tag:blogger.com,1999:blog-55454628207732861302024-03-05T00:06:55.266-09:00Alaska Backwoods LawyerFighting for Justice & Liberty on the Last FrontierPaul Bratton, Lawyer & Judy Price, Paralegalhttp://www.blogger.com/profile/09112816637358615324noreply@blogger.comBlogger29125tag:blogger.com,1999:blog-5545462820773286130.post-19706113712718233622013-04-12T15:59:00.001-08:002013-04-12T15:59:42.133-08:00Rep. Gara Introduces Bill to Protect Salmon Streams and Water Sources from Toxic Pesticides<br />
Juneau, AK - This week, Representative Les Gara introduced legislation (HB 201) which, if passed, would protect salmon streams and drinking water sources from toxic pesticides by establishing buffer zones. HB 201 would establish important buffer zones to prevent the application of herbicides and pesticides within 150 feet of salmon streams and 600 feet of drinking water sources. HB 201 would also restore requirements for public notification and opportunities for public participation in the pesticide permitting process.<br />
House Bill 201 is "An Act relating to the application of non-aerial pesticides and broadcast chemicals near fish habitat or water for human consumption, and in public places." Representative Gara stated, “If Alaskans’ drinking water, children or fishing streams are at risk, Alaskans should have a say.”<br />
In February, the Parnell Administration issued regulations that eliminated the right of Alaskans to participate in decisions about the spraying of toxic pesticides and herbicides on public lands. The Administration’s regulation changes issued by the Alaska Department of Environmental Conservation (ADEC) eliminated requirements to identify and safeguard the state’s waters including salmon streams, sensitive waterways, drinking water sources, fish and wildlife habitat, and public health.<br />
“I am responding to the concerns of Alaskans about the need to protect salmon and their habitat from harmful chemicals. I also hear deep concerns about the potential for contamination of our drinking water sources as a critical public health issue,” stated Representative Les Gara. “This bill offers protection of these vital resources and re-establishes right-to-know provisions and public involvement in decisions about pesticide use in public places."<br />
“We’re grateful that Rep. Gara is listening to the concerns of Alaskans. I want to prevent harm to our salmon streams and drinking water sources for our health and well-being and the health of our children,” stated Dr. Birgit Lenger, a new mother and Anchorage physician.<br />
HB 201 is referred to the House Special Committee on Fisheries and Resources.<br />
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Alaska Community Action on Toxics (ACAT) is a statewide non-profit public interest environmental health research and advocacy organization dedicated to protecting environmental health and achieving environmental justice. Alaska Community Action on Toxics mission: to assure justice by advocating for environmental and community health. We believe that everyone has a right to clean air, clean water and toxic-free food. We work to stop the production, proliferation, and release of toxic chemicals that may harm human health or the environment. For more information, please call 907-222-7714.<br />
www.akaction.org | Facebook | Twitter @ak_action<br />
Paul Bratton, Lawyer & Judy Price, Paralegalhttp://www.blogger.com/profile/09112816637358615324noreply@blogger.com4tag:blogger.com,1999:blog-5545462820773286130.post-62176199436963232382012-10-02T17:11:00.001-08:002012-10-02T17:11:55.133-08:009th Circuit Panel Halts PortMac Rail Extension<br />
Anchorage, AK- Alaska families and salmon fisheries won a major court victory this week when the Ninth Circuit Court of Appeals ruled that all construction related to the controversial Port MacKenzie rail project is to be halted pending full review of the case by the court. The court cited serious questions regarding the project’s purpose and need, and the potential for irreparable harm to the Port Mackenzie area as leading factors in its decision.<br />
Alaska has a long track record of ushering through expensive and unnecessary transportation projects with a lack of accountability and oversight, often resulting in local communities bearing the long-term cost.<br />
“We already have three tidewater ports in Southcentral Alaska and we don’t need to waste public money on another,” says Bob Shavelson of Cook Inletkeeper. “Just like the Mat-Su Borough’s unused $80 million ferry that’s now for sale, the proposed expansion of Port of MacKenzie is wasteful and unnecessary.”<br />
The rail company applied for a permit to build more than 35 miles of track and fill nearly 96 acres of wetlands and streams that serve as home to five species of wild Alaskan salmon. The new rail line would open the door for shipping Alaska coal overseas at the expense of local families, landowners, and salmon fisheries.<br />
“The construction of what is in essence a 35 mile long dike through an area with extensive wetlands which currently provide nutrients and surface and ground water to the Little Susitna and Fish Creek watersheds will alter current flow patterns and presents a risk of substantial harm from a fish and wildlife perspective,” said Lance Trasky, a retired Alaska Fish and Game biologist.<br />
Trasky warns that the solid fill rail extension from Houston to Port McKenzie will damage the physical and chemical environment, alter and fragment fish and wildlife habitat, introduce invasive species, and harm water quality along and within the transportation corridor. “Salmon—and the sport and commercial fisheries that depend on salmon—could be harmed for years to come,” he says.<br />
The rail spur further threatens Cook Inlet and Mat Su Valley salmon runs that are already in trouble. The U.S. Department of Commerce declared a salmon disaster in Cook Inlet earlier this month, after state fisheries managers shut down commercial set net fisheries due to low King salmon returns. The Mat Su Valley sport fisheries have also experienced numerous restrictions and closures over the past decade.<br />
“As a local landowner, I know the issues and the history of this project,” says Grace Whedbee, Big Lake resident. “The railroad extension has been pushed through without proper planning and would destroy our primary recreational areas.”<br />
Expanding the Port of MacKenzie and building a new rail line could open the door for foreign companies to ship Alaska coal to Asia from proposed coal mines in the Mat-Su Valley. Usibelli Coal Company is already proposing to build the Wishbone Hill coal strip mine, a move that would harm hundreds of families across the valley with blasting, trucking, and potential water damage.<br />
“The coal from more mining would go overseas to benefit our competitors in Asia, yet we would bear the costs of harm to our salmon runs, clean water, and good jobs we already have based on tourism and recreation,” said Bonnie Zirkle, hunting guide and Palmer resident.<br />
The lawsuit involves the Surface Transportation Board’s deficient licensing and environmental analysis and is pending in the Ninth Circuit Court of Appeals. Argument is scheduled for November 8. Mat Su Borough and the Alaska Railroad Corporation have intervened in that proceeding.<br />
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Paul Bratton, Lawyer & Judy Price, Paralegalhttp://www.blogger.com/profile/09112816637358615324noreply@blogger.com4tag:blogger.com,1999:blog-5545462820773286130.post-2773806072819547292012-07-24T19:15:00.000-08:002012-07-24T19:15:00.417-08:00Alaska Agency to Block Public Review of Public Pesticide Projects<br />
<br />
Go to <a href="http://www.alaskadispatch.com/article/alaskas-new-lax-pesticide-rules-squash-public-comment">Commentary </a>to see the Alaska Dispatch op-ed on the Parnell administration's latest move to facilitate more herbicides in our salmon streams and families bodies.Paul Bratton, Lawyer & Judy Price, Paralegalhttp://www.blogger.com/profile/09112816637358615324noreply@blogger.com3tag:blogger.com,1999:blog-5545462820773286130.post-71794662352752359822012-04-05T08:14:00.001-08:002012-04-05T08:20:33.070-08:00Borough Animal Restraint Code & Feral Cats<p style="margin-bottom: 0in; line-height: 200%"><span >Humans and cats, much like humans and dogs, have evolved together over thousands of years. Each species has gained from this relationship. Today, in our predominately rural/wilderness borough, these companion animals continue to provide many of us companionship and a measurable sense of well being</span><sup><span ><a class="sdfootnoteanc" name="sdfootnote1anc" href="#sdfootnote1sym"><sup>1</sup></a></span></sup><span > as well as more utilitarian services such as rodent control and early warning of potential dangers</span><sup><span ><a class="sdfootnoteanc" name="sdfootnote2anc" href="#sdfootnote2sym"><sup>2</sup></a></span></sup><span > such as bears and intruding humans. And, like humans, cats are individuals. Some are more socialized to close interaction with humans and some are more adapted to a life hunting and engaging in their own pursuits with few if any human contacts.</span></p> <p style="margin-bottom: 0in; line-height: 200%"><span > Recently a strict interpretation of the Borough's animal restraint ordinance</span><sup><span ><a class="sdfootnoteanc" name="sdfootnote3anc" href="#sdfootnote3sym"><sup>3</sup></a></span></sup><span >, i.e. that every cat must be confined at all times to “completely enclosed buildings,”</span><sup><span ><a class="sdfootnoteanc" name="sdfootnote4anc" href="#sdfootnote4sym"><sup>4</sup></a></span></sup><span > was raised as a barrier to rescuing and adopting out “feral” cats. (The interpretation would seem to apply equally to those domesticated cats that have a propensity to range outside on occasion, even where the animal never leaves the owner's property.) If this interpretation is accepted, it will inevitably lead to euthanizing many animals that otherwise might be allowed to live out their lives finding shelter in the vicinity of barns and remote cabins, and filling an important niche in the human/animal ecosystem. </span> </p> <p style="margin-bottom: 0in"><br /></p> <p style="margin-bottom: 0in"><br /></p> <p style="margin-bottom: 0in"><span ><b>WHAT DOES “RESTRAINT OF ANIMALS” CODE SECTION REALLY REQUIRE?</b></span></p> <p style="margin-bottom: 0in"><br /></p> <p style="margin-bottom: 0in; line-height: 200%"><a name="24.05.0701"></a> <span > Since 2004 the borough has had a restraint of “all” animals ordinance on the books. See</span><span > </span><span ><span ><span >MSB Code 24.05.070 .. </span></span></span><span ><span ><span ><i>All animals shall be continuously under restraint. ...</i></span></span></span></p> <p style="margin-bottom: 0in; line-height: 200%"><span > </span><span ><span >While at first glance the animal restraint code section appears to require restraint of all animals at all times, imprecision</span></span><sup><span ><span ><span style="background-image: initial; background-attachment: initial; background-origin: initial; background-clip: initial; background-position: initial initial; background-repeat: initial initial; "><a class="sdfootnoteanc" name="sdfootnote5anc" href="#sdfootnote5sym"><sup>5</sup></a></span></span></span></sup><span ><span > creeps in as the code moves to define what “restraint” means and where and when enforcement is allowed.</span></span><sup><span ><span ><span ><span style="background-image: initial; background-attachment: initial; background-origin: initial; background-clip: initial; background-position: initial initial; background-repeat: initial initial; "><a class="sdfootnoteanc" name="sdfootnote6anc" href="#sdfootnote6sym"><sup>6</sup></a></span></span></span></span></sup></p> <p style="margin-bottom: 0in; line-height: 200%"><span ><span > Nowhere does the code state that “restraint” of a non-dangerous animal requires complete and total confinement of all animals to locked-down</span></span><span ><span > buildings. Rather the reader is informed that </span></span><span ><span ><span ><i>“</i></span></span></span><span ><span ><span ><i>Control” means to simultaneously monitor, direct, and restrict an animal’s movements and activities, in a humane manner, so as to prevent violations of this title.