Public Records Act Says "Shall Give On Request" NOT "Shall Give When They Get Around To It"

I get press releases every day and I don't usually do anything with them, but this one appears to demonstrate a case of the Alaska Department of Health and Social Services refusing to obey the law on public records. 

According to part of the press release from the Alaska Democratic Party:

"The report, prepared with nearly $80,000 in State funds by the Lewin Group for the Department of Health and Social Services, has been complete since April 12, 2013.  Several individuals and organizations have requested release of the report, including at least one news organization, but the Department has refused to release it.  This refusal violates the Alaska Public Records Act, according to attorneys with the non-partisan Legislative Legal Services Division." 

The Alaska Public Records Act is pretty clear.  Here are the guts:

AS 40.25.110. Public Records Open to Inspection and Copying; Fees.

(a) Unless specifically provided otherwise, the public records of all public agencies are open to inspection by the public under reasonable rules during regular office hours. The public officer having the custody of public records shall give on request and payment of the fee established under this section or AS 40.25.115 a certified copy of the public record.

Note:  It says:  "shall give on request."   It doesn't say, "shall give when they get around to it"

So, what are the exceptions?  Read through them.  I think you'll agree that none of these apply here.  Then read the bolded section at the end.  It repeats the message above, but instead of staying 'request' it says 'demand.'

AS 40.25.120. Public Records; Exceptions; Certified Copies.

(a) Every person has a right to inspect a public record in the state, including public records in recorders' offices, except

(1) records of vital statistics and adoption proceedings, which shall be treated in the manner required by AS 18.50;

(2) records pertaining to juveniles unless disclosure is authorized by law;

(3) medical and related public health records;

(4) records required to be kept confidential by a federal law or regulation or by state law;

(5) to the extent the records are required to be kept confidential under 20 U.S.C. 1232g and the regulations adopted under 20 U.S.C. 1232g in order to secure or retain federal assistance;

(6) records or information compiled for law enforcement purposes, but only to the extent that the production of the law enforcement records or information

(A) could reasonably be expected to interfere with enforcement proceedings;

(B) would deprive a person of a right to a fair trial or an impartial adjudication;

(C) could reasonably be expected to constitute an unwarranted invasion of the personal privacy of a suspect, defendant, victim, or witness;

(D) could reasonably be expected to disclose the identity of a confidential source;

(E) would disclose confidential techniques and procedures for law enforcement investigations or prosecutions;

(F) would disclose guidelines for law enforcement investigations or prosecutions if the disclosure could reasonably be expected to risk circumvention of the law; or

(G) could reasonably be expected to endanger the life or physical safety of an individual;

(7) names, addresses, and other information identifying a person as a participant in the Alaska Higher Education Savings Trust under AS 14.40.802 or the advance college tuition savings program under AS 14.40.803 - 14.40.817;

(8) public records containing information that would disclose or might lead to the disclosure of a component in the process used to execute or adopt an electronic signature if the disclosure would or might cause the electronic signature to cease being under the sole control of the person using it;

(9) [See delayed repeal note]. reports submitted under AS 05.25.030 concerning certain collisions, accidents, or other casualties involving boats;

(10) records or information pertaining to a plan, program, or procedures for establishing, maintaining, or restoring security in the state, or to a detailed description or evaluation of systems, facilities, or infrastructure in the state, but only to the extent that the production of the records or information

(A) could reasonably be expected to interfere with the implementation or enforcement of the security plan, program, or procedures;

(B) would disclose confidential guidelines for investigations or enforcement and the disclosure could reasonably be expected to risk circumvention of the law; or

(C) could reasonably be expected to endanger the life or physical safety of an individual or to present a real and substantial risk to the public health and welfare;

(11) the written notification regarding a proposed regulation provided under AS 24.20.105 to the Department of Law and the affected state agency and communications between the Legislative Affairs Agency, the Department of Law, and the affected state agency under AS 24.20.105.

(12) records that are

(A) proprietary, privileged, or a trade secret in accordance with AS 43.90.150 or 43.90.220(e);

(B) applications that are received under AS 43.90 until notice is published under AS 43.90.160 .

