Petition for Writ of Certiorari — Moon v. North Idaho Farmers Ass'n

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Supreme Court, U.S.

FILED

4-594 NOV 1-204

)

OFFICE OF THE CLERK

No. 04-

IN THE

Supreme Court of the United States

LAWRENCE (BUD) MOON, JR., et ai.,

Petitioners,

NORTH IDAHO FARMERS ASSOCIATION, et ai.,

Respondents.

On PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME Court OF IDAHO

PETITION FOR A WRIT OF CERTIORARI

STEVE W. BERMAN

Counsel of Record

ERIN K. Flory

R. BRENT WALTON

HAGENS BERMAN LLP

1301 Fifth Avenue

Suite 2900

Seattle, WA 98101

(206) 623-7292

PuiLip H. GoRDON

GorDON Law OFFICES

623 West Hays Street

Boise, ID 83702

(208) 345-7100

Attorneys for Petitioners

190666

COUNSEL PRESS

(800) 274-3321 * (800) 359-6859

QUESTION PRESENTED

1. Defendants are Kentucky Bluegrass farmers in

Northern Idaho who, for two months every year, burn their

grass fields after harvest, producing thick plumes of smoke

that choke and sicken Plaintiffs and thousands of class

members who live in the area, forcing many of them to

confine themselves inside or flee their properties altogether.

Plaintiffs sued Defendants in Idaho state court for their

injuries based on Defendants’ invasions of their properties.

During the course of the litigation, the State of Idaho passed

Idaho Code § 22-4803A(6), which immunizes Defendants

from any liability to Plaintiffs for these property invasions,

leaving them free to interfere with Plaintiffs’ property rights.

On review, the Idaho Supreme Court found that I.C. § 22-

4803 A(6) did not violate the Fifth Amendment to the United

States Constitution. Did this ruling affect a fundamental

property right protected by the Constitution and did it conflict

with rulings from this Court and various state supreme

courts?

2. Under these same circumstances, the Idaho Supreme

Court held that a state-sanctioned physical invasion of a home

that renders the home uninhabitable for some and interferes

with use and enjoyment for many others is not a physical

taking. Does that holding directly conflict with this Court’s

holdings in Kaiser Aetna v. United States, 444 U.S. 164,

179-80 (1979), which held that any servitude or easement

imposed on private property necessarily constitutes “an actual

physical invasion of the privately owned” home?

3. This Court has held that the “great principle of the

common law which is equally the teaching of Christian

morality, to use one’s property as not to injure others,” forbids

a government from granting immunity to any private person

for invading the property rights of another. Baltimore &

Potomac R.R. Co. v. Fifth Baptist Church, 108 U.S. 317,

331 (1883). Does the Idaho Supreme Court decision conflict

with that ruling?

ill

PARTIES TO THE PROCEEDING

This Petition is filed on behalf of plaintiffs (petitioners)

Lawrence (Bud) Moon, Jr., individually and on behalf of all

others similarly situated; Alex Heisel, by and through her

parents and guardians Trina Heisel and James Heisel; Kaley

Fowler, by and through her parent and guardian, Laura

Fowler; Jeanne Wolcott; Jerry Vickers; and Bruce Charles

Rothermel.

The defendants (respondents) are North Idaho Farmers

Association; Wayne Meyer; William Dole; Michael Dole;

Warren Dole; Jacquot Farms Enterprises, Inc.; Satchwell

Farms, Inc.; Wallace Meyer; Terrell K. Baune; Baune Farms,

Inc.; Pau! Deshiell; Arnold Brincken; Keith Daman; Paul

Daman; Denny Bros., L.L.C.; Chad Denny; Matthew

Drechsel; Drechsel Brothers, Inc.; Dennis Duncan; David

Duncan; Chris Duncan; Joyce Duncan; Randy Duncan; David

Fish; Thomas Freeburg; David Gumm; Charles A. Hahner;

Hahner Farms, Inc.; Larry Hansen; Joyce Hansen; Martin

Hanson; Hatter Creek Farms, Inc.; Don Hay; Clarence Haeg;

Randy Holt; Duane Jenneskens; Cindy Jenneskens; Dale R.

Johnson; Ted Lacy; Phillip Lampert; Nick Lawson; Casey

Lawson; Allen Lewis; Maple Leaf Farm, Inc.; Herbert W.

Millhorn; Millhorn Farms, Inc.; Bruce Mills; Richard

Morrison; Elmer Ness; Chris R. Ramsey; Michael Roecks;

Rogada Farms, Inc.; John Schultz; Karl Schultz; Tammy

Schultz; Ron Tee; Alan Thomas; Windy Hill Farm, Inc.;

Todd E. Wright; Gary Wright; Wrights, Inc.; Wade McLean;

Doug Bruce; Michael Schlepp; Gary French; Lampert Farm

Ranch, Inc.; Earl Clausen; Michael La Shaw; Catherine

Morris; Terry Nichols; Eugene Towne; Jeff Bloomsburg;

Brian La Shaw; Joe Sievers; Bergen Bothman; Schlepp

Ranch; Clausen Farms, Inc.; Larry Heaton; David Lampert;

Eric Larson and the State of Idaho.

On May 27, 2003 a Third Party Complaint was filed in

the District Court of the First Judicial District of the State of

Idaho, in and for the County of Kootenai. The Third Party

Complaint named the above listed plaintiffs and defendants

and also set forth the following parties.

The third-party plaintiffs are Lampert Farm & Ranch,

Inc.; Earl Clausen; Michael La Shaw; Catherine Morris; Terry

Nichols; Eugene Towne; Jeff Bloomsburg; Brian La Shaw;

Larry Heaton; Joe Sievers; G. Wade McLean; Doug Bruce;

Michael Schlepp; and Gary French.

The third-party defendants are Tim Freeburg and Michael

Freeburg; Henry Bentz; Chester Franz, d/b/a Double F.

Ranch; Michael Hemken; Hemken Farms, Inc.; Terry Jacklin;

Walter Meyer; Sherry Claus, as personal representative of

the Estate of John Carter; Gary Johnson, d/b/a D&G F arms;

Daman Brothers Partnership; Gary Dreshel, d/b/a Dreshel

Brothers; Jim Fischer; Ford Gumm; Alvin Haas; Haas Farms

General Partnership; Francis Hughes; J.R. Simplot Company,

d/b/a Jacklin Seed-Simplot; Rodney Jacquot; Ted Lacy, d/b/

a Lacy Farm Enterprises; Thelma McClellan; as personal

representative of the Estate of L.E. McClellan; William

Mellick; Walter Meyer; Glen Miles; Morrfarms, Inc.; Heaton

Farms Partnership; KSH Partnership; and Gerald Holt d/b/a

Rockcreek.

All of the third-party plaintiffs and defendants are being

served as respondents herein.

RULE 29.6 STATEMENT

Pursuant to Supreme Court Rule 29.6, Petitioners hereby

state that they are individuals and thus have no corporate

parents or subsidiaries.

TABLE OF CONTENTS

Page

QUESTION PRESENTED .............-00000- 4

PARTIES TO THE PROCEEDING ............. iii

RULE 29.6 STATEMENT .............000005. iv

TABLE OF CONTENTS ..............--00000- V

TABLE OF CITED AUTHORITIES ............ vii

TABLE OF APPENDICES ...............000-- xii -

OPINIONS BELOW ..................00eeeee 1

FURIMCTOON ie a ee 1

PERTINENT STATUTORY PROVISIONS ....... 1

_ STATEMENT OF THE CASE ................- 2

A. The Trial Court Found That Defendants’ Field

Burning Irreparably Harms Plaintiffs ...... 3

B. The Idaho Legislature Enacts I.C. § 22-

4803A(6) to Immunize the Defendants From

Lasbelity tn This ActiOR.« «osc 000c25d5 wes 7

C. The District Court Strikes I.C. § 22-4803A(6)

As Uncomsttmnel ss. css ods sa ce ee 9

D. The Idaho Supreme Court Reverses And Finds

LC. § 22-4803A(6) Constitutional ........ 12

Contents

Page

REASONS FOR GRANTING THE PETITION ... 13

A. The Idaho Supreme Court Decided an

Important Question Under the United States

COMMON ok cciccncensdsuveteaeeum 13

B. By Affirming I.C. § 22-4803A(6), The Idaho

Supreme Court Decided The Constitutional

Question Contrary to Other State Supreme

CARD oc vdicnecscctseunseeleeeeee 21

Oe Pre rr ey 29

vil

TABLE OF CITEDAUTHORITIES

CASES

Baltimore & Potomac R.R. Co. v. Fifth

Baptist Church,

SOW GLE. BEF CUED aoc cvicscscececseesnves

Beatty v. United States,

Bae F. GRO CGC, EGET) ic ccctcccesevsencia

Boomer vy. Atlantic Cement Co.,

rape 8 Gas 1. ke rs ee

Bormann v. Board of-Supervisors,

584 N.W.2d 309 (Iowa 1998) ................

Brown y. Legal Foundation,

SSS US. FIG CGD ox eo scsesiaciicoccvcsss

Buchanan y. Simplot Feeders Ltd. P ship,

952 P.2d 610 (Wash. Sup. Ct. 1998) ..........

Chicago, B. & Q. R. Co. v. City of Chicago,

SOS UE, Bee a svn vas cc¥edacsescsbues

Dickman v. Commissioner,

GS Gs SUED occ cee pewecentsevatens

Eaton v. B. C. & M. R.R.,

bt Se fl oe Pewee rerrr ere re

Gay v. Taylor,

19 Pa. DB. AC. 38 Ca: Ci Ch. SSE ok cst ccca

Page

passim

vill

Cited Authorities

Page

Gilpin v. Sierra Nevada Consol. Mining Co.,

23 P. 547 (Idaho Sup. Ct. 1890) .............. 7

Hughes v. State,

328 P.2d 397 (Idaho Sup. Ct. 1958) ........... 14

Jordan v. Canton,

265 A.2d 96 (Me. Sup. Ct. 1970) ............. 14

Kaiser Aetna v. United States,

ee A Te 6 ok so 34 5.0408 a ae ae passim

Lorenzi v. Star Market Co..,

115 P. 490 (Idaho Sup. Ct. 1911) ............. 25

Lucas v. South Carolina Coastal Council,

ee RL | ee rrr en 19, 20

Martin v. Port of Seattie,

391 P.2d 540 (Wash. Sup. Ct. 1964) .......... 16

McMoran v. State,

345 P.2d 598 (Wash. Sup. Ct. 1959) .......... 14

Moon v. North Idaho Farmers Ass’n,

Pe eT GOED 6 ox ccd anc nace ccbusieasad l

Pennsylvania R. Co. v. Angel,

7 A. 432 (NS. ©. App. 1666) 2... cc eccees pt ee ae

Phelps v. Board of Supervisors of County

of Muscatine,

211 N.W.2d 274 (Iowa 1973) ................ 22

Cited Authorities

Page

Portsmouth Harbor Land & Hotel Co. v.

United States,

PP Ri, AT CEUEAD 6:55 50h inane 2h dst a seen 16

PruneYard Shopping Ctr. v. Robins,

EP Cie PTD 5.6 hod Wah eae ip eens 16, 17

Quintain Dev. v. Columbia Natural Res.,

550 Bide SS TW. VO BOE) acc cs ccercneces: 17

Richards v. Washington Terminal Co.,

pen gies Oo Tt) re. ee ere re 13, 24, 27, 28

Tahoe-Sierra Pres. Council, Inc. v. Tahoe

Reg’! Planning Agency,

BaF Ue: FOE CHD bc ck ic ce dne cesar dans 19, 20, 21

Tibbs v. City of Sandpoint,

603 P.2d 1001 (Idaho Sup. Ct. 1979) .......... 16

Tiegs v. Watts,

954 P.2d 877 (Wash. Sup. Ct. 1998) .......... 25

Toledo Disposal Co. v. Ohio,

106 N.E. 6 (Ohio Sup. Ct. 1914) ............. 25

United States v. Causby,

328 U.S. 256 (1946) ....... iva ees OF 14, 16, 17, 21

United States v. Dickinson,

ees Me go. 7) nner iain rrr 10

Cited Authorities

Page

United States v. General Motors Corp.,

Fae as BTR EEE oa dS eee ee 14

Webb's Fabulous Pharmacies, Inc. v. Beckwith,

WEF Li. AIO CREE Sek eed adda e ene aeeens 17, 18, 19

UNITED STATES CONSTITUTION

Paani re cn ce do ua anes ce eeee passim

Fourteenth Amendment ..................0e00. I, 13

STATUTES

ro fie Side Gry. Seren ery eee ancora eu l

ee I, i eae ee ae aes ]

Idaho Code § 22-4803A(6) .................... passim

RULES

Si Ss ae POE Scat ess nceaneakeeede 13

oe ee ee) errr ]

AS Gs Sas Dc BD 2S ncn cack en dans dees ]

niacin risers oN Mced AS dads tA ING Pe Nom oe

Ki hi Wti SAD A oe OND setae BSE PAIR LAS eae

MISCELLANEOUS

Page

66 C.J.S. Nuisances § 7 (1950) ........2.5.56.. 22

BLack’s Law Dictionary 527 (7th ed. 1999) ....... 11,17

RESTATEMENT (THIRD) Property § 1.2(1) (2000) ... 1]

RESTATEMENT OF THE Law oF Property § 451 ...11, 12, 17

| ee) So rrr rn rr ore rer 9

Xii

TABLE OFAPPENDICES

Appendix A — Opinion Of The Supreme Court Of

The State Of Idaho Filed August 2, 2004 ......

Appendix B — Memorandum Decision And Order

Granting Plaintiffs? Motion To Declare HB 391

Unconstitutional Of The District Court Of The First

Judicial District Of The State Of Idaho In And For

The County Of Kootenai Dated And Filed June 4,

Sisk a Panic udu oka hh bled o kee ae eae as

Appendix C — Order Granting Plaintiffs’ Motion For

Class Certification Of The District Court Of The

First Judicial District Of The State Of Idaho In And

For The County Of Kootenai Filed April 28,

ck Pea Kiss 6 KOR RE eae ee

Appendix D — Memorandum Opinion And Order

Granting Plaintiffs’ Motion For Preliminary

Injunction Dated And Filed August 30, 2002 ...

Appendix E — Memorandum Opinion And Order

Denying Defendants’ Motions To Dismiss Of The

District Court Of The First Judicial District Of The

State Of Idaho In And For The County Of Kootenai

Dated And Filed August 19, 2002 ............

Appendix F — Order Granting Petition For Writ Of

Prohibition Of The Supreme Court Of Idaho Dated

ANN 1 A, Be oa ea Snes ch eee

Appendix G— Pictures ...........cccsnsenses

Page

35a

92a

118a

15la

PETITION FOR A WRIT OF CERTIORARI

Plaintiffs respectfully petition for a writ of certiorari to

review the judgment of the Supreme Court of the State of Idaho

in this case.

OPINIONS BELOW

The opinion of the Idaho Supreme Court is reprinted at

Appendix (“App.”) la-34a, and was reported at 96 P.3d 637

(2004), as Moon v. North Idaho Farmers Ass’n. Four opinions

of the Idaho District Court, which contain relevant findings of

fact, are reprinted at App. 35a-194a.

JURISDICTION

The Idaho Supreme Court entered its decision on

August 2, 2004. The jurisdiction of this Court is invoked under

28 U.S.C. § 1257(a).

Pursuant to Supreme Court Rules 14(1)(e)(v) and 29(4)(c),

Petitioners state that the constitutionality of an Idaho California

state statute is at issue in their Petition and, thus, 28 U.S.C.

§ 2403(b) may apply. Plaintiffs below notified the Attorney

General of the State of Idaho that they challenged the

constitutionality of an Idaho state statute and the Attorney

General responded by submitting amici briefs supporting

Petitioners to the Idaho District Court and supreme court in this

litigation. .

PERTINENT STATUTORY PROVISIONS

The Fifth Amendment to the U.S. Constitution provides

that “no person shall be. . . deprived of life, liberty, or property

without due process of law; nor shall private property be taken

for public use, without just compensation.” The Fourteenth

Amendment to the U.S. Constitution prohibits any state from

“depriving any person of life, liberty, or property without due

process of law,” thereby making the Fifth Amendment applicable

to the states and their political subdivisions.

Idaho Code § 22-4803A(6), provides:

Crop residue burning conducted in accordance

with section 22-4803 Idaho Code, shall not constitute

a private or public nuisance or constitute a trespass.

Nothing in this chapter shall be construed to create

a private cause of action against any person who

engages in or allows crop residue burning of a field

or fields required to be registered pursuant to section

22-4803(3), Idaho Code, provided such activities are

conducted in accordance with chapter 48, title 22,

Idaho Code, and rules promulgated thereunder.

STATEMENT OF THE CASE

Petitioners respectfully suggest that the Idaho Supreme

Court’s decision in this case so radically departs from this Court’s

teachings and from that of other states as to warrant the grant of

certiorari.

This case arises because of the irreparable harm that

Defendants/Respondents, farmers who grow Kentucky bluegrass

in north Idaho who torch their grass fields after they harvest the

grass seed, annually inflict upon a certified class of thousands!

of chronically ill and disabled people in order to increase profits

in their commercial endeavor. The smoke that rises from these

fields creates dense, dark plumes that envelope and invade the

class members’ homes, aggravate their underlying diseases,

substantially endanger their lives in some cases, interfere with

the use and enjoyment of their property, and ultimately either

forcibly evict or imprison countless Idaho and Washington

citizens throughout the August and September field-burning

season:

1. The Idaho District Court certified the class on April 28, 2003.

The class consists of several thousand and perhaps more than 10,000

people.

The trial court entered factual findings that the Defendants’

conduct inflicted a serious injury upon the property and personal

rights of Plaintiffs and class members. Thereafter, while the case

was pending, lead defendant Wayne Meyer, who is also an

Idaho state legislator, succeeded in urging the State of Idaho

to pass a law that immunizes him and the rest of the

Defendants from liability for the injuries they cause to

Plaintiffs and class members. The trial court tossed out the

law as violating the U.S. and Idaho constitutions. The Idaho

Supreme Court accepted interlocutory review reversed. The

court acknowledged the law’s harsh consequence to Plaintiffs:

This immunity thus entitles the grass farmers to

invade the property of the plaintiffs’ with the smoke

from their burning fields, while preventing the

plaintiff landowners from full possession, use, and

quiet enjoyment of their land and denying them a

remedy from the invasion from the farmers’ smoke.