</i></span></span></span><sup><span ><span ><span ><span style="background-image: initial; background-attachment: initial; background-origin: initial; background-clip: initial; background-position: initial initial; background-repeat: initial initial; "><a class="sdfootnoteanc" name="sdfootnote7anc" href="#sdfootnote7sym"><sup>7</sup></a></span></span></span></span></sup><span ><span ><span > </span></span></span> </p> <p style="margin-bottom: 0in; line-height: 200%; "> <span ><span ><span > It is likely every person reading this would have a different concept of exactly what “control” is lawful and what is not lawful under this definition. Are nursing sled dog puppies sufficiently controlled if left at their mother's teat and the mother herself is securely tethered? Is a neutered cat that suns itself in the kitchen garden in the middle of a 40-acre homestead controlled because both the natural history of similar felines and the owner's 15-year personal knowledge of the animal's behavior establish that the animal never travels more than 200 feet from the cabin? Is the dog rolling in a spawned-out salmon carcass on a sand bar island at the mouth of Clear Creek while her owner fishes a few steps away controlled because the dog is terrified of fast-moving glacial water and the salmon carcass is all the entertainment she will require? Each of us has an opinion about what constitutes responsible control of one's companion animal, but the definition in the animal code does not begin to tell us whether the circumstances just described fall within the law or outside of the law. </span></span></span> </p> <p style="margin-bottom: 0in; line-height: 200%; "> <span ><span ><span > The Alaska Supreme Court has explained</span></span></span></p> <p style="margin-left: 0.5in; margin-right: 0.5in; margin-bottom: 0in; background-image: initial; background-attachment: initial; background-origin: initial; background-clip: initial; background-position: initial initial; background-repeat: initial initial; "> <span ><span ><span >The basic element of the doctrine of vagueness is a requirement of fair notice. Laws should give the ordinary citizen fair notice of what is and what is not prohibited. People should not be required to guess whether a certain course of conduct is one which is apt to subject them to criminal or serious civil penalties. </span></span></span><span ><span ><span ><i>Alaska Public Offices Com'n v. Stevens, </i></span></span></span><span ><span ><span >205 P.3d 321, 325 (Alaska 2009)</span></span></span></p> <p style="margin-left: 0.5in; margin-right: 0.5in; margin-bottom: 0in; background-image: initial; background-attachment: initial; background-origin: initial; background-clip: initial; background-position: initial initial; background-repeat: initial initial; "><br /></p> <p style="margin-bottom: 0in; line-height: 200%; "> <span ><span ><span > And this is especially the case where the accused faces not only a civil penalty of up to $200 but, in addition, either impoundment fees or forfeiture of a beloved companion.</span></span></span></p> <p style="margin-bottom: 0in; line-height: 200%"><span ><span > Having resided in this borough for almost as long as it has existed as a political subdivision, I am certain that the people of the borough would not tolerate general enforcement of any rule that restricted their companion animals at all times to an indoor-only existence whether or not the animal remained on the owner's private property. Based on the fiercely independent nature of many borough residents, there can be no surprise that the borough animal code strictly limits the authority of a municipal animal control officer to enter private property in pursuit of a unrestrained anim</span></span><span ><span >al. MSB Code 24.15.010.(B)</span></span></p> <p style="margin-left: 0.5in; margin-right: 0.5in; margin-bottom: 0in; line-height: 0.14in"> <span ><span ><span ><i>Pursuit of animals running-at-large</i></span></span></span><span ><span ><span >. An animal care and regulation officer </span></span></span><span ><span ><span ><u><span style="background-image: initial; background-attachment: initial; background-origin: initial; background-clip: initial; background-position: initial initial; background-repeat: initial initial; ">shall not pursue an animal running-at-large onto property posted </span></u></span></span></span><span ><span ><span >in accordance with A.S. 11.46.350(c) or </span></span></span><span ><span ><span ><u><span style="background-image: initial; background-attachment: initial; background-origin: initial; background-clip: initial; background-position: initial initial; background-repeat: initial initial; ">onto property where the property owner expressly refuses access</span></u></span></span></span><span ><span ><span > to the animal care and regulation officer. An animal care and regulation officer may enter the animal owner’s property to issue a citation. An animal care and regulation officer may enter onto private property not posted under A.S. 11.46.350(c) </span></span></span><span ><span ><span ><u><span style="background-image: initial; background-attachment: initial; background-origin: initial; background-clip: initial; background-position: initial initial; background-repeat: initial initial; ">if pursuit of an animal is necessary to protect the public or the health or safety of the animal.</span></u></span></span></span><span ><span ><span > (underlining added)</span></span></span></p> <p style="margin-bottom: 0in; line-height: 200%"><span style="background-image: initial; background-attachment: initial; background-origin: initial; background-clip: initial; background-position: initial initial; background-repeat: initial initial; "> </span><br /></p> <p style="margin-bottom: 0in; line-height: 200%"><span > Therefore r</span><span ><span >estraint on the authority of the animal control officer in regards to an animal running at large is absolute when the property-owner either complies with the Alaska trespass statute's posting provisions or explicitly bars entry to the officer. Additionally, even where the private property is not posted and the owner has not expressly barred entry, pursuit is only authorized where “necessary” to protect the public or the health and safety of the animal. The legislative body's regulatory scheme therefore provides that: 1) the restraint requirement is not generally applicable to animals on the owner's property; and, 2) that an animal running at large could not be pursued onto private property without some substantial showing that the particular animal either posed a danger to the public or was itself endangered.</span></span></p> <p style="margin-bottom: 0in; line-height: 200%"><span ><span > While the restraint of animals code section at first appears to be quite broad, when read </span></span><span ><span ><i>in pari materia</i></span></span><span ><span > with the definitions and the limitations on where and when enforcement is allowed, it is evident that the legislating body's intent was to provide animal control with sufficient “teeth” to deal with problem animals and problem situations where the property owner is agreeable or where a substantial showing can be made that the animal and/or the public is endangered. There is clearly no mandate to condemn every animal that ranges into the free air, on or off private property, to impoundment, forfeiture, and destruction.</span></span></p> <p style="margin-bottom: 0in; line-height: 200%"><span > The Alaska Supreme Court has addressed the imprecision of municipal animal control ordinances on two occasions. On both occasions, while the court upheld the municipalities' specific actions in the control of biting dogs, concerns were raised about the potential for arbitrary decision-making due to the lacks of standards to sufficiently guide enforcement actions.</span></p> <p style="margin-bottom: 0in; line-height: 200%"><span ><span > In </span></span><span ><span ><i>West v. Municipality of Anchorage</i></span></span><span ><span >, 174 P. 3d 224, 232 (Alaska 2007),the Alaska Supreme Court addressed the Anchorage municipality's animal control code. While the majority upheld the municipality's classification of the dog causing injury to a baby in a public place as a dangerous animal, a strong dissent by Justice Eastaugh criticized the code language for its lack of standards distinguishing the aggressive animal from the “clumsy oaf” of a dog that inadvertently causes injury to a human. The Justice points out that a </span></span><span ><span ><span >“</span></span></span><span ><span ><span >standardless exception …. necessarily invites arbitrary enforcement.”</span></span></span><span ><span > </span></span> </p> <p style="margin-bottom: 0in; line-height: 200%"><span ><span > The Alaska court again took up a similar question in </span></span><span ><span ><span ><i>Haggblom v. City of Dillingham</i></span></span></span><span ><span ><span >, 191 P.3d 991, 1003, 1005 (Alaska 2008).</span></span></span><span ><span > Justice Eastaugh concurred in the ruling upholding the ordinance but pointed out that the city's animal code lacked reasonable standards, i.e.,</span></span></p> <p style="margin-bottom: 0in; "><br /></p> <p style="margin-left: 0.5in; margin-right: 0.5in; margin-bottom: 0in; "> <span ><span ><span >there is no assurance the enforcement classification for any given animal is valid, because the ordinance contains no standards for determining the validity of the classification. As a result, enforcement officers, animal owners, those trying to decide whether to dispute administrative enforcement, those appealing administrative decisions, and appellate judges are all without guidance. Even assuming that the only rights implicated are the owners' property rights, arbitrary interference with those rights is likely. It is no consolation that some dogs may, by meeting unspecified criteria, avoid death if they are offered "blue tickets" out of the city. Such an offer may spare an animal's life, but makes it impossible for the owner who remains in Dillingham to exercise most property rights, let alone any arguably more-important rights arising out of the animal's companionship. … The undoubted legitimacy of Dillingham's interest in preventing unprovoked dog bites is subject to requirements of fair notice and an opportunity to be heard. The deficiencies in the ordinance, its enforcement, and the appeal would require reversal if they were not deemed harmless. (internal citations omitted)</span></span></span></p> <p style="margin-bottom: 0in"><br /></p> <p style="margin-bottom: 0in; line-height: 200%"><span ><span > While violation of the animal restraint ordinance is classed as a non-criminal infraction, a borough enforcement action is likely to implicate constitutional protections for property and privacy because seizure, and, possibly, forfeiture and destruction of an animal within a very short time-frame (as little as 72 hours) is one possible outcome. Dogs and cats are recognized as constituting far more than mere “property,” both in the law and in the hearts of their owners. Therefore a municipality can expect controversy and the possibility of potentially costly litigation</span></span><sup><span ><span ><span style="background-image: initial; background-attachment: initial; background-origin: initial; background-clip: initial; background-position: initial initial; background-repeat: initial initial; "><a class="sdfootnoteanc" name="sdfootnote8anc" href="#sdfootnote8sym"><sup>8</sup></a></span></span></span></sup><span ><span > unless the law is administered with a sensitivity to the long and deeply-emotional human/animal relationship. </span></span> </p> <p style="margin-bottom: 0in; line-height: 200%"><br /></p> <p style="margin-bottom: 0in; line-height: 200%"><span ><span ><b>PRIVACY RIGHTS OF ALASKANS PROHIBIT “RESTRAINT” ENFORCEMENT ON PRIVATE PROPERTY</b></span></span></p> <p style="margin-bottom: 0in; line-height: 200%"><span ><span > In addition to the clear restrictions placed on enforcement of the animal restraint code contained in the code itself, the Bill of Rights' Fourth Amendment and this state's Constitutional privacy protections at Article 1, </span></span><span ><span >§ 14,</span></span><span ><span > 22, impose significant limitations on the ability of a municipal officer to enforce unrestrained animal ordinances on private property. The right to privacy is strongest within the curtilage</span></span><sup><span ><span ><span style="background-image: initial; background-attachment: initial; background-origin: initial; background-clip: initial; background-position: initial initial; background-repeat: initial initial; "><a class="sdfootnoteanc" name="sdfootnote9anc" href="#sdfootnote9sym"><sup>9</sup></a></span></span></span></sup><span ><span > of a private residence, i.e. within the area that encompasses the home and the surrounding outbuildings, gardens, decks, and play a</span></span><span ><span >reas that constitute the private domain of the family. In </span></span><span ><span ><i>Raven v. State</i></span></span><span ><span >, 537 P. 2d 494 (Alaska 1975),</span></span><span ><span > our Supreme Court held that the general state's interests in prohibiting marijuana was not strong enough to override an individual's right to privacy in his home.