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Grass growers doubt judge's objectivity - Attorney
says he's `tired of aspersions' as burning case returns to court Spokesman-Review 9/21/02 COEUR d'ALENE -- In an increasingly hostile court battle, an attorney for grass growers questioned whether a state judge could objectively hear a field-burning case Wednesday. Mike Ramsden, an attorney for some Kentucky bluegrass growers, told 1st District Judge John Mitchell he was "tired of aspersions from this court. "Can this court give all of the parties a fair hearing?" Ramsden asked. "Within the limits of what I can say, I am worried." Ramsden's response came after Mitchell suggested the growers' attorneys had "sandbagged" him by questioning his jurisdiction in an appeal to Idaho Supreme Court -- an issue they failed to raise in earlier hearings before Mitchell. Mitchell, who tightened restrictions on field burning only to have his decision struck down by the Idaho Supreme Court last week, apologized for his statement. "This is an emotionally charged area," Mitchell said. "It is frustrating though to me, trying to do my job, to not have all the evidence presented to me." Ramsden also objected to Mitchell's characterization of one grower's comments as "arrogant and insensitive." The grower in question, Rep. Wayne Meyer, R-Rathdrum, had suggested that children sickened by the field smoke could move somewhere else. Attorneys on both sides have filed a flurry of motions and affidavits in the preliminary stages of the proposed class action, which pits clean air advocates against 76 grass growers. Seattle attorney Steve Berman, who represents eight plaintiffs suffering from a variety of respiratory problems, said the grass growers didn't complain of bias when a federal judge sided with them in a separate case earlier this summer. "They're losing, so now they're attacking the judge," Berman said. "That's poor lawyering." Wednesday's hearing came at the request of Berman, who asked Mitchell to revise his order that farmers on the Rathdrum Prairie and the Coeur d'Alene Indian Reservation bale before they burn to reduce smoke, and put up a collective $100,000 bond to pay for potential damages to the plaintiffs. The Supreme Court prohibited Mitchell from enforcing the order last week, saying he had exceeded his jurisdiction. Though the one-page ruling did not say how Mitchell overstepped his authority, attorneys from both sides questioned whether he could require the tribe -- a sovereign government entity -- to report to him. Berman argued that Mitchell could address the jurisdictional questions by simply ordering a temporary ban on all field burning. "We're not seeking an injunction against the tribe," Berman said. "If you enjoin the farmers from burning, that will give us the relief we're seeking." The Coeur d'Alene Tribe, which regulates the burning of 20,000 acres of bluegrass, has not entered into the legal battle. "We're just keeping an eye on it at this point," said Eric Bramland, a tribal attorney. Under the Supreme Court's order, Mitchell cannot revise the order until there is a full presentation of evidence, said Mike McNichols, an attorney for the growers. "The Supreme Court has restricted your honor from proceeding further because there has not been a full presentation of the evidence," he said. Berman objected to McNichols' interpretation. "If Mr. McNichols is correct, there would never ever be a preliminary injunction in the history of this state," he said. "It would prevent the courts from ever acting quickly in a case of irreparable harm." |