Alaska Backwoods Lawyer

Washington and Oregon Move to Protect the Health of Residents

2011-11-05T13:08:00.002-08:00

SEATTLE (AP) — Randy Kinley, a Lummi tribal member, harvests salmon, clams and oysters in
northwest Washington, and eats what he catches about three or four times a week.
Washington waters are supposed to be clean enough to protect people who eat fish from rivers,
streams and lakes, but the state standard assumes people can safely eat less than 8 ounces of fish a month.
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.
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.
A higher fish consumption rate means fewer toxic pollutants would be allowed in state waters — and likely tougher restrictions for polluters.
"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.
Washington's current fish rate was developed in the mid-1980s and doesn't reflect that residents likely eat much more, officials said.
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.
That rate, approved by the U.S. Environmental Protection Agency last month, is the highest for a U.S. state.
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.
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.
Many tribes already have much higher fish consumption rates and water quality standards that apply Wash. wants less risk for people who eat fish 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.
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.
"Our people used to say, 'When the tide's out, the table's set," said Kinley, a policy analyst for the
Lummi Nation, near Bellingham, Wash. "We want to be able to set our nets and catch fish to eat."
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.
"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.
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.
Washington officials have closely watched Oregon's process.
"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."
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."

Wash. wants less risk for people who eat fish - seattlepi.com http://www.seattlepi.com/news/article/Wash-wants-less-risk-for-people-...
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DNR's Susitna Area Plan Challenged in Lawsuit

2011-11-02T23:32:00.005-08:00

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."

BY ANDREW WELLNER
Frontiersman - Published on Saturday, October 22, 2011 9:33 PM AKDT

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.

“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.”

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.

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.

She said there are state constitutional rights implications where those uses might interfere with locals’ access to fish, wildlife and water bodies.

“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.”

She said the Mat-Su Borough and the community councils spent years on these plans.

“To have DNR just cursively dismiss them is just not right,” she said.

She said she finds the idea of agriculture in Chase to be particularly bizarre, what with the lack of transportation.

“People would just go in there and make a mess. There’s considerable wetlands in the agricultural area,” she said.

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.

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.”

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.

Contact Andrew Wellner at andrew.wellner@frontiersman.com or 352-2270.

A dam poor idea - Anchorage Press: News

2011-09-22T18:15:00.000-08:00

A dam poor idea - Anchorage Press: News: Cheap green electricity! For a hundred years! No risk, no
hassle. Yes, my friend, you are a winner. Everyone's a
winner, especially Anchorage.

ALASKANS FIGHT TO PROTECT SALMON STREAMS FROM TOXIC SPRAYING

2011-05-25T22:45:00.005-08:00

(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.
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.
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.
“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.”
The ADEC permit allows toxic herbicide spraying on and around surface waters, including those known to be important for salmon migration and spawning.
“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.”
The ADEC permit does not require the Alaska Railroad to post written notice warning the public that toxic broadcast spraying has or will occur.
“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?”
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.
The Alaskan groups are represented in their appeal to protect salmon habitat and water quality by attorney Paul Bratton of Talkeetna.

Krugman on the Mortgage Morass- Will Courts Hold Banks Accountable?

2010-10-17T14:53:00.001-08:00

Friday's New York Times online carried Paul Krugman's analysis 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.

As Krugman explains,
Now an awful truth is becoming apparent: In many cases, the
documentation doesn’t exist. In the frenzy of the bubble, much home
lending was undertaken by fly-by-night companies trying to generate as
much volume as possible. These loans were sold off to mortgage “trusts,”
which, in turn, sliced and diced them into mortgage-backed securities.
The trusts were legally required to obtain and hold the mortgage notes
that specified the borrowers’ obligations. But it’s now apparent that
such niceties were frequently neglected. And this means that many of the
foreclosures now taking place are, in fact, illegal.

Consumer Law Conference Held at Fort Richardson on September 9

2010-10-08T18:02:00.001-08:00

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.

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.

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.

