Amicus Curiae Brief — Moon v. North Idaho Farmers Ass'n

No. 04-594

In The

Supreme Court of the United States

,

7

LAWRENCE (BUD) MOON, JR., ET AL.,

Petitioners,

v.

NORTH IDAHO FARMERS ASSOCIATION, ET AL.,

Respondents.

&

v

On Petition For A Writ Of Certiorari

To The Supreme Court Of Idaho

,

v

BRIEF AMICUS CURIAE OF STATE OF IDAHO

IN SUPPORT OF RESPONDENTS AND

IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

ée

v

LAWRENCE G. WASDEN

State Of Idaho

Attorney General

CLIVE J. STRONG

Deputy Attorney General

Chief, Natural Resources Division

CLAY R. SMITH

Deputy Attorney General

Counsel of Record

Natural Resources Division

P.O. Box 83720

Boise, ID 83720-0010

(208) 334-2400

a a eee

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

1. Does the Idaho Supreme Court’s opinion below

constitute ‘a final judgment or decree under 28 U.S.C.

§ 1257(a)?

2. To the extent petitioners predicate their constitu-

tional challenge under the Takings and Just Compensa-

tion Clauses of the Fifth Amendment on interference with

the use or enjoyment of their homes, is the appropriate

remedy an inverse condemnation proceeding against the

State of Idaho and not invalidation of the nuisance-

trespass immunity provision in Idaho Code § 22-4803A(6)

(Michie Supp. 2004)?

ii

TABLE OF CONTENTS

Page

QUESTIONS PRREGEIG 6? sccncciscinecsscsemasaenas i

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INTEREST OF AMICUS CURIAE ...0.........cccccccceeeeees 1

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ARGUMEIID ...0.1s0sevxsicasuanenminee gaia nan 11

I. THIS COURT LACKS JURISDICTION

UNDER 28 U.S.C. § 1257(a) BECAUSE THE

IDAHO SUPREME COURT’S DECISION

DOES NOT CONSTITUTE A FINAL JUDG-

MENT OR, ROR Aiiisciceiccanieennmuiabeees 11

II. TO THE EXTENT PETITIONERS ALLEGE

A TAKING OF THEIR HOMES OR OTHER

REAL PROPERTY, THEIR REMEDY LIES

IN INVERSE CONDEMNATION AGAINST

IDAHO AND NOT INVALIDATION OF THE

NUISANCE-TRESPASS IMMUNITY PRO-

VEESBOAIN .....+s.1iseiceiensclbenenaeuaian seein at an 16

CORC LUGS ....«1::11»:d:sicanssdeiaiuee asanaeaennianenne 20

ili

TABLE OF AUTHORITIES

Page

CASES

Andrus v. Allard, 444 U.S. 51 (1979)... cece ccc eeee eee 16

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

(Iowa 1998), cert. denied, 525 U.S. 1172 (1999)........ 9,18

Brown v. Legal Found. of Washington, 538 U.S. 216

Tl it isaiaesbinasin nada dauladudlanceudeleilnehacaeieisvensunialeadimies 17

Covington v. Jefferson County, 53 P.3d 828 (Idaho

SID Laulsicascauntssa souhaias hua shiudduensenneakilandicassiieatinbineeciaadion 18

Cox Broadcasting Corp. v. Cohn, 420 U.S. 469

NINA ir lastiiaacsadaaecaes shan ade hemindlisiabattiateaiindnedsaieceustion 12, 13, 14

Demorest v. City Bank Farmers Trust Co., 321 U.S.

NT Usted india chs haceiiheshcaldiathinicassasdbiabanitistansuatutcedenuds 18

Eastern Enterprises v. Apfel, 524 U.S. 498 (1998)............ 17

First English Evangelical Lutheran Church v.

County of Los Angeles, 482 U.S. 304 (1987)............ 17, 18

Hathorn v. Lovorn, 457 U.S. 255 (1982) ......c cece eee 13

Idaho Dep't of Labor v. Sunset Marts, Inc., 91 P.3d

co cides Ahindainhivagunbiiiscaesinasaaniaibebebiebioas 9

Jefferson v. City of Tarrant, 522 U.S. 75 (1997) ......... 14,15

Johnson v. California, 124 S. Ct. 1833 (2004) ............ 12, 13

Killinger v. Twin Falls H’way Dist., 17 P.3d 266

SE TIEN cictiarcici Gaisboieeseinbieniouniesaeninuehimuiinenanaiiandghagsinadasdiiin 18

KMST, LLC v. County of Ada, 67 P.3d 56 (Idaho

isle a Aout aninininh da ceienesascnncie ompnesgiasbadisoapaanedsensbadlabiine 18

Moon v. State, No. 2003-2622 (1st Jud. Dist.,

I a 23

Pierce County v. Guillen, 537 U.S. 129 (2003).................. 14

lv

TABLE OF AUTHORITIES — Continued

Page

Reece v. Georgia, 350 U.S. 85 (1955).........:eeeeeeeeseeteeeeees 13

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

ND oasis lennesatanbigneneeemnnainnaaniinnactannnanaianid 19

State v. Bicknell, 91 P.3d 1105 (Idaho 2004).............. eee i)

Suitum v. Tahoe Reg’l Planning Agency, 520 U.S.

