Right To Choose Medical Treatments Declared Fundamental Right In Alaska

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

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

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

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

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

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

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.