App. at 15a.

The court nonetheless ruled that I.C. § 22-4803A(6) did not

uncons‘itutionally deprive Plaintiffs and the class of property

rights.

A. The Trial Court Found That Defendants’ Field Burning

Irreparably Harms Plaintiffs

Plaintiffs filed suit in Idaho District Court on June 10, 2002,

principally to protect their property rights and to stop the choking

smoke plumes from Defendants’ post-harvest bluegrass field

burning from trespassing into their homes and across their lands

and to abate the nuisance created by the Defendants’ smoke.

App. at 11la-112a. Plaintiffs filed a motion for a preliminary

injunction in July 2002. That motion contained over 100

affidavits and declarations in support of the motion, including

testimony from north Idaho’s leading pulmonologists who treat

class members every August and September because of the

Defendants’ conduct. It included testimony from the class

members themselves who are imprisoned in or evicted from

their homes; testimony from agricultural experts who explained

that field burning is not necessary to grow Kentucky bluegrass

in north Idaho; and testimony showing that bluegrass seed is a

thriving business in Oregon and Washington without burning.

In August 2002, the Idaho District Court held a two-day

evidentiary hearing to determine whether a preliminary

injunction should issue. The court heard from medical experts,

State officials from Washington and Idaho, medical experts, class

members, and grass farmers. After hearing and weighing the

evidence presented, the District Court issued findings of fact

and conclusions of law in two orders. These findings of fact

frame the issues here.

— SS ee

First, based on the testimony and thousands of pages of

documents submitted at the hearing, the District Court issued

an injunction against further grass burning. App. at 135a-139a.

Significantly, the District Court found that the essential facts

“are not really in dispute.” App. at 131a. Further, the court found

and explained:

=a Gates, hap ena teddies ys

ee ares Oe ere

Clearly the farmers’ burning of grass seed residue

causes smoke. That smoke causes these citizen

plaintiffs to have increased medical problems, some

very serious, which in turn causes some of them to

hole up in their homes or to leave the area

completely during the period of burning.

~ The medical testimony by Dr. Strimas and Dr.

Covelli is corroborated by . . . Dr. David P. York and

Dr. Timothy E. Bruya (both board certified

pulmonologists in the immediate area). Also, the

opinion that particulate matter from agricultural field

burning increases the incidence of respiratory disease

and cardiac disease, has been expressed by 87

Kootenai County physicians of various specialties,

... and by 28 Bonner County physicians. . . . Their

opinions are contradicted only by Dr. Moogavkar, a

— ws

ee pee

professor of epidemiology at the University of

Washington, who testified there is no

epidemiological or statistical evidence, based on a

large population, as to the effects of field burning

and health problems. But even Dr. Moogavkar

admitted that “there is no doubt there are some

individuals who are legitimately distressed” due to

the smoke from grass field burning. That

epidemiological evidence is given little weight by

this Court compared to the testimony and affidavits

of the physicians who actually treat people having

respiratory problems during the field burning season.

That “clinical evidence” (as opposed to

epidemiological evidence) is overwhelming, and

uncontradicted.”

Id., at 209-10 (emphasis added except emphasis on “treat” in

original). In short, the District Court found that Plaintiffs “have

proven the smoke from field burning ‘endangers the health’ of

themselves and their family members, and they have proven

the smoke ‘renders their premises unsafe for habitation’

during periods when grass field smoke is present.” (App. at

138a) (emphasis added).

Significantly, one of the Defendants’ counsel openly

acknowledged that many Plaintiffs must abandon their homes

2. The only clinical medical evidence the Defendants could muster

over two days of hearings to rebut the wealth of Plaintiffs’ clin‘cal

evidence was that of Dr. Tarnasky, a gynecologist. The District Court

found, after cross-examination, that the opinions of Dr. Tarnasky

“regarding the relationship between grass field burning and pulmonary

problems” were worthless and “accorded little if any weight” because

(i) as a gynecologist, he possesses a “lack of foundation for any

pulmonary opinion,” and (ii) Dr. Tarnasky “owns 220 acres which he

leases to grass seed farmers who burn” and thus is probably biased.

App. at 155a (emphasis added). In contrast, over 100 north Idaho doctors

called for an end to grass burning because of the health crisis it causes

in north Idaho every year.

during the burn season. Defendant Wayne Meyer also testified

that if his daughter had cystic fibrosis, he would move so his

daughter would not be exposed to the grass smoke.’

Based on the presented evidence, the District Court

concluded that field burning harmed Plaintiffs. The District

Court found that Plaintiffs had proved injury and damage from

Defendants’ smoke and that their injuries were irreparable.

App. at 136a-137a.*

The State of Idaho also knows that the Farmers’ burning

adversely impacts Plaintiffs’ property and health. For example,

during each of the 2000, 2001 and 2002 burning seasons, the

Idaho Department of Environmental Quality received about

1000 telephone calls from people registering their complaints

about the burning of Kentucky bluegrass fields. In addition to

demonstrating the scale of impact of Defendants’ conduct, these

complaints also evidence that children and adults are

hospitalized and regularly evacuated from the area to protect

their health and well being during Defendants’ burning.

Also based on the evidence presented during the hearing,

the District Court found, as a factual matter, that field burning

is not necessary to grow Kentucky bluegrass. App. at 192a-194a.

Burning bluegrass fields is simply a cheap way to remove grass

residue.

It was these factual findings, combined with others, that

led the District Court to conclude that an injunction must issue

3. Thus, at least one of the defendants, who is also an Idaho

legislator, has acknowledged that he would also be forcibly evicted from

his home during the burn season if his child had cystic fibrosis.

4. The State of Washington concurred in the District Court’s

assessment. Indeed, Washington banned field burning precisely because

of the health consequences. And though Washington has banned grass

field burning, the bluegrass acreage grown in Washington has increased

and seed yields harvested have remained about the same.

to abate the injury caused by the Defendants’ field burning. The

District Court explained:

If further damage occurs to these citizens, either

through degradation in health, shortening of life, the

permanent effect of steroid use, or needing to move

away for weeks at a time each year, it would have a

“tendency to render ineffectual” any judgment they

may recover, because a money judgment cannot

restore health, cannot restore life expectancy,

cannot repair permanent damage to the body and

cannot restore time spent away from home.

App. at 142a (citing Gilpin v. Sierra Nevada Consol. Mining

Co., 23 P. 547, 552 (Idaho Sup. Ct. 1890) (emphasis added).

On September 12, 2002, the Idaho Supreme Court enjoined

the District Court from enforcing the terms of the preliminary

injunction against the Farmers.

After the Supreme Court prohibited the District Court from

enforcing the terms of the injunction, the parties engaged in

over ten months of discovery and substantial motions practice,

a class action was certified, Plaintiffs were granted leave to

amend the complaint to assert a punitive-damage claim.

Plaintiffs then filed a summary-judgment motion that was fully

briefed and the District Court scheduled an additional

evidentiary hearing to be held before the onset of the 2003 burn

season to determine whether the Defendants could present facts

and evidence that would convince the court that an injunction

should not issue.

B. The Idaho Legislature Enacts I.C. § 22-4803A(6) to

Immunize the Defendants From Liability in This Action

In response, the State of Idaho granted Defendants immunity

from Plaintiffs’ nuisance and/or trespass actions. During March

2003 it came to the Parties’ and the District Court’s attention

that the Idaho legislature was considering several bills related

to field burning.

On April 11, 2003, the District Court held a hearing at which

time the parties initially discussed the impact, if any, these bills

might have on Plaintiffs’ specific property and statutory nghts

to abate the nuisance and/or enjoin the trespass occasioned by

the Defendants’ smoke. The Defendants claimed that House Bill

391, which was subsequently enacted and codified at I.C. § 22-

4803A(6), rendered preliminary injunctive relief inappropriate

under the facts. In contrast, Plaintiffs argued that specifically

applying HB 391 to the facts of this case would violate the

Federal and Idaho constitutions in numerous ways. Accordingly,

because the District Court and the parties desired to resolve

this issue before holding the then-scheduled second injunction

hearing, an expedited briefing schedule was established in the

event that the Governor signed HB 391 into law.

HB 391/1.C. § 22-4803A(6) was created in “closed-door”

meetings with the Governor’s office, Representative Wayne

Meyer, who is a grass burner and one of the defendants in this

action, and Representative Jones, who is a lawyer for the Food

Producers of Idaho. Incredibly, even though Representative

Meyer is a defendant in this action, he not only voted in favor

of LC. § 22-4803A(6), he helped create the immunity

provisions that he then asserted in his own case to evade

liability.

On April 23, 2003, the Governor of Idaho signed I.C. § 22-

4803A(6), which, in relevant part, declared that “[ field burning]

conducted in accordance with section 22-4803, Idaho Code, shall

not constitute a private or public nuisance or constitute trespass.”

Idaho Code § 22-4803A(6) (hereinafter “immunity provision”).

.C. § 22-4803A(6) contained an emergency provision that made

it effective immediately. App. at 38a.

Upon enactment, Plaintiffs challenged the immunity

provision as unconstitutional as it applied to the facts of this

case. Plaintiffs specifically argued that the immunity provision

constituted an uncompensated taking in violation of the Fifth

Amendment of the U.S. Constitution and Art. I, sec. 14 of the

Idaho Constitution.

C. The District Court Strikes 1.C. § 22-4803A(6) As

Unconstitutional

I.C. § 22-4803A(6) essentially gives a small group of

privileged Defendants the right to do something that no other

in our society can — irreparably injure innocent persons with

absolute immunity. It was that immunity provision that Plaintiffs

requested that the Idaho District Court declare unconstitutional

as applied to the facts of this case.

In addition to its factual findings entered in support of its

injunction against further grass burning, the District Court

conducted another hearing and entered additional findings. It

then found that the Defendants’ smoke renders Plaintiffs’ homes

uninhabitable:

Plaintiffs have proven through their medical

= evidence, that they cannot reside in their land during

field burning without suffering injury . . . [and thus}

the burning invades and destroys two of the three

fundamental aspects of their property rights ...

possession and use. | App. at 46a (emphasis added). }

Based on these factual finding, the District Court declared

L.C. § 22-4803A(6)’s immunity provision unconstitutional in

light of the facts of the case because it “takes property without

prior compensation or due process in violation of the Fifth and

Fourteenth Amendment to the United States Constitution. . . .”

App. at 40a. The District Court also acknowledged the strong

presumption of constitutional validity and that courts are obliged

to construe statutes to save them rather than declare them

unconstitutional. /d., at 39a-40a. And in the end, just like the

lowa Supreme Court did with a similar immunity provision,”

the District Court explained:

By abolishing nuisance and trespass claims, the

Idaho legislature placed these plaintiffs and class

members in a situation where they are now powerless

to enjoin the injury and damage suffered by grass

field burning. By doing so, the Idaho legislature

imposed a servitude on plaintiffs’ property. “Property

is taken in the constitutional sense when inroads are

made upon an owner’s use of it to an extent that, as

between private parties, a servitude has been

acquired.” United States v. Dickinson, 331 U.S. 745,

748 (1947). [Jd., at 43a-44a. |

The District Court thus found that Idaho imposed a servitude

on Plaintiffs’ property. According to the court, Plaintiffs’ proof

has established “‘that even when fields are burned in compliance

with the [field burning] regulations, injury occurs.” (App. at

43a.) The court further found that “Plaintiffs have proven

through their medical evidence[] that they cannot reside [on]

their land during field burning,” (id., at 46a), and that “even

though field burning takes place in two months of the year,

August and September, the burning invades and destroys two

of the three fundamental aspects of their property rights ...

possession and use.” Jd. See also id., at 82a (“plaintiffs have

proved injury and an inability to use their property, caused by

the defendants’ smoke”)).° Plaintiffs thus do not have exclusive

possession or use of their property during August and September

because of field burning.

5. See Bormann v. Board of Supervisors, 584 N.W.2d 309, 322

(Iowa 1998), discussed infra. App. at 49a-50a.

6. See also App. at 68a-69a (“plaintiffs in the present case have

not only alleged facts which show a nuisance, they have proven facts at

one preliminary injunction hearing and proved a nuisance . . Seg

emphasis added).

The District Court also ruled that by affirmatively granting

the Defendants the right to maintain the nuisance on Plaintiffs’

property, the State imposed an easement on these Plaintiffs’ land.

Id., at 44a-45a (citing RESTATEMENT (THIRD) Property § 1.2(1)

(2000); RESTATEMENT OF Property § 451 (1944)).’ Indeed, the

court further explained. that “smoke traversing over and into

plaintiffs’ homes, or otherwise forcing them to abandon their

homes, is an easement because it privileges the owner of one

tenement [here, the Defendants] with a right to use the tenement

of plaintiffs.” /d., at 44a n.2. The court further explained that

under Idaho law, a right to use the land of another for a specific

purpose is a “servitude imposed as a burden upon land.” Jd.

Citing Eaton v. B. C. & M. R.R., 51 N.H. 504, 511 (1872),

the District Court noted, it is “beyond the power of the legislature

to authorize the infliction of this injury on the plaintiff, without

making provision for his compensation” because burdening an

owner’s land with a nuisance (intermittent flooding) would be

“an easement” that would have “‘already vested” in the defendant.

App. at 47a (citing Eaton, 51 N.H. at 515). The District Court

concluded that the defense of immunity, if granted under the

facts, would be unconstitutional because it conveys an easement

to the Defendants, which is a real property interest in Plaintiffs’

lands. Jd. |

7. The RESTATEMENT (THIRD) Property § 1.2(1) (2000) provides,

“an easement creates a nonpossessory right to enter and use land in the

possession of another and obligates the possessor not to interfere with

the uses authorized by the easement.” Similarly, the RESTATEMENT OF THE

Law oF Property § 451, provides in relevant part, “An affirmative

easement entitles the owner thereof to use the land subject to the easement

by doing acts which, were it not for the easement, he would not be

privileged to do.” See also BLack’s Law Dictionary 527 (7th ed. 1999)

(defining an easement as “an interest in land owned by another person,

consisting in the right to use or control the land, or an area above or

below it, for a specific limited purpose. ... The primary recognized

easements are ... (6) a right to do some act that would otherwise

amount to a nuisance . . .”; emphasis added).

The Defendants requested an interlocutory review of the

court’s ruling, which the Idaho Supreme Court accepted.

D. The Idaho Supreme Court Reverses And Finds I.C. § 22-

4803A(6) Constitutional

On August 2, 2004, the Idaho Supreme Court reversed the

District Court, ruling that HB 391/LC. § 22-4803A(6) was not

constitutionally infirm. Pertinent here, the court addressed the

question whether “the district court err[ed] in finding HB 391

is an unconstitutional ‘taking’ of private property under both

the Idaho and United States Constitutions?” App. at 8a. The

court described the effect of the new law on Plaintiffs:

This immunity thus entitles the grass farmers to

invade the property of the plaintiffs’ with the smoke

from their burning fields, while preventing the

plaintiff landowners from full possession, use, and

quiet enjoyment of their land and denying them a

remedy from the invasion from the farmers’ smoke.

[App. at 15a.]

The court concluded that this invasion without

compensation was at most a regulatory taking, not a physical

taking, because Plaintiffs’ land was “not appropriated” and

because the invasion did not result in “a loss of access or of any

complete use of the property.” /d. at 12a. And, according to the

court, there was no regulatory taking because the invasion was

not permanent. Jd.

The court also faulted the Idaho District Court for finding

that I.C. § 22-4803A(6) created an easement on Plaintiffs’

properties based on the RESTATEMENT OF THE LAw OF PROPERTY,

§ 451. The supreme court declined to adopt the RESTATEMENT

section as law of Idaho and thus concluded that the statute created

no easement on Plaintiffs’ properties in Defendants’ favor.

App. at 13a, 18a-19a. For this reason, the court distinguished

and rejected the instructions of such authorities as this Court’s

decision in Richards v. Washington Terminal Co., 233 U.S. 546,

553 (1914), and the Iowa Supreme Court decision, Bormann v.

Board of Supervisors, 584 N.W.2d 309, 316 (Iowa Sup. Ct.

1998). App. at 15a-18a. The court then ruled that Plaintiffs had

no vested right in any common-law cause of action and that the

Idaho Legislature was free to abolish common-law causes of

action. /d. at 18a-19a.

REASONS FOR GRANTING THE PETITION

This Court’s Rule 10(b) states that an important test for

accepting review on a writ of certiorari is when “a state court of

last resort has decided an important federal question in a way

that conflicts with the decision of another state court of last

resort or of a United States court of appeals.”

The Idaho Supreme Court’s decision satisfies this test.

It decided an important federal question of constitutional law —

whether a state can grant immunity from liability to private

persons who have interfered with the private property rights of

others and caused them significant injury — and its decision

directly conflicts with decisions of this Court and other state

supreme courts.

A. The Idaho Supreme Court Decided an Important

Question Under the United States Constitution

The Idaho Supreme Court’s decision strikes at the heart of

Plaintiffs’ rights under the Fifth Amendment to the U.S.

Constitution. The Fifth Amendment provides that “no person

shall be ... deprived of life, liberty, or property without due

process of law; nor shall private property be taken for public

use, without just compensation.” The Fourteenth Amendment

to the U.S. Constitution prohibits any state from “depriv[ing]

any person of life, liberty, or property without due process of

law,” thereby making the Fifth Amendment applicable to the

states and their political subdivisions. Chicago, B. & QO. R. Co.

v. City of Chicago, 166 U.S. 226, 232 (1897).

Plaintiffs’ fundamental property rights are at the core of

this litigation and Plaintfifs’ Petition. Central to every concept

of property are three principal powers: possession, use, and

disposition. United States v. General Motors Corp., 323 U.S.

373, 377-78 (1945). Plaintiffs’ property rights include their nght

to access their home,® the right to exclusively possess their

home,’ and the right to use their home.'® As this Court

explained: “the ‘right to exclude,’ so universally held to be a

fundamental element of the property right, falls within this

category of interests that the Government cannot take without

compensation.” Kaiser Aetna v. United States, 444 U.S. 164,

179-80 (1979). Stated otherwise, any servitude or easement

imposed on Plaintiffs’ property as an estate in land constitutes

“an actual physical invasion of the privately owned” home.