EE CONEY wsintssicnsisnaknasaatnicinsianentdaaniadienmssaninisanbesindiidasha 17

U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779

CORI... cccstacebabscdinsicciubsnccansciasabibeinnnnnnicanientinuninnsannitnr 18

United States v. Causby, 328 U.S. 256 EU aticeunebsnevians 19

Walter E. Wilhite Revocable Living Trust v. N.W.

Yearly Meeting Pension Fund, 916 P.2d 1264

Ci BI io viviivicnisinaciinindnctcnnicenenseractosnidcsienisnimabieninsosne 11

Washington v. Washington State Commi Passenger

Fishing Vessel Ass’n, 443 U.S. 658 (1979).........:2seeee 13

Webb’s Fabulous Pharmacies, Inc. v. Beckwith, 449

CF BI vcsiictcctaretcendniiccncncnsnereicdanassisicnnncencsinpnsninancte 19

Williamson County Reg’l Planning Comm'n uv.

Hamilton Bank, 473 U.S. 172 (1985) ........ceeseeeeeeeeeees 17

UNITED STATES CODE

UEC. © RT snecccccnrentiscrnessosnncantonenvesantencinn 12, 15, 16

De ETB, © DI a wscesivsecrstcnsnininvnnnsnrsccesnnsicoseenssteninteansainaane 9

Ga TE, 6 I aes re setcicsasindinnsaniraitinnricncnatnsnegniainnansniatonien 15

IDAHO CODE

Idaho Code §§ 22-4801 to -4804 .0.... ce eeeeeeeeeeeeeeeeeees 1,3

Daas, Contin © BGI nisisesinctescpicnnsrsnsnscnanssirannnannnsnacanen 1, 3,6

TABLE OF AUTHORITIES -— Continued

Page

Sit Sai © Fee einntsincsctssissinatinvasenrtinamancennedaate 1, 3,5

Dain Contin BF ID ic iciccecssrsiatsccsinntnasassncisvesisistinciaan 2,4

Ribaien Contin & Fae scikicclovinssecdectersnenecede 4

Tabada Coin 8 DD a ci csnecnstsenctcsnstnnsecesniicinsetnsrsacineees 4

Idaho Code § 22-4803(3).............. ee Reem eA i, 4, 5,6

Shain Cake 6 Fe viivstiktasstearteteerarsemenconeiins 4

Dhains Cain © Fe ikkistisstreacecnmunnondemiaienenanen 5

BGatnw Cetin © BIE GS siniiscsiinecernnecndassorsacicicemartesnasnass 1,8

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Dita Cie 5 BRD cick ccciicsnsasiniconictcnasarsaccsoninte passim

Rilaten Cte § DEG kisicicieticn rotons 1,4,5

Idaho Code § S2-GR0GIKE) nn cccnsneccscsssscsrsssisarnssntncannncsictnanen 5

Thales Cathe § SE-GROGINDD vssicciisesascsrnsnsenssnceatscenninnasciisasons 5

Shido Coadlin 6 Fe GD isonvn sh nainstcadcctasiacinnsnarinntenn 5

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OTHER AUTHORITIES

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CBR. TD iicississritccincnncionembaaasaeneaedes 9

CR Bi iia siciccssnsecrncnisanssnnninsaninsmenciinnansimnaniinaesciamtamennians 9

vi

TABLE OF AUTHORITIES — Continued

Page

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RAAB EER) acccessescarascsseseesiatubbscaveniesiasidamanaaeaaiaiaae 15

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BBR. e QD iccsssosscosasasesssssisanssasinandunnipneaseaaenaiienee 9

1

BRIEF AMICUS CURIAE

The State of Idaho (“Idaho”) respectfully submits a

brief amicus curiae through its Attorney General pursuant

to S. Ct. R. 37.4 in support of respondents and in opposi-

tion to the petition for writ of certiorari.

INTEREST OF AMICUS CURIAE

Petitioners challenge the enforceability under the

Fifth Amendment, as incorporated into the Fourteenth

Amendment, of the first sentence in Idaho Code § 22-

4803A(6) (Michie Supp. 2004). It states that “[c]rop resi-

due burning conducted in accordance with section 22-4803,

Idaho Code, shall not constitute a private or public nui-

sance or constitute a trespass.” This provision, which took

effect on April 23, 2003, is an integral element of Idaho’s

attempt to encourage compliance with its Smoke Man-

agement and Crop Residue Disposal Act (“Smoke Man-

agement Act”), Idaho Code §§ 22-4801 to -4804 (Michie

Supp. 2004). The Smoke Management Act regulates open-

field burning of crop residue throughout the State, and

Idaho Code § 22-4803 contains its core regulatory features.

The Idaho legislature found in Idaho Code § 22-4801

that thermal disposal of crop residue furthers certain

agricultural and environmental values, such as control of

disease, weeds, and pests and protecting water quality.

The legislature recognized, however, that thermal disposal

generates smoke which may affect public health and

therefore, subjected open field burning, particularly in ten

north Idaho counties where large amounts of Kentucky

bluegrass are grown, to stringent regulation. Id. §§ 22-

4803(3), -4803A(1), (2) & (5), -4804. Equally important, it

urged the Idaho State Department of Agriculture (“ISDA”)

and the agricultural community more generally “to pursue

alternative means to crop residue disposal.” Jd. § 22-4801.