</span></span><sup><span ><span ><span style="background-image: initial; background-attachment: initial; background-origin: initial; background-clip: initial; background-position: initial initial; background-repeat: initial initial; "><a class="sdfootnoteanc" name="sdfootnote10anc" href="#sdfootnote10sym"><sup>10</sup></a></span></span></span></sup><span ><span > It seems that the municipality's right to enforce a general animal restraint ordinance similarly would not be strong enough to overcome an Alaskan's right to allow their cat to roam across a garden or to be allowed to control rodents in a (non-enclosed) barn. Whatever interest the borough has in ensuring that free-ranging dogs and cats do not become a neighborhood nuisance or pose a danger to the general public likely ends at the property-line, or at least at the curtilage, of a residence or farm/commercial enterprise. This is not to say that the municipality's enforcement of health and public safety regulations must always yield to privacy protections, in appropriate circumstances, such as a rabid animal or an unconfined, dangerous dog, the borough interests in public health and safety may well override privacy rights. However, barring appropriate exigent circumstances establishing an immediate threat to public safety,</span></span><span ><span ><span > the Alaska Constitution prohibits warrantless administrative inspections of even business premises.</span></span></span><span ><span > </span></span><span ><span ><span ><i>Woods & Rohde, Inc. v. State, Dept. of Labor</i></span></span></span><span ><span ><span >, 565 P. 2d 138, 153 (Alaska 1977); see also </span></span></span><span ><span ><span ><i>Ravin</i></span></span></span><span ><span > (</span></span><span ><span ><span >right of privacy in the home to be of sufficient importance to override legislation prohibiting personal use and possession of marijuana)</span></span></span></p> <p style="margin-bottom: 0in; line-height: 200%; "><br /></p> <p style="margin-bottom: 0in; line-height: 200%; "><span ><span ><span ><b>CONCLUSION</b></span></span></span></p> <p style="margin-bottom: 0in; line-height: 200%"><span ><span ><span > The borough animal code, at first glance and read in isolation from defining and implementation provisions, appears to require restraint of “all animals” at all times. Some animal control officers have interpreted this to mean all cats must be confined to locked down buildings at all times. However this severe approach is neither workable nor does it provide realistic enforceable standards</span></span></span><sup><span ><span ><span ><span style="background-image: initial; background-attachment: initial; background-origin: initial; background-clip: initial; background-position: initial initial; background-repeat: initial initial; "><a class="sdfootnoteanc" name="sdfootnote11anc" href="#sdfootnote11sym"><sup>11</sup></a></span></span></span></span></sup><span ><span ><span > to guide the one or two animal control officers who cover this sprawling, West Virginia-size, borough with its inter-mixture of suburban, rural, and wilderness habitats.</span></span></span></p> <p style="margin-bottom: 0in; line-height: 200%; "> <span ><span ><span > The borough animal code itself, as well as the Federal and Alaska constitutions' privacy provisions, limit animal control officers' authority to enter private property in pursuit of non-dangerous, unrestrained animals. By placing explicit limitations in the borough animal code the assembly provided that private property and privacy rights trump authority to pursue “running at large” animals unless the animal or the public is immediately endangered. Reading the animal restraint ordinance in the context of the definitions and enforcement limitations, it is clear that the intent of the assembly is to provide sufficient teeth in the code to respond to actual nuisances and substantial dangers and not to require continuous confinement of all companion animals to locked-down buildings or similarly severe restraint.</span></span></span></p> <p style="margin-bottom: 0in; line-height: 200%; "> <span ><span ><span > Therefore it is entirely appropriate for Borough animal control, either through its own action or in coordination with rescuers, to seek to rehome feral or semi-feral cats to barns and similar situations in locations where the animals can be properly cared for and where a nuisance situation is not likely to develop.</span></span></span></p> <p style="margin-bottom: 0in; line-height: 200%"><br /></p> <div id="sdfootnote1"> <p class="sdfootnote"><a class="sdfootnotesym" name="sdfootnote1sym" href="#sdfootnote1anc">1</a><span >There is a solid body of evidence that the presence of companion animals has physiologically beneficial effects, including reduced blood pressure and stress, on those humans that enjoy their company. see </span><span ><span ><span ><i>Physiological effects of human/companion animal bonding. Baun, Mara M.; Bergstrom, Nancy; Langston, Nancy F.; Thoma, Linda Nursing Research, Vol 33(3), May-Jun 1984, 126-129</i></span></span></span></p> <p class="sdfootnote"><br /> </p> </div> <div id="sdfootnote2"> <p class="sdfootnote"><a class="sdfootnotesym" name="sdfootnote2sym" href="#sdfootnote2anc">2</a><span >“Evolutionarily, attention to animals would enhance an individual’s chances of survival because animal behavior acts as an environmental sentinel indicating safety or danger (Wilson, 1984, 1993).” from </span><span ><i>The benefits of companion animals for human mental and physical health </i></span><span >Maggie O’Haire, Centre for Companion Animal Health, School of Veterinary Science, University of Queensland, BRISBANE QLD 4072, </span><span ><u><a href="mailto:m.ohaire@uq.edu.au"><span >m.ohaire@uq.edu.au</span></a></u></span><span >; Additionally rural Alaskans who reside in a predator-rich environment know this valuable function from empirical evidence.</span></p> </div> <div id="sdfootnote3"> <h3 class="western"><a name="24.05.07011"></a><a class="sdfootnotesym" name="sdfootnote3sym" href="#sdfootnote3anc">3</a><span ><span ><span ><span style="font-weight: normal">MSB Code 24.05.070 RESTRAINT OF ANIMALS.</span></span></span></span></h3> <p align="LEFT" style="line-height: 200%; "><span ><span ><span > (A) All </span></span></span><span ><span ><span >animals shall be continuously under restraint. …</span></span></span></p> <p align="LEFT" style="line-height: 200%; "><br /><br /> </p> </div> <div id="sdfootnote4"> <p style="margin-bottom: 0in"><a class="sdfootnotesym" name="sdfootnote4sym" href="#sdfootnote4anc">4</a><span ><span ><span > “</span></span></span><span ><span ><span >I am also concerned about the ability of any adopter to be able to comply with restraint requirements. A feral cat inside someone’s home is a dangerous situation and I couldn’t imagine someone would keep a feral cat inside their residence. Keeping the cat under restraint at all times would be nearly impossible since most barns, or other buildings where a feral cat could be safely housed, are not completely enclosed buildings where the cat could not get outside under its own volition.”</span></span></span><span ><span > March 22, 2012, MSB Animal Control Officer</span></span></p> <p style="margin-bottom: 0in"><br /> </p> </div> <div id="sdfootnote5"> <p style="margin-bottom: 0in"><a class="sdfootnotesym" name="sdfootnote5sym" href="#sdfootnote5anc">5</a><span > </span><span ><span > ...</span></span><span ><span ><span >if a statute by its imprecision confers upon judges, jurors, or law enforcement personnel undue discretion in determining what constitutes the crime, it can be held void for vagueness.</span></span></span><span ><span > </span></span><span ><span ><i>Levshakoff v. State</i></span></span><span ><span >, 565 P. 2d 504, 507 (Alaska 1977)</span></span></p> <p style="margin-bottom: 0in"><br /> </p> </div> <div id="sdfootnote6"> <p style="margin-bottom: 0in; line-height: 0.14in"><a name="24.05.0101"></a><a name="24.15.0101"></a> <a class="sdfootnotesym" name="sdfootnote6sym" href="#sdfootnote6anc">6</a><span ><span > See MSB Code </span></span><span ><span >§</span></span><span ><span ><span >24.05.010 DEFINITIONS. & </span></span></span><span ><span ><span >§</span></span></span><span ><span ><span >24.15.010 IMPOUNDMENT PROCEDURE. </span></span></span> </p> <p style="margin-bottom: 0in; line-height: 0.14in"><br /> </p> </div> <div id="sdfootnote7"> <p style="margin-bottom: 0in; line-height: 0.14in"><a class="sdfootnotesym" name="sdfootnote7sym" href="#sdfootnote7anc">7</a><span ><span ><span > While the code definition goes on to provide examples, the examples do not claim to be exclusive.</span></span></span></p> </div> <div id="sdfootnote8"> <p align="LEFT" style="margin-bottom: 0in; "><a class="sdfootnotesym" name="sdfootnote8sym" href="#sdfootnote8anc">8</a><span ><span ><span > </span></span></span><span ><span ><i>Richardson v. Fairbanks North Star Borough,</i></span></span><span ><span > 705 P. 2d 454, 456 (Alaska 1985)</span></span></p> <p class="sdfootnote" align="LEFT" style="margin-left: 0in; text-indent: 0in; "> <span ><span ><span > (</span></span></span><span ><span ><span >We recognize that the loss of a beloved pet can be especially distressing in egregious situations. Therefore, we are willing to recognize a cause of action for intentional infliction of emotional distress for the intentional or reckless killing of a pet animal in an appropriate case.</span></span></span><span ><span >)</span></span></p> <p class="sdfootnote" align="LEFT" style="margin-left: 0in; text-indent: 0in; "> <br /> </p> </div> <div id="sdfootnote9"> <p class="sdfootnote" align="LEFT" style="margin-left: 0in; text-indent: 0in; "> <a class="sdfootnotesym" name="sdfootnote9sym" href="#sdfootnote9anc">9</a><span ><span ><span > </span></span></span><span ><span ><span >At common law, t</span></span></span><span ><span ><span >he curtilage</span></span></span><span ><span ><span ><b> </b></span></span></span><span ><span ><span >is the area to which extends the intimate activity associated with the "sanctity of a man's home and the privacies of life," </span></span></span><a href="http://scholar.google.com/scholar_case?case=9067527596654000149&q=privacy,+curtilage&hl=en&as_sdt=4,2"><span ><u><span ><span ><i>Boyd</i></span></span></u></span><span ><u><span ><span > v. </span></span></u></span><span ><u><span ><span ><i>United States,</i></span></span></u></span><span ><u><span ><span > 116 U. S. 616, 630 (1886),</span></span></u></span></a><span ><span ><span > </span></span></span><span ><span ><span >and therefore has been considered part of the home itself for Fourth Amendment purposes.