Every Breath He Takes

Fifteen Years Ago, Tim Krautkraemer was a sick kid who just wanted to play football. The story behind the movement and the lawsuit that now protects the health of thousands of people in Washington and Idaho.

By Tim Connor (originally published March 2, 2009)

(Editor’s note, 8.4.2014: Tim Krautkraemer continues to thrive in good health. After spending two years in the Teach for America program, as a Spanish teacher and football coach in Mississippi, Tim spent the past year teaching Spanish at a middle school in Bloomington, IN. This fall he’ll be at the University of Texas, beginning work on his master’s degree in Cultural Education.)

A few months before Spokane was introduced to the Center for Justice, eastern Washington was introduced to Tim Krautkraemer.

In a fall 1998 newsletter from the citizen group Save Our Summers, Tim was “Timothy,” a young boy with sad eyes, reddish hair, and a swollen face looking out from beneath a headline that asked: “Wheat Stubble Burning–Who Pays The Price?” A year later he was “Tim K.” one of two named plaintiffs in a CFJ federal lawsuit at the heart of an epic battle, spanning two states, pitting a politically powerful coalition of farmers against a tirelessly determined network of parents, doctors, scientists and lawyers from Spokane’s newest law firm, the Center for Justice.

To look at Tim today, a healthy and engaging young man with the breeze from a crystal clear Palouse sky blowing through his hair, it’s hard to grasp what he and his family and their compatriots went through to recover his health and to quite literally save the skies of the inland Northwest.

How bad was it? Well, consider how Jerry Zahl, a farmer and respected agronomist from Walla Walla, put it in a “protest” letter to state officials in early 1999:

“The orange-gray clouds that have turned our once beautiful crisp, clear fall days into the ugly fall days from hell are a definite threat to the welfare and productivity of many.”

The smoke clouds were just a nuisance to most, but to thousands of people who, like Tim, were sensitive to air pollution, they could inflict pure misery. One of the early known casualties of field burning was Aaron Ditmer an otherwise healthy 21-year-old Pullman man who suffered a fatal asthma attack after smoke from burning bluegrass fields in south Spokane County inundated the Pullman area in September 1994.

Field smoke intruding on a school.

“The concentration of particulate in the smoke plume of a field burn,” a senior Washington Department of Ecology official wrote in 1996, “can be devastating to an asthma victim or someone with heart or respiratory problems, even when exposure lasts a matter of minutes.”

Frustration with smoke from field burning, particularly in the Spokane–Coeur d’Alene corridor–led to the formation of the Save Our Summers citizen group in 1995. SOS’s rise was accompanied by unprecedented organizing among area physicians, more than 300 of whom came forward on behalf of literally thousands of patients in two states to plead for effective regulation of field burning. Among the heart-wrenching stories was that of Alex Heisel, a then-young girl suffering from cystic fibrosis, whose Post Falls family lived in constant fear for her life during the fall burn seasons. (Alex would be the other named plaintiff, with Tim, in the federal lawsuit that CFJ brought on their behalf in 1999.)

Now, it seems very much like yesterday’s news. Up here on a Pullman ridge top with a healthy Tim Krautkraemer it’s easy to forget what he and thousands of others went through. Today, because of the case that Tim’s experience was at the center of, complaints from field smoke in the region are virtually non-existent. It makes it easier to forget that field burning was not just any controversy. It was a gut-wrenching battle for just about everybody involved, including the young law firm that brought the case to federal court. Nationally important legal issues were at stake, and a wide and menacing cultural divide separated the adversaries.

“Tim was going to be a public figure and Jeff and Patti wanted to make sure he knew what was going on and that it was something he wanted. And he did.”–former CFJ attorney Karen Lindholdt

“It was a chasm as wide as the Grand Canyon,” says Karen Lindholdt, the CFJ attorney who represented SOS and Tim and Alex in the case.

