9th Circuit Panel Halts PortMac Rail Extension

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.
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.
“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.”
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.
“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.
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.
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.
“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.”
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.
“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.
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.
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Alaska Agency to Block Public Review of Public Pesticide Projects

Go to Commentary 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.

Borough Animal Restraint Code & Feral Cats

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 being¹ as well as more utilitarian services such as rodent control and early warning of potential dangers² 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.

Recently a strict interpretation of the Borough's animal restraint ordinance³, i.e. that every cat must be confined at all times to “completely enclosed buildings,”⁴ 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.

WHAT DOES “RESTRAINT OF ANIMALS” CODE SECTION REALLY REQUIRE?

Since 2004 the borough has had a restraint of “all” animals ordinance on the books. See MSB Code 24.05.070 .. All animals shall be continuously under restraint. ...

While at first glance the animal restraint code section appears to require restraint of all animals at all times, imprecision⁵ creeps in as the code moves to define what “restraint” means and where and when enforcement is allowed.⁶

Nowhere does the code state that “restraint” of a non-dangerous animal requires complete and total confinement of all animals to locked-down buildings. Rather the reader is informed that “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.⁷

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.

The Alaska Supreme Court has explained

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. Alaska Public Offices Com'n v. Stevens, 205 P.3d 321, 325 (Alaska 2009)

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.

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 animal. MSB Code 24.15.010.(B)

Pursuit of animals running-at-large. An animal care and regulation officer shall not pursue an animal running-at-large onto property posted in accordance with A.S. 11.46.350(c) or onto property where the property owner expressly refuses access 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) if pursuit of an animal is necessary to protect the public or the health or safety of the animal. (underlining added)

Therefore restraint 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.

While the restraint of animals code section at first appears to be quite broad, when read in pari materia 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.

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.

In West v. Municipality of Anchorage, 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 “standardless exception …. necessarily invites arbitrary enforcement.”

The Alaska court again took up a similar question in Haggblom v. City of Dillingham, 191 P.3d 991, 1003, 1005 (Alaska 2008). Justice Eastaugh concurred in the ruling upholding the ordinance but pointed out that the city's animal code lacked reasonable standards, i.e.,

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)

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 litigation⁸ unless the law is administered with a sensitivity to the long and deeply-emotional human/animal relationship.

PRIVACY RIGHTS OF ALASKANS PROHIBIT “RESTRAINT” ENFORCEMENT ON PRIVATE PROPERTY

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, § 14, 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 curtilage⁹ of a private residence, i.e. within the area that encompasses the home and the surrounding outbuildings, gardens, decks, and play areas that constitute the private domain of the family. In Raven v. State, 537 P. 2d 494 (Alaska 1975), 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.¹⁰ 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, the Alaska Constitution prohibits warrantless administrative inspections of even business premises. Woods & Rohde, Inc. v. State, Dept. of Labor, 565 P. 2d 138, 153 (Alaska 1977); see also Ravin (right of privacy in the home to be of sufficient importance to override legislation prohibiting personal use and possession of marijuana)

CONCLUSION

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 standards¹¹ 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.

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.

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.

1There 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 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

2“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 The benefits of companion animals for human mental and physical health Maggie O’Haire, Centre for Companion Animal Health, School of Veterinary Science, University of Queensland, BRISBANE QLD 4072, m.ohaire@uq.edu.au; Additionally rural Alaskans who reside in a predator-rich environment know this valuable function from empirical evidence.

3MSB Code 24.05.070 RESTRAINT OF ANIMALS.

(A) All animals shall be continuously under restraint. …

4 “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.” March 22, 2012, MSB Animal Control Officer

5 ...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. Levshakoff v. State, 565 P. 2d 504, 507 (Alaska 1977)

6 See MSB Code §24.05.010 DEFINITIONS. & §24.15.010 IMPOUNDMENT PROCEDURE.

7 While the code definition goes on to provide examples, the examples do not claim to be exclusive.

8 Richardson v. Fairbanks North Star Borough, 705 P. 2d 454, 456 (Alaska 1985)

(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.)

9 At common law, the curtilage is the area to which extends the intimate activity associated with the "sanctity of a man's home and the privacies of life," Boyd v. United States, 116 U. S. 616, 630 (1886), and therefore has been considered part of the home itself for Fourth Amendment purposes. Oliver v. United States, 466 US 170, 180 (1984)

10 ...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. Raven v. State, 537 P. 2d 494, 504 (Alaska 1975)

11 One evil of a vague statute is that it creates the potential for arbitrary, uneven and selective enforcement. This pattern of selective enforcement 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," Smith v. Goguen, 415 U.S. 566, 575, 94 S.Ct. 1242, 1248, 39 L.Ed.2d 605, 613 (1974), and thereby "encourages arbitrary and erratic arrests and convictions." Papachristou v. City of Jacksonville,405 U.S. 156, 162, 92 S.Ct. 839, 843, 31 L.Ed.2d 110, 115 (1972). Gottschalk v. State, 575 P. 2d 289, 294, 295 (Alaska 1978)