ALASKANS 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.
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?

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

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

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

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

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

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.