Health concerns sway judge - Thomas schedules another hearing on grass burning after listening to testimony 

By MIKE McLEAN
Staff writer - Coeur D'Alene Pres

COEUR d'ALENE -- The days of field burning in North Idaho may be numbered -- at four or fewer.

District Judge Thomas Mitchell said Friday he is swayed more by health concerns of the opponents of field burning than the economic concerns of the farmers.

Although he wasn't ready to issue a temporary restraining order to prohibit the late-summer practice after a daylong hearing, he scheduled another hearing for Thursday to hear further arguments on a permanent injunction pending the outcome of a class-action lawsuit.

"I can't imagine anything more irreparable than death or loss of some part of life," Mitchell said. "I find that to have been proven."

Trina Heisel of Post Falls was among witnesses who testified that effects of field smoke can be life-threatening. She told the judge she has to flee the area with her daughter Alex for four to six weeks every summer because field smoke exacerbates the girl's cystic fibrosis and asthma.

"It has affected Alex's health in a large way," Heisel said. "It has taken years off her life."

But Mitchell said he wants to be sure that farmers aren't exempt from the underlying civil suit before he decides on an injunction.

Friday's ruling wasn't what either side had asked for, but field burning opponents came away from the hearing more hopeful than in previous unsuccessful legal maneuvers.

Laura Fowler of Post Falls, mother of an asthmatic 12-year-old girl affected by the smoke, was somewhat relieved with the ruling.

"I feel we have another shot," she said. "We have someone who is going to listen to us."

Still, she said she wasn't looking forward to telling her daughter Kaylee that farmers might begin burning fields on Monday.

"The judge made a clear statement that when you have to weigh human life and economic harm, the balance falls in favor of human life," said Patti Gora, executive director of Safe Air for Everyone. "We've been wanting to hear that for a long time. It's very gratifying."

A similar lawsuit filed by SAFE in federal court was dismissed July 19.

"This is as far as they've ever gotten," said Seattle class-action lawyer Steve Berman as he left the courtroom. "The judge was siding with us factually. The question is: Do farmers have legal immunity?"

Berman is representing several plaintiffs with breathing difficulties. He presented arguments citing nuisance and trespass laws.

But attorneys for the farmers contend the state's "Right to Farm Act" says farmers can't be sued if they practice within state and federal clean air laws.

"This is an issue for the Legislature, not the courts," said farmers' attorney Michael McNichols. "The only Idaho law available says smoke is not a nuisance."

Wayne Meyer, a Rathdrum farmer and state representative, was the last witness called in the full court day.

He said he will be out of the bluegrass business if he can't burn his fields this year.
Without burning, fields have to be replanted every three or four years to keep crop yields up.

"Most of my fields are old. I don't have any new fields," he said.

Meyer said he thought the smoke was more of an inconvenience than a health threat.
"If my daughter had cystic fibrosis, I would take her somewhere else," he said.

Judge Mitchell rejected Meyer's testimony on health.

"I find his opinions false, based on self interest, arrogant and insensitive," Mitchell said.

Meantime, if weather conditions allow, farmers can get up to four burning days in by Thursday.

Under a new Smoke Management Program, burning decisions will be made at the state level by the Idaho Department of Agriculture, but field burning coordinators on the ground will have the final word on whether to burn.

Farmers burn their fields to promote the next year's crop yield and to rid fields of pests and disease.

Farmers burned 7,000 acres last year in the Rathdrum Prairie and more than 30,000 acres on the Coeur d'Alene Indian Reservation.

Mike McLean can be reached at 664-8176, ext. 2011, or by e-mail at mmclean@cdapress.com.