Id. at 180. And if the State of Idaho sanctions conduct that

renders the home uninhabitable or useless as a home, Plaintiffs’

losses “would be as complete as if the [State of Idaho] had

entered upon the surface of the land and taken exclusive

possession of it.” See United States v. Causby, 328 U.S. 256,

261 (1946).

The State of Idaho has done just this. As already explained,

the Idaho District Court found, on an exhaustive factual record,

that for two months of each year the Defendants’ smoke

extinguishes each one of these rights in their homes. The

Defendants’ smoke interferes with Plaintiffs’ exclusive

possession, use and enjoyment of their homes. For two months,

8. Hughes v. State, 328 P.2d 397, 401 (Idaho Sup. Ct. 1958);

McMoran v. State, 345 P.2d 598, 599 (Wash. Sup. Ct. 1959); Jordan v.

Canton, 265 A.2d 96, 99 (Me. Sup. Ct. 1970).

9. Kaiser Aetna, 444 U.S. at 179-80.

10. “We have little difficulty accepting the theory that the use of

valuable property . . . is itself a legally protectible property interest. Of

the aggregate rights associated with any property interest, the right of

use of property is perhaps of the highest order.” Dickman v.

Commissioner, 465 U.S. 330, 336 (1984).

the Defendants’ smoke plumes are unwanted and dangerous

invaders in Plaintiffs’ homes. Some Plaintiffs are forced “to

lock themselves in their homes during times of grass burning,”

while others, such as Plaintiff Alex Heisel, must “leave the area

until burning is complete” — they are essentially evicted from

their properties. App. at 163a.'' The court explained that,

“{P]laintiffs in the present case have not only alleged facts which

show a nuisance, they have proven facts at one preliminary

injunction hearing and proved a nuisance.” App. at 68a-69a. _

Yet the I.C. § 22-4803A(6) grant of immunity makes it

impossible for Plaintiffs to stop or enjoin Defendants’ smoke

from invading their homes and interfering with their use and

enjoyment thereof. The Idaho Supreme Court was blunt about

this: :

[I.C. § 22-4803A(6)] entitles the grass farmers to

invade the property of the plaintiffs’ [sic] with the

smoke from their burning fields, while preventing

the plaintiff landowners from full possession, use,

and quiet enjoyment of their land and denying them

a remedy from the invasion from the farmers’ smoke.

[App. at 15a.]

Consequently, because the I.C. § 22-4803A(6) grant of

immunity prevents Plaintiffs from enjoining what is a proven

nuisance and trespass (the Defendants’ smoke), and because

11. It is be difficult to explain to those who do not live in the

region the scale and impact of grass burning. This is not campfire smoke,

vehicle exhaust, or even slash or wheat burning smoke. Grass burning

produces smoke so thick that people cannot see across the street or to

the backyard garden on a hot Idaho summer day. It blankets the streets

and turns the day almost to night. See photographs at App. 198a-201a.

It is also an annual event that causes children to forgo outdoor play in

the latter part of the summer, forcing them instead to stay locked up

inside their homes. Many Plaintiffs either must stay indoors or move

away and abandon their homes during the two-month burn season.

All Plaintiffs are affected.

16 ;

the smoke renders their homes uninhabitable, unusable and

unsafe, the immunity provision prevents Plaintiffs from

protecting their right to exclusive possession. It has therefore

created a servitude over Plaintiffs’ property in favor of the

Defendants. Stated otherwise, because the Defendants are

immune from a nuisance and trespass suit and authorized to do

irreparable harm to Plaintiffs and class members and their

property interests, the State has “taken” their property in

violation of the U.S. Constitution because it is solely by virtue

of the immunity provision that Defendants may maintain the

nuisance or trespass. The State has granted Defendants a property .

interest or easement in their land.’? Plaintiffs’ property interest

is so fundamental and universal that the Idaho’s attempt to

authorize or immunize such conduct constitutes a “physical

invasion” of the home and is an unconstitutional taking.

See Kaiser Aetna, 444 U.S. at 179-80.

The Idaho Supreme Court ignored Causby and Kaiser Aetna

altogether. In their briefing to the court, the Defendants had

sought to distinguish Kaiser on the ground that Prune Yard

Shopping Ctr. v. Robins, 447 U.S. 74 (1980), allegedly held

that the “right to exclude others” is not so essential at to

constitute a taking whenever the government “takes” that right.

Prune Yard is easily distinguished, however, because it involved

competing fundamental rights — free speech and the Fifth

Amendment — where the shopping mall as issue, despite the

regulation, in fact retained its essential purpose and commercial

12. Portsmouth Harbor Land & Hotel Co. v. United States, 260

U.S. 327 (1922) (navy firing guns, or threatening to fire, over plaintiff’s

land imposed a compensable “servitude”); Causby, 328 U.S. at 261-67

(holding U.S. created an air easement that constituted a taking because

the aircraft interfered with the use and enjoyment of land); Tibbs v. City

of Sandpoint, 603 P.2d 1001, 1005 (Idaho Sup. Ct. 1979) (same); Martin

v. Port of Seattle, 391 P.2d 540, 543 (Wash. Sup. Ct. 1964) (same; noise

from jet aircrafts constitute a taking); Buchanan v. Simplot Feeders Ltd.

P ship, 952 P.2d 610, 615 (Wash. Sup. Ct. 1998); Bormann v. Board of

Supervisors, 584 N.W.2d 309, 316 (Iowa Sup. Ct. 1998).

ara De 4

oe ee

enterprise; indeed, a shopping mall is intended to include co-

tenants and other occupiers, encourage visits by strangers (with

the hope that money will be spent at the mall), and is open to

the public at large. But a mall is not a home. It is in one’s home

that a citizen can claim the right of privacy, the right to be let

alone, and the right to exclude everyone else. Prune Yard does

not displace Kaiser Aetna.

Plaintiffs’ natural, inalienable rights are at stake as well.

Courts have long recognized that a statute authorizing a private

nuisance creates a servitude or easement. Boomer v. Atlantic

Cement Co., 257 N.E.2d 870, 875 (N.Y. 1970) (“the ‘servitude

on land’ of plaintiffs imposed by defendant’s nuisance’’) (citing

United States v. Causby, 328 U.S. 256, 261 (1946)); Bormann

v. Board of Supervisors, 584 N.W.2d 309, 316 (Iowa Sup. Ct.

1998); BLack’s Law Dictionary 527 (7th ed. 1999). Likewise,

a trespass, if authorized by statute, is simply another definition

of an easement. RESTATEMENT OF PRoPERTY § 451, at 2911-12;

Quintain Dev. v. Columbia Natural Res., 556 S.E.2d 95, 102

(W. Va. 2001); see also Beatty v. United States, 203 F. 620, 626

(4th Cir. 1913) (noting that government condemnation for a

public purpose “‘is in effect a lawful trespass committed by the

sovereign”). Although, as the Idaho Supreme Court noted, the

Idaho Legislature may abolish certain causes of action (App. at

18a-19a), it thus may not abolish or immunize a trespass. To do

so is tantamount to authorizing interference with the exclusive

right to possession of one’s home, which is a per se physical

taking. Kaiser Aetna, supra.

The Idaho Supreme Court, in vacating the District Court’s

decision and affirming I.C. § 22-4803A(6), declined to label

the Defendants’ annual and injurious use of Plaintiffs’ property

as an “easement” under Idaho law. App. at 18a-19a. But the

court’s refusal to deem Defendants’ regular use of Plaintiffs’

property as an easement is a mere sleight of hand that does not

change this result. Regardless of the label given Defendants’

use, I.C. § 22-4803A(6) grants Defendants the nght to use

Plaintiffs’ land for two months each year in a way that irreparably

harms Plaintiffs. Whether or not labeled an “easement,”

I.C. § 22-4803A(6) took fundamental property rights from

Plaintiffs and gave them to Defendants.

The Idaho Supreme Court embraced the notion that the State

of Idaho could redefine Plaintiffs’ property interests without

concern for constitutional implications based likely on

Defendants’ argument that property interests are defined solely

by the State of Idaho. But that argument is incorrect. Defendants

cited to Webb’s Fabulous Pharmacies, Inc. v. Beckwith,

449 U.S. 155, 161 (1980), for support. Webb s does not, however,

stand for such a proposition. This Court actually said that

property rights are created and defined by “existing rules or

understandings that stem from” a source independent from the

Constitution “such as state law.” Jd. State law is thus but one

example of the “independent sources” from which property

interests are created — it is not the sole independent source. If it

were the sole source, then any state could do exactly what this

Court forbade in Webbs, namely, take private property in

violation of due process by simply excluding from the definition

of “property” protected under state law the kind of private

property that the state wished to take.

In Webbs, the State of Florida had declared that interest

income was not the property of the owners of principal. The

Supreme Court, however, far from viewing itself as bound by

the state-law determination, overruled it:

Neither the Florida Legislature by statute, nor the

Florida courts by judicial decree, may accomplish

the result the county sought simply by

recharacterizing the principal as “public money”

because it is held temporarily by the court. The

earnings of the fund are incidents of ownership of

the fund itself and are property just as the fund

itself is property. The state statute has the practical

effect of appropriating for the county the value of

the use of the fund for the period in which it is held

in the registry.

To put it in another way: a State, by ipse dixit, may

not transform private property into public property

without compensation, even for the limited duration

of the deposit in court. This is the very kind of thing

that the Takings Clause of the Fifth Amendment

was meant to prevent. That Clause stands as a

Shield against the arbitrary use of governmental

power. [449 U.S. at 164 (emphasis added. ]

Webb s thus stands for the notion that states do not solely

determine what is property for takings purposes. If it were

otherwise, then the very governments responsible for their

violation could extinguish the rights secured by the people, and

the rights of U.S. citizens would varv 9n a case-by-case basis

depending on the state where the constitutional protection is

sought. It is not the case that the Fifth Amendment protects

property rights in Boise less than in Chicago. Moreover,

inalienable rights such as those granted by natural law and

essential to this Court’s concept of freedom stem from a source

independent of state law.

The Idaho Supreme Court also declined to label the

Defendants’ state-sanctioned use of Plaintiffs’ property as a

physical taking. App. at 12a. According to the Idaho court, there

was no taking because “the plaintiffs’ land is not appropriated

and because the smoke complained of does not result in a loss

of access or of any complete use of the property.” App. at 12a.

That, of course, disregards the District Court’s sharply contrary

factual findings. The Idaho Supreme Court instead deemed

Defendants’ use a “regulatory taking” that was not actionable

because Plaintiffs “have not claimed a permanent deprivation

of all economically beneficial uses of their land.” Jd. at 13a.

For support, the court cited Lucas v. South Carolina Coastal

Council, 505 U.S. 1003 (1992), and Tahoe-Sierra Pres. Council,

Inc. v. Tahoe Reg’! Planning Agency, 535 U.S. 302 (2002).

But the Idaho court misapplied these authorities. First,

Justice Kennedy stated in Lucas that ‘[i]t is well established

that temporary takings are as protected by the Constitution as

are permanent ones.” Lucas, 505 U.S. at 1033 (Kennedy, J.,

concurring). Indeed, this Court stated in Brown v. Legal Found.,

538 U.S. 216, 233 (2003), that “compensation is mandated when

a leasehold is taken and the government occupies the property

for its own purposes, even though that use is temporary.”

Next, there is a distinction between physical takings and

regulatory takings that results in different analysis. Indeed, the

Court explained in Zahoe-Sierra Preservation Council that this

distinction is found in the Constitution:

The text of the Fifth Amendment itself provides a

basis for drawing a distinction between physical

takings and regulatory takings. Its plain language

requires the payment of compensation whenever the

government acquires private property for a public

purpose, whether the acquisition is the result of a

condemnation proceeding or a _ physical

appropriation. But the Constitution contains no

comparable reference to regulations that prohibit

a property owner from making certain uses of her

private property. [535 U.S. at 321-22 (emphasis

added). ]

Accordingly, if the State of Idaho acquires a private-property

interest and puts that interest to use to serve a public purpose, it

must then compensate the owner in all cases. But under the

regulatory-taking analysis, when the government merely restricts

the use of property (e.g., via zoning laws), courts determine

whether a taking has occurred based on a different set of

principles.

Here, I.C. § 22-4803 A(6) took a private interest in Plaintiffs’

lands and transferred it to Defendants to serve some “public

interest.” But ILC. § 22-4803A(6) is not a law or regulation

directed to Plaintiffs designed to limit their uses of their

properties. By granting Defendants the right to use Plaintiffs’

airspace and homes, it constitutes a physical appropriation of

Plaintiffs’ property via a possessory interest; it is not a regulatory

restriction on Plaintiffs’ use of their property. See Causby, 328

U.S. at 261-64. Indeed, Tahoe-Sierra recognized that when a

State affirmatively grants a possessory interest in one person’s

land to another it is a per se violation of the Constitution. See

535 U.S. at 322. And “even though that use is temporary,” it is

a categorical taking. Jd. Under the facts of this case, regulatory-

takings analysis is inapplicable.

[I.C. § 22-4803A(6)] entitles the grass farmers to

invade the property of the plaintiffs’ [sic] with the

smoke from their burning fields, while preventing

the plaintiff landowners from full possession, use,

and quiet enjoyment of their land and denying them

a remedy from the invasion from the farmers’ smoke.

[App. at 15a.]

B. By Affirming I.C. § 22-4803A(6), The Idaho Supreme

Court Decided The Constitutional Question Contrary

to Other State Supreme Courts

The Idaho Supreme Court’s decision that the State of Idaho

could grant immunity to Defendants for trespassing and nuisance

on Plaintiffs’ properties without paying compensation is squarely

contrary to decisions of this Court and other state supreme courts.

It has long been the law that the U.S. Constitution limited

legislators’ power to control private nuisances:

the power of the legislature to control and regulate

nuisances is not without restriction, and it must be

exercised within constitutional limitations. The

power cannot be exercised arbitrarily, or

oppressively, or unreasonably. . . . It has been broadly

stated, as an additional limitation to the power of

the legislature, that ... the legislature may not

authorize the use of property in such a manner as

unreasonably and arbitrarily to infringe on the rights

of others, as by the creation of a nuisance. So it has

been held that the legislature has no power to

authorize the maintenance of a nuisance injurious

to private property without due compensation. [66

C.J.S. Nuisances § 7, at 738 (1950).]

Most recently, in Bormann v. Board of Supervisors, 584

N.W.2d 309 (Iowa Sup. Ct. 1998), the Iowa Supreme Court

embraced these principles. It thoroughly reviewed the case law

and commentary concerning the authority of any state or agency

to authorize a private nuisance and ruled the immunity provision

in the lowa Right to Farm Act (“RTFA”) was unconstitutional:

Whether you flood the farmer’s fields so that

they cannot be cultivated, or pollute the bleacher’s

stream so that his fabrics are stained, or fill one’s

dwelling with smells and noise so that it cannot be

occupied in comfort, you equally take away the

owner’s property. In neither instance has the owner

any less of material things than he had before, but in

each case the utility of his property has been impaired

by a direct invasion of the bounds of his private

dominion. This is the taking of his property in a

constitutional sense.

Pennsylvania R.R. v. Angel, 7A. at 433-34.

Our own definition of a taking is in accord with

this concept:

[A] “taking” does not necessarily mean the

appropriation of the fee. It may be anything which

substantially deprives one of the use and enjoyment

of his property or a portion thereof.

Phelps v. Board of Supervisors of County of

Muscatine, 211 N.W.2d 274, 276 (lowa 1973)

(holding that construction of a bridge and causeway

over river in such a manner as to allegedly cause

greater flooding on adjacent property than previously

was a “taking” within the meaning of the Iowa

Constitution).

As mentioned, the Board’s approval of the

applicants’ application for an agricultural area

triggered the provisions of [RTFA]. The approval

gave the applicants immunity from nuisance

suits. ... This immunity resulted in the Board’s

taking of easements in the neighbors’ properties for

the benefit of the applicants. The easements entitle

the applicants to do acts on their property, which,

were it not for the easement, would constitute a

nuisance. This amounts to a taking of private

property for public use without the payment of just

compensation in violation of the Fifth Amendment

to the Federal Constitution. . . .

In enacting [RTFA], the legislature has exceeded

its authority. It has exceeded its authority by

authorizing the use of property in such a way as to

infringe on the rights of others by allowing the

creation of a nuisance without the payment of just

compensation. The authorization is in violation of

the Fifth Amendment to the Federal Constitution

and article I, section 18 of the Iowa Constitution.

(Jd. at 320-21.]

Recognizing the popularity of the law it was invalidating,

; the Court acknowledged that the “political and economic fallout

from our holding will be substantial.” /d. at 322. It accepted

this consequence “because the challenged scheme is plainly —

: we think flagrantly — unconstitutional.” Jd. at 320-22. In words

that precisely described I.C. § 22-4803A(6), Bormann described

the essence of the constitutional violation:

the challenged statutory scheme amounts to a

commandeering of valuable property rights without

compensating the owners, and sacrificing those

rights for the economic advantage of a few. In short,

it appropriates valuable private property interests and

awards them to strangers. [Jd.]

The court thus remanded for an order “declaring that portion

of [the RTFA] that provides for immunity against nuisances

unconstitutional and without any force or effect.” /d. at 321-22.

Bormann followed a Tong line of cases from this and other

courts. This Court firmly established the core principle from

Bormann, holding that “while the legislature may legalize what

otherwise would be a public nuisance, it may not confer

immunity from action for a private nuisance of such a character

as to amount in effect to a taking.” Richards v. Washington

Terminal Co., 233 U.S. 546, 553 (1914) (smoke from a

locomotive).

Richards reaffirmed Baltimore & Potomac R.R. Co. v. Fifth

Baptist Church, 108 U.S. 317 (1883), where the private

defendant also argued that its conduct was authorized by statute.

