# Petition for Writ of Certiorari — Moon v. North Idaho Farmers Ass'n > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386003_1524%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2005 - **Citation:** 543 U.S. 1146 ## Text Supreme Court, U.S. FILED 4-594 NOV 1-204 ) 0 OFFICE OF THE CLERK No. 04- IN THE Supreme Court of the United States LAWRENCE (BUD) MOON, JR., et ai., Petitioners, v. 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 & il 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. iv 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. Vv 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 vi 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 ix 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 x 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 x1 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 la 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. 2 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. 3 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 4 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 5 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. 6 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. 7 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 8 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 9 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 10 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). ee 11 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). 12 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 13 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). 14 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). 15 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 17 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 18 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 es 19 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). 20 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 21 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 22 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) 23 (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 24 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 25 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). 26 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 27 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 28 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. 29 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 la 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, 2a 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, 3a 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, V. 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 4a 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 Sa 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. 6a 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. 7a 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 8a 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. 9a 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 I. 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 register each field with the department each year burning is 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 register and obtain authorization, the second sentence appears 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386003_1524%3A1. Public record. Not legal advice.