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)

Washington and Oregon Move to Protect the Health of Residents

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-...
2

DNR's Susitna Area Plan Challenged in Lawsuit

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

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

(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.