The Act thus requires the ISDA director to determine

whether “economically viable alternatives” to thermal

disposal exist as a pre-condition to any crop burning. Id.

§ 22-4803(1).

Regardless of whether petitioners believe the Smoke

Management Act is adequate to protect their interests

under all circumstances, the fact remains that it repre-

sents a considerable effort on the part of the Idaho legisla-

ture to balance different and, at times, conflicting societal

interests. The legislature further concluded that voluntary

compliance by the regulated class — farmers, like the

respondents — was an important element of the regulatory

program. It therefore built into the statute a “safe harbor”

provision, Idaho Code § 22-4803A(6), that not only pro- |

vides immunity against nuisance and trespass actions

against compliant growers throughout the State, but also |

disclaims any intent to create a private cause of action

under the Act against compliant farmers in the ten north

Idaho counties. Although petitioners challenge only the :

nuisance-trespass provision, it is plain that stripping away

the immunity against those causes of action would signifi-

cantly undermine the legislative objective of encouraging

voluntary compliance with the statute. Idaho has a keen

interest in preserving the Act’s integrity.

Aside from protecting the Smoke Management Act

from piecemeal evisceration, Idaho has a discrete litiga-

tion-related interest. It originally was a defendant in this

case but was dismissed without prejudice in December

2002 pursuant to a court-approved stipulation under

I.R.C.P. 41(a)(1). However, several of the petitioners here

then filed a separate class action against Idaho and one of

its agencies. Moon v. State, No. 2003-2622 (1st Jud. Dist.,

Kootenai County). That suit seeks varied relief, including

damages and/or just compensation in connection with crop

residue burning activity during the 2002 season, the

prohibition of future burning regardless of its compliance

ee ae

with Idaho Code § 22-4803, and a declaration of invalidity

with respect to the limitation on nuisance and trespass

actions in Idaho Code § 22-4803A(6) and two other stat-

utes on the theory that they effect a taking under the

federal and state constitutions. Accordingly, the disposi-

tion of the certiorari petition has the potential to affect

Idaho’s interests in the second Moon lawsuit.

STATEMENT

I.

At the time the action below was filed in 2002, open

field burning of crop residue was governed by a regulatory

scheme adopted in 1999. 1999 Idaho Sess. Laws ch. 103

(codified as amended at Idaho Code §§ 22-4801 to -4804

(Michie 2001)). The Smoke Management Act’s legislative

findings and intent provision granted authority to the

ISDA director to promulgate regulations governing crop

residue burning and encouraged that department and the

Idaho Department of Environmental Quality (“IDEQ”) to

develop “voluntary smoke management and crop residue

burning programs.” Id. § 22-4801. The legislature also

understood that “current knowledge and _ technology

support the practice of burning crop residue” for various

agriculturally important reasons but urged the two de-

partments and the agricultural community “to pursue

alternative means to crop residue disposal.” Jd.

The 1999 crop residue disposal statute adopted a

regulatory approach that specified conditions precedent to

any open field burning and additionally imposed special

burdens on burning within Benewah and Kootenai Coun-

ties. With respect to all crop residue burning in Idaho, it

established the following requirements:

e Open field burning must comply with the statute

itself and the Environmental Protection and Health

Act, Idaho Code §§ 39-101 to -130 (Michie 2002 &

4

Supp. 2004), and any regulations issued pursuant

to those statutes. Id. § 22-4803(1).

e Open field burning could occur only after the ISDA

director issued a determination that “no other agri-

cultural viable alternatives to burning are available

... for the purpose of[] (a) [dlisposing of crop resi-

dues; (b) [dJeveloping physiological conditions con-

ducive to increased crop yields; or (c) [c]ontrolling

diseases, insects, pests or weed infestations.” Id.

e All persons engaging in 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 material which exceed the

state and federal ambient air quality standards.”

Id. § 22-4803(2)(a).

e Open field burning could take place only “in the

field where [the crop residue] was generated.” Id.

§ 22-4803(2)(b).

e Use of devices to ignite a field for crop residue dis-

posal was permissible only “when the provisions of

this chapter, and any rules promulgated pursuant

thereto, the environmental protection and health

act, and any rules promulgated thereto, are met.”

Id. § 22-4803(4).

With respect to open crop residue burning in Benewah and

Kootenai Counties, the statute required:

e Registration with IDEQ of each field where burning

was to occur. Id. § 22-4803(3).

e Payment of one-dollar-per-acre registration fee. Id.

§ 22-4804."

' Registration fees are deposited into the agricultural smoke

management account that, in turn, may be used to finance research to

“(i) [dJevelop alternative crops which do not require burning; (ii)

[ilmprove burning and cultural practices for crops which may require

(Continued on following page)

5

Consequently, except for the registration and fee require-

ments, the statute’s substantive regulation of crop residue

disposal was the same throughout the State.

Four years later and after this litigation was initiated,

the legislature modified the Smoke Management Act in

several substantive respects. 2003 Idaho Sess. Laws ch.

316 (“HB 391”). First, it transferred all regulatory respon-

sibility for the law to ISDA. HB 391, §§ 2, 4 (codified at

Idaho Code §§ 22-4803, -4804). Second, it replaced the

term “agricultural viable alternatives” with “economically

viable alternatives.” Id. § 2 (codified at Idaho Code § 22-

4803). Third, it expanded the registration and associated

fee requirements in Idaho Code § 22-4803(3) to include

eight additional counties in north Idaho — Bonner, Bound-

ary, Clearwater, Idaho, Latah, Lewis, Nez Perce, and

Shoshone. HB 391, §§ 2, 4 (codified at Idaho Code §§ 22-

4803, -4804). Last, it added a detailed remedy section. Id.

