Idaho high court asked to help halt burning

Karen Dorn Steele -
Spokesman-Review Staff writer


Pocatello, Idaho - In an effort to halt this year's Idaho field-burning season, Seattle attorney Steve Berman is asking the state Supreme Court for help.

Berman asked the Idaho court Thursday to order a Pocatello judge to lift a stay in a major class-action case against bluegrass farmers so he can try to get a preliminary injunction against this year's field burning, scheduled to start in early August.

The petition, formally called a writ of mandamus, was filed Thursday on behalf of 11-year-old Alex Heisel of Post Falls, who has cystic fibrosis, and thousands of others with lung disease in North Idaho and Spokane County.

Field burning could start as early as Aug. 4, so the request is urgent, the petition says.

Petitioners "will suffer irreparable injury, perhaps even death, if field burning continues unabated," the petition says.

A Coeur d'Alene attorney for the grass growers reacted angrily to Berman's petition, aimed at 6th District Judge William Woodland's July 2 decision to stay Berman's case, Moon v. North Idaho Farmers Association.

"A writ of mandamus is improper and an insult to the judiciary of this state, including Judge Woodland," Peter Erbland said.

Erbland recently filed an affidavit in the Moon case that challenges the claim that field burning has harmed the plaintiffs.

Woodland has stayed the Moon case until the Supreme Court decides whether to hear an appeal from growers on the constitutionality of HB 391, a new law that shields them from liability for burning their fields.

First District Judge John Mitchell of Coeur d'Alene, the first judge to hear the Moon case, ruled June 4 that the "farmer shield" law is unconstitutional.

It renders citizens powerless to fight back in court and allows smoke to intrude into their homes without compensation, Mitchell ruled.

The Supreme Court hasn't decided whether it will hear the growers' appeal of Mitchell's ruling, court clerk Fred Lyons said Thursday.

Berman's new petition is likely to go before the justices at their monthly meeting sometime in August, Lyons said.

The petition asks for a quick turnaround, noting that the court took only eight days last year to deny Mitchell's field-burning injunction.

Berman has been trying since last year to get an injunction against field burning.

Last August, Mitchell granted an injunction to halt the burning, calling the practice unnecessary and harmful.

"There can be no more `irreparable' injury than death," he ruled.

Growers immediately appealed to the Idaho Supreme Court, which stayed the injunction on Sept. 12, 2002 -- permitting burning to start.

The court said Mitchell had overstepped his authority but could consider an injunction after "a full presentation of evidence and legal authorities."

Mitchell asked the court to clarify its ruling, but it denied his request.

This year, Mitchell declared the Moon case a class action, expanding the plaintiffs from six to thousands in North Idaho and Spokane County.

But Mitchell's tenure over the case was ended by a spat over third-party plaintiffs.

The July 2002 Moon lawsuit names 70 farmers and farms, but not all the growers who burned their fields in North Idaho over the past two years.

As a result, attorneys for some of the named grass growers sued additional farmers to spread the potential liability.

That gave them a chance to ask Mitchell to recuse himself, since Idaho law allows third-party defendants to oust a judge without cause.

In court documents, Berman accused the growers' attorneys of collusion in the third-party maneuver.

Although he wasn't one of the attorneys who sued other growers, Erbland said he's tired of the aspersions.

"This is a problem of their own making. They failed to name all the farmers. For them to say this is collusion is absolutely false," he said.

"The plaintiffs seem all too willing to deny the farmers' rights. If they thought this was going to be easy, they are wrong," he said.


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