Current weather:  60° F   mostly clear

sponsored by:

Court: No Idaho field-burning this year

By Betsy Z. Russell
Staff writer
May 29, 2007

A federal court ruled today that field-burning is illegal in Idaho under federal law, clarifying and strengthening a ruling the same court issued in January and once again throwing into doubt the on-again, off-again upcoming agricultural burning season in North Idaho.

Grass seed farmers on the Rathdrum Prairie burn their fields each summer to prompt a new crop without replanting. People with respiratory problems have complained about the health effects of the smoke, and the issue has resulted in multiple lawsuits.

The 9th Circuit U.S. Court of Appeals granted a petition for clarification from Safe Air For Everyone, a clean-air group, after the U.S. Environmental Protection Agency contended that the January ruling shouldn’t stop Idaho from continuing to issue field-burning permits this year. The state of Idaho initially interpreted the January decision as stopping all field-burning in Idaho outside of Indian reservations, which weren’t covered by the ruling, and announced that the state would issue no field-burning permits this year.

But then Idaho’s congressional delegation contacted the EPA in late April, pressuring the agency to tell Idaho it could continue to allow field-burning while rules are re-examined.

A day later, the EPA sent a letter to Idaho Gov. Butch Otter offering the opinion that Idaho could continue to allow burning because the 9th Circuit decision didn’t come right out and say it “vacated” a previous EPA approval of field-burning in 2005. The decision did say that the EPA’s 2005 approval was “legally unsustainable.”

This morning, the 9th Circuit granted SAFE’s petition for clarification and amended its January ruling. The amendments included adding the word “vacate” or “vacated” four times in the original ruling. The court also noted, “No further petitions for rehearing or rehearing en banc will be accepted.” That means that’s the end of this case, unless it’s successfully appealed to the U.S. Supreme Court, which takes up only a tiny percentage of such appeals.

“It’s been up and down, that’s for sure,” said grass seed farmer and former state legislator Wayne Meyer. “It looks like we as grass seed farmers on the Rathdrum Prairie are out of business. … It’s kind of disappointing for me.”

State and federal officials couldn’t immediately be reached for comment, nor could Gov. Butch Otter. After receiving the EPA’s letter, Otter on May 1 called on all sides to drop all litigation and negotiate the issue, but his call came just hours after SAFE had filed its petition with the court. All sides, including SAFE, agreed to talks, but SAFE declined to withdraw its pending petition.

SAFE was started by Sandpoint physicians concerned about the effects of field smoke on their respiratory patients. When the group filed its petition for clarification on May 1, its Washington, D.C. attorney, David Baron, said the petition “asked the court to clarify in explicit terms … that the court in fact meant what it said.”

The ruling affects all open burning of agricultural crop residue in Idaho outside tribal reservations, including the burning of wheat stubble in north-central Idaho.

“As a practical matter, SAFE believes the result of this decision will be that no field burning will be permitted at least this year, and perhaps for a substantial period of time after that, if ever, on state-regulated lands,” SAFE Executive Director Patti Gora wrote in a press release issued at noon today. “SAFE had previously agreed to meet with the EPA, the state of Idaho, and the growers under the auspices of Gov. Otter, and SAFE remains willing to meet and discuss an agreeable method of dealing with the court’s ruling.”

back to top