concerns sway judge
schedules another hearing on grass burning after
listening to testimony
Staff writer - Coeur D'Alene Pres
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
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
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
"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
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.
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
"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
"I find his opinions false, based on self
interest, arrogant and insensitive,"
Meantime, if weather conditions allow, farmers
can get up to four burning days in by Thursday.
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
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 email@example.com.