Foreclosures Riddled with Faked Documents

2010-10-04T08:55:00.001-08:00

Today's New York Times carries a comprehensive story 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.

The Passing of Cliff Hudson, Talkeetna Bush Pilot

2010-03-11T11:58:00.004-09:00

The Anchorage Daily News story today about the life and times of Talkeetna bush pilot Cliff Hudson covers only part of what made Cliff Hudson irreplaceable.

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.

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.

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.

Public Citizen Reports on Alaska's Pepper v. Routh Crabtree

2009-11-25T06:28:00.000-09:00

Tuesday, November 24, 2009

Alaska Supreme Court Rejects Debt Collectors' First Amendment Defense

by Deepak Gupta

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 argue that their conduct constitutes protected petitioning activity and is thus completely immune from liability under the Petition Clause, and the Noerr-Pennington 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.

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 here and here.)

I'm pleased to report that, on Friday, the Alaska Supreme Court ruled 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."

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.

The Alaska Supreme Court broadly rejected the debt collector’s immunity defense, 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.”

Posted by Deepak Gupta on Tuesday, November 24, 2009 at 07:48 PM in Consumer Litigation, Debt Collection, Free Speech, Intellectual Property & Consumer Issues, Unfair & Deceptive Acts & Practices (UDAP) | Permalink

Alaska Supreme Court- Debt Collectors Must Litigate Fairly in Alaska

2009-11-21T09:45:00.002-09:00

In a case closely watched by consumer groups and the debt collection industry, the Alaska Supreme Court handed down a decision yesterday stating

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.

The court in deciding Pepper v. Routh Crabtree APC (available at sp-6437.pdf (application/pdf Object) ) 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.

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.

Acidic Arctic Seawater & Declining Yukon King Salmon Runs

2009-10-05T09:17:00.001-08:00

Arctic seas turn to acid, putting vital food chain at risk

Robin McKie, science editor
Carbon-dioxide emissions are turning the waters of the Arctic 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. For more-

Arctic seas turn to acid, putting vital food chain at risk | World news | The Observer

While today's New York Times reports that

Scarcity of King Salmon Hurt Alaskan Fishermen

By STEFAN MILKOWSKI

Published: October 2, 2009

MARSHALL, Alaska — Just a few years ago, king salmon 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. For more-
Weak Levels of King Salmon Hurt Alaskan Fishing Community - NYTimes.com

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.

Talking Sense About Invasion Biology - Are Herbicides Really Necessary to Save Alaska from Immigrant Plants?

2009-09-25T15:58:00.002-08:00

Immigrant species aren't all bad - opinion - 25 September 2009 - New Scientist

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 Invasion Biology, concludes

It is crucial that we distinguish harm from mere change so that we can spend scarce human and economic capital wisely.

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.

According to a review of Professor Davis's book Invasion Biology , first published in April,

"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."--Nature

Invasion Biology is available at: Amazon.com: Invasion Biology (Oxford Biology) (9780199218752): Mark A. Davis: Books

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.

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.

Endocrine Disruptor Pesticides Linked to Widespread Occurrence of "Intersex" Fish- So Far Yukon River Fish Not Affected

2009-09-18T12:37:00.003-08:00

Widespread Occurrence Of Intersex Bass Found In U.S. Rivers

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.

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.

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.

Alaska Railroad to Dump Track Workers & Replace Them With Herbicides

2009-09-13T15:16:00.003-08:00

Alaska Railroad plans significant layoffs: Alaska News | adn.com

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.

Right To Choose Medical Treatments Declared Fundamental Right In Alaska

2009-04-05T08:16:00.016-08:00

In a ruling issued April 3rd, click here, 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.

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.

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.

Retiring Alaska Supreme Court Justice Warren Matthews, writing for a unanimous court, states,

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.

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.

ALASKA REFUGES TO HALT USE OF HERBICIDES ON “INVASIVE” PLANTS

2009-02-28T10:36:00.000-09:00

In 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.

In his January 13, 2009 directive, Haskett stated:

“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.”

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”.

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.

“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.

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.”