</span></span></span><span ><span ><i> </i></span></span><span ><span ><span ><i>Oliver v. United States,</i></span></span></span><span ><span ><span > 466 US 170, 180 (1984)</span></span></span><span ><span > </span></span> </p> <p class="sdfootnote" align="LEFT" style="margin-left: 0in; text-indent: 0in; "> <br /> </p> </div> <div id="sdfootnote10"> <p class="sdfootnote" align="LEFT" style="margin-left: 0in; text-indent: 0in; "> <a class="sdfootnotesym" name="sdfootnote10sym" href="#sdfootnote10anc">10</a><span ><span ><span > ...we conclude that citizens of the State of Alaska have a basic right to privacy in their homes under Alaska's constitution. This right to privacy would encompass the possession and ingestion of substances such as marijuana in a purely personal, non-commercial context in the home unless the state can meet its substantial burden and show that proscription of possession of marijuana in the home is supportable by achievement of a legitimate state interest.</span></span></span><span ><span > </span></span><span ><span ><i>Raven v. State</i></span></span><span ><span >, 537 P. 2d 494, 504 (Alaska 1975)</span></span></p> <p class="sdfootnote" align="LEFT" style="margin-left: 0in; text-indent: 0in; "> <br /> </p> </div> <div id="sdfootnote11"> <p class="sdfootnote" align="LEFT" style="margin-left: 0in; text-indent: 0in; "> <a class="sdfootnotesym" name="sdfootnote11sym" href="#sdfootnote11anc">11</a><span ><span ><span > One evil of a vague statute is that it creates the potential for arbitrary, uneven and selective enforcement.</span></span></span><span ><span > </span></span><span ><span ><span >This pattern of selective enforcement</span></span></span><span ><span ><span > </span></span></span><span ><span ><span >is both the hallmark and the vice of a vague criminal statute.... Because one must guess at what is forbidden, a vague statute's "standardless sweep allows policemen, prosecutors, and juries to pursue their personal predilections," </span></span></span><a href="http://scholar.google.com/scholar_case?case=14723025391522670978&q="><span ><u><span ><span ><i>Smith v. Goguen,</i></span></span></u></span><span ><u><span ><span > 415 U.S. 566, 575, 94 S.Ct. 1242, 1248, 39 L.Ed.2d 605, 613 (1974),</span></span></u></span></a><span ><span ><span > </span></span></span><span ><span ><span >and thereby "encourages arbitrary and erratic arrests and convictions." </span></span></span><a href="http://scholar.google.com/scholar_case?case=15009844350298299825&q="><span ><u><span ><span ><i>Papachristou v. City of Jacksonville,</i></span></span></u></span><span ><u><span ><span >405 U.S. 156, 162, 92 S.Ct. 839, 843, 31 L.Ed.2d 110, 115 (1972)</span></span></u></span></a><span ><span ><span >.</span></span></span><span ><span > </span></span><span ><span ><span ><i>Gottschalk v. State</i></span></span></span><span ><span ><span >, 575 P. 2d 289, 294, 295 (Alaska 1978)</span></span></span></p> </div>Paul Bratton, Lawyer & Judy Price, Paralegalhttp://www.blogger.com/profile/09112816637358615324noreply@blogger.com2tag:blogger.com,1999:blog-5545462820773286130.post-75162490888286596602011-11-05T13:08:00.002-08:002011-11-05T13:13:38.001-08:00Washington and Oregon Move to Protect the Health of ResidentsSEATTLE (AP) — Randy Kinley, a Lummi tribal member, harvests salmon, clams and oysters in<br />northwest Washington, and eats what he catches about three or four times a week.<br />Washington waters are supposed to be clean enough to protect people who eat fish from rivers,<br />streams and lakes, but the state standard assumes people can safely eat less than 8 ounces of fish a month.<br />State environmental regulators think that amount is too low. Many Washington residents likely eat more than the current rate of 6.5 grams a day, they say, so they're recommending a fish consumption rate that would protect people who eat at least 24 times that amount.<br />How much fish Washington residents consume is important because it helps drives water quality standards and pollution control. Toxic pollutants such as mercury and polychlorinated biphenyls (PCBs) can accumulate in the flesh of fish and shellfish, so people who frequently eat it can take in harmful toxins.<br />A higher fish consumption rate means fewer toxic pollutants would be allowed in state waters — and likely tougher restrictions for polluters.<br />"Ensuring that the state's environmental standards accurately reflect our citizens' exposure is the next step needed to reduce toxics in our environment and protect public health for Washington's fish and shellfish consumers," Ecology's director Ted Sturdevant said last month.<br />Washington's current fish rate was developed in the mid-1980s and doesn't reflect that residents likely eat much more, officials said.<br />Oregon recently adopted one of the nation's toughest water quality standards, after determining that Oregonians eat about 175 grams of fish a day, or about 23 8-ounce fish or shellfish meals a month.<br />That rate, approved by the U.S. Environmental Protection Agency last month, is the highest for a U.S. state.<br />Washington officials suggest a fish consumption rate between 157 to 267 grams per day, based on the results of four previous surveys that looked at the fish diet of several tribes and Asian and Pacific Islanders. Ecology is seeking public comment through Dec. 30.<br />State officials say they want a fish consumption rate that protects all Washington residents who eat fish, including the general population and individuals who eat a lot of fish, such as Native Americans, Asian and Pacific Islanders, and some recreational fishers.<br /><span>Many tribes already have much higher fish consumption rates and water quality standards that apply Wash. wants less risk for people who eat fish </span>to tribal waters. The Spokane Tribe, for example, set its rate at 865 grams a day, one of the highest in the nation. The state's standard would apply to non-tribal state waters.<br />Several tribes say the current state rate doesn't reflect the important role fish and shellfish play in the diet and culture of tribal members.<br />"Our people used to say, 'When the tide's out, the table's set," said Kinley, a policy analyst for the<br />Lummi Nation, near Bellingham, Wash. "We want to be able to set our nets and catch fish to eat."<br />Charles O'Hara, planning director for the Swinomish Tribe near La Conner, Wash., said most tribal ceremonies, funerals or important occasion focus around salmon and other seafood.<br />"If you look at the current rate of 6 grams, it's pretty ridiculous," he said. "To be setting standards on such an unrealistic number ignores reality." The rate "should account for the people who eat the most," he added.<br />Tribes, including the Lummi and Swinomish, are doing their own surveys to find out how much fish tribal members eat. The results will help ensure the state's criteria protect the health of tribal members, they say.<br />Washington officials have closely watched Oregon's process.<br />"We want to use all the information they gained through their process," said Cheryl Niemi, a water quality specialist with Ecology. "We're not Oregon, so we'll have different stakeholders. Any new information we get here, that will be thrown in the mix."<br />The Northwest Pulp & Paper Association is waiting to see what happens in Washington state and how it will impact jobs, said Chris McCabe, the group's executive director. "Our main goal is to seek reasonable and cost-effective solution to this issue."<br /><br /><span>Wash. wants less risk for people who eat fish - <a href="http://seattlepi.com/">seattlepi.com</a> <a href="http://www.seattlepi.com/news/article/Wash">http://www.seattlepi.com/news/article/Wash</a>-wants-less-risk-for-people-...</span><br />2Paul Bratton, Lawyer & Judy Price, Paralegalhttp://www.blogger.com/profile/09112816637358615324noreply@blogger.com2tag:blogger.com,1999:blog-5545462820773286130.post-60052580069642123162011-11-02T23:32:00.005-08:002011-11-02T23:42:30.140-08:00DNR's Susitna Area Plan Challenged in Lawsuit<span style="font-weight: bold;">I'm representing the citizen's group in this litigation that seeks to hold the state agency accountable for failing to abide by Alaska statutes that require compliance with borough land use plans "to the maximum extent consistent with state interests." </span><br /><br />BY ANDREW WELLNER<br />Frontiersman - Published on Saturday, October 22, 2011 9:33 PM AKDT<br /><br />MAT-SU — An activist group in the Susitna Valley has filed a lawsuit against the state, claiming that its plan for what to do with state land in the area is not in keeping with local plans.<br /><br />“Basically, what we’re suing over is the fact that they did not comply with state statutes to take a hard look at the comprehensive plans,” said Becky Long with Alaska Survival. “They mandated that the state listen to regional land use plans. We did the regional land use plan and they didn’t listen to us.”<br /><br />Long says that regional plans in the Talkeetna, Chase and Susitna Community Council areas are more or less in agreement that they want to maintain a certain rural, sometimes roadless, lifestyle.<br /><br />She says the state’s plan conflicts with that when it starts talking about “land disposals” — selling state land to private developers. Long said the Susitna Matanuska Area Plan that came out of the state’s Department of Natural Resources designates a large chunk of state lands in the area be sold for use as residential settlements and, in some cases, agricultural settlements.<br /><br />She said there are state constitutional rights implications where those uses might interfere with locals’ access to fish, wildlife and water bodies.<br /><br />“There is a considerable amount of private land from the previous disposals,” Long said. Talkeetna, Chase and Susitna plans all call for maintaining the status quo. “The plans have recommended that there not be any more land disposals.”<br /><br />She said the Mat-Su Borough and the community councils spent years on these plans.<br /><br />“To have DNR just cursively dismiss them is just not right,” she said.<br /><br />She said she finds the idea of agriculture in Chase to be particularly bizarre, what with the lack of transportation.<br /><br />“People would just go in there and make a mess. There’s considerable wetlands in the agricultural area,” she said.<br /><br />Long said that she and others protested those designations with the department but the designations stood. The next step is superior court and the lawsuit filed Oct. 7.<br /><br />The lawsuit alleges that DNR Commissioner Dan Sullivan abused his discretion when he didn’t ensure the plan was consistent with local plans “to the maximum extent determined consistent with state interests.”<br /><br />The lawsuit is in its most initial stages. No hearings have been set. It has been assigned to Superior Court Judge Vanessa White. The state has not filed a response.<br /><br /><span>Contact Andrew Wellner at andrew.wellner@<a href="http://frontiersman.com">frontiersman.com</a> or 352-2270.</span>Paul Bratton, Lawyer & Judy Price, Paralegalhttp://www.blogger.com/profile/09112816637358615324noreply@blogger.com1tag:blogger.com,1999:blog-5545462820773286130.post-35551007562569699612011-09-22T18:15:00.000-08:002011-09-22T18:15:47.332-08:00A dam poor idea - Anchorage Press: News<a href="http://www.anchoragepress.com/news/a-dam-poor-idea/article_da7d68a0-e491-11e0-abf1-001cc4c03286.html?cbst=65#.TnvrbfmBarE.blogger">A dam poor idea - Anchorage Press: News</a>: Cheap green electricity! For a hundred years! No risk, no<br />hassle. Yes, my friend, you are a winner. Everyone's a<br />winner, especially Anchorage.Paul Bratton, Lawyer & Judy Price, Paralegalhttp://www.blogger.com/profile/09112816637358615324noreply@blogger.com6tag:blogger.com,1999:blog-5545462820773286130.post-38357218318385078222011-05-25T22:45:00.005-08:002011-05-28T17:44:51.625-08:00ALASKANS FIGHT TO PROTECT SALMON STREAMS FROM TOXIC SPRAYING(Talkeetna, AK) -- Alaskan residents have been forced to file an appeal in state Superior Court after the Alaska Department of Environmental Conservation (ADEC) reversed long-standing precedent by deciding to allow toxic herbicide spraying along Alaska Railroad rights-of-ways that threatens surface water and salmon-bearing waterbodies.