COEUR D'ALENE, Idaho – A group of northern Idaho residents fighting the annual practice of field-burning by grass farmers today filed a second lawsuit seeking to end grass burning, this time naming the State of Idaho as the defendant. The suit, filed in Idaho State Court, will likely result in a constitutional challenge of legislation about to be passed in the Idaho legislature, and would make the state financially responsible for any damages resulting from grass burning.

House bill 391 grants Idaho grass farmers a broad exemption to trespass and nuisance laws, effectively allowing grass farmers to force Idaho residents from their homes during field-burning season while denying them any legal redress. The legislature is expected to pass the bill in the coming days, and Governor Kempthorne is expected to sign it into law.

According to Steve Berman, the attorney representing residents, the first lawsuit targeted 79 grass farmers and seed companies directly, but proposed legislation grants grass farmers a special exemption from existing laws. The new lawsuit, which raises many of the same claims, now puts the state of Idaho in the defendant?s chair.

"We contend that when the grass farmers realized they were about to be held accountable for choking hundreds of Idaho residents, they simply decided to change the law," Berman said. "Through the help of grass farmer and defendant Representative Wayne Meyer, the grass farmers passed a bill that gives them a custom-built get-out-of-jail-free card."

"We think the new law is tragically flawed, and will topple in constitutional review," Berman noted.

Berman noted that while HB 391 passed through the House and Senate, legislators received several warnings about the constitutionality of the legislation, including a warning from the Idaho attorney general. The legislators were also warned that similar laws have been overturned in other states.

"House Bill 391 represents the absolute worst in back-room lawmaking," Berman noted. "While the Governor and the grass growers have held closed-door meetings on how to force this through the legislature, the people of northern Idaho are left to wonder if their legitimate health concerns are even a consideration."

Berman noted that unrefuted medical testimony has established that persons with respiratory conditions are particularly susceptible to injury from field burning, especially those with cystic fibrosis, and is directly responsible for shortening the life expectancy of some.

According to Berman, since the legislature has granted the farmers the exemption from nuisance and trespass laws, the state has become the defendant in the case.

"Every Idaho taxpayer should be livid," said Berman. "This legislation gives a handful of grass farmers the right to poison people and deny them their property rights, but it will cost every taxpayer a great deal of money for that privilege."

This suit does not affect previously filed suits, and will continue on a parallel track to earlier class actions filed against the grass farmers.

In comments delivered to the Idaho Senate, plaintiffs' attorney Brent Walton stated, "It is our position that this [legislation] is so blatantly unconstitutional, it makes the Jim Crow laws look progressive."

The suit cites a number of cases in which the smoke causes devastating health effects, including the case of Alex H., a 10-year-old girl suffering from cystic fibrosis. According to the suit, Alex cannot tolerate even a minimal level of smoke pollution and according to medical experts, she suffers life-shortening pulmonary injury each time she breathes smoke from the burning fields.

In addition to a complete ban on field burning, the lawsuit asks the court for a medical monitoring program for those affected by the smoke, as well as monetary damages. If approved, the proposed class-action suit would include residents with medical conditions aggravated by the smoke in Kootenai, Bonner, Benewah and Spokane Counties, as well as other areas.

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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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