Lindholdt herself became a target. In 2002, in the midst of a high-profile field burning case in Coeur d’Alene, vandals came to her home in Spokane in the dead of night and wrapped her trees and bushes with toilet paper.

Four years earlier, two Save Our Summers activists, Jan Tenold and Tricia Hoffman, were forced to seek refuge in a rural Franklin County home after growers in pickup trucks chased them from where they’d been videotaping smoke rising from a burning field. To mollify the angry growers, the two women were charged with trespassing. (The pair were represented before a Franklin County jury by Jim Sheehan, the Center for Justice’s founder who, it turned out, was making his last trial appearance as a practicing lawyer.)

It wasn’t just the activists who were targeted. Not long after the SOS women were chased, several growers trapped and detained two inspectors from the Washington Department of Ecology who were investigating illegal burning in Franklin County.

But nothing was more wrenching to Save Our Summers than the actions of the state itself.

Tim with his father Jeff, mom Patti Gora, and sister Anneliese in 1999
Tim with his father Jeff, mom Patti Gora, and sister Anneliese in 1999

The organization’s biggest victory came in early 1996 when Mary Riveland, the Director of Washington’s Department of Ecology, announced she was using the agency’s emergency rule-making authority to all but eliminate the burning of bluegrass over a three year period. Riveland, to her credit, had taken the time to visit victims of field burning and was visibly moved by their stories, including Alex Heisel’s.

Riveland retired in January of 1997 and was replaced by Tom Fitzsimmons, a director who, by all measures, was far more interested in protecting field-burning farmers. As fate would have it, the improvement in air quality due to the phase out of bluegrass burning ordered by Riveland, was being offset by a dramatic surge in the number of wheat acres being burned, in part because of a shift to no-till farming methods.

While bluegrass growers had enjoyed years of political influence in Olympia through their trade organization, wheat growers had even more clout.

“Absolutely,” says Lindholdt, “the Washington Association of Wheat Growers was not the Inland Grass Growers Association. The wheat growers are clearly a very powerful organization.”

“The orange-gray clouds that have turned our once beautiful crisp, clear fall days into the ugly fall days from hell are a definite threat to the welfare and productivity of many.”–Farmer and agronomist Jerry Zahl in a 1999 protest letter to state officials.

Just how heavily Ecology leaned toward farmers who burned their fields became clear in early 1999 when a citizen researcher looking through boxes of agency records lifted up an innocuous-looking cover sheet. Beneath it, in striking detail, was a secret plan worked out between a WAWG representative and top Ecology officials to mislead the public and the press about an agreement Ecology had reached with the WAWG on field burning.

The so-called “Roll Out” memo touched off a storm of ridicule in the press. It also led to CFJ’s first successful public records lawsuit because the document had been illegally withheld from SOS. The episode all but destroyed the agency’s credibility as an honest broker in a controversy where a balance had to be struck between farmers who wanted to burn fields and people like Tim Krautkraemer who, under state and federal law, were supposed to have a right to breathe air that didn’t make them sick.

By conspiracy and deception, Save Our Summers had simply been shut out of the process. There was only one thing to do, and that was to file a lawsuit. But what kind of lawsuit?

The answer came from Tricia Hoffman, the Spokane Valley veterinarian who was SOS’s lead organizer, publicist and spokesperson. Hoffman is a voracious researcher and she had come across a case from Iowa, known as the “Heather K.” case, where open burning in an Iowa town had been constrained under the Americans With Disabilities Act (ADA) to protect a child with respiratory disease and a heart disorder.

“I thought ‘why not?’” Lindholdt said when Hoffman suggested the approach. “Once I read that case and studied the ADA it looked to me that there couldn’t be a better fit. The right to breathe and the right to leave your house, that’s what the ADA is all about, obtaining these basic rights for people with disabilities. So the shoe really fit.

The case–SOS et al. v. Department of Ecology–was filed on October 1, 1999 and into the federal courtroom in Spokane stepped young Tim Krautkraemer.