<br />ADEC granted the Alaska Railroad Corporation a two-year permit in April 2010 to spray toxic herbicides (Aquamaster, active ingredient glyphosate) along portions of a 90 mile stretch of the railroad right-of-way from Indian to the Seward, including the Seward railroad yard. The railroad sprayed herbicides along Turnagin Arm and on the Kenai Peninsula during the summer of 2010. This spraying represented the first time in 26 years that herbicides toxic to fish, human health and the environment have been sprayed to control vegetation since a 1984 federal court injunction against such spraying.<br />Since the federal court injunction, Alaskan residents, borough, municipal and native governments, and non-governmental organizations have consistently opposed the issuance of any state pesticide permits to the railroad due to the toxic impacts on people, fish, wildlife, and the environment.<br />“The State of Alaska continually boasts about its so-called “rigorous permitting system,” said Becky Long of Alaska Survival. “Yet this is a historic rollback that will open the floodgates to toxic spraying at a time when mechanical weed removal is a proven treatment that creates more jobs.”<br />The ADEC permit allows toxic herbicide spraying on and around surface waters, including those known to be important for salmon migration and spawning.<br />“Scientific studies demonstrate that fish, wildlife and people are harmed by exposures to extremely low doses of this herbicide,” said Pamela K. Miller of the Alaska Community Action on Toxics. “Yet ADEC has ignored reasonable alternatives – such as wet infrared or mechanical removal – to address the problem.”<br />The ADEC permit does not require the Alaska Railroad to post written notice warning the public that toxic broadcast spraying has or will occur.<br />“The public has a right-to-know, especially in the Chugach National Forest and other public lands, about toxic spraying around our salmon streams,” said Bob Shavelson of Cook Inletkeeper. “Why does the Alaska Railroad have a right to pollute our public lands and salmon resources without telling Alaskans where and when they will spray?”<br />ADEC also denied Inletkeeper and its members “standing” on this issue, asserting Alaskan members of Inletkeeper who use and enjoy the waters and public lands in the vicinity of the toxic spraying do not have a right to question the agency’s decision.<br />The Alaskan groups are represented in their appeal to protect salmon habitat and water quality by attorney Paul Bratton of Talkeetna.Paul Bratton, Lawyer & Judy Price, Paralegalhttp://www.blogger.com/profile/09112816637358615324noreply@blogger.com1tag:blogger.com,1999:blog-5545462820773286130.post-24243682658246046882010-10-17T14:53:00.001-08:002010-10-17T14:53:34.352-08:00Krugman on the Mortgage Morass- Will Courts Hold Banks Accountable?<div xmlns='http://www.w3.org/1999/xhtml'>Friday's New York Times online carried Paul Krugman's <a href='http://www.nytimes.com/2010/10/15/opinion/15krugman.html?src=me&ref=general'>analysis</a> of the developing housing mortgage crisis. As the Nobel-prize-winning economist explains, it is becomes clear that no arm of government-- not the regulators, the courts, or the White House-- are fully ready to confront the fact that many mortgages aren't worth the paper they are written upon. <br/><br/>As Krugman explains,<br/><i>Now an awful truth is becoming apparent: In many cases, the <br/>documentation doesn’t exist. In the frenzy of the bubble, much home <br/>lending was undertaken by fly-by-night companies trying to generate as <br/>much volume as possible. These loans were sold off to mortgage “trusts,”<br/> which, in turn, sliced and diced them into mortgage-backed securities. <br/>The trusts were legally required to obtain and hold the mortgage notes <br/>that specified the borrowers’ obligations. But it’s now apparent that <br/>such niceties were frequently neglected. And this means that many of the<br/> foreclosures now taking place are, in fact, illegal.</i> <br/></div>Paul Bratton, Lawyer & Judy Price, Paralegalhttp://www.blogger.com/profile/09112816637358615324noreply@blogger.com2tag:blogger.com,1999:blog-5545462820773286130.post-32890927481960649022010-10-08T18:02:00.001-08:002010-10-08T18:02:39.766-08:00Consumer Law Conference Held at Fort Richardson on September 9<div xmlns='http://www.w3.org/1999/xhtml'>We had the honor of participating in a consumer law conference at Fort Richardson's National Guard Armory on September 9. Judge advocates, paralegals and civilian attorneys with all military services based in Alaska came together in a one day CLE session for courses focusing on protecting service-members and their families from unfair business practices and helping them to navigate the legal system. <br/><br/>I was asked to lead the session on the Fair Debt Collection Practices Act and Alaska's Unfair Trade Practices Act. I provided a short primer on these key consumer protection laws, drawing heavily on materials I had been exposed to at nationally-known FDCPA attorney Pete Barry's three-day intensive FDCPA Bootcamp in Minneapolis in June. ( Pete tells me I am the first Alaska attorney to graduate from the bootcamp.) But the best part of the session was the back and forth with the participants who deal with clients every day who are exposed to abusive debt collectors and other shady operators. It helped remind me that, while we are ostensibly dealing with financial matters, often the real issue is human dignity and restoring self respect for clients who have been unfairly abused. <br/><br/>In these difficult times military families are facing incredible pressures. Some of the pressures are inevitable results of their mission, but unwarranted abuse from debt collectors and being taken advantage of by unscrupulous operators are things we can do something about. Thanks to Jim Wherry, Fort Wainwright Law Center's Chief of Legal Assistance, for pulling together this event.<br/></div>Paul Bratton, Lawyer & Judy Price, Paralegalhttp://www.blogger.com/profile/09112816637358615324noreply@blogger.com0tag:blogger.com,1999:blog-5545462820773286130.post-25921998539136589772010-10-04T08:55:00.001-08:002010-10-04T08:55:16.177-08:00Foreclosures Riddled with Faked Documents<div xmlns='http://www.w3.org/1999/xhtml'>Today's New York Times carries a comprehensive <a href='http://www.nytimes.com/2010/10/04/business/04mortgage.html?_r=1&th=&emc=th&pagewanted=all'>story</a> about the growing crisis as more and more courts across the country are recognizing that they have been asked to foreclose on homes based on faked and non-existent documentation.<br/></div>Paul Bratton, Lawyer & Judy Price, Paralegalhttp://www.blogger.com/profile/09112816637358615324noreply@blogger.com1tag:blogger.com,1999:blog-5545462820773286130.post-32642297001361318662010-03-11T11:58:00.004-09:002010-03-11T12:28:28.813-09:00The Passing of Cliff Hudson, Talkeetna Bush PilotThe <a href="http://www.adn.com/2010/03/09/1176236/bush-pilot-hudson-inexorably-linked.html?mi_pluck_action=comment_submitted&qwxq=2128649#Comments_Container">Anchorage Daily News story</a> today about the life and times of Talkeetna bush pilot Cliff Hudson covers only part of what made Cliff Hudson irreplaceable.<br /><br />As we enter the second decade of the 21st century enmeshed in the web of our cell phone devices and digital links to the virtual world, the passing of a man like Cliff Hudson is a reminder that at some point our lives are both enriched and dependent upon those quiet, self-possessed people who find their niche and live their lives just doing what they find needs to be done without hoopla or fanfare.<br /><br />A mere 15 years ago, in the days when CB radios were the sole shaky link between the homestead and the outside, Judy's mom had a heart attack in Virginia. We received word within hours of the hospitalization through a phone call from a family member in Virginia to a Talkeetna friend who then contacted Hudson Air Service. Despite the fact that it was the busy Denali climbing season when every flyable moment is booked solid ferrying climbers on and off the mountain, an orange-painted Cessna piloted by Jay Hudson was soon circling above the cabin. We fired up the CB and received timely word of the family crisis. While today (assuming the cell towers are functioning) a digital message might be transmitted in seconds; in the real world it was always comforting to know that Cliff and Jay Hudson were out there flying cover for those of us who lives take us to the backwoods of Alaska.<br /><br />Whether it was making a weekly mail run to Gold Creek or lending a helping hand to the down and out, Cliff Hudson always just did what needed to be done. He will be sorely missed.Paul Bratton, Lawyer & Judy Price, Paralegalhttp://www.blogger.com/profile/09112816637358615324noreply@blogger.com3tag:blogger.com,1999:blog-5545462820773286130.post-38555074795268142692009-11-25T06:28:00.000-09:002009-11-25T08:30:31.527-09:00Public Citizen Reports on Alaska's Pepper v. Routh Crabtree<div xmlns='http://www.w3.org/1999/xhtml'><h2 class='date-header'>Tuesday, November 24, 2009</h2> <h3 class='entry-header'>Alaska Supreme Court Rejects Debt Collectors' First Amendment Defense</h3> <div class='entry-content'> <div class='entry-body'> <p>by Deepak Gupta</p> <p><a style='float: right;' href='http://pubcit.typepad.com/.a/6a00d83451b7a769e20120a6d2c502970b-pi'><img style='margin: 0px 0px 5px 5px;' src='http://pubcit.typepad.com/.a/6a00d83451b7a769e20120a6d2c502970b-320wi' class='asset asset-image at-xid-6a00d83451b7a769e20120a6d2c502970b' alt='Alaska'/></a> With increasing frequency, debt collectors accused of engaging in abusive tactics in the context of consumer collection litigation have been raising a novel defense based on the Petition Clause of the First Amendment, which guarantees a right of access to the courts. They <a href='http://www.acainternational.org/reporters.aspx?cid=12526'>argue</a> that their conduct constitutes protected petitioning activity and is thus completely immune from liability under the Petition Clause, and the <em>Noerr-Pennington</em> doctrine that developed out of it. In the last few weeks, I've seen new notices of constitutional challenges raised along those lines in several federal district courts.</p> <p>In May, I flew out to Anchorage to argue the issue in the Alaska Supreme Court, on appeal from a lower-court decision dismissing a consumer's case on petition-clause grounds. (You can find our briefs <a href='http://www.citizen.org/documents/PepperBriefAppellant.pdf'>here</a> and <a href='http://www.citizen.org/documents/PepperReplyBrief.pdf'>here</a>.)</p> <p>I'm pleased to report that, on Friday, <a href='http://www.courts.alaska.gov/ops/sp-6437.pdf'>the Alaska Supreme Court ruled</a> that debt collectors who employ unfair or deceptive tactics during collection lawsuits are not shielded by the First Amendment. The decision is the first appellate ruling on the issue by any court nationwide. As I say in the Public Citizen press release about the case, "the Alaska Supreme Court’s ruling sends the message that debt collection companies can’t get away with abusive tactics simply by hiring lawyers. The court rejected a dangerous new immunity defense that would have created a gaping hole in consumer protection law."