Fighting Smoke with Fire

by Kevin Taylor & r & A cold November rain lances down from a sky the color of bruises. Reflections of streetlights and neon lights gleam on the wet asphalt near Kootenai Medical Center in Coeur d'Alene.


"It was right here on this street," says Kelly McAnally. "This is the way I drove to work that day."


That day was Sept. 14, 1995, when McAnally nearly died during a short commute to work while driving through a bank of smoke from burning fields that poured through Coeur d'Alene. A little more than 10 years later, her lawsuit against farmers and the association that gave them the OK to burn that day has been settled without trial.


McAnally's life and health has changed dramatically. She has been rushed to the hospital nine times in the past 10 years with severe breathing problems. Her vocal cords are damaged, and her lungs sensitized by the intense smoke to the point that almost anything can now trigger breathing problems.


The North Idaho grass seed industry is also experiencing profound changes. Burning is now authorized by the state instead of private associations or individual farmers. Population growth and development pressures have devoured many of the acres once farmed on the Rathdrum Prairie.


Stubble in open fields, however, is still set on fire a decade later. Idaho continues to view the practice more as a residue-disposal issue and less as a public health issue. That may change, but it hasn't yet.





A Short Drive to the ER & r & McAnally, an intensive care nurse at Kootenai Medical Center, awoke that September evening 10 years ago, dressed and left for work by 6:15 pm. She was scheduled for a 12-hour overnight shift at the hospital. She remembers walking out her front door and into a cloud of smoke at her house on Seventh Street, just north of downtown Coeur d'Alene.


Smoke was nothing new. When McAnally was a kid in Coeur d'Alene, she would watch the grey-white mushroom clouds of smoke rise off the Rathdrum Prairie to the west. It was just a part of the fabric of life, she says - a signal of the changing seasons. When farmers who grew commercial grass seed crops began burning off stubble after harvest in August or September, it was one more sign -- at least to local kids -- that summer had come to an end.


In 1995, however, it was McAnally's contented life as a fitness buff and as a soloist in her church choir that came to an end.


In fact, life itself nearly ended for McAnally that evening. She jumped into her pickup truck and made the short zig-zag drive on city streets from her home on Seventh up to Ironwood and over to U.S. 95 and KMC.


This time the smoke wasn't off in the sky. It was throttling the city in a tight grip all the way down to street level. The smoke was thick enough that "You had to have your headlights on," McAnally recalls. Despite rolled-up windows, she began coughing.


"It was incredible coughing. I couldn't stop. I couldn't catch my breath. Then I found it was difficult to take a breath in. I found it was even difficult to exhale," McAnally says.


As an ICU nurse, she says, "I knew exactly what was happening to me, and it scared me to death."


Her lungs were not functioning.


The drive to work took seven minutes at most. By the time the elevator doors opened in the hospital's intensive care unit, "My coworkers took one look at me and knew I was in trouble. My skin color was gray-blue. I was wheezing. I could not talk," McAnally says. "They took me right to the ER."


Nurses put McAnally on a BiPAP, basically a machine that kept her lungs inflated by forcing in oxygen at higher pressure during inhales and at lower pressures during exhales.


"They were getting ready to intubate me -- put a tube down my throat," McAnally says.


If she hadn't been going to work at the ICU, she could very well be dead today. The sickly blue-gray skin color was a sign she was suffocating.


"My whole life changed in the ER," she says.


She was no stranger to field smoke. It's just that now, McAnally, still a nurse at KMC, sees the smoke as a threat to public health instead of a picturesque marker to changing seasons.


"I grew up with it," she says. "After what happened that day, I woke up to it."





The Smoking Judge & r & Facing significant and lifelong medical costs for damaged lungs and vocal cords, McAnally decided to sue. She found Corrie Yackulic, a Seattle attorney who has family ties to Coeur d'Alene.


Yackulic, who calls the eight-year lawsuit "a labor of love" - because she kept cutting her fee as McAnally's health expenses mounted - is clear about why the suit was filed.


"Our goal wasn't to shut down an industry. It was to make the farmers and the associations pay the full cost of the operation," Yackulic says. "This is Economics 101. I have always felt if polluters have to bear the full cost of their activity, then the calculus of whether to burn or whether to pay changes."