§ 3 (codified at Idaho Code § 22-4803A). Civil penalties are

now available for violations of the statute’s requirements

in the ten north Idaho counties (id. § 22-4803A(1)), with

ISDA given investigatory authority (id. § 22-4806A(3), (5)).

Most importantly for present purposes, the remedial

provision added a “safe harbor” provision with respect to

activities compliant with Idaho Code § 22-4803:

Crop residue burning conducted in accordance

with section 22-4803, Idaho Code, shall not con-

stitute a private or public nuisance or constitute

trespass. Nothing in this chapter shall be con-

strued to.create a private cause of action against

any person who engages in or allows crop resi-

due burning of a field or fields required to be

burning; and (iii) [e]xplore alternatives to burning.” Idaho Code § 22-

4804(2)(a) (Michie Supp. 2004). The account’s funds also may be

expended to supplement general account appropriations for administra-

tion of the smoke management plan. Jd. § 22-4804(2)(b).

6

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.

Id. (codified at Idaho Code § 22-4803A(6)). The term “safe

harbor” is taken from the amended legislative findings and

intent provision, now stating in part that “[i]t 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

the lawful framework for crop residue burning.” HB 391,

§ 1 (codified at Idaho Code § 22-4801). The safe harbor

provision was not made retroactive; i.e., it applies only to

conduct occurring on or after HB 391’s effective date in

April 2003. HB 391, § 5.

II.

No trial has occurred in this matter. As a consequence,

the amended complaint provides the most appropriate

starting point in assessing petitioners’ attack on the

constitutionality of the nuisance-trespass immunity

provision in Idaho Code § 22-4803A(6).

A. Petitioners are six individuals, including two

minors represented by their parents. R., Vol. III, pp. 3-10,

(4 11-21. Each suffers from a condition that affects

respiratory functions such as asthma, cystic fibrosis and

allergies. Id. They reside in north Idaho. Respondents

include farmers or corporations that burn Kentucky

bluegrass as part of their farming activities in north

? All references are to the record on appeal in the Idaho Supreme

Court proceeding below.

PSH er eA ENN Peer Renca

Oe ener — —

Idaho, together with their association. R., Vol. III, pp. 10-

16, {{ 22-101.

Petitioners additionally sought to serve as representa-

tives of two classes, denominated as the “minor field

burning class” and the “adult field burning class.” The first

consists of “[aJll children with a medically diagnosed

inflammatory airwave disease” (R., Vol. III, p. 43, J 165),

while the second is defined identically except for inclusion

of only “non-minors” (R., Vol. III, p. 44, J 166). The district

court granted the requested class certification in April

2003. Pet. App. 92a.

Petitioners contend that respondents “create vast

plumes of smoke loaded with microscopic soot particles

that penetrate deep into the lungs” through thermal

disposal of crop residue. R., Vol. III, p. 32, J 123. They

allege that even “short term exposure” to very small

particulate matter, known as PM,,, generated from the

-burning “pose[s] a serious health hazard for persons

suffering from chronic pulmonary diseases such as bron-

chitis, emphysema, and asthma; from cardiovascular

disease; from cystic fibrosis; and from infections such as

influenza and pneumonia.” R., Vol. III, p. 33, § 129. Peti-

tioners allege further that, aside from the smoke particu-

lates’ health impact, the burning activities have adversely

affected “[t]he ability of [petitioners] and members of the

Class to enjoy their homes without discomfort, to garden,

dig, recreate, excavate, build, or freely use their proper-

ties.” R., Vol. III, p. 36, J 142.

The amended complaint set out six claims for relief.

One of those claims was a request for a specific relief —

medical monitoring and scientific testing — to enhance

early detection and treatment of health conditions related

to burning activities and has been withdrawn as substan-

tive cause of action although left as a potential remedy. R.,

Vol. III, pp. 52-53, JJ 215-20. The remaining claims were

predicated on Icaho’s nuisance statute, Idaho Code § 52-

102 (R., Vol. III, pp. 47-49, 44 179-92), common law tres-

pass (R., Vol. III, pp. 49-50, {J 193-98), strict liability (R.,

Vol. III, p. 50, {J 199-204), civil conspiracy (R., Vol. III, pp.

50-52, 7 205-14), and the Takings and Just Compensa-

tion Clauses of the United States and Idaho Constitutions

(R., Vol. III, pp. 53-55, {| 221-30). The last of these claims

was brought only against Idaho and sought prospective

and retroactive relief. As stated above, petitioners and

Idaho eventually stipulated to the latter’s dismissal

without prejudice, and the district court approved the

stipulation in December 2002. R., Vol. IV, p. 370. No relief

is now, or ever has been, requested against respondents

under the Fifth Amendment’s Takings and Just Compen-

sation Clauses.

