Grass growers add litigants

Capital Press Staff Writer


COEUR D’ALENE, Idaho — In a bizarre twist, grass seed farmers in Northern Idaho who are being sued by a Seattle class action attorney have asked the judge to include more farmers in the suit.

Filed in Idaho District Court, the current suit names 76 farmers and other entities including seed conditioning companies. But in a motion filed by one of their attorneys, First District Judge John Mitchell is being asked to include another 18 growers who allegedly burned their grass fields.

One of the reasons for expanding the pool of growers goes by the legal term ‘joint and several liability.’ It means if they lose the case, any one growers named in the suit could be held responsible for all of the health damages founded, even if they burned, would be off the hook.

There may, however, be another explanation. Adding more parties to the suit could provide the opportunity to ask for the presiding judge to be replaced. Many growers feel Judge Mitchell has been biased against their cause from the beginning.

The usually loquacious Gary Baise, a Washington, D.C. attorney working on the case along with several other Northwest lawyers, wouldn’t comment on that possibility. Nor would he comment on the motion in general.

The Idaho lawsuit against grass growers was filed June 10, 2000 by Steve Berman. It came on the heels of a federal lawsuit which is currently on appeal. As part of that appeal, growers and anti-burn forces have entered into mediation. There have been two meetings so far.

Berman originally filed the suit on behalf of a list of plaintiffs, but his goal from the beginning has been to have the suit certified for class action status. Judge Mitchell is scheduled to hear arguments on the class action certification March 6.

That same day, a hearing is scheduled in Boise on four field burning bills before the legislature. Several committees are planning to convene jointly to hear testimony.

Linda Clovis, spokesman for the North Idaho Farmers Association, said the motion to include more farmers as defendants in the suit took everyone by surprise.

It appears the motion was filed to spread the risk and protect the insurance companies which are underwriting farmers’ legal costs, Clovis said. “I don’t know that this is farmer against farmer. I don’t know at this point what it is.”

Mike Schleep, one of the original farmers named in the suit, said it seems fair to include everyone who produced smoke.

Of course, he added, if it were completely fair, slash burners would be named as well as the state of Montana, where forest fires during the summer of 2000 contributed to the region’s smoke load.

Schleep said he can appreciate how farmers who felt they had dodged the lawsuit bullet must feel. It’s the same way he felt when he found himself part of the suit when he didn’t burn in 2001.

Patti Gora, spokesman for Safe Air For Everyone, an anti-burn group based in Sandpoint, Idaho, said she was surprised there were 18 additional farmers her group hadn’t identified as burners and she wondered how they slipped through the net the first time.

“We felt we did a thorough job of who burned and who didn’t,” she said, questioning whether the additional farmers might have been individuals who burned without a permit. “How did they fall through the cracks?”


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