Court upholds field burning ban

BOISE – A federal appeals court ruled Tuesday that field burning is illegal in Idaho under federal law, clarifying and strengthening a ruling the same court issued in January and throwing into doubt the upcoming agricultural burning season in North Idaho.

“It looks like we as grass seed farmers on the Rathdrum Prairie are out of business,” said grass seed farmer and former state legislator Wayne Meyer.

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 U.S. Circuit Court of Appeals on Tuesday 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.”

On Tuesday, 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 small percentage of such appeals.

Toni Hardesty, director of the state Department of Environmental Quality, said the state still is reviewing the decision. But she said, “Our attorneys have looked at the court case that came down initially and felt like the court was fairly clear, even though they did not use the term ‘vacate.’ … It certainly is consistent with our initial interpretation of what the court said.”

Idaho announced in February that it wouldn’t issue any permits this year for agricultural crop residue burning. “Our position has not changed,” Hardesty said. “We will be looking at this court decision and then making a decision on where to go from here.”

Meyer said growers were hopeful after the earlier EPA letter. “It’s been up and down, that’s for sure,” he said.

Spokesmen for both the U.S. Department of Justice, which represented the EPA in the case, and for Otter said Tuesday they still were reviewing the decision.

After receiving the EPA’s April 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.

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 said in a press release Tuesday. “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.”

Hardesty noted that there are two issues at stake: The short-term issue of permitting field burning in Idaho this year, and the long-term issue of whether Idaho can make a case to the EPA that it could permit and regulate future field burning without violating the federal Clean Air Act.

That process, developing and getting federal approval for a Clean Air Act implementation plan, generally takes about three years.

“We’ve had some that have taken longer than that,” Hardesty said.

Idaho’s 2005 implementation plan for field burning, which the EPA had approved, was invalidated in the initial January court ruling.

Hardesty said the DEQ is now looking into what it would take to develop a new implementation plan for field burning that would comply with the Clean Air Act.