B. Immediately after HB 391 became effective,

petitioners requested the district court invalidate it under

several theories. The only federal law-based claim con-

tended that the elimination of nuisance and trespass

_actions under Idaho Code § 22-4803A(6) effected a taking

proscribed by the Fifth Amendment. The district court

agreed, reasoning that “[bly abolishing nuisance and

trespass claims, the Idaho legislature placed these plain-

tiffs and class members in a situation where they are now

powerless to enjoin the injury and damage suffered by

grass field burning” and thereby “imposed a servitude on

plaintiffs’ property.” Pet. App. 43a-44a. The court further

deemed any interference with “[t]he right to exclusive use

of one’s land” as a taking under the federal and state

constitutions and concluded that “[p]laintiffs have proven

through their medical evidence[] that they cannot reside

in [sic] their land during field burning without suffering

9

injury.” Pet. App. 46a. Its takings’ analysis placed particu-

lar weight on the Iowa Supreme Court’s decision in Bor-

mann v. Board of Supervisors, 584 N.W.2d 309 (Iowa

1998), cert. denied, 525 U.S. 1172 (1999), which invali-

dated a statutory provision immunizing farm operations

in local government-approved “agricultural areas” from

nuisance claims. The court drew from Bormann the

principle that the “elimination of [a] nuisance claim

creates an ‘easement’ in others’ property, and if the offend-

ing party does not pay for such easement because of

statutory immunity, there is a taking without just com-

pensation.” Pet. App. 56a.

Respondents then successfully invoked the Idaho

Supreme Court’s interlocutory appeal jurisdiction under

I.A.R. 12, which parallels 28 U.S.C. § 1292(b), to review,

inter alia, the district court’s determination that elimina-

tion of the nuisance and trespass causes of action in Idaho

Code § 22-4803A(6) constituted an impermissible taking

under federal and state law.* The Supreme Court reversed,

* Rule 12(a), I.A.R., provides:

Permission may be granted by the Supreme Court to appeal

from an interlocutory order or decree of a district court in a

civil or criminal action, or from an interlocutory order of an

administrative agency, which is not otherwise appealable un-

der these rules, but which involves a controlling question of law

as to which there is substantial grounds for difference of opin-

ion and in which an immediate appeal from the order or decree

may materially advance the orderly resolution of the litigation.

The Idaho Supreme Court has stressed that permissive appeals under

Rule 12 are interlocutory in nature and, indeed, are unavailable if a

final judgment subject to appeal as a matter of right under J.A.R. 11(1)

or (3) exists. E.g., Idaho Dep't of Labor v. Sunset Marts, Inc., 91 P.3d

1111, 1113-14 (Idaho 2004) (exercise of Rule 12 permissive jurisdiction

over appeal proper where district court entered improper partial final

judgment under I.R.C.P. 54(b)); State v. Bicknell, 91 P.3d 1105, 1107

(Idaho 2004) (exercising Rule 12 permissive jurisdiction over “interlocu-

tory” orders that granted suppression motions; the orders “were not

(Continued on following page)

10

concluding that “(t]he 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.” Pet. App. 12a. ‘The court instead deemed the

alleged taking to be “in the nature of a regulatory taking.”

Pet. App. 13a. In the absence of any allegation of “a per-

manent deprivation of all economically beneficial uses of

[petitioners’] land[,]” it found no taking under either the

federal or state constitution. Jd.

The Supreme Court additionally disagreed with the

district court’s determination that the right to maintain a

nuisance creates an easement under Idaho law, stating

that “[wle reiterate that Idaho has not recognized a

nuisance as an easement, and we decline [petitioners’]

invitation to adopt the Restatement of Property § 451

[1944] as the law in Idaho.” Pet. App. 18a-19a. It expressly

declined to follow Bormann’s conclusion concerning the

status of nuisances as easements under Iowa law. Pet.

App. 15a-16a. Last, the court noted the legislature’s

settled authority under the Idaho Constitution “to modify

or repeal common law causes of action.” Pet. App. 19a. It

therefore entered a declaration that the immunity provi-

sion in Idaho Code § 22-4803A(6) did not effect a taking

under the Fifth Amendment or the corresponding provi-

sion of the Idaho Constitution. Pet. App. 28a.

C. The Idaho Supreme Court issued the remittitur

on August 18, 2004, ordering the district court to “comply

with the directive of the Opinion, if any action is required.”

Significant “action” on remand is necessary to resolve

petitioners’ claims. Although the immunity afforded under

transformed into final judgments simply because Idaho Appellate Rules

11(c)(7) granted the State the right to appeal such orders simply by

filing a notice of appeal within forty-two days”).

11

Idaho Code § 22-4803A(6) precludes nuisance and trespass

claims related to crop residue disposal activities compliant

with the Smoke Management Act subsequent to the

effective date of HB 391, it leaves unaffected those claims

predicated on conduct prior to, or non-compliant conduct

after, that date. The district court will thus be required to

oversee the completion of discovery and trial on the merits

of not only the nuisance and trespass claims, but also the

strict liability and civil conspiracy causes of action. Be-

cause it is possible that petitioners will not prevail on the

merits of the nuisance and trespass claims, no assurance

exists that the Idaho Code § 22-4803A(6) immunity provi-

sion will be relevant to the litigation’s ultimate outcome;

i.e., the provision is germane only if petitioners succeed in

their claim that the pre-April 23, 2003 activity, or that any

post-April 22, 2003 noncompliant conduct, constituted a

nuisance under Idaho statutes or the common law tort of

trespass. See Idaho Code §§ 52-101 to -111 (Michie 2000)

(defining different types of “nuisance,” and specifying

remedial scheme); Walter E. Wilhite Revocable Living

Trust v. N.W. Yearly Meeting Pension Fund, 916 P.2d 1264,

1274 (Idaho 1996) (“[t]respass is a tort against possession

committed when one, without permission, interferes with

another’s exclusive right to possession of the property”).

