dissenting.
The majority opinion has misinterpreted and misapplied the Idaho Constitution in its analysis of I.C. § 22 — 1803A(6); therefore, I respectfully dissent and set forth a portion of my analysis as follows:
I.C. 22-1803A(6) (a portion of HB 391) Violates Article III, Section 19 Of The Idaho Constitution
The Idaho Constitution prohibits certain “local” or “special laws.” Article III, section 19 states: “The legislature shall not pass local or special laws in any of the following enumerated cases, that is to say ... For limitation of civil or criminal actions.” Plaintiffs’ argument that HB 391 is a special or local law addresses I.C. § 22-4803A(6). The district court correctly found that HB 391 limits “civil actions” in ten north Idaho counties via § 22-4803A(6), which states:
Crop residue burning conducted in accordance with section 22-4803, Idaho Code, shall not constitute a private or public nuisance or constitute a trespass. Nothing in this chapter shall be construed to create a private cause of action against any person who engages in or allows crop residue burning of a field or fields required to be registered pursuant to section 22-4803(3), Idaho Code, provided such activities are conducted in accordance with chapter 49, title 22, Idaho Code, and rules promulgated thereunder.
A. I.C. 22-4803A(6) Does Not Apply Equally To All Areas Of The State And Is Therefore Unconstitutional
The controlling law in Idaho concerning local and special laws can'be found in a recent unanimous decision of the Idaho Supreme Court, Concerned Taxpayers of Kootenai County v. Kootenai County, 137 Idaho 496, 50 P.3d 991 (2002). As the majority indicates, the district court rephrased the law of Concerned Taxpayers at one point (“the test for determining whether a law is local or special is basically whether the legislature has singled out ‘persons or corporations for preferred treatment’ ”); however, the major*549ity fails to recognize that the district court used the correct law of Concerned Taxpayers in its analysis and applied it correctly.
In Concerned Taxpayers, the Court held, “A law ‘is not special when it treats all persons in similar situations alike,’ and it is not local ‘when it applies equally to all areas of the state.’ ” 137 Idaho 496, 500, 50 P.3d 991, 994 (2002). The district court made reference to this language when it cited to Sun Valley Co. v. City of Sun Valley for the proposition that, “Accordingly, I.C. § 22-4803A(6) is a special or local law because it does not apply ‘equally to all areas of the state.’ ” 109 Idaho 424, 429, 708 P.2d 147 (1985).
The district court found that HB 391 does not apply equally to all areas of the state. Though nothing in the language of I.C. § 22-4803A(6) pertains only to specified counties, it references two sections that are limited to ten north Idaho counties. The district court stated that § 22-4803A(6) references § 22-4803 and § 22-4803A(3), (this is likely a clerical error of the district court — the section references § 22-4803 and § 22-4803(3), not § 22-4803A(3)). Both sections 22-4803 and 22-4803(3) are limited to ten north Idaho counties. The district court concluded that § 22-4803A(6) is a special or local law because it does not apply “equally to all areas of the state” via the two sections referenced. The district court is correct in its conclusion, though it may be helpful to look at each sentence of § 22-4803A(6) in more detail.
1. The First Sentence of § 22-4803A(6)
The first sentence reads: “Crop residue burning conducted in accordance with section 22-4803, Idaho Code, shall not constitute a private or public nuisance or constitute a trespass.”
Since § 22-4803 is referenced, it is helpful to look at it more closely. The majority correctly identifies that the provisions of subsection (2) apply to all agricultural field burning. Provision (2)(a) refers to the ten counties when it states, “In order to minimize impacts upon populated areas of the counties designated in subsection (3) of this section, any person ...” It appears from this alone that § 22-4803 refers to the counties listed under subsection (3) only to show that these counties are intended to be protected. However, further reading shows that subsection (3) does not apply equally to all agricultural field burning because it imposes additional requirements upon ten counties to register and obtain authorization from the department before burning. The majority acknowledges the heightened scrutiny, but it fails to explain how the heightened scrutiny does not effect equal application of the statute. It seems clear that the additional requirements set forth in subsection (3) demonstrate that the statute does not apply equally to all areas of the state.