This Court emphatically rejected this contention, stating “i]t is \

no answer to the action of the plaintiff that the railroad company

was authorized by act of Congress. . . .” Jd. at 330. Fifth Baptist

Church reasoned that the Congressional grant of authority did

not explicitly authorize the defendant to conduct its activities

“without reference to the property and rights of others.” Jd. at

331. Furthermore, the Court emphasized that read into every

grant of statutory authority is an “implied qualification” not to

injure others in the use of their properties:

Whatever the extent of the authority conferred, it

was accompanied with this implied qualification,

that the works should not be so placed as by their

use to unreasonabl[y] interfere with and disturb the ©

peaceful and comfortable enjoyment of others in

their property. Grants of privileges or powers to

corporate bodies, like those in question, confer no

license to use them in disregard of the private nghts

of others, and with immunity for their invasion. The

great principle of the common law, which is equally

the teaching of Christian morality, so to use one’s

property as not to injure others, forbids any other

application or tse of the rights and powers

conferred. {Id. (emphasis added)."° ]

To be sure, the Court emphasized that not all inconveniences

would be actionable under an express grant from Congress.

In particular those that only produce “incidental inconvenience

which unavoidably follows” and are attendant to an authorized

use operated in a reasonable manner is damage without injury.

Id. The facts of the case indicated, however, that the defendant

used its property unreasonably to disturb and annoy plaintiff.

More importantly, the Court emphasized that it had “grave

doubt” whether Congress could immunize the company from

liability for invading others’ properties:

It admits indeed of grave doubt whether Congress

could authorize the company to occupy and use any

premises within the city limits, in a way which would

subject others to physical discomfort and annoyance

13. See also Lorenzi v. Star Mkt. Co., 115 P. 490, 493 (Idaho Sup.

Ct. 1911) (“{i]t should be remembered that this property belongs to

appellant, and that it has a right to use it in any lawful manner in which

it sees fit to employ its property, so long as it does not injure or damage

anyone else”; emphasis added); Tiegs v. Watts, 954 P.2d 877, 884

(Wash. Sup. Ct. 1998) (“[nJo one has a right to pursue even a lawful

business if that person injures a neighbor without compensating the

neighbor for the damages sustained”); Gay v. Taylor, 19 Pa. D. & C. 31,

35-41 (Pa. Cty. Ct. 1932) (discussing the true rule applied to nuisance

and trespass claims); Joledo Disposal Co. v. Ohio, 106 N.E. 6, 8-9

(Ohio Sup. Ct. 1914) (same).

in the quiet use and enjoyment of their preperty, and

at the same time exempt the company from the

liability to suit for damages or compensation, to

which individuals acting without such authority

would be subject under like circumstances. Without

expressing any opinion on this point, it is sufficient

to observe that such authority would not justify an

invasion of others’ property, to an extent which

would amount to an entire deprivation of its use

and enjoyment, without compensation to the owner.

Nor could such authority be invoked to justify acts,

creating physical discomfort and annoyance to

others in the use and enjoyment of their property,

to ¢. less extent than entire deprivation, if different

places from those occupied could be used by the

corporation for its purposes, without causing such

discomfort and annoyance. [Id. at 331-32 (emphasis

added). ]

The Court then expressly stated that the only acts a

legislature may validly authorize, “which, without such

authorization, would constitute nuisances, are those which affect

public highways or public streams, or matters in which the public

have an interest and over which the public have control” — i.e.,

public nuisances. /d. at 332. The reason is simple: legislative

authorization only exempts liability from State actions; “it does

not affect any claim of a private citizen for damages for any

special inconvenience and discomfort not experienced by the

public at large.” Jd. Indeed, the Court concluded that such

authorization cannot immunize private actors that create a

nuisance from injured parties:

The fact that the smokestacks of the engine house

were as high as the city regulations for chimneys

required, is no answer to the action, if the stacks

were too low to keep the smoke out of the plaintiff’s

church. Jn requiring that chimneys should have a

certain height, the regulations did not prohibit their

being made higher, nor could they release from

liability if not made high enough. It is an actionable

nuisance to build one’s chimney so low as to cause

the smoke to enter his neighbor’s house. (Id. at 334-

35 (emphasis added). }

Similarly, here, before I.C. § 22-4803A(6), no provision of

the Idaho Code authorized the Defendants’ conduct without

regard to the rights of others. Moreover, no Idaho statute requires

the Defendants to burn; it is still their choice. Nor does any

statute prohibit the Defendants from “making their chimneys

higher.”

Moreover, these rules are longstanding and uniformly

recognized — until now. Fifth Baptist Church and Richards are

not anomalous or unique. The laws of this country have been

clear for well over a century. Consider, for example,

Pennsylvania R. Co. v. Angel, 7 A. 432 (N.J. Ct. App. 1886)

(cited with approval in Richards and Bormann), where the court

rejected a defendant’s argument that its actions were excused

because the legislature had authorized its conduct:

[A]n act of the legislature cannot confer upon

individuals or private corporations, acting primarily

for their own profit, although for public benefit as

well, any right to deprive persons of the ordinary

enjoyment of their property, except upon condition

that just compensation be first made to the owners.

This principle rests upon the express terms of the

constitution. In declaring that private property shall

not be taken without recompense, that instrument

secures to owners, not only the possession of

property, but also those rights which render

possession valuable. Whether you flood the farmer’s

fields so that they cannot be cultivated, or pollute

the bleacher’s stream so that his fabrics are stained,

or fill one’s dwelling with smells and noise so that

it cannot be occupied in comfort, you equally take

away the owner’s property. In neither instance has

the owner any less of material things than he had

before, but in each case the utility of his property

has been impaired by a direct invasion of the bounds

of his private dominion. This is the taking of his

property in a constitutional sense; of course, mere

Statutory authority will not avail for such an

interference with private property. [/d. at 433-34

(emphasis added). ]

Given the holdings of Richards, Fifth Baptist Church, A ngel

and Bormann, I.C. § 22-4803A(6)’s grant of immunity affirmed

by the Idaho Supreme Court under the facts of this case is plainly

unconstitutional. Indeed, Plaintiffs are aware of no other court

in the country that has authorized or immunized anyone for

knowingly causing irreparable injury to innocent children and

adults while in the privacy and security of their own homes.

To do so would contravene the great and most fundamental

principles of this nation:

Grants of privileges or powers to corporate bodies,

like those in question, confer no license to use them

in disregard of the private rights of others, and with

immunity for their invasion. The great principle of

the common law, which is equally the teaching of

Christian morality, so to use one’s property as not to

injure others, forbids any other application or use of

the rights and powers conferred. [Fifth Baptist

Church, 108 U.S. at 331.]

Without doubt, I.C. § 22-4803A(6) interferes with

fundamental constitutionally protected rights, just as the Idaho

District Court ruled, and exceeded the Idaho Legislature’s

authority. By affirming the provision and reversing the Idaho

District Court ruling, the Idaho Supreme Court stands alone

and is in conflict with federal and state courts in allowing such

a trammeling of constitutionally protected property rights.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

PuiLip H. GorRDON Steve W. BERMAN

GorDOon Law OFFICES Counsel of Record

623 West Hays Street ERIN K. FLory

Boise, ID 83702 R. BRENT WALTON

(208) 345-7100 HAGENS BERMAN LLP

1301 Fifth Avenue

Suite 2900

Seattle, WA 98101

(206) 623-7292

Attorneys for Petitioners

APPENDIX

APPENDIX A — OPINION OF THE SUPREME

COURT OF THE STATE OF IDAHO FILED

AUGUST 2, 2004

IN THE SUPREME COURT OF IDAHO,

Boise, May 2004 Term

2004 Opinion No. 103

Filed: August 2, 2004

Frederick C. Lyon, Clerk

LAWRENCE (“BUD”) MOON, JR., individually and on

behalf of all others similarly situated, ALEX H. MOON,

by and through her parents and guardians, TRINA H.

MOON, and JAMES H. MOON, individually and on

behalf of all others similarly situated, KALEY F. MOON,

by and through her parent and guardian, LAURA F.

MOON, individually and on behalf of all others similarly

situated, JEANNE WOLCOTT, individually and on

behalf of all others similarly situated, JERRY VICKERS,

individually and on behalf of all others similarly situated,

BRUCE CHARLES ROTHERMEL, individually and on

behalf of all others similarly situated,

Plaintiffs-Respondents,

Appendix A

NORTH IDAHO FARMERS ASSOCIATION; WAYNE

MEYER, WILLIAM DOLE, MICHAEL DOLE,

WARREN DOLE, JACQUOT FARMS ENTERPRISES,

INC., SATCHWELL FARMS, INC., WALLACE

MEYER, TERRELL K. BAUNE, BAUNE FARMS, INC.,

PAUL DESHIELL, ARNOLD BRINCKE KEiTH

DAMAN, PAUL DAMAN, DENNY BROS., L.L.C.,

CHAD DENNY, MATTHEW DRECHSEL, DRESCHSEL

BROTHERS, INC., DENNIS DUNCAN, DAVID

DUNCAN, CHRIS DUNCAN, JOYCE DUNCAN,

RANDY DUNCAN, DAVID FISH, THOMAS

FREEBURG, DAVID GUMM, CHARLES A. HAHNER,

HAHNER FARMS, INC., LARRY HANSEN, JOYCE

HANSEN, MARTIN HANSON, HATTER CREE

FARMS, INC., DON HAY, CLARENCE HAEG RANDY

HOLT, DUANE JENNESKENS, CINDY JANNESKENS,

DALE R. JOHNSON, TED LACY, PHILLIP LAMPERT,

NICK LAWSON, CASEY LAWSON, ALLEN LEWIS,

MAPLE LEAF FARM, INC., HERBERT W.

MILLHORN, MILLHORN FARMS, INC., BRUCE

MILLS, RICHARD MORRISON, ELMER NESS,

CHRIS R. RAM, MICHAEL ROECKS, ROGADA

FARMS, INC., JOHN SCHULTZ, KARL SCHULTZ,

TAMMY SCHULTZ, RON TEE, ALLEN THOMA,

WINDY HILL FARM, INC., TODD F. WRIGHT, GARY

WRIGH, WRIGHTS, INC.; WADE MCLEAN, DOUG

BRUCE, ERLING PLACE, MICHAEL SCHLEPP,

GARY FRENCH; LAMPERT FARM RANCH, INC.,

EARL CLAUSEN, MICHAEL LA SHAW, CATHERINE

MORRIS, TERRY NICHOLS, EUGENE TOWNE, JEFF

BLOOMSBURG, BRIAN LA SHAW, JOE SIEVERS;

BERGEN BOTHMAN,

Defendants-Appellants,

Appendix A

and

SCHLEPP RANCH, CLAUSEN F ARMS, INC., LARRY

HEATON, DAVID LAMPERT, ERIC LARSON and the

STATE OF IDAHO,

Defendants.

LAMPERT FARM & RANCH, IN C., EARL CLAUSEN,

MICHAEL LA SHAW, CATHERINE MORRIS, TERRY

NICHOLS, EUGENE TOWNE, JEFF BLOOMSBURG,

BRIAN LA SHAW, LARRY HEATON AND JOE

SIEVERS; G. WADE MC LEAN, DOUG BRUCE,

MICHAEL SCHLEPP, GARY FRENCH AND ERLING

PLACE,

Third-Party Plaintiffs-Appellants,

TIM FREEBURG and MICHAEL FREEBURG; HENRY

BENTZ, CHESTER FRANZ, d/b/a DOUBLE F. RANCH,

MICHAEL HEMKEN, HEMKEN FARMS, INC.,

TERRY JACKLIN AND WALTER MEYER,

Third-Party Defendants-Appellants,

and

Appendix A

SHERRY CLAUS, as personal representative of the

Estate of JOHN CARTER, GARY JOHNSON, d/b/a D &

G FARMS, DAMAN BROTHERS PARTNERSHIP,

GARY DRESHEL, d/b/a RESHEL BROTHERS, JIM

FISCHER, FORD GUMM, ALVIN HAAS, HAAS

FARMS GENERAL PARTNERSHIP, FRANCIS

HUGHES, J.R. SIMPLOT COMPANY, d/b/a JACKLIN

SEED-SIMPLOT, RODNEY JACOT, TED LACY, d/b/a

LACY FARM ENTERPRISES, THELMA MC

CLELLAN, AS PERSONAL REPRESENTATIVE OF

THE ESTATE OF L.E. MC CLELLAN, WILLIAM

MELLICK, WALTER MEYER, GLEN MILES,

MORRFARMS, INC., HEATON FARMS

PARTNERSHIP, KSH PARTNERSHIP, GERALD HOLT

d/b/a ROCKCREEK,

Third-Party Defendants.

Appeal from the District Court of the First Judicial

District, State of Idaho, Kootenai County. Hon. John

Thomas Mitchell, District Judge.

The Court upholds the amendments to I.C. § 22-4801 et

seq., aS constitutional according to the Idaho and United

States Constitution

BURDICK, Justice.

The defendant-seed growers are appealing the district

court’s decision holding the amendments to J.C. § 22-4801]

et seq., which were passed by the 2003 Legislature,

unconstitutional. This Court granted a permissive appeal of

Appendix A

this interlocutory order. For the reasons outlined below, we

hold the recently enacted amendments to be in conformity

with the Idaho and United States Constitutions.

FACTUAL AND PROCEDURAL BACKGROUND

The plaintiffs are individuals claiming sensitivity to grass

smoke, who filed an action against various seed growers in

north Idaho who traditionally burn the post-harvest straw and

stubble in their fields as part of their farming activities. The

plaintiffs’ complaint, filed in June of 2002, asserted among

others, claims of nuisance and trespass. The plaintiffs filed

for a preliminary injunction in July of 2002, seeking to enjoin

the defendant-seed growers from burning their Kentucky

bluegrass fields. The district court, in August 2002 took

testimony from the plaintiffs’ medical experts, State officials

from Washington and Idaho, class members and grass

farmers. The district court issued findings of fact and

conclusions of law and ultimately granted the preliminary

injunction to abate the injury caused by the field burning of

the grass farmers and required the posting of a bond.

In September of 2002, however, the Idaho Supreme Court

granted the defendant-seed growers’ request for a writ of

prohibition, after concluding that the injunction exceeded in

some respects the district court’s jurisdiction. The Court

enjoined the district court from enforcing the terms of the

preliminary injunction against the grass burners.

Appendix A

The plaintiffs sought and were granted certification as a

class' and were granted leave to amend their complaint to

assert a punitive damage claim. Thereafter, in the early spring

of 2003, several bills related to field burning were under

consideration by the Idaho legislature. The district court held

a hearing on April 11, 2003, where the impact of the various

bills was discussed with respect to the plaintiffs’ property

and their statutory rights to abate the nuisance and/or enjoin

the trespass caused by the grass burners’ smoke.

In April 2003, after Governor Kempthome signed House

Bill 391 into law, the plaintiffs filed a motion to the district

court to declare the law unconstitutional as applied to the

facts of this case. HB 391, which was passed as an emergency

measure, amended the Smoke Management and Crop Residue

Disposal Act of 1999, I.C. § 22-4801 et seq., and effectively

extinguished liability for all North Idaho grass farmers that

burn in compliance with its provisions. Of particular

significance, HB 391 amended portions of I.C. § 22-4803

and added a new statute, I.C. § 22-4803.

The district court heard the motion of the plaintiffs,

arguing the unconstitutionality of J.C. § 22-4803A(6), which

reads as follows:

(6) Crop residue burning conducted in accordance

with section 22- 4803 Idaho Code, shall not

constitute a private or public nuisance or

constitute trespass. Nothing in this chapter shall

be construed to create a private cause of action

1. The plaintiffs were granted class certification by the order

of the district court dated April 28, 2003.

Appendix A

against any person who engages in or allows crop

residue burning of a field or fields required to be

registered pursuant to section 22-4803(3) Idaho

Code, provided such activities are conducted in

accordance with chapter 49, title 22, Idaho Code,

and rules promulgated thereunder.

On June 4, 2003, the district court issued an order holding

HB 391 unconstitutional. The district court held: (1) that HB

391 effects an unconstitutional taking of property without

prior compensation or due process; (2) that HB 391 imposes

a limitation that is not in the interests of the common welfare

and thus violative of Article I, § 1 of the Idaho Constitution;

and (3) that HB 391 is a “local or special law” in \ iolation of

Article III, § 19 of the Idaho Constitution. The district court

concluded that for two months of the year, August and

September, “the burning invades and destroys two of the three

fundamental aspects of the plaintiffs’ property rights ...

possession and use.” The district court also ruled that by

affirmatively granting the grass burners the right to maintain

the nuisance on the plaintiffs’ property, the State imposed an

easement on the plaintiffs’ land.

The district judge who ruled on the constitutionality of

the statutory amendments, particularly I.C. § 22-4806, was

disqualified by order dated June 12, 2003. By order of the

Idaho Supreme Court dated June 28, 2003, the Honorable

District Judge W.H. Woodland was appointed to take over

the case. Shortly thereafter, the district court granted the

defendants’ motion to stay the proceedings until.the Supreme

Court determines the motion for a permissive appeal of the

interlocutory order pursuant to [.A.R. 12(a). The Idaho

Appendix A

Supreme Court granted the motion for permissive appeal on

July 22, 2003.

ISSUES ON APPEAL

1. Did the district court err in finding HB 391 is an

unconstitutional “taking” of private property under both the

Idaho and United States Constitutions?

2. Did the district court err in finding that HB 391 isa

violation of Article I, § 1 of the Idaho Constitution, because

the “limitation” imposed by the amendments were not in the

“interests of the common welfare”?

3. Did the district court err in finding the HB 391 is a

“local or special law” in violation of Article ITT, § 19 of the

Idaho Constitution?

STANDARD OF REVIEW

The constitutionality of a statute is a question of law

over which this Court exercises free review. State v. Cobb,

132 Idaho 195, 197, 969 P.2d 244, 246 (1998); Fremont-

Madison Irr. Dist. and Mitigation Group v. Idaho Ground

Water Appropriators, Inc., 129 Idaho 454, 926 P.2d 1301

(1996). The party challenging a statute on constitutional

grounds bears the burden of establishing that the statute is

unconstitutional and “must overcome a strong presumption

of validity.” Olsen v. J.A. Freeman Co., 117 Idaho 706, 709,

791 P.2d 1285, 1288 (1990). Courts are obligated to seek an

interpretation of a statute that upholds its constitutionality.

Appendix A

State v. Newman, 108 Idaho 5, 13, 696 P.2d 856, 864 (1985).

The judicial power to declare legislative action invalid upon

constitutional grounds is to be exercised only in clear cases.

State ex rel. Brassey v. Hanson, 81 Idaho 403, 406, 342 P.2d

706, 709 (1959).