ARGUMENT

I. THIS COURT LACKS JURISDICTION UNDER

28 U.S.C. § 1257(a) BECAUSE THE IDAHO SU-

PREME COURT’S DECISION DOES NOT CON-

STITUTE A FINAL JUDGMENT OR DECREE.

This Court possesses the power to review by writ of

certiorari “[ftinal judgments or decrees rendered by the

highest court of a State in which a decision could be had”

where “the validity of a statute of any State is drawn in

question on the ground of its being repugnant to the

12

Constitution, treaties, or laws of the United States.”

28 U.S.C. § 1257(a). No dispute exists that the decision

below was issued by Idaho’s highest court or that the

nuisance-trespass immunity provision is alleged to conflict

with the Takings and Just Compensation Clauses of the

Fifth Amendment. It is equally uncontroverted that the

appellate process did not produce a “final” judgment - or,

for that matter, any “judgment” — under Idaho law. The

appeal below resulted instead in the determination of an

issue directly connected to the nuisance and trespass

claims for relief pending before the district court and

whose resolution will assist that court in deciding those

claims. Under these circumstances, no “final judgment or

decree” within the reach of § 1257(a) exists.

The seminal case addressing the finality element is

Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975). This

Court observed in Cox that, since the first Congress, its

authority to review state court judgments has been con-

strained by the requirements now codified in 28 U.S.C.

§ 1257(a) and that “‘[clonsiderations of English usage as

well as those of judicial policy’ would justify an interpreta-

tion of the final-judgment rule to preclude review ‘where

anything further remains to be determined by a State

court, no matter how dissociated from the only federal

issue that has finally been adjudicated by the highest

court of the State.” 420 U.S. at 477. The Cox Court

nevertheless identified “four exceptional categories of

cases to be regarded as ‘final’ on the federal issue despite

the ordering of further proceedings in the lower state

courts.” Johnson v. California, 124 S. Ct. 1833, 1834

(2004). None of those categories applies presently.

First, this is not a case where “there are further

proceedings — even entire trials — yet to occur in the state

courts but where for one reason or another the federal

issue is conclusive or the outcome of further proceedings

preordained” — i.e., where “the case is for all practical

13

purposes concluded.” Cox, 420 U.S. at 479. Here, as

discussed above, petitioners have pending before the

district court nuisance and trespass claims for pre-April

23, 2003 conduct that falls outside the scope of the § 22-

4803A(6) immunity.

Second, this is not a case where “the federal issue,

finally decided by the highest court in the State, will

survive and require decision regardless of the outcome of

future state-court proceedings.” Jd. at 480. It is entirely

possible that petitioners will not prevail on the merits of

their nuisance and trespass claims, thereby rendering

immaterial the question of Idaho Code § 22-4803A(6)’s

validity.

Third, this is not a case “where the federal claim has

been finally decided, with further proceedings on the

merits in the state courts to come, but in which later

review of the federal issue cannot be had, whatever the

ultimate outcome of the case.” Cox, 420 U.S. at 481.

Should, for example, petitioners prevail on their nuisance

or trespass claims with respect to pre-April 23, 2003

conduct but be denied relief with respect to post-April 22,

2003 conduct on the basis of § 22-4803A(6) immunity, they

may appeal the latter denial through the Idaho appellate

system and, if unsuccessful by virtue of law-of-the-case

principles, raise the validity of the immunity provision in

new certiorari proceedings. This Court has stated often

that it possesses “jurisdiction to consider all of the sub-

stantial federal questions determined in the earlier stages

of the litigation.” Reece v. Georgia, 350 U.S. 85, 87 (1955);

accord Hathorn v. Lovorn, 457 U.S. 255, 261-62 (1982);

Washington v. Washington State Comm’ Passenger Fish-

ing Vessel Ass'n, 443 U.S. 658, 672 n.19 (1979); see also

Johnson, 124 S. Ct. at 1835 (“[i]ln the event that the

California Court of Appeal on remand affirms the judg-

ment of conviction, petitioner could once more seek review

. 14

of his Batson claim in the Supreme Court of California —

albeit unsuccessfully — and then seek certiorari on that

claim from this Court”).

Fourth, this is not a case “where the federal issue has

been finally decided in the state courts with further

proceedings pending in which the party seeking review

here might prevail on the merits on nonfederal grounds,

thus rendering unnecessary review of the federal issue by

this Court, and where reversal of the state court on the

federal issue would be preclusive of any further litigation

on the relevant cause of action rather than merely control-

ling the nature and character of, or determining the

admissibility of evidence in, the state proceedings still to

come.” Cox, 420 U.S. at 482-83. The Idaho Supreme

Court’s decision leaves unaffected not only petitioners’ pre-

April 23, 2003 nuisance and trespass claim but also any

post-April 22, 2003 claim predicated on conduct not in

compliance with the Smoke Management Act. As such, the

decision “merely control[s] the nature and character of . . .

evidence” and relief available in the trial court proceeding.

