’t know,” Gora said.

Wayne Meyer, a grass seed farmer on the Rathdrum Prairie and a former state legislator, said he’s unsure about the idea of negotiations.

“It’s a real question mark in my mind,” Meyer said. “I know what SAFE wants: They want the same program that’s operating in the state of Washington, which excludes the burning of bluegrass but still allows the burning of wheat stubble. And that, you know, in the long run, that leaves me out of the picture.”

On Jan. 30, the appeals court ruled that field burning has actually been illegal in Idaho under federal law since 1993.

After the ruling, Idaho announced that it would issue no agricultural field burning permits this year, ending field burning outside of Indian reservations, which weren’t subject to the 9th Circuit ruling.

But last week, Otter wrote to the EPA asking for clarification. On Friday, the EPA’s regional administrator, Elin Miller, responded that the EPA believes the disputed 2005 amendments remain in effect while the agency goes back and reconsiders their approval.

David Baron, an attorney with Earthjustice in Washington, D.C., who represents SAFE in the case, said the EPA essentially said “the prohibition on burning that the court said existed didn’t really exist. And we’ve asked the court to clarify in explicit terms that that’s wrong, that EPA’s wrong, that the court in fact meant what it said.”

In his petition for clarification, Baron cited numerous other legal cases to bolster his argument that the 2005 amendments had been “vacated,” and asked the court to explicitly declare that.

“EPA’s advice to the state could promote noncompliance with this court’s judgment,” the petition states, calling that “an unlawful and unjust result.”

Rick Albright, director of the office of air, waste and toxics for EPA’s Region 10, said, “Essentially we have an interpretation. They are requesting clarification as to whether that’s the right interpretation.”

Albright said the EPA hadn’t previously told the state to interpret the decision one way or another. “We got the letter from the governor last week, so we looked at the issue then,” he said.