DISCUSSION

HB 391 affected amendments to portions of I.C. §§ 22-

4801, - 4803 and -4804 and added an entirely new section,

I.C. § 22-4803A. The plaintiffs’ motion dated April 30, 2003,

challenged the constitutionality of HB 391 in several respects.

In asserting their challenge to the statute, the plaintiffs

contended that the immunity conferred by I.C. § 22-4803 A(6)

to the grass farmers who burn their fields results in a taking

of private property without the payment of compensation in

violation of federal and state constitutional provisions. The

statute at issue provides in relevant part: “Crop residue

burning conducted in accordance with section 22-4803, Idaho

Code, shall not constitute a private or public nuisance or

constitute a trespass.” The district court determined that I.C.

§ 22-4803A(6) is unconstitutional because it takes property

without prior compensation in violation of the Fifth

Amendment to the federal Constitution.

The just compensation clause of the Fifth Amendment

of the United States Constitution provides that no person

shall “be deprived of life, liberty, or property, without due

process of law, nor shall private property be taken for public

10a

Appendix A

use, without just compensation.” The Idaho Constitution also

guarantees its citizens the right of due process if private

property is taken for a public use, pursuant to-Article I, § 13,

and provides for just compensation for such a taking, pursuant

to Article I, § 14. The question this Court must answer, then,

is whether the grant of immunity to the grass farmers can be

deemed a “taking” from the plaintiffs. In other words, have

the plaintiffs been deprived, by the statute, of their common

law right to bring a nuisance action and/or a trespass action,

without remuneration.

Idaho case law has defined “trespass” to apply to the

wrongful interference with the right of exclusive possession

of real property, while the tort of private “nuisance” applies

to the wrongful interference with the use and enjoyment of

real property. Mock v. Potlatch Corp., 786 F.Supp. 1545

(D.Idaho 1992). See also Carpenter v. Double R Cattle Co.,

Inc., 105 Idaho 320, 669 P.2d 643 (Ct.App. 1983) (“But where

an invasion of property is merely incidental to the use of

adjoining property, and does not physically interfere with

possession of the property invaded, it generally has been

classified as a nuisance rather than a trespass.”); ILC. § 52-

101 (defining nuisance as “anything which is injurious to

health [ ... Jor an obstruction to the free use of property, so

as to interfere with the comfortable enjoyment of life or

property.”). A useful differentiation between trespass and

nuisance is found in a case that the district court found to be

squarely on point, in which the Iowa Supreme Court noted:

“Trespass comprehends an actual physical invasion by

tangible matter. An invasion which constitutes a nuisance is

usually by intangible substances, such as noises or odors.”

Bormann v. Board of Supervisors, 584 N.W.2d 309 (lowa

lla

Appendix A

1998), cert. den. sub nom, Girres v. Bormann, 525 U.S. 1172,

119 S.Ct. 1096, 143 L.Ed.2d 96 (1999), citing Ryan v. City

of Emmetsburg, 232 Iowa 600, 603, 4 N.W.2d 435, 439

(1942). Thus, in the plaintiffs’ situation, an action could be

said to lie in nuisance and in trespass, respectively, given

the invasion of the thick, oppressive smoke generated by the

farmers’ burning and the particulates emitted from the smoke

onto the plaintiffs’ land.

In Covington v. Jefferson County, 137 Idaho 777, 53 P.3d

828 (2002), the increased noises, offensive odors, dust, flies,

and litter caused by the operation of the landfill near the

Covingtons’ property formed the basis of their claim of

inverse condemnation. In their amended complaint, they

alleged that their property was impaired by the operation of

the landfill by an amount in excess of 25% of the property’s

total value, which they claimed amounted to a taking for

which they were entitled to compensation. The Court

analyzed the elements of the claim, including whether the

Covingtons’ property was invaded or appropriated to the

extent of a taking, and determined as a matter of law that the

Covingtons had failed to allege a taking under either the state

or the federal constitution. Jd. at 780, 53 P.3d at 831.

According to the Covington court, before an owner is

entitled to compensation for a violation of Article I, § 14 of

the Idaho Constitution, his property must be “taken” and not

merely “damaged.” Jd. at 781, 53 P.2d at 832, citing Powell

v. McKelvey, 56 Idaho 291, 307, 53 P.2d 626, 632- 33 (1935).

This conclusion was based on the language of the

constitutional provision that contains only the word “taken”

and which has not authorized the collection of damages where

12a

Appendix A

there is no actual physical taking of the property. /d. at 780,

53 P.3d at 831, citing Idaho-Western Ry. Co. v. Columbia

Conference of Evangelical Lutheran Augustana Synod, 20

Idaho 568, 584- 85, 119 P. 60, 65 (1911). The Court also

held that under the United States Constitution, a physical

invasion or a regulatory taking, which permanently deprives

the owner of “all economically beneficial uses” of his land,

requires compensation. /d., citing Lucas v. South Carolina

Coastal Council, 505 U.S. 1003, 112 S.Ct. 2886, 120 L.Ed.2d

798 (1992).

The case presently before the Court is not an inverse

condemnation case but as in Covington, deals with a

regulatory taking. Covington, 137 Idaho at 781, 53 P.3d at

832. Although a footnote in Covington indicates that “[t]his

activity may constitute a nuisance claim which is not before

this court,” the opinion does not address whether the

elimination of such a nuisance claim by act of the legislature

could or could not be deemed a taking. The determination of

whether or not there was a taking is a matter of law to be

resolved by the trial court. Rueth v. State, 100 Idaho 203,

596 P.2d 75 (1979). The trial court should also determine

the nature of the property interest so taken. Tibbs v. City of

Sandpoint, 100 Idaho 667, 670, 603 P.2d 1001, 1004 (1979).

The taking asserted by the plaintiffs is not a physical

taking because the plaintiffs’ land is not appropriated and

because the smoke complained of does not result in a loss of

access or of any complete use of the property. See Hughes v.

State of Idaho, 80 Idaho 286, 328 P.2d 397 (1958)

(impairment of a right of access constituted a ‘taking of

_ property’). See also Covington, supra (where there has been

13a

Appendix A

no loss of access to or denial of any use of the Covingtons’

property). The taking asserted then, is in the nature of a

regulatory taking, but the plaintiffs have not claimed a

permanent deprivation of all economically beneficial uses

of their land. As such, under the Idaho Constitution, which

does not allow less than a total deprivation of use or denial

of access, and under Lucas, 505 U.S. 1003, 112 S.Ct. 2886,

120 L.Ed.2d 798, there is no taking in violation of the state

or the federal constitution. See also Tahoe-Sierra

Preservation Council, Inc. v. Tahoe Regional Planning

Agency, et al., 535 U.S. 302, 122 S.Ct. 1465, 152 L.Ed.2d

517 (2002) (holding no categorical taking had occurred

because the regulations had only a temporary impact on the

petitioners’ fee interest in the properties); cf. Renninger v.

State, et al., 70 Idaho 170, 213 P.2d 911 (1950) (a taking

requiring just compensation occurs when the state inflicts

permanent and irreparable injury on land).

- The district court, in analyzing the extent of the taking,

concluded that “[a]ny destruction, interruption, or deprivation

by the common, usual and ordinary use of property is by the

weight of authority a taking of one’s property in violation of

the constitutional guaranty.” Knowles v. New Sweden Irr.

Dist., 16 Idaho 217, 231, 101 P. 81, 86 (1908), as cited in

Hughes v. State, 80 Idaho 286, 294, 328 P.2d 397, 401 (1958).

As noted above, the destruction of access and deprivation of

the use of property may be compensable, but the mere

interruption of the use of one’s property, as it is less than a

permanent (complete) deprivation, does not mandate

compensation. This Idaho authority relied upon by the district

court has since been overruled by the Supreme Court’s

interpretation of the scope of a taking. Covington, supra.

l4a

Appendix A

The district court also relied on Renninger v. State, 70 Idaho

170, 213 P.2d 911 (1950), for the proposition that just

compensation is warranted even when the taking is intermittent.

This proposition is derived from cases cited in Renninger

holding that where a structure causes ‘permanent liability to

intermittent but inevitably recurring overflows’ it is taking. /d.,

citing Sanguinetti v. United States, 264 U.S. 146, 44 S.Ct. 264,

68 L.Ed. 608 (1924). The physical structure in Sanguinetti was

a dam, and the servitude created by reason of the intermittent

overflow was held to be a partial taking. See id. In Renninger,

the structure that led to injury to the land was a bridge—

distinguishing it from the smoke created by the field burning in

the case at hand.

Another proposition cited by the district court, which is

not the holding of Renninger, is a quote from Pumpelly v. Green

Bay & Mississippi Canal Co., 13 Wall. 166 (1871):

where real estate is actually invaded by superinduced

additions of water, earth, sand or other material ...

So as to effectually destroy or impair its usefulness,

itis a taking, within the meaning of the Constitution,

and that this proposition is not in conflict with the

weight of judicial authority in this country, and

certainly not with sound principle.

Id. at 181. Rather, in Renninger, where the plaintiff sought to

recover damages in inverse condemnation for the injury caused

by the bridge built by the State, the Court held that when the

State inflicts permanent and irreparable injury on the land without

making any compensation, there is a violation of Article I,§ 14

of the Idaho Constitution. The district court’s reading of _

Renninger is inaccurate.

15a

Appendix A

Next, the district court concluded that the right to

maintain a nuisance is an easement, citing the Restatement

of Property § 451, at 2912 (1944), which provides: “An

affirmative easement entitles the owner thereof to use the

land subject to the easement by doing acts which, were it not

for the easement, he would not be privileged to do.” As

explained by the comments to § 451:

In many cases, the use an owner of an affirmative

easement is entitled to make enables him to

intrude upon the land subject to the easement in

ways which, were it not for the easement, would

make him a trespasser upon the land. On the other

hand, it may entitle him to do acts on his own

land which, were it not for the easement, would

constitute a nuisance.”

Id. cmt. (1944). Idaho, however, has not adopted the

Restatement; moreover, in the case before the Court, the

smoke created by the burning of the fields is the “nuisance

or trespass” immunized by the statute, I.C. § 22- 4803A(6).

This immunity thus entitles the grass farmers to invade the

property.of the plaintiffs’ with the smoke from their burning

fields, while preventing the plaintiff landowners from full

possession, use, and quiet enjoyment of their land and

denying them a remedy from the invasion from the farmers’

smoke.

The district court followed the reasoning of the court in

Bormann, v. Board of Supervisors. In Bormann, the lowa

Supreme Court recalled long-standing law that the right to

maintain a nuisance is an easement, 584 N.W.2d at 315- 16,

l6a

Appendix A

citing Churchill v. Burlington Water Co.,94 Iowa 69, 62 N.W.

646, 647 (Iowa 1895), which holding is consistent with the

Restatement of Property § 451. The court characterized the

nuisance immunity provision in section 352.11(1)(a) of the

Iowa Code as creating an easement in the property affected

by the nuisance (the servient tenement) in favor of the

applicants’ land (the dominant tenement). Jd. at 316.

Concluding that easements are property interests subject to

the just compensation requirements of the Iowa and the

Federal Constitutions, the court ruled that the approval of

the application for an agricultural area pursuant to

352.11(1)(a) conferred immunity, which resulted in the

Board’s taking of easements in the neighbors’ properties for

the benefit of the applicants. /d. at 321. The court concluded

that the legislature had exceeded its authority by authorizing

the use of property in such a way as to infringe on the rights

of others by allowing the creation of a nuisance without the

payment of compensation, compelling the court to hold “that

portion of Iowa Code section 352.1 1(1)(a) that provides for

immunity against nuisances unconstitutional and without any

force and effect.” Jd. at 321-322.

There is no direct authority in Idaho holding that the

right to maintain a nuisance is an easement. Ina case arising

out of the mooring of a houseboat on Lake Coeur d’Alene

that was open, notorious, continuous, uninterrupted and with

knowledge of but without permission of the littoral owners,

the Court held that the houseboat owners had prescribed part

of the littoral rights and acquired an easemen* in gross as

against the littoral owners. West vy. Smith, 95 Idaho 550, 511

P.2d 1326 (1973). In an action to enjoin the maintenance of

a sign on a state highway ri ght-of-way, the Court referred to

17a

Appendix A

a California case involving an alleged obstruction or nuisance

on a highway in the form of a shed erected on a right-of-

way, which held: “Where the sole question is whether the

maintenance of the structure or obstruction is inconsistent

with the full enjoyment of the right of way by the public, the

owner of the fee is deemed to possess no greater rights than

those who are strangers to the title.” State ex rel. Burns v.

Kelly, 89 Idaho 139, 146, 403 P.2d 566 (1965).

The challenge in Bormann was one of inverse

condemnation by the landowners when the Board of

Supervisors failed to seek condemnation in court. 584 N.W.2d

at 311-12. The landowners claimed an invasion of their

property by the Board’s approval of an application for an

agricultural area designation, the effect of which was an

immediate interference with the plaintiffs’ enjoyment and

use of their land and a corresponding, measurable loss of the

property’s value. The Bormann court found historical support

for allowing compensation for interferences short of a

physical taking or touching of the land in Pennsylvania Coal

Co. v. Mahon, 260 U.S. 393 (1922) (statute that was an

attempt to condemn property and deny the owner coal

company the occupancy and right to mine his property viewed

as a taking of an interest without any physical intrusion) and

Richards v. Washington Terminal Co., 233 U.S. 546, 34 S.Ct.

654, 58 L.Ed. 1088 (1914) (recognizing the taking of a

property interest or right to be free from ‘special and peculiar’

governmental interference with enjoyment and eliminating

the requirement of a physical taking or touching). The

Bormann court looked tc: more recent United States Supreme

Court cases drawing a distinction between per se takings as

outlined in Lucas v. South Carolina Coastal Council, 505

18a

Appendix A a

U.S. 1003 (1992), and all other cases involving regulatory

takings, which are to be examined on a case-by-case basis,

calling for a balancing test that is one of reasonableness,’ to

determine at which point the exercise of police power

becomes a taking. Bormann, 584 N.W.2d at 316-17, citing

Penn Cent. Transp. Co. v. New York City, 438 U.S. 104, 124

(1978).

The district court in deciding whether the farmers’ grass

burning effected a taking also relied on Richards y.

Washington Terminal Co., 233 U.S. 546 (1914), as cited in

Bormann, 584 N.W.2d at 319, which awarded compensation

for the gases and smoke emitted from engines in the tunnel,

which constituted “special and peculiar” damage resulting

in diminution of the value of the plaintiff’s property.

Richards, 233 U.S. at 557. The grass farmers correctly argue

here, that the plaintiffs have not alleged any “special and

peculiar” damage so as to bring themselves within the scope

of a private nuisance as contemplated by Richards, but only

such damages as naturally and unavoidably result from the

field burning and are shared generally by property owners

whose lands lie within the range of the inconveniences

necessarily incident to proximity to the fields being burned.

We reiterate that Idaho has not recognized the right to

maintain a nuisance as an easement, and we decline the

plaintiffs’ invitation to adopt the Restatement of Property §

2. The test focuses on three factors: (1) the economic impact of

the regulation on the claimant’s property; (2) the regulation’s

interference with investment-backed expectations; and (3) the

character of the governmental action. Penn Cent. Transp. Co. v. New

York City, 438 U.S. 631.

19a

Appendix A

451 as the law in Idaho. See Diamond v. Farmers Group,

Inc., 119 Idaho 146, 804 P.2d 319 (1990) (“[T]his Court has

consistently displayed its preference for selectively

examining various sections and comments from the

Restatement, and thereafter adopting, citing favorably, or

rejecting the provision, as the occasion warrants’). Further,

we decline to hold that the nuisance immunity provision of

I.C. § 22-4803A(6) creates an easement in favor of the grass

farmers.

The grass farmers argue that the plaintiffs have failed to

identify Idaho authority for the proposition that the

Legislature is foreclosed from abolishing nuisance or trespass

causes of action that have not yet accrued. Article XXI, § 2

of the Idaho Constitution provides that the legislature has

the power to modify or repeal common law causes of action.

It is well established that “it is the province of the Legislature,

and not the court, to modify the rules of the common law.”

Moon vy. Bullock, 65 Idaho 594, 607, 151 P.2d 765, 771

(1944). The Court has held that the Legislature can abolish

common law causes of action entirely or impose statutes of

limitation without violating Article I, § 18. Hawley v. Green,

117 Idaho 498, 788 P.2d 1321 (1990). More recently, the

Court determined that no one has a vested right to a particular

common law or necessarily, to a statutory cause of action.

Osmunson v. State, 135 Idaho 292, 295, 17 P.3d 236, 239

(2000). The Court’s comments in these two cases were

directed to whether a newly enacted statute contradicted a

provision of the Idaho Constitution, specifically Article I,

§ 18. In Kirkland v. Blaine County Medical Ctr., 134 Idaho

464, 4 P.3d 1115 (2000), the Court held that ILC. § 6-1603

placing a cap on personal injury damages in personal injury

20a

Appendix A

cases does not violate the right to jury trial as guaranteed by

Article I, § 7 of the Idaho Constitution, does not constitute

special legislation in violation of Article III, § 19 of the Idaho

Constitution, and does not violate the separation of powers

doctrine embodied in the Idaho Constitution.

Accordingly, we hold that that the provision of Idaho

Code § 22-3806A(6) granting immunity to the grass farmers

does not represent an unconstitutional taking under either

the state or federal constitution.

II.

The district court ruled that HB 391 violates Article I, §

1 of the Idaho Constitution. The district court applied the

test of Newland v. Child, 73 Idaho 530, 537, 254 P.2d 1066,

1069 (1953) to analyze whether I.C. § 22- 4803A(6)

promoted the common welfare and placed a reasonable

limitation on the plaintiffs’ inalienable right “to possess and

protect property” conferred by Article I, § 1. Disagreeing

with the Legislature’s findings and making an independent

finding that Kentucky bluegrass can be grown without

burning, as is done in Oregon and Washington, the district

court determined that the limitation imposed by the statute

was not “in the interests of the common welfare.”

The plaintiffs’ challenge to the statute is a facial

challenge, invoking a standard requiring the challenger to

establish that no set of circumstances exist under which the

Act would be valid. United States v. Salerno, 481 U.S. 739,

745 (1987); see also Village of Hoffman Estates v. Flipside,

Hoffman Estates, Inc., 455 U.S. 489, 498 (1982); State v.