New Developments in CMPB's "Got Breastmilk" Offensive

2008-12-06T18:04:00.005-09:00

Thanks to David Giacalone, Editor of the unique blawg f/k/a... for alerting us to the latest from the California Milk Processor Board in his December 1st post.

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 “got breastmilk?” 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, Knox Lemmon Anapolsky LLP, filed a trademark application with the PTO for a mark that:

“consists of the wording ‘got breastmilk?’ in all lower case letters in Phenix American font.”

According to the TARR status report for the as-yet-unassigned claim with the Serial Number 77586468, the Board intends to use the “got breastmilk?” mark with the following products:

baby blankets, children’s blankets and burp cloths
breast pads and breast-nursing pads
baby bottles, cups adapted for feeding babies and children, pacifiers, sippy cups, breast milk storage bottles, breast pumps and breast shields
baby backpacks and baby carriers worn on the body
clothing, namely, t-shirts, shirts, short-sleeved shirts, long-sleeved shirts, sweat shirts, infant bodysuits, pants, infant sleepers, hats, caps, cloth bibs, socks and infant onesies

For the full post and the latest comments, check out f/k/a...

Turning Your Lemon Into Lemonade

2008-09-15T10:43:00.002-08:00

If 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.

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? http://www.lemonjustice.com offers an overview of Alaska lemon law. The site is run by lemon law attorney Sergei Lemberg.

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.

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.

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.

California Milk Processors Board Goes After Talkeetna Breastfeeding Advocate/Artist

2008-07-18T12:52:00.012-08:00

When 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.

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 website. As of this date it appears that CMPB is not yet proclaiming ownership of those phrases.

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.

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.

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 Smith v. Wal-Mart Stores, Inc., Case No. 1:06-cv-526-TCB (U.S.Dist Ct. N.D. GA 3/20/2008)

If all this wasn't bad enough, check today's post 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".

Real Limits Placed on Bona Fide Error Defense- 9th Circuit Reaffirms Strict Liability for Debt Collectors Who Misstate Amount of Debt

2008-07-12T11:59:00.011-08:00

This 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.

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 only where they actually institute measures to ensure that debtors are asked to pay amounts they actually owe.

In this Arizona district case, Reichert v National Credit Services, No. o6-15503, Slip Op. dated 7/7/2008, Circuit Judge Mary Schroeder, writing for the panel, states

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.

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.

Climatic Changes Diminish Return of King Salmon to Yukon River

2008-07-01T12:53:00.012-08:00

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.
http://www.latimes.com/news/printedition/front/la-na-ichfish15-2008jun15,0,2020280.story

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.

This latest report from the Alaska Department of Fish & Game tells the story of the struggle to manage a diminishing resource. http://csfish.adfg.state.ak.us/newsrelease/view.php?dist=YUS&year=2008&species=400&num=18&printable=1

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.

Sad Day for Justice in Alaska- Exxon Escapes Most Punitives

2008-06-25T11:23:00.003-08:00

It is a sad day for justice here in Alaska where the majority of plaintiffs (including the authors of this blog) in the Exxon Valdez damages case reside. It was nearly 20 years ago that an alcoholic skipper drove the super tanker onto Bligh Reef setting off a chain of destruction that impacted coastal life and economies throughout much of Alaska. Today the U.S. Supreme Court slashed the punitive damages awarded against Exxon to approximately 1/10 of the amount that an Alaska jury had established as punishment for the oil company's reckless behaviour.

WSJ Blog- http://blogs.wsj.com/law/2008/06/25/breaking-news-high-court-rules-in-punis-child-rape-cases/

Anchorage Daily News article- http://www.adn.com/exxonvaldez/story/446057.html

Thus the collective wisdom that resides in a jury has been tossed aside and Exxon is free of any serious threat to its bottom line no matter how recklessly they operate their tankers.