</p> <p>Our case arose out of an attempt by an Anchorage collection agency to sue Robin Pepper, a mentally disabled woman, without providing her with proper notice. The agency sent papers to a nonexistent address, misrepresented to the court that Pepper was competent, and tried to get a default judgment against her. Pepper, represented by Alaska Legal Services, then brought a separate lawsuit, alleging that the collection agency’s practices violated the state Unfair Trade Practices Act. The collection agency asked the court to dismiss Pepper’s case on the theory that its litigation conduct was protected by the First Amendment, and the lower court agreed. Alaska Legal Services asked Public Citizen to handle the case on appeal.</p> <p>The Alaska Supreme Court <a href='http://www.courts.alaska.gov/ops/sp-6437.pdf'>broadly rejected the debt collector’s immunity defense</a>, ruling that the First Amendment’s petition clause does not extend to conduct that was unfair, deceptive, and in violation of the Unfair Trade Practices Act. Quoting our brief, the court ruled that debt collectors have “no legitimate interest in pursuing collection litigation without notifying debtors, or in seeking to default incompetent debtors without notice to their lawyers or guardians.”</p> </div> </div> <span class='post-footers'>Posted by Deepak Gupta on Tuesday, November 24, 2009 at 07:48 PM in <a href='http://pubcit.typepad.com/clpblog/consumer_litigation/'>Consumer Litigation</a>, <a href='http://pubcit.typepad.com/clpblog/debt_collection/'>Debt Collection</a>, <a href='http://pubcit.typepad.com/clpblog/free_speech_intellectual_property_consumer_issues/'>Free Speech, Intellectual Property & Consumer Issues</a>, <a href='http://pubcit.typepad.com/clpblog/unfair_deceptive_acts_practices_udap/'>Unfair & Deceptive Acts & Practices (UDAP)</a> </span> <span class='separator'>|</span> <a href='http://pubcit.typepad.com/clpblog/2009/11/alaska-supreme-court-rejects-debt-collectors-first-amendment-defense.html' class='permalink'>Permalink</a><br/><br/><div class='zemanta-pixie'><img src='http://img.zemanta.com/pixy.gif?x-id=49897c0b-d4a5-8f0c-af95-e1a710b10abb' alt='' class='zemanta-pixie-img'/></div></div>Paul Bratton, Lawyer & Judy Price, Paralegalhttp://www.blogger.com/profile/09112816637358615324noreply@blogger.com0tag:blogger.com,1999:blog-5545462820773286130.post-20020928509636582922009-11-21T09:45:00.002-09:002009-11-21T09:53:29.152-09:00Alaska Supreme Court- Debt Collectors Must Litigate Fairly in Alaska<div xmlns="http://www.w3.org/1999/xhtml">In a case closely watched by consumer groups and the debt collection industry, the Alaska Supreme Court handed down a decision yesterday stating<br /><br /><i>Because we conclude that it would not unconstitutionally burden the defendants’ petitioning activities to require them to litigate debt collection claims in a fair manner, we reverse the dismissal of Pepper’s complaint.</i><br /><br />The court in deciding <i>Pepper v. Routh Crabtree APC</i> (available at <a href="http://www.courts.alaska.gov/ops/sp-6437.pdf">sp-6437.pdf (application/pdf Object)</a> ) held that acts by the debt collector attorney such as failure to serve Pepper, presenting the court with an inaccurate affidavit of competence, and failure to inform Pepper's attorney prior to filing for default, could constitute violations of Alaska's unfair trade practices act. The case is remanded to the lower court.<br /><br />James J. Davis, Jr., Alaska Legal Services Corporation, Anchorage, and Deepak Gupta, Public Citizen Litigation Group, Washington, D.C., have won an important victory for consumer rights not only in Alaska but across the nation as debt collector attorneys have increasingly sought to cloak their unfair practices with petition rights' immunities.<br /><br /><br /><blockquote><br /><br /><div class="zemanta-pixie"><img src="http://img.zemanta.com/pixy.gif?x-id=1002056e-dcac-862f-b2c1-e03b286eb689" alt="" class="zemanta-pixie-img" /></div></blockquote></div>Paul Bratton, Lawyer & Judy Price, Paralegalhttp://www.blogger.com/profile/09112816637358615324noreply@blogger.com0tag:blogger.com,1999:blog-5545462820773286130.post-49411700267390991962009-10-05T09:17:00.001-08:002009-10-05T09:20:57.146-08:00Acidic Arctic Seawater & Declining Yukon King Salmon Runs<div id="nav-bar"> <div id="crumb-nav"> Yesterday's Guardian reports that<br /> </div> </div> <h1>Arctic seas turn to acid, putting vital food chain at risk</h1><a href="http://www.guardian.co.uk/profile/robinmckie" name="&lid={contentTypeByline}{Robin McKie}&lpos={contentTypeByline}{1}">Robin McKie</a>, science editor <br /><i>Carbon-dioxide emissions are turning the waters of the <a href="http://www.guardian.co.uk/world/arctic">Arctic</a> Ocean into acid at an unprecedented rate, scientists have discovered. Research carried out in the archipelago of Svalbard has shown in many regions around the north pole seawater is likely to reach corrosive levels within 10 years. The water will then start to dissolve the shells of mussels and other shellfish and cause major disruption to the food chain. By the end of the century, the entire Arctic Ocean will be corrosively acidic</i>.<i> For more-</i><br /><br /><a href="http://www.guardian.co.uk/world/2009/oct/04/arctic-seas-turn-to-acid">Arctic seas turn to acid, putting vital food chain at risk | World news | The Observer</a><br /><br />While today's New York Times reports that<br /><h1> <nyt_headline version="1.0" type=" "> Scarcity of King Salmon Hurt Alaskan Fishermen </nyt_headline> </h1> <script language="JavaScript" type="text/JavaScript">function getSharePasskey() { return 'ex=1412308800&en=54b66b83e289fd52&ei=5124';}</script> <script language="JavaScript" type="text/JavaScript"> function getShareURL() { return encodeURIComponent('http://www.nytimes.com/2009/10/03/business/03salmon.html'); } function getShareHeadline() { return encodeURIComponent('Scarcity of King Salmon Hurt Alaskan Fishermen'); } function getShareDescription() { return encodeURIComponent('Until recently, king salmon was a major source of income and food in villages along the Yukon River. What has led to its scarcity is not well understood.'); } function getShareKeywords() { return encodeURIComponent('Salmon,Fishing, Commercial,Income,Alaska'); } function getShareSection() { return encodeURIComponent('business'); } function getShareSectionDisplay() { return encodeURIComponent('Business'); } function getShareSubSection() { return encodeURIComponent(''); } function getShareByline() { return encodeURIComponent('By STEFAN MILKOWSKI'); } function getSharePubdate() { return encodeURIComponent('October 3, 2009'); } </script> <div id="toolsRight"> <nyt_reprints_form> <script language="javascript"> <!-- function submitCCCForm(){ PopUp = window.open('', '_Icon','location=no,toolbar=no,status=no,width=650,height=550,scrollbars=yes,resizable=yes'); this.document.cccform.submit(); } // --> </script> <form name="cccform" action="https://s100.copyright.com/CommonApp/LoadingApplication.jsp" target="_Icon"><input name="Title" value="Scarcity of King Salmon Hurt Alaskan Fishermen" type="hidden"><input name="Author" value="By STEFAN MILKOWSKI" type="hidden"><input name="ContentID" value="http://www.nytimes.com/2009/10/03/business/03salmon.html" type="hidden"><input name="FormatType" value="default" type="hidden"><input name="PublicationDate" value="OCT 03 2009" type="hidden"><input name="PublisherName" value="The New York Times" type="hidden"><input name="Publication" value="nytimes.com" type="hidden"><input name="wordCount" value="1422" type="hidden"></form> </nyt_reprints_form> <div class="articleTools"> <div class="toolsContainer"><br /></div> </div> </div> <nyt_byline version="1.0" type=" "> <div class="byline">By STEFAN MILKOWSKI</div> </nyt_byline> <div class="timestamp">Published: October 2, 2009 </div> <!--NYT_INLINE_IMAGE_POSITION1 --> MARSHALL, Alaska — <i>Just a few years ago, king <a href="http://topics.nytimes.com/top/reference/timestopics/subjects/s/salmon/index.html?inline=nyt-classifier" title="More articles about salmon (fish).">salmon</a> played an outsize role in villages along the Yukon River. Fishing provided meaningful income, fed families throughout the year, and kept alive long-held traditions of Yup’ik Eskimos and Athabascan Indians.</i><i> For more-</i><br /><a href="http://www.nytimes.com/2009/10/03/business/03salmon.html?_r=1&em">Weak Levels of King Salmon Hurt Alaskan Fishing Community - NYTimes.com</a><br /><br />It is sad to report that last year's poor returns of Yukon kings, blogged on below, has repeated itself this year. This is a true disaster for the people of the region. And what is unforgivable is that where there are measures that government has the ability to do something about, i.e. stopping bycatch of king salmon in the industrialized Bering Sea pollock fishery, the response has been too little and woefully late.Paul Bratton, Lawyer & Judy Price, Paralegalhttp://www.blogger.com/profile/09112816637358615324noreply@blogger.com0tag:blogger.com,1999:blog-5545462820773286130.post-29989579021945220962009-09-25T15:58:00.002-08:002009-09-25T18:21:23.691-08:00Talking Sense About Invasion Biology - Are Herbicides Really Necessary to Save Alaska from Immigrant Plants?<div xmlns="http://www.w3.org/1999/xhtml"><a href="http://www.newscientist.com/article/mg20327275.900-living-with-aliens.html">Immigrant species aren't all bad - opinion - 25 September 2009 - New Scientist</a><br /><br />Today's opinion piece online at New Scientist is an important critique of the "science" that is relied upon to support the herbiciding of every plant that is expanding its range in this time of global climate change. As Professor Davis, author of <u>Invasion Biology</u>, concludes<br /><br /><i>It is crucial that we distinguish harm from mere change so that we can spend scarce human and economic capital wisely.<br /><br /></i>Davis is quite clear that immigrant species have sometimes caused harm in their new homes, however he notes that that result is the exception rather than the rule. Here in southcentral Alaska, where the spruce/birch complex of "invasive" species have moved in to revegetate the moraines left behind by retreating glaciers over the last few thousand years, it is especially clear that change is natural and even desirable at times.<br /><br />According to a review of Professor Davis's book <u>Invasion Biology</u> , first published in April,<br /><br />"<i>Davis writes well, and clearly. But his big contribution is to the skeptical re-examination of the field as a whole. This book will not kill it off. But if, over time, invasion biology were to become absorbed into broader ecological fields...future historians of science might see Invasion Biology as the beginning of the end.</i>"--Nature<u><br /><br />Invasion Biology</u> is available at:<a href="http://www.amazon.com/Invasion-Biology-Oxford-Mark-Davis/dp/0199218757/ref=sr_1_1?ie=UTF8&s=books&qid=1253919658&sr=8-1"> Amazon.com: Invasion Biology (Oxford Biology) (9780199218752): Mark A. Davis: Books</a><br /><br />At the present time the Chugach National Forest, Kodiak National Wildlife Refuge, and Denali National Park are gearing up to start spraying herbicides to save Alaska from "invasive" plants such as dandelion, orange hawkweed, and butter-and-eggs. In addition the Alaska Department of Environmental Conservation is in the process of considering a railroad application to spray endocrine-disrupting herbicides on 90 miles of track between Seward and Indian.<br /><br />Alaska is the only state that has a 25-year record of avoiding virtually all use of herbicides on our public lands and rights-of-way. Alaska is also the only state whose salmon runs and wildlife populations are relatively healthy. Alaskans need to take a hard look at those agencies whose solution to vegetation management problems is based in the herbiciding of Alaska.