By that time, Tim and his parents–WSU Economics Professor Jeff Krautkramer and his wife, Patti Gora–were prepared to do just about anything to protect their ten-year-old son from field smoke. Tim had begun suffering from asthma, allergies and sinus infections since before kindergarten but the annual field burning, both in the spring and fall, tipped him into harrowing health emergencies requiring steroids and bronchodilaters like albuterol. The steroids had serious side-effects and even the albuterol made it difficult for him to get to sleep.

“He would be on fifteen medications a day,” Patti remembers, “and I would have to make a flow chart. It was insane.”

What added to their frustration with Ecology is that their legislative representatives in Whitman County were so loyal to wheat farmers that none were willing to help protect the city and the WSU campus from smoke intrusions. In October 1998, two SOS members wrote a letter to K.J. (Gus) Kravas, WSU’s Vice President for Student Affairs, to “express our regret” that their asthmatic son with a 3.9 GPA would not be attending the university because of smoke from field burning. Kravas wrote back not only to report his regret but to convey his own frustration.

“I have spoken to a number of current students,” Kravas wrote, “who have expressed their displeasure about the practice and have learned first hand that it can create a life-endangering situation. That has prompted me to contact several county and state agencies about the problem. I have experienced the same level of frustration you seem to have had.”

 Attorney Karen Lindholdt
Attorney Karen Lindholdt

After a particularly bad day in 1998, where she and her wheezing son were literally trapped in their home by a suddenly arriving plume of smoke, Patti put in a phone call to their state senator. When the senator returned the call a few days later, Tim was in the room when his father answered it. The senator’s solution to the problem was for the family to leave “wheat country.”

“I actually remember my dad getting that phone call,” Tim says. “He [his father] was livid. At that point my parents were talking to me and my sister because we were growing up and could understand more. So that was the first consciousness I had about what we were up against.”

The politics were complicated. But one thing was clear. Tim was losing his childhood. The simple act of going outside in summer and fall and playing football with his friends was taken away from him because the smoke from field burning made him too sick.

“I couldn’t breathe,” he remembers. “I distinctly remember one day, we’d come up to Spokane to meet with Doctor McCarthy, my asthma specialist. He’d given me a prescription for anti-biotics and after we came back to Pullman and picked them up at ShopKo, I asked my mom if we could just drive by the practice fields to see if we could watch the kids practicing. And I remember just sitting in the car that day watching an entire practice with all my friends there. That was kind of a defining moment for me. But I still wanted to play football and I still wanted to be successful at it.”

He also remembers the conversation with his mother in which she told him that she didn’t think the problem would get solved without legal action. He didn’t know what to expect as a plaintiff but he was up for it.

“I remember meeting Karen Lindholdt,” he says, “because she was with us from day one. And I remember going out to the store and buying khakis, a dress shirt, and a tie.”

“Tim was going to be a public figure,” says Lindholdt,”and Jeff and Patti wanted to make sure he knew what was going on and that it was something he wanted. And he did.”

If there was a reason to be optimistic about a federal ADA lawsuit against Ecology it was, in part, because the purposes of the ADA seemed to align perfectly with the clear declaration in Washington’s Clean Air Act about the law’s purpose “to secure and maintain levels of air quality that protect human health and safety, including the most sensitive members of the population.”

But to the person who mattered most, Federal District Court Judge Robert Whaley, it wasn’t nearly so simple. Because the ADA is a fairly new statute, there is a dearth of case law on how anti-discrimination laws like the ADA were to be reconciled with environmental laws like the state and federal Clean Air Acts.

In short, the nearly two years worth of proceedings in Judge Whaley’s courtroom became a textbook example for CFJ founder Jim Sheehan’s critique of how illusive justice can be through the courts.

“I actually remember my dad getting that phone call. He was livid. At that point my parents were talking to me and my sister because we were growing up and could understand more. So that was the first consciousness I had about what we were up against.”–Tim Krautkraemer, recalling the moment when his father was told by a state senator that the solution to the problem was for the family to leave Pullman.