2la

Appendix A

Newman, 108 Idaho 5, 12, 696 P.2d 856, 863 (1985), citing

Steffel v. Thompson, 415 U.S. 452 (1974). Because there

clearly are some interesfs of the common welfare being

protected by the Legislature’s action in allowing field

burning, we cannot say that the plaintiffs have met their

burden to show no conceivable constitutional application for

this legislation. There were no facts presented at this stage

of the case, and accordingly, an “as applied” challenge is not

available to the plaintiffs.

Nor were there facts presented challenging either the

sufficiency or the motivation behind the Legislature’s

findings. “The existence of facts supporting the legislative

judgment is to be presumed.” United States v. Carolene

Products Co., 304 U.S. 144, 152 (1938). The legislature’s

judgment is “weil-nigh conclusive.” Berman v. Parker, 348

U.S. 26, 32 (1954); see also Sweet v. Rechel, 159 U.S. 380,

392 (1895); Euclid v. Ambler Realty Co., 272 U.S. 365, 388,

(1926) (“If the validity of the legislative classification for

zoning purposes be fairly debatable, the legislative judgment

must be allowed to control.”). Plaintiffs challenging the

constitutionality of a statute are required to provide “some

factual foundation of record” that contravenes the legislative

findings. O’Gorman & Young v. Hartford Fire Ins. Co., 282

U.S. 251, 258 (1931). In the absence of such proof, “the

presumption of constitutionality must prevail.” Jd. at 257.

The district court erred in holding I.C. § 22-4803A(6)

unconstitutional because it violated Article I, § 1 of the Idaho

Constitution. ;

22a

Appendix A

Il.

The district court ruled HB 391 unconstitutional in that

it constitutes a local orspecial law in violation of Article IT],

§ 19 of the Idaho Constitution, which provides that “T t]he

legislature shall not pass local or special laws in any of the

following enumerated cases, that is to say: ... For limitation

of civil or criminal actions.”

A law “is not special when it treats all persons in similar

situations alike.” Sun Valley Co. v. City of Sun Valley, 109

Idaho 424, 429, 708 P.2d 147, 152 (1985); Twin Falls Clinic

and Hospital Bldg. v. Hamill, 103 Idaho 19, 26, 644 P.2d

341, 348 (1982). Nor is a law local “when it applies equally

to all areas of the state.” Sun Valley Co., 109 Idaho at 429,

708 P.2d 147; School Dist. No. 25 v. State Tax Comm ‘n, 101

Idaho 283, 291, 612 P.2d 126, 134 (1980). “A law is not

special simply because it may have only a local application

or apply only to a special class, if in fact it does apply to all

such classes and all similar localities and to all belonging to

the specified class to which the law is made applicable.”

Bd. of County Comm’rs of Lemhi County v. Swensen, 80 Idaho

198, 201, 327 P.2d 361, 362 (1958), citing Mix v. Bd. of

Comm rs, 18 Idaho 695, 705, 112 P. 215 (1910).

The standard for determining whether a law is local or

special was most recently set forth in Concerned Taxpayers

of Kootenai County v. Kootenai County, 137 Idaho 496, 499,

50 P.3d 991, 994 (2002). The Court stated therein, “The test

for determining whether a law is local or special is whether

the classification is arbitrary, capricious, or unreasonable.”

Id. at 499, 50 P.3d at 994. This enunciation of the test was

23a

Appendix A

derived from Sun Valley Co., 109 Idaho at 429, citing

Washington County v. Paradis, 38 Idaho 364, 369, 222 P.

775, 777 (1923). A close reading of Paradis, however,

indicates the source of the test as Jones v. Power County, 27

Idaho 656, 150 P. 35 (1915), where the Court said in

discussing general and special laws:

A statute is general if its terms apply to, and its

provisions operate upon, all persons and subject

matters in like situation. (See DILLON ON

MUNICIPAL CORPORATIONS, Sth ed., sec.

142.) The true test seems to be: Is the classification

capricious, unreasonable or arbitrary?

Id. at 665, 150 P. at 37. Local and special laws are defined

separately and apply to different situations. The Jones case

applies the “capricious, unreasonable arbitrary” test to special

laws not local laws. To the extent Sun Valley Co. v. City of

Sun Valley, is said to apply to local laws, it is disavowed.

The district court in its memorandum decision rephrased

the test for analyzing whether a law is local or special, when

it stated: “The test for determining whether a law is local or

special is basically whether the legislature has singled out

‘persons or corporations for preferred treatment.’ “

Concerned Taxpayers of Kootenai County v. Kootenai

County, 137 Idaho at 499, 50 P.3d at 994, citing Jones v. Bd.

of Medicine, 97 Idaho 859, 877, 555 P.2d 399, 417 (1976).

This test also incorrectly links the local and special laws

under the same test. In Jones, the court specifically held:

24a

Appendix A

It has been indicated that the distinction between

general and special legislation is that a law is

general if “all persons subject to it are treated alike

as to privileges, protection and in every other

respect.” Wanke v. Ziebarth Const. Co., 69 Idaho

64, 202 P.2d 384, 393 (1948). Stated in other

terms, “A statute is general if its terms apply to,

and its provisions operate upon, all persons and

subject-matter in like situation[s].” Jones v. Power

County, 27 Idaho 656, 150 P. 35, 37 (1915); In re

Bottjer, 45 Idaho 168, 260 P. 1095 (1927). “It is

well settled that a law is not special in character

‘if all persons subject to it are treated alike, under

similar circumstances and conditions, in respect

to both the privileges conferred and the liabilities

imposed.’” State v. Horn, 27 Idaho 782, 793, 152

P. 275, 279 (1915). [Citations omitted.]

Clearly, it is arguable at least that the Act in

question here [ (the recovery limitation in the

Idaho Malpractice Act) ] is special in that it selects

from a class of persons otherwise subject to

liability for their negligent acts, physicians and

hospitals, and releases or extinguishes, in part at

least, their otherwise liability contrary to the

interdiction of special laws in Art. III, § 19.

Jones v. Bd. of Medicine, 97 Idaho at 876-77, 555 P.2d at

416-17. Applying the test as rephrased, the district court

concluded that there was “simply no proof that the legislature

has singled out ‘persons or corporations for preferred

treatment.’”

25a

Appendix A

The district court then examined the text of I.C. § 22-

4803A(6), which is the sole provision challenged as a local

or special law by the plaintiffs. The district court first

concluded that nothing in the immunity provision, I.C. § 22-

4803A(6), pertains only to the ten north Idaho counties.

However, the district court reasoned that “via I.C. §§ 22-

4803 and 22-4803A(3),” the immunity statute is specific to

the ten northern counties. The district court then found that

the immunity statute does not apply “equally to all areas of

the state” and is arbitrary, capricious and unreasonable,

supporting its conclusion that I.C. § 22-4803A(6) is a special

or local law. We will discuss each of the district court’s

findings in turn.

The immunity provision provides: “Crop residue burning

conducted in accordance with section 22-4803, Idaho Code,

shall not constitute a private or public nuisance or constitute

a trespass.” According to I.C. § 22-4803, entitled Agricultural

Field Burning, open field burning of crop residue is allowed

when the burning is done in compliance with the provisions

and rules promulgated in the chapter and when no other

economically viable alternatives to burning are available. See

LC. § 22-4803(1). Under subsection (2), the following

provisions shall apply to all agricultural field burning:

(a) In order to minimize impacts upon populated

areas of the counties designated in subsection (3)

of this section, any person conducting crop residue

burning must make every reasonable effort to burn

only when weather conditions are conducive to

adequate smoke dispersion, and the burning does

not emit particulates or other materials which

26a

Appendix A

exceed the state and federal ambient air quality

standards; and

(b) The open burning of crop residue shall be

conducted in the field where it is generated.

I.C. § 22-4803(2)(a), (b). These provisions apply to all

agricultural field burning statewide. Subsection (3) imposes

additional requirements upon the ten northern counties to

conducted and to obtain authorization from the department

that the conditions of subsectien (2)(a) are met before

burning. .

L.C. § 22-4803A defines violations of the registration

and preauthorization requirements pursuant to subsection (3)

of I.C. § 22-4803. Thus, there are no ramifications other than

to field burners in the ten counties. Section 4803A also

outlines procedures for imposing penalties for such

violations, for inspections and investigations of possible

violations, and sets forth the limitation of actions applicable

to proceedings to recover for violations of any provision of

the chapter. Subsection (5) of I.C. § 22-4803A specifically

provides “the department shall investigate all agricultural

field burning and crop residue disposal complaints lodged

against persons conducting burning in Kootenai, Benewah,

Boundary, Bonner, Shoshone, Latah, Clearwater, Nez Perce,

Lewis and Idaho counties.” It is clear that pursuant to

subsection (5), the statute mandates heightened scrutiny in

the ten named counties, to ensure compliance with the general

conditions that must be satisfied in anticipation of burning.

27a

Appendix A

Lastly, we consider the second sentence of subsection

(6), which follows the immunity provision:

Nothing in this chapter shall be construed to create

a private cause of action against any person who

engages in or allows crop residue burning of a

field or fields required to be registered pursuant

to section 22-4803(3), Idaho Code, provided such

activities area conducted in accordance with the

chapter 484, title 22, Idaho Code, and rules

promulgated thereunder.

We read this portion of the statute to mean that if any person

fails to comply with the provisions of the chapter when

burning, there is no negligence per se on account of a

violation of the statute. The holding of this Court is that

subsection (6) of the statute applies equally to all crop residue

burners and not only to the ten northern counties; therefore,

I.C. § 22- 4803A(6) is not a local law.

The district court conluded that the statute was arbitrary,

capricious and unreasonable, based principally on its

independent finding that there is no need to burn. Generally,

plaintiffs challenging the constitutionality of a law are

required to provide “some factual foundation of record” that

contravenes the legislative findings. O’Gorman & Young v.

Hartford Fire Ins. Co., 282 U.S. 251, 258 (1931). In the

absence of such proof, “the presumption of constitutionality

must prevail.” Jd. at 257. See also United States v. Carolene

Products Co., 304 U.S. 144 (1938) (“The existence of facts"

supporting the legislative judgment is to be presumed.”);

Jones v. Power County, 27 Idaho 656, 666, 150 P. 35, 37

28a

J Appendix A

(1915) (“We are not aware of any rule whereby an act of the

legislature must specify the conditions on which its validity

must depend, but, on the contrary, the court will assume the

existence of such conditions until it is apparent that they do

not exist.”). Despite some particularized references to the

ten northern counties, including the imposition of stricter

requirements on North Idaho counties, the statute applies to

all counties. We reverse the district court’s conclusion that

the statute is a local and a special law.

CONCLUSION

The immunity provision found at I.C. § 22-4803 A(6)

does not effect a taking in violation of the Fifth Amendment

of the United States Constitution or Article I, § 14 of the

Idaho Constitution. It does not violate Article I, § 1 of the

Idaho Constitution or the prohibition against local or special

laws found in Article III, § 19 of the Idaho Constitution. The

statute is constitutional.

Chief Justice TROUT and Justices SCHROEDER and

McKEE, Senior Judge, CONCUR.

Justice KIDWELL, DISSENTING.

The majority opinion has misinterpreted and misapplied

the Idaho Constitution in its analysis of I.C. § 22-4803A(6);

therefore, I respectfully dissent and set forth a portion of my

analysis as follows:

I.C. 22-4803A(6) (a portion of HB 391)

Violates Article III, Section 19 Of The Idaho

Constitution

29a

Appendix A

The Idaho Constitution prohibits certain “local” or

“special laws.” Article III, section 19 states: “The legislature

shall not pass local or special laws in any of the following

enumerated cases, that is to say ... For limitation of civil or

criminal actions.” Plaintiffs’ argument that HB 391 is'a

special or local law addresses I.C. § 22-4803A(6). The district

court correctly found that HB 391 limits “civil actions” in

ten north Idaho counties via § 22-4803A(6), which states:

Crop residue burning conducted in accordance

with section 22-4803, Idaho Code, shall not

constitute a private or public nuisance or

constitute a trespass. Nothing in this chapter shall

be construed to create a private cause of action

against any person who engages in or allows crop

residue burning of a field or fields required to be

registered pursuant to section 22-4803(3), Idaho

Code, provided such activities are conducted in

accordance with chapter 49, title 22, Idaho Code,

and rules promulgated thereunder.

A. I.C.22-4803A(6) Does Not Apply Equally To All Areas

Of The State And Is Therefore Unconstitutional

The controlling law in Idaho concerning; local and special

laws can be found in a recent unanimous decision of the Idaho

Supreine Court, Concerned Taxpayers of Kootenai County

v. Kootenai County, 137 Idaho 496, 50 P.3d 991 (2002). As

the majority indicates, the district court rephrased the law of

Concerned Taxpayers at one point (“the test for determining

whether a law is local or special is basically whether the

legislature has singled out ‘persons or corporations for

30a

Appendix A

preferred treatment’”); however, the majority fails to

recognize that the district court used the correct law of

Concerned Taxpayers in its analysis and applied it correctly.

In Concerned Taxpayers, the Court held, “A law ‘is not

special when it treats all persons in similar situations alike,’

and it is not local ‘when it applies equally to all areas of the

state.’” 137 Idaho 496, 500, 50 P.3d 991, 994 (2002). The

district court made reference to this language when it cited

to Sun Valley Co. v. City of Sun Valley for the proposition

that, “Accordingly, I.C. § 22-4803A(6) is a special or local

law because it does not apply ‘equally to all areas of the

state.” 109 Idaho 424, 429, 708 P.2d 147 (1985).

The district court found that HB 391 does not apply

equally to all areas of the state. Though nothing in the

language of I.C. § 22-4803A(6) pertains only to specified

counties, it references two sections that are limited to ten

north Idaho counties. The district court stated that § 22-

4803A(6) references § 22-4803 and § 22-4803A(3), (this is

likely a clerical error of the district court—the section

references § 22-4803 and § 22-4803(3), not § 22-4803A(3)).

Both sections 22-4803 and 22-4803(3) are limited to ten north

Idaho counties. The district court concluded that § 22-

4803 A(6) is a special or local law because it does not apply

“equally to all areas of the state” via the two sections

referenced. The district court is correct in its conclusion,

though it may be helpful to look at each sentence of § 22-

4803 A(6) in more detail.

3la

Appendix A

1. The First Sentence of § 22-4803A(6)

The first sentence reads: “Crop residue burning

conducted in accordance with section 22-4803, Idaho Code,

shall not constitute a private or public nuisance or constitute

a trespass.”

Since § 22-4803 is referenced, it is helpful to look at it

more closely. The majority correctly identifies that the

provisions of subsection (2) apply to all agricultural field

burning. Provision (2)(a) refers to the ten counties when it

states, “In order to minimize impacts upon populated areas

of the counties designated in subsection (3) of this section,

any person ...” It appears from this alone that § 22-4803 refers

to the counties listed under subsection (3) only to show that

these counties are intended to be protected. However, further

reading shows that subsection (3) does not apply equally to

all agricultural field burning because it imposes additional

requirements upon ten counties to register and obtain

authorization from the department before burning. The

majority acknowledges the heightened scrutiny, but it fails

to explain how the heightened scrutiny does not effect equal

application of the statute. It seems clear that the additional

requirements set forth in subsection (3) demonstrate that the

statute does not apply equally to all areas of the state.

2. The Second Sentence of § 22-4803A(6)

The second sentence reads:

Nothing in this chapter shall be construed to

create a private cause of action against any

32a

Appendix A

person who engages in or allows crop residue

burning of a field or fields required to be

registered pursuant to section 22-4803(3), Idaho

Code, provided such activities are conducted in

accordance with chapter 49, title 22, Idaho Code,

and rules promulgated thereunder.

(Emphasis added.) The majority incorrectly interprets

this to mean the section applies to all crop burners in the

State, again, without much explanation. The second sentence

specifically refers to § 22-4803(3), which States, “[I]n the

counties specifically identified in this subsection, no person

shall conduct or allow any crop residue burning without first

registering each field with the department each year before

burning is conducted, and without first receiving

authorization from the department ...” Since everyone that

engages in crop burning in these ten counties must first

to say, “Nothing in this chapter shall be construed to create a

private cause of action against any person who engages in or

allows crop residue burning in Kootenai, Benewah,

Boundary, Bonner, Shoshone, Latah, Clearwater, Nez Perce,

Lewis and Idaho counties.” This clearly shows that the statute

does not apply equaily to all counties that conduct field

burning statewide.

B. A Law Is Local Or Special If It Is Arbitrary,

Capricious Or Unreasonable

Concerned Taxpayers also noted, “The test for

determining whether a law is local or special is whether the

classification is arbitrary, capricious, or unreasonable.” 137

33a

Appendix A

Idaho 496, 500, 50 P.3d 991, 994 (2002). The district court

applied this rule, citing Kirkland v. Blaine County Medical

Center, 134 Idaho 464, 4 P.3d 1115 (2000). The legislature

Stated the intent of HB 391 in LC. § 22-4801, which reads:

It is the intent of the legislature to promote

agricultural activities while at the same time

protecting public health. The legislature finds that

due to the climate, soils and crop rotations unique

to north Idaho Counties, crop residue burning is a

prevalent agricultural practice and that there is an

environmental benefit to protecting water quality

from the growing of certain crops in

environmentally sensitive areas. It is the intent of

the legislature to reduce the loss to the state of its

agricultural resources by providing a safe harbor

to farmers when burning crop residues in

compliance with this chapter and limiting the

circumstances under which agricultural operations

may be exposed to claims outside of the lawful

framework for crop residue burning.

(Emphasis added.) The district court correctly observed,

“(T]he statute does not Say that ‘burning protects water

quality.’ Instead, the statute in essence Says ‘the crop which

the legislature is protecting protects water quality.’” This

implies that if farmers are not allowed to burn, they will not

grow this crop for which there is an environmental benefit.

The district court stated that this belief is based on the fallacy

that one must burn in order to grow these crops. The district

court points out that Washington, Oregon, and free markets

have proven that these crops can be grown without burning.

34a

Appendix A

It concluded that the purpose of the statute as written by the

legislature is arbitrary, capricious and unreasonable since it

is based on a fallacy.

The majority states that the district court’s conclusion is

based on “an independent finding that ‘there is no need to

burn’ “ and further states that the plaintiffs must provide

“some factual foundation of record” that contravenes the

legislative findings. For support of this contention, the

majority cites O’Gorman & Young v. Hartford Fire, 282 U.S.