The marathon lawsuit went through four judges, Yackulic remembers, and made two trips to the Idaho Supreme Court, where the justices both times overturned Kootenai County District Court decisions favoring the growers.


Yet Yackulic feared the case was in trouble right at the start.


"Our first judge was a guy who smoked in his courtroom, even though it was against Idaho law," she remembers. "I said, 'He does what?' But Ken Howard, our attorney in Coeur d'Alene, said that we could do worse and that we should hang onto him."


That first judge was Gary Haman, now retired, who was indeed a smoker although never in actual court. First District Court Judge Charles Hosack, the last judge to preside over the suit, remembers Haman well.


"Haman was a smoker," Hosack says, and when the Kootenai County Commissioners banned smoking in county buildings, "Haman issued an administrative order that his chambers were not part of the county.


"Haman, as administrative judge, contended his chambers were state property where he could continue to smoke - which he did furiously," Hosack says.





Landmark Rulings & r & Even though the lawsuit never went to trial and thus never produced a clear "winner," it has resulted in two significant developments along the way.


The first was when an early ruling by Haman -- that local courts did not have jurisdiction to hear a suit in which McAnally may have been harmed by smoke from a grower just across the border in southeast Spokane County -- was overturned by the state Supreme Court.


An Idahoan, injured in Idaho, can bring suit in the state even if the source of the injury came from elsewhere, the justices ruled.


This is a significant ruling, especially for residents of border towns in northwestern Montana or southeastern British Columbia who have been hit hard in recent years by smoke plumes from Idaho field burning, Yackulic says.


The second was a ruling by Hosack that the Idaho Grass Growers Association, which did not itself burn any fields, could not avoid being sued by McAnally. The IGGA provided the meteorologist who issued the go-ahead for farmers to burn that day.


"They said that even assuming they screwed up and didn't read the tea leaves correctly, they still don't owe a 'duty' to private citizens," Hosack says.


The IGGA contended that it owed its "duty" (a specific legal term "in the esoteric realm of torts," Hosack explains) to the growers. An injured party can sue the growers, who in turn can sue the IGGA, was their argument.


"I used a forseeability analysis," Hosack says. "Is it forseeable that, if they screw up, do they hurt other people by issuing a burn order in a densely populated area? My answer was yes, and that there is a legal duty."


And last month, just four days before trial was scheduled to begin, the IGGA settled and the case was dismissed.


It was the last motion in eight years of intense fighting.





Finding the Fire & r & The case never went to trial, but there was no shortage of bruising and brawling. It started right when the suit was first filed and named about 78 farmers, setting off alarms in two states.


"Because we didn't know who burned that day -- and we could not get that information until we filed a suit -- we named everybody," Yackulic says.


Farmers who showed they did not burn were dismissed. Soon, the case came down to seven farmers in Idaho and southeast Spokane County in Washington. Yackulic says this sort of stubborn contention -- one side refusing to provide information and the other casting a wide net to get it -- is typical of pollution suits.


"Every issue is disputed. All toxic torts are complicated by layers and layers of questions," Yackulic says. "Was the smoke in Coeur d'Alene that day from these fields or elsewhere? Was Kelly's illness caused by exposure to that smoke?"


McAnally's was the first suit for health damages filed against local grass growers, Yackulic says, and the work that went into it was ground-breaking as well as backbreaking.


Yackulic found a researcher at Washington State University who was able to crunch a massive amount of information to model climate data for that day. She was able to gather solid data from not just one, but three smoke monitors around Coeur d'Alene on that day. The smoke monitors, as other lawsuits have discovered, can sometimes provide ambiguous information or fail to work altogether at critical moments.


She was able to advance the realization that the danger from smoke is not the chemical compounds, but the tiny bits of particulate matter -- know as PM 2.5 -- that can be inhaled deep into lungs.


She had no-nonsense statements from Dr. Henry Covelli, who was at KMC that day and who has firsthand descriptions of the smoke, to counter a hired expert from Portland who tried to say McAnally had whooping cough.


"This is how it always is with toxic exposure cases," Yackulic says. "Always."