As Judge Whaley acknowledged, the facts were on the side of Save Our Summers and Tim and Alex at least in terms of their having shown that smoke from field burning was inflicting harm upon them. But what Judge Whaley couldn’t find was that the harm being inflicted was the result of a discriminatory policy or practice by Ecology.

“(T)he fact that Defendants know Plaintiffs are being hurt by burning does not mean that Defendants allow burning in order to hurt Plaintiffs,” Judge Whaley wrote in his June 2001 decision dismissing the case. Elsewhere, he noted: “The agency has drawn a line between those whose health it will protect,” he wrote, “and those whose health it will not; some, including the Plaintiffs, have been hurt by this.”

Judge Whaley’s dismissal would have been the end of things were it not for what else had happened inside and out of the courtroom over the two years since the case was filed. Perhaps it’s too simplistic to say that Save Our Summers had won by losing, but neither is it far from the truth.

For starters, the blunt language in Judge Whaley’s rulings about the injuries that Ecology was allowing to be inflicted on the plaintiffs was jarring given public expectations that Ecology was in the business of protecting public health and the environment.

Smoke plume from a typical field burn.

But SOS had also acquired a very potent card that it could play in an appeal to the U.S. Ninth Circuit.

It was clear almost from the start of the case, says Lindholdt, that senior Justice Department were very much engaged in the issues raised in Save Our Summers et al. v. Ecology because of the broad implications the case would have if SOS were to prevail.

“What it did,” she says, “is that it brought high-level attention to the issue. Because we were on the verge of opening up a new avenue of litigation against agricultural and other pollution. And it made our government very nervous. So that’s when the Department of Justice (DOJ) said to EPA, ‘you might want to get involved here. So EPA told us and Ecology it wanted to resolve the matter.”

Justice Department officials also let it be known, Lindholdt says, that they tended to agree with SOS’s position. And so a private understanding ensued, where federal officials would support and fund the mediation efforts in the case, in exchange for SOS not pushing DOJ to file the amicus brief that Judge Whaley had requested just two months into the case.

It was only when a first round of mediation broke down in August of 2000, that the Justice Department formally filed its amicus brief–ten months to the day after Judge Whaley requested it. The 28-page brief directly challenged the Judge’s early rulings and explained how, in the U.S. Government’s view, the ADA and the clean air laws could be reconciled.

“Plaintiff’s ADA and RA [Rehabilitation Act] claims are not barred by the Clean Air Act, notwithstanding the CAA’s extensive remedial scheme,” the brief read. “These two statutory schemes can be interpreted in a manner that promotes both statutes’ objectives; thus, neither scheme should be construed to displace the other.”

Patti Gora certainly understood the importance of the Justice Department’s filing. Shortly afterwards, on a trip that she and Jeff took to Washington D.C., she made time to go directly to Justice Department headquarters and shake the hands of the lawyers who’d authored the brief.

Another round of mediation ensued, this time without the WAWG. Finally, on November 9, 2001, SOS and Ecology reached an agreement that laid out a process for setting new rules for wheat field burning in Washington.

In Lindholdt’s view, the Justice Department’s filing, and the continued cost of the litigation to Ecology was only part of the reason for the settlement.

“We’d won the battle in the court of public opinion,” she says. “I just think they lost their stomach against the constant charges that they weren’t willing to protect sick kids.”

SOS, at its core, was a group of deeply committed mothers who were out to protect their kids. In December 1998, the tenacious moms thought they were on the verge of a breakthrough in that top Ecology officials had begun assuring them and journalists that the agency would shortly be promulgating new rules for wheat burning that would be based on public health protection and rooted in sound science. It’s hard to express the betrayal the moms felt when, a month later, Ecology suddenly announced its secretly negotiated agreement with the WAWG.