251, 258, 51 S.Ct. 130, 132 (1931). However, that case did

not analyze whether a statute was special or local. Again,

the controlling case in Idaho regarding local and special laws

is Concerned Taxpayers. In Concerned Taxpayers the Idaho

Supreme Court was not persuaded by the defendant’s

justifications for the statute, and went on to state, “Regardless

of the rationalizations and social policy arguments offered

by [the defendant], one cannot escape the fact that [the statute

in question] is directly contrary to the prohibitions contained

in Article III, § 19 of the Idaho Constitution.” 137 Idaho 496,

499, 50 P.3d 991, 996.

The district court’s conclusion that the rationalizations

given for the statute are unpersuasive and that § 22-4803A(6)

is a special or local law, and therefore unconstitutional, is

correct and should have been upheld. This analysis precludes

the necessity of addressing additional constitutional issues

raised.

35a

APPENDIX B — MEMORANDUM DECISION AND

ORDER GRANTING PLAINTIFFS’ MOTION TO

DECLARE HB 391 UNCONSTITUTIONAL OF THE

DISTRICT COURT OF THE FIRST JUDICIAL

DISTRICT OF THE STATE OF IDAHO IN AND FOR

THE COUNTY OF KOOTENAI

DATED AND FILED JUNE 4, 2003

IN THE DISTRICT COURT OF THE FIRST JUDICIAL

DISTRICT OF THE STATE OF IDAHO IN AND FOR

THE COUNTY OF KOOTENAI

Case No. CV 2002 3890

LAWRENCE (“BUD”) MOON, JR., et al.,

Plaintiffs,

Vs.

NORTH IDAHO FARMERS ASSOCIATION, et al.,

Defendants.

MEMORANDUM DECISION AND ORDER

GRANTING PLAINTIFFS’ MOTION TO

DECLARE HB 391 UNCONSTITUTIONAL

I. BACKGROUND.

Plaintiffs filed their “Motion to Declare HB 391

Unconstitutional to the Extent it Purports to Extinguish any

of the Rights of Plaintiffs and Members of the Class” on

April 30, 2003. The stated purpose of plaintiffs’ motion is

36a

Appendix B

“to move for an order declaring HB 391 unconstitutional on

the following grounds: (1) HB 391 takes plaintiffs and class

members’ property without prior compensation in violation

of the state and federal constitution; (2) HB 391 is

unconstitutional because the state cannot authorize the right

to injure plaintiffs and the class in their own homes; (3) HB

391 violates due process because it fails to provide procedures

for compensation; (4) HB 391 constitutes illegal special

legislation in violation of Article III, Section 19 of the Idaho

Constitution; and (5) HB 391 violates viaintiffs’ and class

members’ fundamental rights.” Motion to Declare HB 391

Unconstitutional, p. 2. The motion was supported by

“Plaintiffs’ Memorandum in Support of Motion Regarding

the Constitutionality of HB 391" and the “Affidavit of R.

Brent Walton Regarding the Constitutionality of HB 391,”

all filed on the same date. On May 7, 2003 the State of Idaho

Attorney General, as the State’s chief legal officer filed its

“Brief Amicus Curiae of Idaho Attorney General In Support

of House Bill 391’s Constitutionality” along with a Motion

to Appear as Amicus Curiae by Idaho Attorney General in

Support of House Bill 391’s Constitutionality. The Motion

to Appear as Amicus Curiae was granted by the Court in its

May 19, 2003 Order Granting Leave to Appear as Amicus

Curiae. Also filed on May 7, 2003 were Defendants Lampert

Farm & Ranch et al.’s “Memorandum in Opposition to

Plaintiffs’ Motion to Declare HB 391 Unconstitutional”;

defendants Meyer et al. filed a “Memorandum in Opposition

to Plaintiffs’ Motion to Declare HB 391 Unconstitutional

Submitted by Defendants Wayne Meyer et al.”; defendants

McLean et al. filed: “McLean, et al.’s Memorandum in

Opposition to Motion to Declare HB 391 Unconstitutional”;

and defendants North Idaho Farmers Association filed

37a

Appendix B

“Defendant North Idaho Farmers Association’s Memorandum

in Opposition to Plaintiffs’ Motion to Declare HB 391

Unconstitutional.” On May 14, 2003, plaintiffs filed

‘Plaintiffs’ Combined Reply Re: Constitutionality of HB

391" and “Affidavit of R. Brent Walton in Support of

Plaintiffs’ Combined Reply Re: Constitutionality of HB 391.”

Oral argument on the motion was held May 22, 2003. The

Court has read each of these briefs on more than one occasion,

has reviewed the text of the decisions cited in those briefs,

and has reviewed a transcript of the May 22, 2003 hearing in

reaching its decision.

Il. THE STATUTE AT ISSUE AND CONSTITUTIONAL

ANALYSIS OF STATUTES.

A. HOUSE BILL 391 AND IDAHO CODE § 28-

4803A(6).

Idaho Code $§ 22-4801 through 4804 allow agricultural

field burning when farmers comply with those statutes and

any rules promulgated under those statues. Those statutes

have been in effect since 1999.

On April 23, 2003, HB 391 was signed into law by

Idaho’s Governor. Section 5 of that bill contains an

emergency clause, causing the statute to take effect on its

passage and approval, rather than on the ordinary effective

date of July 1 following the legislative session. House

Bill 391 amended portions of Idaho Code § 22-4803, and

added a new statute, Idaho Code § 22-4803A. While not

specifically stated in plaintiff’s “Motion to Declare HB 391

Unconstitutional to the Extent it Purports to Extinguish any

38a

Appendix B

of the Rights of Plaintiffs and Members of the Class,” the

Court understands that the pertinent portion of HB 391 which

plaintiffs argue is unconstitutional, is that portion which

created Idaho Code § 22-4803A(6). This is because plaintiffs

argue: “HB 391 purports to give this small group of farmers

the right to do what no others in our society can-irreparably

injure others with absolute immunity.” Motion to Declare

HB 391 Unconstitutional to the Extent it Purports to

Extinguish any of the Rights of Plaintiffs and Members of

~ the Class, p. 1.

Idaho Code § 22-4803A(6) reads as follows”

(6) Crop residue burning conducted in

accordance with section 22-4803 Idaho Code,

shall not constitute a private or public nuisance

or constitute trespass. Nothing in this chapter shall

be construed to create a private cause of action

against any person who engages in or allows crop

residue burning of a field or fields required to be

registered pursuant to section 22-4803(3) Idaho

Code, provided such activities are conducted in

accordance with chapter 49, title 22, Idaho Code,

and rules promulgated thereunder. ~

B. CONSTITUTIONAL INTERPRETATION.

The constitutionality of a statute is a question of law.

State v. Cobb, 132 Idaho 195, 197, 969 P.2d 244, 246 (1998).

The party challenging a statute’s constitutionality bears the

burden of establishing that the statute is unconstitutional and

“must overcome a strong presumption of validity.” Olsen y.

39a

Appendix B

J.A. Freeman Co., 117 Idaho 706, 709, 791 P.2d 1285, 1288

(1990). Courts are obligated to seek an interpretation that

will save the statute from constitutional infirmity. State v.

Richards, 127 Idaho 31, 34, 896 P.2d 357, 360 (Ct.App.1995).

These cases were noted by defendants Lampert Farm & Ranch

et al., Memorandum in Opposition to Plaintiffs’ Motion to

Declare HB 391 Unconstitutional, p. 4. As noted by this Court

in its Memorandum Opinion and Order Denying Defendants’

Motions to Dismiss, p. 11: “The Idaho Supreme Court has

held: ‘The cardinal principle of statutory construction is to

save and not destroy.’ Keenan v. Price, 68 Idaho 423, 195

P.2d 662 (1948).” “An act of the legislature is presumed to

be constitutional, but whether the act is reasonable or

arbitrary or discriminatory is a question of law for

determination by this Court.” Coghlan v. Beta Theta Pi

Fraternity, 133 Idaho 388, 395, 987 P.2d 300, 307 (1999).

III. CONSTITUTIONALANALYSIS OF IDAHO CODE

§ 22-4803A(6).

Plaintiffs assert that Idaho Code § 22-4803A(6) is

unconstitutional as it: (a) takes plaintiffs and class members’

property without prior compensation in violation of the state

of Idaho and federal constitutions; (b) violates due process

because it fails to provide procedures for compensation;

[II, Section 19 of the Idaho Constitution; (d) HB 391 violates

plaintiffs’ and class members’ fundamental rights and (e) HB

391 cannot apply retroactively. Plaintiffs’ Memorandum in

Support of Motion Re: Constitutionality of HB 391, pp. 4-5,

11-27.

40a

Appendix B

This Court finds Idaho Code § 22-4802A(6) to be

unconstitutional for the following reasons: (1) it takes

property without prior compensation or due process in

violation of the Fifth and Fourteenth Amendment to the

United States Constitution and Article 1, Section 13 and

Section 14 of the Idaho Constitution; (2) it violates Article

1, Section I of the Idaho Constitution because the “limitation”

imposed by the statute is not in the “interests of the common

welfare” and (3) because it is a “local or special law” in

violation of Article III, section 19 of the Idaho Constitution.

A. TAKING WITHOUT PRIOR COMPENSATION

OR DUE PROCESS.

The Fifth Amendment to the Federal Constitution

provides that “no person shall be ... deprived of life, liberty,

or property without due process of law; nor shall private

property be taken for public use, without just compensation.”

The Fourteenth Amendment to the Federal Constitution

prohibits a state from “depriving any person of life, liberty,

or property without due process of law.” The Fourteenth

Amendment makes the Fifth Amendment applicable to the

states and their political subdivisions. Chicago B. & QO.R.

Co. v. City of Chicago, 166 U.S. 226, 234-35 (1897).

Article I, section 13 of the Idaho Constitution also

proclaims that no person shall “be deprived of life, liberty or

property without due process of law.” The very next section

of Idaho’s Constitution provides:

SECTION 14. RIGHT OF EMINENT DOMAIN.

The necessary use of lands for the construction of

reservoirs or storage basins, for the purpose of

4la

Appendix B

irrigation, or for rights of way for the construction

of canals, ditches, flumes or pipes, to convey water

to the place of use for any useful, beneficial or

necessary purpose, or for drainage; or for the

drainage of mines, or the working thereof, by

means of roads, railroads, tramways, cuts, tunnels,

shafts, hoisting works, dumps, or other necessary

means to their complete development, or any other

use necessary to the complete development of the

material resources of the state, or the preservation

of the health of its inhabitants, is hereby declared

to be a public use, and subject to the regulation

and control of the state.

Private property may be taken for public use, but

not until a just compensation, to be ascertained

in the manner prescribed by law, shall be paid

therefor.

(emphasis added). Due process under the Idaho Constitution

requires compensation first, before private property may be

taken. The Idaho Supreme Court held:

It being thus firmly established and announced

by the Constitution that the owner of property is

entitled to compensation before it can be taken,

to force him for relief to file a suit for

recommendatory judgment, Art. 5, Sec. 10, before

the Supreme Court, almost denies relief because

such procedure is uncertain, problematical,

dilatory, and based purely on sufferance and not

on right.

é 42a

Appendix B

Renninger v. State, 70 Idaho 170, 177, 213 P.2d 911 (1950).

Idaho Code §§ 7-706 to 7-710 establishes the procedure that

the Constitution and law requires.

It will thus be seen that under the provisions of

the constitution private property may be taken for

public use, but not until just compensation,

ascertained in a manner prescribed by law, shall

be paid therefor. This provision of the constitution

limits the power of the legislature in providing

the proceedings for the taking of private property

for public use, in that before such property can be

so taken a just compensation must be first

ascertained and the payment therefor made.

Big Lost River Irrigation Co. v. Davidson, 21 Idaho 160,

168, 121 P. 88 (1912) (emphasis added).

Plaintiffs claim HB 391 fails to include any procedure

for providing compensation, and thus is a taking which

violates due process in contravention of the United States

and Idaho Constitutions. The remedy claimed by plaintiffs

is that HB 391 be declared void.

One argument of defendants is that the legislature may

authorize public nuisances. While the legislature may

authorize public nuisances, it lacks the authority to immunize

people and corporations from private nuisance or trespass

claims where the conduct allegedly authorized is so

unreasonable and causes such serious harm as to destroy

fundamental property rights to cccupy, use and enjoy one’s

home in security and comfort, because to do so violates the

Federal and State Constitutions.

> 7 43a

Appendix B

Another argument of defendants is that the legislature

may take away causes of action. Clearly the legislature can

do this, but it cannot violate the Federal and State

Consitutions in doing so.

This Court is being asked to determine if the immunity

provision in Idaho Code § 22-4803A(6) results in a taking

without prior compensation. Again, that statute reads:

(6) Crop residue burning conducted in

accordance with section 22-4803 Idaho Code,

shall not constitute a private or public nuisance

or constitute trespass. Nothing in this chapter shall

be construed to create a private cause of action

against any person who engages in or allows crop

residue burning of a field or fields required to be

registered pursuant to section 22-4803(3) Idaho

Code, provided such activities are conducted in

accordance with chapter 49, title 22, Idaho Code,

and rules promulgated thereunder.

This Court finds such statute results in a taking without prior

compensation. Accordingly, the statute cannot survive a

constitutional analysis, and therefore, it is unconstitutional.

The reason this amounts to a taking is as follows. By

abolishing nuisance and trespass claims, the Idaho legislature

placed these plaintiffs and class members in a situation where

they are now powerless to enjoin the injury and damage

suffered by grass field burning.' By doing so, the Idaho

1. Idaho Code § 22-4308A(6) only immunizes defendants for

burning when done in compliance with the regulations, however,

plaintiffs have put on proof that even when fields are burned in

compliance with the regulations, injury occurs.

44a

Appendix B

legislature imposed a servitude on plaintiffs’ property.

“Property is taken in the constitutional sense when inroads

are made upon an owner’s use of it to an extent that, as

between private parties, a servitude has been acquired.”

United States v. Dickinson, 331 U.S. 745, 748 (1947).

Simply stated, defendants’ field burning impacts

plaintiffs’ right to exclusive possession of their property, and

the immunity provision in idaho Code § 22-4308A(6) causes

plaintiffs to lose their remedies of either injunctive relief or

damages under trespass or nuisance. That result is a taking

of their property without compensation. The smoke is still

present, the effects on their health are still present, the

nuisance and trespass are still present, but as of April 23,

2003, plaintiffs lost their remedy due to Idaho Code § 22-

4308A(6). That is a taking without compensation.

Stated another way, the right to maintain a nuisance is

an easement. Restatement (Third) Property § 1.2(1) (2000);

Restatement of Property § 451, at 2912 (1944). Defendants

right to burn and create smoke which goes upon plaintiffs’

land is a nuisance, and a right to maintain a nuisance is an

easement,” and defendants cannot have that easement without

paying for it. The immunity provision of Idaho Code § 22-

4308A(6) precludes defendants from ever paying for that

2. As plaintiffs noted in the present case, smoke traversing over

and into plaintiffs’ homes, or otherwise forcing them to abandon their

homes, is an easement because it privileges the owner of one tenement

with a right to use the tenement of plaintiffs; it is “a right which one

person has to use the land of another for a specific purpose, or a

servitude imposed as a burden upon land.” Sinnett v.. Werelus, 83

Idaho 514, 520, 365 P.2d 952, 955 (1961). Plaintiffs’ Combined Reply

Re: Constitutionality, p. 11, n. 8.

45a

Appendix B

easement, thus, defendants have taken plaintiffs’ property

without just compensation.

In Idaho, “(t]he home is a favorite of the law. It is there that

the citizen can claim the right of privacy, the right to be let

alone, on clear grounds.” Rowe v. Pocatello, 70 Idaho 343, 352,

218 P.2d 695, 701 (1950). “[T}he very constitutional guarantees

of life, liberty, property and equal protection ... are the same

provisions which guarantee the right of the householder to the

quiet, peaceful, and undisturbed enjoyment of the privacy of

his home.” Jd. And, when a citizen seeks to protect his or her

rights of safety, privacy, and security in the home, “the ordinary

remedies by civil suit are available.” Jd. Thus, any law that

deprives people of their ability to protect these rights through

the courts or remedy the invasion of these rights is

unconstitutional. As the Idaho Supreme Court has stated:

Under the provisions of the constitution, private

property cannot be taken for public use or for

corporations without just compensation being first

made to the owner, except by consent. The courts—

and it was never intended to be otherwise

understood—are not “masons” to “chisel” away

vested rights of property or private individuals,

however humble or obscure the owner, for the benefit

of the public or great corporations. It is the pride of

this republic that no man can be deprived of his

property without due process of law, and the poorest

citizen can find redress for an unlawful injury caused

by his wealthy neighbor by appealing to the courts

of his county.

Hill v. Standard Mining Co., 12 Idaho 223, 239, 85 P. 907, 911-

12 (1906).

46a

Appendix B

The right to exclusive use of one’s land (the right to

exclude others from that land), is a fundamental element

attributable to ownership of property, and the Government

cannot take such without compensation. Kaiser Aetna Et al.

v. United States, 444 U.S. 164, 179-80, 100 S.Ct. 383, 62

L.Ed.2d 332 (1979). Idaho recognizes that easements are

property rights, as is every legal interest in the estates and

rights of land. Hughes v. State, 80 Idaho 286, 293, 328 P.2d

397 (1958). Fundamental to any concept of property are

mainly three powers: possession, use, and disposition. United

States v. General Motors Corp., 323 U.S. 373, 377-78 (1945).

In Idaho, “Any destruction, interruption, or deprivation by

the common, usual, and ordinary use of property is by the

weight of authority a ‘taking’ of one’s property in violation

of the constitutional guaranty.” Hughes v. State, 80 Idaho

286, 294, 328 P.2d 397 (1958); citing Knowles v. New Sweden

Irr. Dist., 16 Idaho 217, 231, 101 P. 81, 86 (1908). (emphasis

added). Plaintiffs have proven through their medical

evidence, that they cannot reside in their land during field

burning without suffering injury. The emphasized words of

Hughes show that even though field burning takes place in

two months of the year, August and September, the burning

invades and destroys two of the three fundamental aspects

of their property rights ... possession and use.

