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

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386003_1524%3A4

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2005
- **Citation:** 543 U.S. 1146

## Text

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
TABLE OF AUTRE iitiiscsscciledarcrcissassseusennins ili
INTEREST OF AMICUS CURIAE ...0.........cccccccceeeeees 1
TT IO Tx 0<0.2100ccinsieseseoeneeluae ancan 3
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
EE ee | | eae mm hy eee ents 1
Theda Clits F RI cis cise scihrsidecsnstsictesaccasscnonenannan 1
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
Thabo Cardin © SEI sssisiiscesiarnsnansnisinesaisarsssnaxinainnnsntais 5
Dbaten Conte Be BBE 00 Fe wcsiictccnsccscrsccisedrecdaneeran 3
Ddiabae Coda G5 GE- 201 Gee TEE. si.sscscsesecncnsiiaesioarccarenainnanteneas 11
Bintan Contin SB I sisiootsscstncncsnvarmiccananionaanmen 8
OTHER AUTHORITIES
Bh, CR, Th BEB in scicssiesnssceccdcnseasnptanehthiatenenamaalaaeaa 1
CBR. TD iicississritccincnncionembaaasaeneaedes 9

CR Bi iia siciccssnsecrncnisanssnnninsaninsmenciinnansimnaniinaesciamtamennians 9

vi

TABLE OF AUTHORITIES — Continued

Page
lial BE sccsssrscessescnsensssesssienbesaseahisuennineimanaaliaaaiaaaa ann 9
RAAB EER) acccessescarascsseseesiatubbscaveniesiasidamanaaeaaiaiaae 15
ERG SIGIR) .cccsnsscesescccesistaessstanssalaetaipaanee 2
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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386003_1524%3A4. Public record. Not legal advice.