Turning Our Courts into a "Frenetic Debt Collection Machine"

2008-06-10T12:08:00.004-08:00

We picked up this story today from Public Citizen's Consumer Law & Policy Blog-

Chicago Court System a "Frenetic Debt Collections Machine"

The Chicago Tribune has this interesting article on the state of debt collections in Chicago, noting that Cook County courts are clogged with more than 119,000 civil lawsuits against alleged debtors. Many of these cases involve mistaken identities or debts that have already been paid.

Even a cursory check of the district court filings at the Alaska State Court's Courtview site will show that Alaska too is cursed with overly-aggressive debt collectors mass filing suits, often on very questionable evidence of debt.

One additional factor driving the debt collection industry in Alaska is that the debt collector who gains a default judgment then can move to attach 80% of the defendant's permanent fund dividend. By Alaska statute, no other personal exemptions can protect that 80% of the dividend, no matter how important the money is to put food on the table or pay the property taxes on the family home.

Anyone facing such a suit, no matter how questionable its foundation, should answer and force the debt collector to prove there actually is a debt owed and that the debt collector has a legitimate right to claim the debt. If you ignore a summons, your problems will get worse.

Empowering Alaskans, One Claim At a Time

2008-05-31T16:26:00.003-08:00

Even here on the last frontier, we live in a world where the whims of distant corporations can seem to be in control of our very existence.

We are bound up in a dozen relationships a day with these faceless entities. When things go well, we get what we bargained for. The book or DVD we bought online arrives in the mail; the car we purchased starts even at 20 degrees below zero; and the deal we made to clear up an old debt is honored by both sides.

At other times, the usual transactions of everyday life seem to go haywire. There is a mix-up with an order, a glitch in a payment, or an unforeseen defect in something we purchase. Usually, even then, we manage to connect with someone who helps resolve the problem.

But sometimes, things go very wrong. Like when the young father/businessman gets his truck repossessed because the loan company sticks him for a late fee he doesn't owe. Or when the family vacation to Europe becomes a lot more expensive because the travel agency quoted the wrong price of a rental car in Rome. Or when the collection agency calls six times a day or adds unfair fees and charges to the bill. And on top of it all, even more than the lost money and time, the ultimate frustration for most people is the brush-off; the attitude on the part of some company clone that "we will do whatever we want and there is nothing you can do or say that will change things."

It is then that an email or a call to our backwoods law office can help. Because this is what the LAW is all about. It is to provide a neutral forum where the individual who believes they have suffered a wrong has the absolute right to call the accused transgressor to answer. And for us, it is immensely satisfying to help right even small wrongs, for ultimately any healthy society must give people a sense that justice can be found, at least some of the time, by those who are willing to seek her.

The Internet & Life on Chunilna Creek Homestead

2008-05-26T11:15:00.006-08:00

Judy and I first staked "open-to-entry" land in the backwoods North of Talkeetna in 1973. In those days, once we left the flagstop on the Alaska Railroad and treked to the cabin, we were truly cut-off from most communication with the outside.

Messages to bush-dwellers read over an AM radio station or a shaky CB radio network was it for personal communication. Even in the mid-1980s, when some dedicated Anchorage lawyers (including now Palmer Superior Court Judge Eric Smith) represented Chase residents challenging poorly-planned state land "disposals" before the Alaska Supreme Court, the bush and CB message service was our sole means of contact with the lawyers. These radio connections gave us the first news that the supreme court had ruled in our favor against the state in 1986.

Today the internet and cellular links have truly revolutionized life in the backwoods.

Here in the homestead law office we are now able to access search engines and legal research sites at a click of the mouse, file complaints and motions in the U.S. District Court through the ECF system, and email documents to a helpful paralegal in Anchorage for mail or in-person filings in the state courts. When the Alaska appellate courts issue their weekly decisions, they appear in our email inbox instantly.

While our wireless link has its limitations, i.e. it is not fast enough for video, it has opened up the ability to effectively practice law, even in the backwoods of Alaska.

This blog will, from time to time, tell a bit of our story about practicing consumer rights & environmental law in the backwoods. I also will be posting tips, court decisions, and commentaries that might be helpful to consumer/citizens facing the predatory debt-buyer industry.