Ruled by Farmers & r & Yackulic sees some significant victories. "This was the first case filed. It was the first case in which there were payouts for personal injury -- in 1998, 2003 and 2005," she says. "This will sound presumptuous, but I think we educated the Idaho Supreme Court. They were able to see that Kelly is articulate and intelligent and is not a crazy woman."


And other states noticed, too. "The year after Kelly got hurt, Washington banned field burning," Yackulic says.


Idaho has not.


"The state is governed by farmers," Covelli says, citing states such as Washington, Oregon, Illinois, Indiana and Kentucky that have banned grass-field burning.


Facing a wave of lawsuits after McAnally and two deaths related to smoke exposure, Idaho grass growers found help in the Legislature. Lawmakers passed a shield law, protecting farmers from suits as long as they followed smoke management plans. The Legislature also added an "economic viability" clause to those plans, allowing burning to continue until an alternative disposal method is found. But the alternative cannot cost more than burning.


Farmers in this area have said grass stubble is burned because it is the cheapest and fastest way to clear a harvested field. They do this to expose the crowns of the grass plants -- perennials which can stay in production for up to 14 years with regular burning -- to sunlight. If the plants get their "reproductive tillers" in the air by autumn, growers know they will have a harvest the following summer.


The University of Idaho is spearheading research into alternatives to burning. Results are still years away. Some farmers have voluntarily quit burning. Others stopped when insurance companies wouldn't cover the practice.


Peter Erbland, an attorney for several of the grass growers, doesn't feel the McAnally case will have any impact.


"This was just about one person, and [because of settlements] there was never any determination of liability."





Questions for Idaho & r & If the Washington Department of Ecology can declare grass stubble burning to be a public health emergency and quickly phase out the practice, why can't Idaho?


"Idaho statutes basically acknowledge that field burning is a reasonable practice," says Robert Wilkosz, who is the smoke management manager for the state Department of Environmental Quality.


Wilkosz says Idaho, like all states, upholds federal ambient air-quality standards and is committed to protecting public health. He says there have been no air violations from field burning, but acknowledges there is debate about how the standards are measured.


If Idaho decided on stricter standards for field burning, Wilkosz says, "As soon as you did that, you would have these types of people up against you: auto manufacturers, trucking organizations and all sorts of industry. We don't even have to talk about ag. Idaho does not have the resources for that."


Mike Journee, a spokesman for Gov. Dirk Kempthorne, says the state oversight of burning "shows health concerns are a big part of the Department of Ag, and the Kempthorne administration's policy toward field burning."


McAnally, Yackulic, physicians and others offer a cough of disagreement.


"I don't think the growers realize what they have done to me, and that it's for the rest of my life," McAnally says. "They are hurting people, and that shouldn't be a business decision. Every time they burn, they should understand the true cost -- not just getting the seed to a place that will buy it from them -- but the human cost, the life cost."





Moving On & r & Yackulic recalls that even in the early stages, the growers were willing to settle -- for $15,000. "That made it easy to say no," she says. As the suit progressed, offers from the growers' side became more serious. And Yackulic's concern for McAnally also became more serious.


Idaho is a "payback" state: When a plaintiff like McAnally wins a settlement or award, the money goes first to insurers, not to the victim. So in this case, the settlement basically meant McAnally paid for 10 years of medical costs right off the top. Her marriage of 24 years recently ended -- in part, she says, because of strains from her ongoing health issues -- and, as the one with the job, she now lives in an apartment and pays child support.


"It's been a long 10 years; it's taken a toll on me," McAnally says. "There is ongoing depression, ongoing fear and anxiety about what will happen to me, fears about money because my insurance is not cheap, my meds are not cheap."


But she'll consider the ordeal a victory if Idaho citizens and lawmakers realize field burning is a health issue and not a land-use issue.


That doesn't seem imminent with Idaho officials from the governor on down willing to stand pat on the current smoke management plans, praising the various agencies for keeping an eye on health concerns.


Yackulic says it's already a win because - whether because of the suit or from economic pressures - "There is very little burning going on anymore. We were at start of that process. Kelly was willing to come forward and be the human face of the true cost."