COEUR D'ALENE, Idaho - Northern Idaho residents fighting the practice of grass burning won a major victory yesterday when Idaho District Judge John T. Mitchell gave the go-ahead for a class-action lawsuit filed against grass growers and the state of Idaho to proceed.

The original suit was filed in June 2002 against 79 grass farmers and has since become a highly contentious issue with farmers turning to the state legislature and winning special immunity for damages caused by field burning.

The suit was filed on behalf of a group of individuals who suffer significant health effects from the smoke due to respiratory conditions. Now certified as a class, the suit represents anyone suffering from inflammatory airway conditions have lived in Bonner, Benewah, Boundary, Kootenai or Spokane counties at any time in the last three years.

"The judge's ruling is a welcome, objective voice among a chorus of hysterics by the farmers and some of the state legislature," said Steve Berman, the attorney for the plaintiffs. "The court already ruled that there is very little doubt that the field burning is hurting - even killing - northern Idaho residents. This class certification gives us what we need to give the residents access to justice."

According to Berman, the recent bill signed by Gov. Kempthorne does not affect this class action lawsuit. "The bill the state legislature passed grants the grass farmers broad immunity from poisoning the air with smoke in the future, but it doesn't cover them for past actions," he added.

Berman also noted that he thought the legislation would likely be struck down as unconstitutional. He is filing a motion challenging the new law's constitutionality with Judge Mitchell's court tomorrow. It is not known how quickly the judge will act on the motion.

"The state's own legal experts said the bill -- now law -- is tragically flawed and will topple upon constitutional review," he added. "We plan to help hasten that determination."

In the ruling granting class certification, Judge Mitchell roundly dismissed the grass farmers' objections to the motion for class certification, repeatedly noting the farmers' lack of case law to substantiate their arguments.

The suit, filed against the state of Idaho and 79 grass farmers and seed companies, calls for an immediate end to grass burning. The suit also calls for the creation of a medical monitoring and education program to protect Idaho residents confronted with grass-burning smoke every August and September.

The suit alleges that Idaho's burn policy, which allows grass-seed farmers to burn in excess of 20,000 acres every year, lags far behind other states - including neighboring Washington - which have effectively outlawed grass burning altogether.

Idaho grass-seed farmers use the burns to remove the grass-stalk residue after harvesting. Grass farmers in Washington and Oregon use other farming practices to remove grass-stalk residue while keeping the air free of pollutants.

Seeking to protect those most affected by the grass burning pollutants, the suit represents individuals with cystic fibrosis, chronic heart disease or a medically diagnosed inflammatory airwave disease such as asthma or chronic bronchitis among other conditions.

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About Hagens Berman
Hagens Berman Sobol Shapiro LLP is a consumer-rights class-action law firm with offices in nine cities. The firm has been named to the National Law Journal’s Plaintiffs’ Hot List seven times. More about the law firm and its successes can be found at www.hbsslaw.com. Follow the firm for updates and news at@ClassActionLaw.

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Ashley Klann
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