<br /><blockquote><blockquote><br /><br /><div class="zemanta-pixie"><img src="http://img.zemanta.com/pixy.gif?x-id=ff7bcb96-4681-813d-b7cc-8d0fcbc8b9d7" alt="" class="zemanta-pixie-img" /></div></blockquote></blockquote></div>Paul Bratton, Lawyer & Judy Price, Paralegalhttp://www.blogger.com/profile/09112816637358615324noreply@blogger.com0tag:blogger.com,1999:blog-5545462820773286130.post-37266044561007136352009-09-18T12:37:00.003-08:002009-09-18T14:10:17.186-08:00Endocrine Disruptor Pesticides Linked to Widespread Occurrence of "Intersex" Fish- So Far Yukon River Fish Not Affected<div xmlns="http://www.w3.org/1999/xhtml"><a href="http://www.sciencedaily.com/releases/2009/09/090914172648.htm">Widespread Occurrence Of Intersex Bass Found In U.S. Rivers</a><br /><br />This week the United States Geological Survey released the most extensive study to date of the occurrence of "intersex" fish in U.S. waters. Alaska's Yukon River was the only studied river where no intersex fish were found. While few will be surprised that Alaska's great river is still pure enough to avoid some of the ills found in the lower 48, what is shocking is the extent of the problem discovered. At the Pee Dee River in South Carolina, one test site revealed that 91% of the bass were intersex, i.e. males had eggs in the testes or females exhibited male organ development.<br /><br />It is ominous that this documentation emerges just as the Alaska Railroad is seeking a permit to spray a herbicide that has been shown to disrupt endocrine systems along 90 miles of track from Seward to Indian. It is also a poorly kept secret that the Alaska state highway department is gearing up to start herbicide use if the railroad can set a precedent.<br /><br />Alaska former Governor Jay Hammond stopped herbicide use by state agencies in 1978. The emerging studies prove how far-sighted our bush-rat governor was. So far Sean Parnell has kept mum, at least in public, as to whether he will sit back and let the state entities start poisoning our streams and rivers with endocrine disrupting herbicides.<br /><br /><br /><br /><br /><blockquote><br /><br /><div class="zemanta-pixie"><img src="http://img.zemanta.com/pixy.gif?x-id=ef5ea3f7-3d81-870f-9fc6-1eb9ed52dc43" alt="" class="zemanta-pixie-img" /></div></blockquote></div>Paul Bratton, Lawyer & Judy Price, Paralegalhttp://www.blogger.com/profile/09112816637358615324noreply@blogger.com0tag:blogger.com,1999:blog-5545462820773286130.post-87852485302953501982009-09-13T15:16:00.003-08:002009-09-14T21:09:07.818-08:00Alaska Railroad to Dump Track Workers & Replace Them With Herbicides<div xmlns="http://www.w3.org/1999/xhtml"><a href="http://www.adn.com/news/alaska/story/931792.html">Alaska Railroad plans significant layoffs: Alaska News | adn.com</a><br /><br />Comments are due September 15 on the Alaska Railroad's application to the Department of Environmental Conservation seeking approval for spraying herbicides on 90 miles of track from Seward to Indian. If approved this will be the first such widespread application of herbicides in Alaska in the last 25 years. Endangered Cook Inlet Beluga whales, salmon, and human residents will face continuing exposure to endocrine disrupting chemicals if the railroad is allowed to proceed. Alternatives that have worked in the past to control vegetation without herbicides include spreading clean ballast on the track bed and using prisoners to clear brush along the ballast.<br /><br /><div class="zemanta-pixie"><img src="http://img.zemanta.com/pixy.gif?x-id=020ec387-8817-84f4-96e9-df3d53fe709e" alt="" class="zemanta-pixie-img" /></div></div>Paul Bratton, Lawyer & Judy Price, Paralegalhttp://www.blogger.com/profile/09112816637358615324noreply@blogger.com0tag:blogger.com,1999:blog-5545462820773286130.post-90309737809011012432009-04-05T08:16:00.016-08:002009-04-05T23:53:51.834-08:00Right To Choose Medical Treatments Declared Fundamental Right In AlaskaIn a ruling issued April 3rd, click <a href="http://www.touchngo.com/sp/html/sp-6354.htm">here</a>, the Alaska Supreme Court held that Alaskans have a fundamental liberty and privacy right to determine medical treatments for themselves and their minor children. This office represented plaintiffs Dr. Patrick Huffman and Amy Reedy-Huffman in a case that challenged the state's right to exclude their children from public school because the parents refused to allow their children to be given the tuberculosis skin test.<br /><br /><br />Dr. Patrick Huffman, a Homer naturopathic physician and father of the children, determined that the state's tuberculosis skin tests could be harmful to the health of Stone and Elias Huffman and he signed a school district waiver stating his conclusions. Although the waiver is an accepted means of allowing children to attend school without the test, the State determined that it was valid only if signed by an MD or an OD, and not a naturopathic doctor. The Kenai Peninsula Borough School District planned to exclude the children from public school if they did not take the test.<br /><br /><br />The Huffmans subsequently filed suit. The Huffmans argued not only the the State's regulation did not exclude naturopaths from signing the waiver, but that the invasive and possibly harmful test offended the Huffmans' freedom of religion and denied them the fundamental liberty interest in choosing the health care for their minor children.<br /><br />Retiring Alaska Supreme Court Justice Warren Matthews, writing for a unanimous court, states,<br /><em></em><br /><em>We have already held that the Alaska Constitution protects as fundamental rights the ability of every individual to control her own hairstyle and to make her own reproductive choices. We believe controlling one's medical treatments falls into the same category of personal physical autonomy. We now hold that the right to make decisions about medical treatments for oneself and one's children is a fundamental liberty and privacy right in Alaska.</em><br /><em></em><br />The court remanded the case to Anchorage Superior Court for further proceedings as to whether the less invasive sputum test and blood tests for TB can satisfy the state's legitimate goal in protecting school children from contagious disease without infringing upon the Huffmans' fundamental liberty and privacy rights.<br /><em></em>Paul Bratton, Lawyer & Judy Price, Paralegalhttp://www.blogger.com/profile/09112816637358615324noreply@blogger.com0tag:blogger.com,1999:blog-5545462820773286130.post-85824367612040221912009-02-28T10:36:00.000-09:002009-02-28T10:40:49.066-09:00ALASKA REFUGES TO HALT USE OF HERBICIDES ON “INVASIVE” PLANTSIn response to litigation filed against the U.S. Fish and Wildlife Service in U.S. District Court in Anchorage (Civil Case No.: 3:08-cv-00249-JWS) by environmental groups, Alaska Survival and Alaska Community Action on Toxics, Alaska Regional Director of the U.S. Fish and Wildlife, Geoffrey Haskett has issued an agency directive to halt use of herbicides on Alaska refuge lands.<br /><br />In his January 13, 2009 directive, Haskett stated:<br /><br />“The Refuge System in Alaska is hereby directed to immediately cease use of herbicides on or off refuges unless the requirements of NEPA, specific to the particular application, are met. That may include preparation of an environmental assessment ("EA") and finding of no significant impact ("FONSI"), if appropriate, or an environmental impact statement ("EIS") and record of decision ("ROD"), when required by NEPA.”<br /><br />Alaska Survival and Alaska Community Action on Toxics, represented by attorney Paul H. Bratton of Talkeetna, filed suit in December, 2008 to enjoin the agency’s use of herbicides on the Kodiak National Wildlife Refuge, the Alaska Maritime National Wildlife Refuge and in the city of Kodiak. Fish & Wildlife has been spraying herbicides to kill orange hawkweed on Camp Island in the Kodiak National Wildlife Refuge since 2003 without complying with the National Environmental Policy Act. More recently, the agency has also begun to spray herbicides in other areas for other species of plants, such as Canada thistle and ox-eye daisy, which the agency considers to be “invasive”.<br /><br />The chemicals used on the refuges include the herbicides Transline and Milestone VM, the surfactant Agri-Dex, and ACMI Violet Dye. Alaska Survival and Alaska Community Action on Toxics claim that these chemicals have the potential to cause adverse effects on humans, fish and wildlife. The environmental groups’ complaint states that no studies of the persistence and effects of these chemicals have been conducted in a northern environment similar to Alaska’s and therefore the effects of their use in Alaska is unknown.<br /><br />“We don’t know what the effects on the Alaskan environment would be from these chemicals, how long they may last or how they may react in the sub-arctic,” said Judy Price of Alaska Survival. “We do know that when the University of Alaska researchers conducted research on herbicide spraying on the Alaska Railroad in the 80s, they found that the chemicals were lasting far longer than the scientific literature indicated, that they leached deeper than expected, and killed plants some distance from where the chemicals were sprayed, possibly moving out of the spray zone by tree root translocation.<br /><br />It’s well known that herbicides persist longer in a cold climate, and that when they are around for these longer periods of time, they have more time to run-off to other areas, to leach into groundwater, to bioaccumulate in the soil and in animals’ bodies. But researchers are just discovering other troubling aspects of herbicide spraying in this environment. Just in the last few years, University researchers found that the herbicides sprayed on roadsides in Alaska, as a part of a DOT experiment, not only were still around the spring after the previous summer’s spraying, but that the herbicide concentration actually increased in surface soils. The researchers speculated that the herbicide was being released from the dead vegetation during spring thaw.”Paul Bratton, Lawyer & Judy Price, Paralegalhttp://www.blogger.com/profile/09112816637358615324noreply@blogger.com0tag:blogger.com,1999:blog-5545462820773286130.post-37451220401214591272008-12-06T18:04:00.005-09:002008-12-06T18:48:22.801-09:00New Developments in CMPB's "Got Breastmilk" OffensiveThanks to <span style="font-family:Arial;">David Giacalone, Editor of the unique blawg <a href="http://blogs.law.harvard.edu/ethicalesq/">f/k/a... </a>for alerting us to the latest from the California Milk Processor Board in his December 1st post.<br /><br /></span> <p style="text-align: left; font-style: italic;">Experts on breasts, babies, and trademark law — along with those interested in jugs and lawyer antics — all wondered why the California Milk Processor Board wanted Alaskan artist and breastfeeding advocate Barbara Holmes to stop using the slogan “<em>got breastmilk?</em>” on her onesies and infant t-shirts. They said Holmes’ slogan infringed on their “got milk?” trademark, but that seemed unlikely. Jill’s Comment brings things into better focus: On October 6, 2008, the Board’s lawyers, <a href="http://www.klalawfirm.com/main.html">Knox Lemmon Anapolsky LLP</a>, filed a <a href="http://tmportal.uspto.gov/external/portal/tow?SRCH=Y&isSubmitted=true&details=&SELECT=US+Serial+No&TEXT=77586468">trademark application</a> with the PTO for a mark that:</p> <p style="text-align: center; font-style: italic;">“<em>consists of the wording ‘got breastmilk?’ in all lower case letters in Phenix American font</em>.”</p> <p style="text-align: left; font-style: italic;"><a href="http://blogs.law.harvard.edu/ethicalesq/files/2008/12/keyn1.jpg"><img class="alignnone size-medium wp-image-10343" alt="" src="http://blogs.law.harvard.edu/ethicalesq/files/2008/12/keyn1.jpg" width="47" height="47" /></a> According to the <a href="http://tarr.uspto.gov/servlet/tarr?regser=serial&entry=77586468">TARR status report</a> for the as-yet-unassigned claim with the Serial Number 77586468, the Board intends to use the “got breastmilk?” mark with the following products:</p> <ul style="font-style: italic;"><li>baby blankets, children’s blankets and burp cloths </li><li>breast pads and breast-nursing pads </li><li>baby bottles, cups adapted for feeding babies and children, pacifiers, sippy cups, breast milk storage bottles, breast pumps and breast shields </li><li>baby backpacks and baby carriers worn on the body </li><li>clothing, namely, <em>t-shirts</em>, shirts, short-sleeved shirts, long-sleeved shirts, sweat shirts, infant bodysuits, pants, infant sleepers, hats, caps, cloth bibs, socks and <em>infant onesies</em> </li></ul> <p style="text-align: left;">For the full post and the latest comments, check out f/k/a...