2. The Second Sentence of § 22-4803A(6)
The second sentence reads:
Nothing in this chapter shall be construed to create a private cause of action against any person who engages in or allows crop residue burning of a field or fields required to be registered pursuant to section 22-4803(3), Idaho Code, provided such activities are conducted in accordance with chapter 49, title 22, Idaho Code, and rules promulgated thereunder.
(Emphasis added.) The majority incorrectly interprets this to mean the section applies to all crop burners in the state, again, without much explanation. The second sentence specifically refers to § 22^1803(3), which states, “[I]n the counties specifically identified in this subsection, no person shall conduct or allow any crop residue burning without first registering each field with the department each year before burning is conducted, and without first receiving authorization from the department ...” Since everyone that engages in crop burning in these ten counties must first register and obtain authorization, the second sentence appears to say, “Nothing in this chapter shall be construed to create a private cause of action against any person who engages in or allows *550crop residue burning in Kootenai, Benewah, Boundary, Bonner, Shoshone, Latah, Clear-water, Nez Perce, Lewis and Idaho counties.” This clearly shows that the statute does not apply equally to all counties that conduct field burning statewide.
B. A Law Is Local Or Special If It Is Arbitrary, Capricious Or Unreasonable
Concerned Taxpayers also noted, “The test for determining whether a law is local or special is whether the classification is arbitrary, capricious, or unreasonable.” 137 Idaho 496, 500, 50 P.3d 991, 994 (2002). The district court applied this rule, citing Kirkland v. Blaine County Medical Center, 134 Idaho 464, 4 P.3d 1115 (2000). The legislature stated the intent of HB 391 in I.C. § 22-4801, which reads:
It is the intent of the legislature to promote agricultural activities while at the same time protecting public health. The legislature finds that due to the climate, soils and crop rotations unique to north Idaho Counties, crop residue burning is a prevalent agricultural practice and that there is an environmental benefit to protecting water quality from the growing of certain crops in environmentally sensitive areas. It is the intent of the legislature to reduce the loss to the state of its agricultural resources by providing a safe harbor to farmers when burning crop residues in compliance with this chapter and limiting the circumstances under which agricultural operations may be exposed to claims outside of the lawful framework for crop residue burning.
(Emphasis added.) The district court correctly observed, “[T]he statute does not say that ‘burning protects water quality.’ Instead, the statute in essence says ‘the crop which the legislature is protecting protects water quality.’ ” This implies that if farmers are not allowed to burn, they will not grow this crop for which there is an environmental benefit. The district court stated that this belief is based on the fallacy that one must burn in order to grow these crops. The district court points out that Washington, Oregon, and free markets have proven that these crops can be grown without burning. It concluded that the purpose of the statute as written by the legislature is arbitrary, capricious and unreasonable since it is based on a fallacy.
The majority states that the district court’s conclusion is based on “an independent finding that ‘there is no need to burn’ ” and further states that the plaintiffs must provide “some factual foundation of record” that contravenes the legislative findings. For support of this contention, the majority cites O’Gorman & Young v. Hartford Fire, 282 U.S. 251, 258, 51 S.Ct. 130, 132, 75 L.Ed. 324, 328 (1931). However, that ease did not analyze whether a statute was special or local. Again, the controlling case in Idaho regarding local and special laws is Concerned Taxpayers. In Concerned Taxpayers the Idaho Supreme Court was not persuaded by the defendant’s justifications for the statute, and went on to state, “Regardless of the rationalizations and social policy arguments offered by [the defendant], one cannot escape the fact that [the statute in question] is directly contrary to the prohibitions contained in Article III, § 19 of the Idaho Constitution.” 137 Idaho 496, 499, 50 P.3d 991, 996.
The district court’s conclusion that the rationalizations given for the statute are unpersuasive and that § 22-4803A(6) is a special or local law, and therefore unconstitutional, is correct and should have been upheld. This analysis precludes the necessity of addressing additional constitutional issues raised.