For example, had petitioners prevailed below, the litiga-

tion would have resumed in the same or quite similar

status — ongoing pre-trial discovery with the possibility of

a multi-week preliminary injunction hearing in advance of

a full-blown trial on the merits — as obtained immediately

after the district court’s June 2003 ruling concerning the

validity of HB 391’s immunity provision. Cf. Pierce County

v. Guillen, 537 U.S. 129, 141 (2003) (neither a “final”

judgment nor any Cox exception applied where, with

respect to a tort action, “the Washington Supreme Court

resolved only a discovery dispute” and “did not determine

the final outcome of the litigation”).

This is a case, however, on all fours procedurally with

Jefferson v. City of Tarrant, 522 U.S. 75 (1997). There,

certiorari was-granted to review a determination by the

15

Alabama Supreme Court, issued in an interlocutory

appeal under a procedural rule phrased comparably to

I.A.R. 12(a), that the state Wrongful Death Act’s limitation

on recoverable damages applied in actions under 42 U.S.C.

§ 1983. 522 U.S. at 79-80 & n.2. The respondent thereafter

raised in its merits brief the lack of a {inal judgment for

§ 1257(a) purposes, and this Court agreed:

The Alabama Supreme Court’s decision was not a

“final judgment.” It was avowedly interlocutory.

Far from terminating the litigation, the court an-

swered a single certified question that affected

only two of the four counts in petitioners’ com-

plaint. The court then remanded the case for fur-

ther proceedings. Absent settlement or further

dispositive motions, the proceedings on remand

will include a trial on the merits of the state-law

claims.

522 U.S. at 81. So, too, the Idaho Supreme Court’s decision

resolved one issue in the litigation that affected only two

of four claims. Also, as in Jefferson, “[(rlesolution of the

state-law claims could effectively moot the federal-law

questions” (id. at 82), and the petitioners here, like those

in Jefferson, “will be free to seek [this Court’s] review once

the state-court litigation comes to an end” if their federal

law-based challenge to the § 22-4803A(6) immunity

provision remains relevant after final disposition of their

pending claims (522 U.S. at 82-83). In sum, this case, like

Jefferson, “presents the typical situation in which the state

courts have resolved some but not all of petitioners’

claims” and thus “founders on the rule that a state-court

decision is not final unless and until it has effectively

determined the entire litigation.” Id. at 84.

16

Il. TO THE EXTENT PETITIONERS ALLEGE A

TAKING OF THEIR HOMES OR OTHER REAL

PROPERTY, THEIR REMEDY LIES IN IN-

VERSE CONDEMNATION AGAINST IDAHO

AND NOT INVALIDATION OF THE NUI-

SANCE-TRESPASS IMMUNITY PROVISION.

The petition should be denied on jurisdictional

grounds. Even if a final judgment or decree under

§ 1257(a) existed, petitioners do not present a substantial

federal question warranting this Court’s review insofar as

they seek invalidation of the nuisance-trespass immunity

provision in Idaho Code § 22-4803A(6).

A central requirement in any takings litigation under

the Fifth Amendment is to identify with particularity the

“property interest” allegedly taken by the government. Cf.

Andrus v. Allard, 444 U.S. 51, 65-66 (1979) (“[a]t least

where an owner possesses a full ‘bundle’ of property rights,

the destruction of one ‘strand’ of the bundle is not a

taking, because the aggregate must be viewed in its

entirety”). Petitioners are quite specific in this regard,

specifying various interests allegedly possessed in their

individual homes. E.g., Pet. 14 (“Plaintiffs’ property rights

include their right to access their homes, the right to

exclusively possess their home, and the right to use their

home”) (footnotes omitted). This taking allegedly is ef-

fected through creation of a “servitude or easement” over

their property by virtue of the § 22-4803A(6) immunity

provision. Pet. 17. Petitioners nonetheless do not allege a

takings claim against respondents or, for that matter, aver

that the fair market value of their homes has been dimin-

ished. They instead pursue what, in essence, is a mass tort

lawsuit, enlisting the Fifth Amendment for the sole

purpose of striking down statutory impediments to per-

sonal injury damages. Just compensation is not sought.

17

This Court has emphasized that “only takings without

‘just compensation’ infringe th[e] [Fifth] Amendment” and

that, consequently, “if a State provides an adequate

procedure for seeking just compensation, the property

owner cannot claim a violation of the Just Compensation

Clause until it has used the procedure and been denied

just compensation.” Suitum v. Tahoe Regi Planning

Agency, 520 U.S. 725, 734 (1997); see also Brown v. Legal

Found. of Washington, 538 U.S. 216, 235 (2003) (“‘[t]he

Fifth Amendment does not proscribe the taking of prop-

erty; it proscribes the taking of property without just

compensation’”) (quoting Williamson County Reg’ Plan-

ning Comm’n v. Hamilton Bank, 473 U.S. 172, 194 (1985));

First English Evangelical Lutheran Church v. County of

Los Angeles, 482 U.S. 304, 315 (1987) (Fifth Amendment

“is designed not to limit the governmental interference

with property rights per se, but rather to secure compensa-

tion in the event of otherwise proper interference amount-

ing to a taking”). While four members of the Court in

Eastern Enterprises v. Apfel, 524 U.S. 498 (1998), invali-

dated a statute, which mandated a direct transfer of funds

from one private party to another, on the ground that it

effected an uncompensated taking, they did so only be-

cause no “compensable remedy” existed for the taking. Id.