<br /></p>Paul Bratton, Lawyer & Judy Price, Paralegalhttp://www.blogger.com/profile/09112816637358615324noreply@blogger.com0tag:blogger.com,1999:blog-5545462820773286130.post-19526514757941857482008-09-15T10:43:00.002-08:002008-09-15T13:44:52.634-08:00Turning Your Lemon Into LemonadeIf you’ve ever bought a new car, you know what a rush it is. There’s the new car smell, the feeling of power as you hit the accelerator, and the peace of mind knowing that you’ll have a reliable ride for a long, long time.<br /><br />But what happens when that new car isn’t so reliable? When you wake up one morning and have to come to terms with the fact that you’ve bought a lemon? <a href="http://www.lemonjustice.com/">http://www.lemonjustice.com</a> offers an overview of Alaska lemon law. The site is run by lemon law attorney Sergei Lemberg.<br /><br />Sergei notes that every state has a lemon law, but that each of them is different. Under Alaska’s lemon law, some vehicles qualify as lemons and others don’t. If you’ve bought a new vehicle for personal, family, or household use, you’re covered. If you buy an RV, you’re covered. If you buy a motorcycle, you’re covered. If you buy a used car, you’re not covered by the lemon law, but there are regulations about the responsibilities of used car dealers and ways to get a refund or replacement if the dealer violated those regulations.<br /><br />Now, on to definitions. In order to be considered a “lemon,” your vehicle’s defects have to affect its use, safety, or value. In other words, if it’s something minor, you don’t have a case. According to Sergei, the other catch is that the defects have to start during the first year from the date you take delivery of the vehicle or during the period covered by the manufacturer’s express warranty – whichever comes first. You also need to have taken the vehicle in for repair three times for the same problem or it has to have been out of service for 30 business days for the same problem. Then, you have to notify the manufacturer and give them one final opportunity to repair the vehicle.<br /><br />Sergei is quick to point out that manufacturers have teams of lawyers that do nothing but fight lemon law claims, and that battling them will be much easier with a lemon law attorney at your side. The good news is that, if your claim is successful, the manufacturer has to pay your attorney fees. That being said, with the help of a lawyer, you can often get a refund, replacement vehicle, or cash settlement without having to go through the entire lemon law process – and get your attorney’s fees covered in the process.Paul Bratton, Lawyer & Judy Price, Paralegalhttp://www.blogger.com/profile/09112816637358615324noreply@blogger.com0tag:blogger.com,1999:blog-5545462820773286130.post-14583031047182584242008-07-18T12:52:00.012-08:002008-07-19T21:09:11.764-08:00California Milk Processors Board Goes After Talkeetna Breastfeeding Advocate/ArtistWhen she sat down in her one-room Alaska cabin three years ago to hand-letter some slogans promoting breastfeeding on a dozen or so onesies, Talkeetna artist Barbara Holmes had no idea she was threatening agribusiness-powerhouse, the California Milk Processors Board. But such is the nature of the aggressive approach of CMPB in search of trademark infringement, that Ms. Holmes found herself on the receiving end of a highly-aggressive demand letter earlier this month.<br /><br />The slogan that CMPB objects to is the playful parody "got breastmilk?". In a July 8 letter, CMPB's attorneys, Knox Lemmon Anapolsky LLP, claim that the slogan infinges upon CMPB's ten-year-old "got milk?" ad campaign. "I Eat at Mom's" and "100% Breastfed" are other slogans Holmes had placed on her advocacy baby clothes pictured at her <a href="http://mountntopdesigns.com">website</a>. As of this date it appears that CMPB is not yet proclaiming ownership of those phrases. <br /><br />Holmes has been given a deadline of July 22nd to ship to CMPB "all 'got breastmilk?' onesies and t-shirts"; destroy or remove all depictions of the offending items; and account for all profits generated by the sale of the items. It is not entirely clear from the letter, but apparently Ms. Holmes might be required to go to the newly constructed playground beside the Talkeetna Library and disrobe any children discovered wearing clothing with the offending slogan.<br /><br />This law firm is representing Ms. Holmes and is sending a reply asserting the artist/advocate's free speech rights, the fair use doctrine's support for parodying of well-known trademarks, and the simple fact that encouraging mothers to breastfeed their infants cannot possibly create any real confusion or "tarnishment" of CMPB's trademarks.<br /><br />On the facts of this situation, CMPB's trademark infringement claims against a Talkeetna artist/street-vendor would seem to be produced in some California theatre of the absurd. However the sad truth is that corporate America has increasingly sought to use trademark infringement claims as a tool to stifle any and all criticism. A few years ago, CMPB's attorneys sent a similar "Got Milk?" trademark infringement demand letter to People for the Ethical Treatment of Animals (PETA) in an attempt to muzzle their anti-dairy campaign slogan "Got Pus?; Milk Does". In March, a Georgia U.S. District Court Judge issued summary judgment in favor of an individual who was accused of trademark infingement by Wal-Mart for offering to sell T-shirts printed with "Wal-Queda" and other slogans promoting the concept that the mega-stores harm America's communities.see <em>Smith v. Wal-Mart Stores, Inc</em>., Case No. 1:06-cv-526-TCB (U.S.Dist Ct. N.D. GA 3/20/2008)<br /><br />If all this wasn't bad enough, check today's <a href="http://pubcit.typepad.com/clpblog/2008/07/can-the-rnc-for.html">post</a> by Paul Alan Levy (winning counsel in Smith v. Wal-Mart) at Public Citizen's Consumer Law & Policy Blog about how the Republican National Committee is using trademark infringement claims to stifle other's use of the Republican Elephant & "GOP".Paul Bratton, Lawyer & Judy Price, Paralegalhttp://www.blogger.com/profile/09112816637358615324noreply@blogger.com7tag:blogger.com,1999:blog-5545462820773286130.post-15332458522383394902008-07-12T11:59:00.011-08:002008-07-12T15:43:59.216-08:00Real Limits Placed on Bona Fide Error Defense- 9th Circuit Reaffirms Strict Liability for Debt Collectors Who Misstate Amount of DebtThis week a panel of the 9th Circuit Court of Appeals handed down an important decision for consumers in Alaska and other western states. The panel reaffirms the Fair Debt Collection Practices Act's requirement that debt collectors must take meaningful actions to assure that the amounts they attempt to collect are accurate.<br /><br />The question decided was whether the "bona fide error" defense under FDCPA provides debt collectors a wide open escape hatch from accountability or will protect debt collectors <strong>only</strong> where they actually institute measures to ensure that debtors are asked to pay amounts they actually owe.<br /><br />In this Arizona district case, <em>Reichert v National Credit Services, </em>No. o6-15503, Slip Op. dated 7/7/2008, Circuit Judge Mary Schroeder, writing for the panel, states<br /><br /><em>If the bona fide error defense is to have any meaning in the context of a strict liability statute, then a showing of “procedures reasonably adapted to avoid any such error” must require more than a mere assertion to that effect. The procedures themselves must be explained, along with the manner in which they were adapted to avoid the error. ... Only then is the mistake entitled to be treated as one made in good faith. Because NCS submitted only a conclusory declaration stating that it maintained procedures, we hold that it failed to establish a bona fide error defense under the FDCPA.</em><br /><em></em><br />Public Citizen's Deepak Gupta represented Richard Reichert in this appellate victory for consumers in the 9th circuit states. Consumer rights attorneys will find this reaffirmation and clarification of debt collector's strict liability under FDCPA very useful in protecting harassed debtors from both unscrupulous and sloppy debt collectors.<br /><em></em><br /><em></em>Paul Bratton, Lawyer & Judy Price, Paralegalhttp://www.blogger.com/profile/09112816637358615324noreply@blogger.com0tag:blogger.com,1999:blog-5545462820773286130.post-18029287425893864162008-07-01T12:53:00.012-08:002008-07-02T00:08:50.151-08:00Climatic Changes Diminish Return of King Salmon to Yukon River<div>With its shrinking glaciers and significant increases in mean temperatures, Alaska has been called ground zero for observing the effects of global warming. And while the causes and pace of climatic changes affecting our earth are subject to some debate, the observable effects can be very sobering when experienced close up. One example of the unanticipated consequences of global changes is examined in this recent LA Times article about the spread of "ich" disease in the population of wild Yukon chinook (widely known as "king") salmon.<br /><a href="http://www.latimes.com/news/printedition/front/la-na-ichfish15-2008jun15,0,2020280.story">http://www.latimes.com/news/printedition/front/la-na-ichfish15-2008jun15,0,2020280.story</a><br /><br /><br /><p>Authors of this blog operated a commercial fishing vessel in Alaska's Yukon delta for most of the last 20 years. The month or two each year we devoted to harvest of Yukon chinooks provided our chief source of income, wonderful food for our table, and great joy. We shared the resource with hundreds of Alaska Native fishing families who converged on the river each June to erect their tents and fish-drying and net-mending racks in a seasonal ritual that likely extends back to the time when mammoths grazed on this Bering Sea coast. Last year, with much regret, we sold our last limited entry gillnet permit and boat. This year the return of the Yukon River's great salmon has been so low that no commercial fishing has been allowed and even the subsistence fishing has been greatly curtailed.</p><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEiIvm_qFJfJEkB1NrFxCHc1UF_KV3_6QaA7yXdRyuA5-IQr6sr0grOXQ8qL2XrXqKaOewxDUIvf9HZGdri2fT3gkOm6uMjf-DPgoCUT4EiGyQDgnq49hKK2GMT1oq_6ToW26lPtWvOObXjB/s1600-h/Yukon+River+Chinook.jpg"><img id="BLOGGER_PHOTO_ID_5218324899738086082" style="FLOAT: right; MARGIN: 0px 0px 10px 10px; CURSOR: hand" alt="" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEiIvm_qFJfJEkB1NrFxCHc1UF_KV3_6QaA7yXdRyuA5-IQr6sr0grOXQ8qL2XrXqKaOewxDUIvf9HZGdri2fT3gkOm6uMjf-DPgoCUT4EiGyQDgnq49hKK2GMT1oq_6ToW26lPtWvOObXjB/s200/Yukon+River+Chinook.jpg" border="0" /></a><br /><br /><p>This latest report from the Alaska Department of Fish & Game tells the story of the struggle to manage a diminishing resource. <a href="http://csfish.adfg.state.ak.us/newsrelease/view.php?dist=YUS&year=2008&species=400&num=18&printable=1">http://csfish.adfg.state.ak.us/newsrelease/view.php?dist=YUS&year=2008&species=400&num=18&printable=1</a></p><br /><br /><p>With boat gas selling for $8/gallon and no income from commercial fishing, Yukon River fishing families are facing hard times. Governor Palin's plan to give each Alaskan a $1,200 check to help with sky-rocketing energy costs is a vitally needed first step, but more will be needed as Alaskans throughout the state seek to adjust to global changes.</p></div>Paul Bratton, Lawyer & Judy Price, Paralegalhttp://www.blogger.com/profile/09112816637358615324noreply@blogger.com0