Renninger v. State, 70 Idaho 170, 213 P.2d 911 (1950),

is an Idaho Supreme Court decision which holds that just

compensation is warranted even when the taking is

intermittent. 70 Idaho at 176, 213 P.2d at 915, citing United

States v. Lynah, 188 U.S. 445, 23 S.Ct. 349, 47 L.Ed. 539

(1903). In Renninger the taking was intermittent because of

the seasonal overflow of a river. In the present case it is

47a

Appendix B

intermittent because burning only occurs two months out of

the year. The Idaho Supreme Court in Renninger held: “...

where real estate is actually invaded by superinduced

additions of water, earth, sand or other material ... so as to

effectually destroy or impair its usefulness, it is a taking,

within the meaning of the Constitution, and that this

proposition is not in conflict with the weight of judicial

authority in this country, and certainly no with sound

principle.” 70 Idaho at 174, 213 P.2d at 913. (emphasis

added). The Idaho Supreme Court held that under Article /,

Section 14 of the Idaho Constitution it “... is mandatory that

private property may not be taken until a just compensation,

to be ascertained in the manner prescribed by law, is paid.” —

70 Idaho at 177, 213 P.2d at 915. The Idaho Supreme Court

in Renninger (70 Idaho at 174) cited Eaton v. B.C. & M.R.

R, 51 N.H. 504 (N.H.1872) with approval. The Supreme Court

of New Hampshire in Eaton held that the railroad was liable

because “it was beyond the power of the legislature to

authorize the infliction of this injury on the plaintiff, without

making provision for his compensation.” 5/ N.H. at 515. As

in this present case, the defendants in Eaton were causing

injury to the plaintiff by performing some act on their land

which “restrict[ed] or burden [ed] the plaintiff’s ownership

of his land.” Jd: Thus, according to the Eaton court, if the

defendants’ claim that they were not liable because of a

legislative authorization was “well founded,” then “an

easement is already vested in them.” Jd. Then, the New

Hampshire Supreme Court stated:

An easement is property, and is within the

protection of the constitutional prohibition now

under consideration. If the defendants have

——

48a

Appendix B

acquired this easement, it cannot be taken from

them, even for the public use, without

compensation. But the right acquired by the

defendants is subtracted from the plaintiff’s

ownership of the land. Whatever interest the

defendants have acquired in this respect the

plaintiff has lost. If what they have gained is

easement, when once acquired, cannot be taken

from the defendants without compensation, can

the defendants take it from the plaintiff in the first

instance without compensation?

Id. (citations omitted). The New Hampshire Supreme Court

held defendants could not take an easement without

compensation.

One case is very much factually on point. Bormann et

al. v. Board of Supervisors in and for Kossuth County, lowa,

et al., (Bormann), 584 N.W.2d 309 (Iowa 1998), is a

unanimous decision’ of the Iowa Supreme Court. That

opinion has not been overruled or interpreted negatively by

any other appellate court since it was written five years ago.

The United States Supreme Court denied certiorari in

February, 1999. Girres v. Bormann, 525 U.S. 1172, 119 S.Ct.

1096, 143 L.Ed.2d 96. In Bormann, Gerald and Joan Girres

applied to the Kossuth County Board of Supervisors for

establishment of an “agricultural area” for their 960 acres.

584 N .W.2d at 312. Under lowa Code section 352.11(1)(a),

approval of an “agricultural area” gave the applicants

3. All Iowa Supreme Court Justices concurred except Justices

~- Larson and Adreasen who did not take part. 584 N.W.2d 309, 322.

49a

Appendix B

immunity from nuisance suits. Jowa Code § 352.11(1)(a) read

in part: “A farm or farm operation located in an agricultural

area shall not be found to be a nuisance regardless of the

established date of operation or expansion of the agricultural

activities of the farm or farm operation.” 584 N.W.2d at 314.

The Bormanns and others challenged the County Board of

Supervisor’s decision approving the designation of an

agricultural area. 584 N.W.2d at 312-13. That Bormann

opinion begins as follows:

In this appeal we are asked to decide whether

a statutory immunity from nuisance suits results

in a taking of private property for public use

without just compensation in violation of federal

and Iowa constitutional provisions. We think it

does.

584 N.W.2d at 311. That opinion ends as follows:

Accordingly, we hold unconstitutional and

invalidate that portion of section 352. 11(1)(a) that

provides for immunity against nuisance suits. We

reach this result under the Fifth Amendment to

the Federal Constitution and also under article J,

section 18 of the Iowa Constitution.

We reverse and remand for an order declaring

that portion of Jowa Code section 352.11(1)(a)

that provides for immunity against nuisances

unconstitutional and without any force or effect.

50a

Appendix B

We reach this holding with a full recognition of

the deference we owe to the General Assembly. That

branch of government—with some participation by

the executive branch—holds the responsibility to

sort through the practical realities and, through the

political process, reach consensus in highly

controversial public decisions. Those decisions

demand our sincere respect. The rule is therefore

that “[a] challenger must show beyond a reasonable

doubt that the statute violates the constitution and

must negate every reasonable basis that might

support the statute.” Johnston v. Veterans’ Plaza

Authority, 535 N.W.2d 131, 132 (Iowa 1995). The

rule fitding constitutionality in close cases cannot -

control the present one, however, because, with all

respect, this is not a close case. When all the varnish

is removed, the challenged statutory scheme amounts

to a commandeering of valuable property rights

without compensating the owners, and sacrificing

those rights for the economic advantage of a few. In

short, it appropriates valuable private property

interests and awards them to strangers. The same

public that constituted the other branches of state

government to make political decisions with an eye

on economic consequences expects the court to

resolve constitutional challenges on a purely legal

basis. We recognize that political and economic

fallout from our holding will be substantial. But we

are convinced our responsibility is clear because the

challenged scheme is plainly-we think flagrantly-

unconstitutional.

584 N.W.2d 309, 321-22. (emphasis added).

Sla

Appendix B

One hundred and twenty years ago, the United States

Supreme Court decided Baltimore & Potomac Railroad Co.

v. Fifth Baptist Church, 108 U.S. 317; 2 S.Ct. 719; 27 L.Ed.

739 (1883). That case involved a lawsuit to recover damages

for discomfort occasioned by establishment of a building for

housing railroad locomotives next to a church. The first words

of that decision read:

If the facts are established which the evidence

tended to prove, and from the verdict of the jury

we must so infer, there can be no doubt of the

right of the plaintiff to recover. The engine house

and repair shop of the railroad company, as they

were used, rendered it impossible for the plaintiff

to occupy its building with any comfort as a place

of public worship.

108 U.S. at 328-29; 2 S.Ct. at 726. (emphasis added). The

emphasized language indicates that it, too, was not a close

call. In that case, the immunity provision alleged applicable

by the railroad did not even apply to private nuisance claims,

but only exempted liability from civil or criminal suits

brought by the state. The Supreme Court held:

Plainly the engine-house and repair-shop, as they

were used by the railroad company, were a

nuisance in every sense of the term. They

interfered with the enjoyment of property which

was acquired by the plaintiff long before they were

built, and was held as a place for religious

exercises, for prayer and worship; and they

disturbed and annoyed the congregation and

52a

Appendix B

Ss Sunday-school which assembled there on the

Sabbath and on different evenings of the week.

That is a nuisance which annoys and disturbs one

in the possession of his property, rendering its

ordinary use or occupation physically

uncomfortable to him. For such annoyance and

discomfort the courts of law will afford redress

by giving damages against the wrong-doer, and

when the cause of the annoyance and discomfort

are continuous, courts of equity will interfere and

restrain the nuisance. Crump v.. Lambert, L.R. 3

Eq. 409.

Id. (emphasis added). The Supreme Court continued:

Whatever the extent of the authority conferred, it

was accompanied with this implied qualification

that the works should not be so placed as by their

use to unreasonably interfere with and disturb the

peaceful and comfortable enjoyment of others in

their property. Grants of privileges or powers to

corporate bodies, like those in question, confer

no license to use them in disregard of the private

rights of others, and with immunity for their

invasion. The great principle of the common law,

which is equally the teaching of Christian

morality, so to use one’s property as not to injure

others, forbids any other application or use of the

rights and powers conferred.

108 U.S. at 331, 2 S.Ct. at 728. (emphasis added). In Fifth

Baptist Church, the railroad needed a repair shop, but the

53a

Appendix B

Supreme Court said the remedy is to remodel the repair shop

to “prevent” the nuisance complained of, and if that was not

possible, the repair shop would need to be moved. /08 U.S.

at 334, 2 S.Ct. at 730. In the present case, the states of

Washington and Oregon have shown that the farmers do not

need to burn. See Memorandum Opinion and Order Denying

Defendants’ Motion to Dismiss at p. 30; testimony of Grant

Pfifer, Washington Department of Ecology that since the state

of Washington curtailed burning of grass seed stubble, grass

seed production is actually little higher. Farmers in those

States can competitively grow grass seed without burning.

In Fifth Baptist Church the Supreme Court said: “Whatever

prevents the comfortable use of the property for that purpose

[a church] by the members of that corporation ... is a

disturbance and annoyance, as much so as if access by them

to the church was impeded and rendered inconvenient and

difficult.” 108 S.Ct. at 330, 2 S.Ct at 727. (emphasis added).

In the present case, much more than the comfort of plaintiffs

and the class members is at issue. It is their health and safety

that are at issue.

It is important to discuss the Bormann decision, as both

plaintiffs and the various groups of defendants have argued

that case at length in their briefs and at oral argument.

Clay R. Smith, deputy attorney general for the State of

Idaho, at oral argument claimed the Iowa Supreme Court

erred in finding that the easement arose in that case by virtue

of the immunity provision that was contained in their “right

to farm” statute, because the easement was not authorized -

by the immunity provision in that statute, but rather by the

county’s authorization of the agricultural practice that

54a

Appendix B

generated the offensive smells.* That argument has no logical

merit. Essentially, the Attorney General’s argument is “The

Iowa Supreme Court erred because is was the county’s

authorization of an agricultural area, not the statutory

immunity provision that caused the easement, that caused

the taking.” The logical flaw is that without the statutory

immunity, there is no taking! That argument by the Attorney

General was also contradicted by the Iowa Supreme Court’s

own language:

The Board’s approval of the agricultural area here

triggered the provisions of Jowa Code section

352.11(1)(a). More specifically, the approval gave

the applicants immunity from nuisance suits. The

neighbors contend that the approval with the

attendant nuisance immunity results in a taking

of private property without the payment of just

compensation in violation of federal and state

constitutional provisions.

584 N.W.2d 309 at 313. (emphasis added). The lowa Supreme

Court agreed with the neighbors’ argument, and held:

In enacting section 352.11(1)(a), the legislature

has exceeded its authority. It has exceeded its

authority by authorizing the use of property in

such a way as to infringe on the rights of others

by aliowing the creation of a nuisance without the

payment of just compensation. The authorization

4. That argument is also found in Brief Amicus Curiae of the

Idaho Attorney General in Support of House Bill 391’s

Constitutionality, pp. 11- 12.

55a

Appendix B

is in violation of the Fifth Amendment of the

Federal Constitution and article I section 18 of

the Iowa Constitution.

584 N.W.2d 309 at 321. The Iowa Supreme Court found the

remedy for that taking without just compensation was as

follows: “We reverse and remand for an order declaring that

portion of Iowa Code section 352.11(1)(a) that provides for

immunity against nuisances unconstitutional and without any

force or effect.” Jd. at 321-22. If the Idaho Attorney General’s

illogical argument were followed to its conclusion, the lowa

Supreme Court should have struck down the county’s

decision, not the state statute providing immunity. That is

not what happened in Iowa, that is not what should result in

the present case. Just as in Bormann, it is Idaho’s immunity

statue, Idaho Code § 22-4308A(6), that provides immunity

against nuisance and trespass, and it is that provision which

is unconstitutional.

The Idaho Attorney General then makes the argument

that “Although a nuisance cause of action may have been a

method for addressing that impact [in Bormann ], the court

cited no authority, and none exists, for the notion that the

simple availability of such a claim against a private party

constitutes “just compensation” for inter alia, Fifth

Amendment purposes.” Brief Amicus Curiae of the Idaho

Attorney General in Support of House Bill 391’s

Constitutionality, p. 13. First, the nuisance claim is not “just

compensation,” as the Idaho Attorney General argues. The

Iowa Supreme Court made it clear in Bormann that “the

legislature has exceeded its authority ... by authorizing the

use of property in such a way as to infringe on the rights of

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others by allowing the creation of a nuisance without the

payment of just compensation ... in violation of the Fifth

Amendment of the Federal Constitution and article J section

18 of the Jowa Constitution.” 584 N.W.2d 309 at 321. The

reason the elimination of the nuisance claim is a taking

without just compensation is because elimination of that

nuisance claim creates an “easement” in others’ property, and

if the offending party does not pay for such easement because

of statutory immunity, there is a taking without compensation.

The Iowa Supreme Court made that clear when it wrote:

Thus, the nuisance immunity provision in section

352.11(1)(a) creates an easement in the property

affected by the nuisance (the servient tenement)

in favor of the applicants’ land (the dominant

tenement). This is because the immunity allows

the applicants to do acts on their own land which,

were it not for the easement, would constitute a

nuisance. For example, in their farming operations

the applicants would be allowed to generate

“offensive smells” on their property which without

the easement would permit affected property

owners to sue the applicants for nuisances. See

Iowa Code § 352.2(6); see also Buchanan v.

Simplot Feeders Ltd. Partnership, 134 Wash.2d

673, 952 P.2d 610, 615 (1998) (holding that

Washington’s Right-to-Farm Act gives farm quasi

easement, against urban developments that

subsequently locate next to farm, to continue

nuisance activities) (dictum).

584 N.W.2d 300 at 316. Second, the Idaho Attorney General

is mistaken when as quoted above, he argues: “the [Bormann

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] court cited no authority, and none exists, for the notion that

the simple availability of such a claim against a private party

constitutes ‘just compensation’ for inter alia, Fifth

Amendment purposes.” The following lengthy quote from

Bormann shows, the Attorney General’s argument is simply

wrong, there is authority and it was cited:

operation of a nuisanceproducing governmental

enterprise. With regard to private uuisances,

[t]he power of the legislature to contro] and

regulate nuisances is not without restriction, and

it must be exercised within constitutional

limitations. The power cannot be exercised

arbitrarily, or oppressively, or unreasonably... It

has been broadly stated, as an additional limitation

to the power of the legislature, that ... the

legislature may not authorize the use of property

in such a manner as unreasonably and arbitrarily

to infringe on the rights of others, as by the

creation of a nuisance. So it has been held that

the legislature has no power to authorize the

maintenance of a nuisance injurious to private

property without due compensation.

66 C.J.S. Nuisances § 7, at 738 (1950).

Thus, the state cannot regulate property so as to insulate

the users from potential private nuisance claims without

providing just compensation to persons injured by the

nuisance. The Supreme Court firmly established this principle

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in Richards, holding that “while the legislature may legalize

what otherwise would be a public nuisance, it may not confer

immunity from action for a private nuisance of such a

character as to amount in effect to a taking.” Richards, 233

U.S. at 553, 34 S.Ct. at 657, 58 L.Ed. at 1091; see also

Pennsylvania R.R. v. Angel, 41 N.J. Eq. 316, 7 A. 432, 433

(1886) ( “[A]n act of the legislature cannot confer upon

individuals or private corporations, acting primarily for their

own profit, although for public benefit as well, any right to

deprive persons of the ordinary enjoyment of their property,

except upon condition that just compensation be first made

to the owners.”’).

A number of state courts have decided takings cases on

the basis that the government entity operated a nuisance-

producing enterprise. See, e.g., Thornburg v. Port of Portland,

233 Or. 178, 376 P.2d 100, 106 (1962) (“[A] taking occurs

whenever government acts in such a way as substantially to

deprive an owner of the useful possession of that which he

owns, either by repeated trespasses or by repeated

nontrespassory invasions called “nuisance.” *). Significantly,

a large number of these cases deal with smoke and odors

from sewage disposal plants and city dumps. One

commentator describes the cases this way:

Typically, a city sewage plant or dump in the

vicinity of, but not necessarily directly adjacent

to, the plaintiff’s land has wafted its noxious

smoke, odors, dust, or ashes, usually combinations

of these, over the plaintiff’s land, with the obvious

result of lessening its enjoyment. No physical

touching is present, nor do the courts try to equate

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the municipal acts with touchings. [Several states]

have allowed eminent domain compensation in

cases of this kind.... More significant than a court’s

language is the result it announces, and in this

respect all the decisions stand for the proposition

that nuisance-type activities are a taking....

Stoebuck, at 226-27; see also Nichols § 6.07, at 6-112 to 6-

113 (“[G]eneration of offensive odors, gases, smoke ... may

constitute a taking.”).

The commentator ascribes a name to the theory of these

cases: condemnation by nuisance. Stoebuck, at 226. And the

commentator has formulated the theory this way:

“governmental activity by an entity having the power of

eminent domain, which activity constitutes a nuisance

according to the law of torts, is a taking of property for public

use, even though such activity may be authorized by

legislation.” Jd. at 208-09; see also City of Georgetown v.

Ammerman, 143 Ky. 209, 136 S.W. 202, 202 (1911) (holding

that odors from city dump adjacent to plaintiff’s property

created a nuisance that was a taking of the property); /vster

v. City of Winston-Salem, 215 N.C. 1, 1 S.E.2d 88, 88-90

(1939) (holding as part of fundamental law of North Carolina

that odors from disposal plant next to plaintiff’s property

constituted a nuisance and were a taking; North Carolina has

no constitutional provision for a “taking”); Brewster v. City

of Forney, 223 W.W. 175, 178 (Tex.Com.Ct.App.1920)

(holding under Texas Constitution that odors from a nearby

sewage disposal plant resulted in a taking of plaintiff’s

property); Nichols § 6.07, at 6-112 (stating under broad view

of property—right to use, exclude, and dispose— there need

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not be a physical taking of the property or even dispossession;

any substantial interference with the elemental rights growing

out of property ownership is considered a taking).

One court long ago anticipated the so-called

condemnation by nuisance theory this way:

Whether you flood the farmer’s fields so that they

cannot be cultivated, or pollute the bleacher’s

stream so that his fabrics are stained, or fill one’s

dwelling with smells and noise so that it cannot

be occupied in comfort, you equally take away

the owner’s property. In neither instance has the

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