at 521 (plurality op.).*

* Justice Kennedy provided the decisive vote in a separate opinion,

agreeing that the involved statute was unconstitutional but dissenting

from the plurality opinion’s use of takings analysis to invalidate the

law. 524 U.S. at 539 (Kennedy, J., concurring in judgment and dissent-

ing in part). He thus found it “unnecessary to comment upon the

plurality’s effort to resolve a jurisdictional question despite little

briefing by the parties on a point which has divided the Courts of

Appeals.” Jd. at 547. The opinion of four Justices dissenting from the

judgment similarly did not address the issue substantively but did note

the “conceptual difficult[y]” associated with prospective, as opposed to

compensatory, relief for a taking. Jd. at 556 (Stevens, J., dissenting).

18

Petitioners, however, have an adequate remedy in

inverse condemnation against Idaho to redress any claim

that either a regulatory or a physical taking of real prop-

erty interests exists. First English, 482 U.S. at 315-16; see

also KMST, LLC v. County of Ada, 67 P.3d 56, 60 (Idaho

2003); Covington v. Jefferson County, 53 P.3d 828, 831

(Idaho 2003); Killinger v. Twin Falls H’way Dist., 17 P.3d

266, 269 (Idaho 2000). No such claim is, or can be, main-

tained in this action because Idaho is not a defendant. Yet,

even were Idaho a party and an inverse condemnation

claim were properly before the district court, the nuisance-

trespass immunity provision’s validity would remain

unaffected; i.e., petitioners’ claims against respondents

would still be subject to the legislative restrictions.

Finally, two brief comments concerning the merits of

petitioners’ claim are warranted. Their fundamental

grievance with the Idaho Supreme Court’s decision is the

conclusion that crop-disposal smoke dispersion does not

constitute a physical invasion. Pet. 19-21. Petitioners rely

heavily on the Iowa Supreme Court’s determination in

Bormann that, under Iowa law, a legislative conferral of

immunity from nuisance liability gives rise to an easement

and therefore, constitutes a physical invasion of the

subservient estate. Pet. 22-24; see Bormann, 584 N.W.2d

at 315-16, 319-21. The Idaho court, as discussed above,

departed from Bormann on the issue of whether Idaho

Code § 22-4803A(6) creates an easement under Idaho law

— a determination ordinarily not subject to this Court’s

review. E.g., Demorest v. City Bank Farmers Trust Co., 321

U.S. 36, 42 (1944); cf: U.S. Term Limits, Inc. v. Thornton,

514 U.S. 779, 814 (1995) (“[tlhe judging of questions

19

concerning rights which depend on state law is not...

normally assigned to federal tribunals”).°

The Idaho Supreme Court’s holding, and the atten-

dant selection of regulatory taking standards as control-

ling, is hardly surprising. This Court in Richards v.

Washington Terminal Co., 233 U.S. 546 (1914), held that

smoke, fumes and other consequences of proximity to a

congressionally-sited railroad did not effect a “‘taking’ of

the [complainant’s] land in the ordinary sense” of a physi-

cal occupation. Jd. at 552. It thus distinguished Richards

in United States v. Causby, 328 U.S. 256 (1946), where

aircraft overflights were deemed to constitute a physical

invasion of property neighboring a military airport,

because the earlier case was simply one “of incidental

damages arising from a legalized nuisance.” The over-

flights differed since, “if permanent and not merely tempo-

rary, [they] normally would be the equivalent of a fee

interest” in the nature of an easement. Jd. at 261-62. The

Idaho court’s determination that regulatory, not per se,

* This Court, of course, held in Webb’s Fabulous Pharmacies, Inc. v.

Beckwith, 449 U.S. 155, 161 (1980), that state property law, not the

Fifth Amendment itself, is the source of compensable property inter-

ests. Undeterred by such holding, petitioners argue that Webb’s “stands

for the notion that states do not solely determine what is property for

takings purposes.” Pet. 19. Their reading cannot be squared with this

Court’s conclusion that the creditors of Webb’s “had a state-created

property right to their respective portion of the [court registry] fund.”

449 U.S. at 161 (emphasis supplied). The issue in Webb’s was whether

the state legislature could appropriate interest on the fund by charac-

terizing it as “public money” for a temporary period. Jd. at 163-64. It

was this re-characterization that, along with other considerations,

constituted the taking. The Idaho Supreme Court, however, did not re-

characterize petitioners’ property rights when it declined to construe

the nuisance-trespass immunity provision in Idaho Code § 22-4803A(6)

as an easement over that property. Its decision left petitioners’ property

right status exactly as it was preceding Idaho Code § 22-4803A(6)’s

enactment.

20

takings standards governed thus not only vas rooted

firmly in a state law-based property right determination

but also was fully consistent with this Court’s precedent

concerning the distinction between physical and non-

physical takings.

CONCLUSION

The petition for writ of certiorari should be denied.

Respectfully submitted,

LAWRENCE G. WASDEN

Attorney General

State of Idaho

CLAY R. SMITH

Deputy Attorney General

Counsel of Record

700 W. Jefferson

P.O. Box 83720

Boise, ID 83720-0010

(208) 334-2400

January 2005