It had taken three long and bitterly frustrating years, but now SOS had a consent agreement with Ecology that committed the agency to the rule-making it had promised in 1998. In the short-term, even before the new rules had been fleshed out, what SOS members noticed is that the air in the fall and spring was getting cleaner. Without much fanfare, the Ecology field staff had begun to curtail field burning when atmospheric conditions were marginal and to tightly limit the acres that could be burned on days when weather conditions weren’t ideal for lifting and dispersing the smoke.

It made such a difference that Tim Krautkraemer could now play football without worrying so much about getting sick. It was, however, a personal triumph beset by tragedy. In the fall of 2004 as he was warming up for a football game, a trainer took him aside and Tim was brought to the hospital in Pullman, where his father had just been diagnosed with inoperable cancer. Jeff Krautkraemer died a few weeks later.

“Jeff was my right hand man,” Lindholdt remembers. “The guy was essentially an in-house expert. He had a Ph.d. in Economics and agricultural economics was his speciality. The research he did to advance the case was phenomenal and he paid for it professionally. There were months when he spent ten to fifteen hours a week working with me.”

Because he was so young when the federal lawsuit was filed, Tim says he didn’t always understand what was happening in Judge Whaley’s courtroom in Spokane. But he well understood the work his dad was doing on the case and, as SOS chairman, the wrenching negotiations with Ecology and the WAWG.

“Both of my parents had to pull double duty to make it happen,” Tim says. “And I’m so grateful for them that they did that. I know they could have easily just tried to live with it and say, ‘oh well, this is how it is, and as long as we just take care of Tim’s asthma we’ll be fine. But instead, you know, they wanted to make it better because they didn’t want other families to have to go through the same thing.”

In May 2006, Ecology, Save Our Summers, and the Washington Association of Wheat Growers together announced their support for the new state rules governing cereal grain burning–rules that refined and formalized the new, health-based system Ecology had begun to put in place at the time it decided to settle the SOS lawsuit. That fall, Tim Krautkraemer, now a linebacker, running back and special teams player, helped the Pullman Greyhounds win a state high school football championship.

Patti Gora took the fight for clean air next door to Idaho and became executive director of Safe Air For Everyone (SAFE) which, until 2008, worked to regulate field burning in Idaho. In 2007, Lindholdt and the SAFE legal team scored a stunning victory in federal court that forced the Idaho officials and growers in Idaho who burn bluegrass and wheat fields to completely overhaul state rules for field burning to bring the practice into compliance with the federal Clean Air Act. The blueprint for the Idaho rules came from the rules adopted in Washington as part of the SOS settlement. Thus, the final effect of the SOS lawsuit was to develop new rules for field burning that now protect vulnerable citizens in both Washington and Idaho.

“It was amazing,” Lindholdt says. “It was such a grassroots effort and we could not have done it without all the time donated by the SOS leadership and the doctors.”

As for the legal battle itself, Lindholdt says: “It was unquestionably one of the most intense and emotional cases I will ever be involved in. But it was such a neat opportunity for so many reasons, the people, the doctors, the SOS moms, the litigation, working with EPA and DOJ was possibly something that won’t ever occur again in my career.”

Tim Krautkraemer is now a healthy sophomore at Washington State University, currently immersed in Comparative Ethnic Studies, but already thinking of a future where he can be a social activist, possibly a lawyer, and help people. That, in itself, is a legacy of the hard fight his parents waged on his behalf.

“What they were really good about was supporting each other when the other would get frustrated. They would tell each other, ‘hey, it’s not the end of the world, we’re still fighting, and it’s going to be a long battle.’ But they knew in the end that it was going to turn out the way it was supposed to. They set a really good example.”

“I’m just proud of what can happen,” he says about his involvement in pivotal case. “Everybody’s interests were against compromising, but from where it stands now, everything is so much better. Of course, there’s still field burning and of course there’s still smoke in the air, but it’s not even close to the extent it was before. It just makes me proud.”

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