(b) Every public officer having the custody of records not included in the exceptions shall permit the inspection, and give on demand and on payment of the fees under AS 40.25.110 - 40.25.115 a certified copy of the record, and the copy shall in all cases be evidence of the original.

(c) Recorders shall permit memoranda, transcripts, and copies of the public records in their offices to be made by photography or otherwise for the purpose of examining titles to real estate described in the public records, making abstracts of title or guaranteeing or insuring the titles of the real estate, or building and maintaining title and abstract plants; and shall furnish proper and reasonable facilities to persons having lawful occasion for access to the public records for those purposes, subject to reasonable rules and regulations, in conformity to the direction of the court, as are necessary for the protection of the records and to prevent interference with the regular discharge of the duties of the recorders and their employees.

Why withhold documents?

Aside from the legally valid reasons, officials withhold information that makes them look bad.  Some examples:

• It refutes what they have told people.
• It doesn't support the position they espouse.
• It confirms what their critics have charged.
• It reveals incompetence or otherwise is embarrassing

Public records acts, in general, often have provisions that allow an agency to withhold documents while a policy is being formulated.  Section 11 above seems to be for that purpose and the link goes to the kind of information that would be exempted.  It's more about communication between the Department of Law or the Legislative Affairs Agency.

However, this is an independent report that is complete and will not change.  It's been paid for with State money.  The people have a right to see what it says.  If the Governor were really open to the best options for the people of Alaska he would share the report so it could be studied and its strengths understood and its weaknesses found. That's why the Public Records Act was written.  

I can't think of legitimate reasons for withholding such a document this long.  Yes, the agency is still working on its policy but that policy won't change this report.  

My guess is that the report doesn't support what the Governor wants to do.   [This accidentally got left out of the original post:  In 2009 The Washington Post quoted Lewin Group Vice President John Sheils

"Let's just say, sometimes studies come out that don't show exactly what the client wants to see. And in those instances, they have [the] option to bury the study -- to not release it, rather," Sheils said.

Except when they are a government that has public disclosure laws.] 

Who is the Lewin Group?

The Lewin Group, the company that did the report, is based in Falls Church, Virginia.

They tout their integrity and independence,  and they acknowledge they are owned by UnitedHealth Group:

"The value we place on accuracy, independence and objectivity is reflected in the trust our clients place in The Lewin Group. As such, The Lewin Group must safeguard its integrity, and address any appearance of conflicts that may stem from the organization’s relationship to other health care businesses owned by our parent company, OptumInsight, and its parent entity, UnitedHealth Group."

Sourcewatch writes:

Despite its corporate ownership, opponents of health care reform often cite the Lewin group as an impartial, non-partisan or independent source of information. House Rep. Eric Cantor (Virginia), has referred to it as "the nonpartisan Lewin Group." Republicans on the House Ways and Means Committee have called it an "independent research firm." Senator Orrin Hatch of Utah, the second-ranking Republican on the Senate Finance Committee, referred to the Lewin Group was "well known as one of the most nonpartisan groups in the country." They do not mention, however, that the Lewin Group is owned by UnitedHealth Group.
The Lewin Group has a reputation as the "go to" firm for beleaguered organizations in need of reports and research to support controversial positions and issues. In one example, in 2005 the American Hospital Association hired the Lewin Group to study the causes of skyrocketing health care costs. The study results blamed increased hospital spending on the rising costs of goods, a workforce shortage and greater demand for hospital services, but did not mention health insurance company profits, stock values, shareholder returns, etc. (Aug. 29, 2005, p. 8).^[3]

So, the Parnell administration went to a firm that is endorsed by Eric Cantor, a powerful House opponent of Obamacare.  He should expect a report that's favorable to his position and have no problem releasing it.  But they've held it since April.

We can guess that the report would have been released already if it concluded that the Affordable Care Act would be a disaster for Alaska - as the Governor has claimed:  

"The state of Alaska will not pursue unlawful activity to implement a federal health care regime that has been declared unconstitutional by a federal court,” Parnell told the Juneau Chamber of Commerce, to applause, Thursday."

But what if a company endorsed by Cantor said the Affordable Care Act would be ok for Alaska?  The Parnell administration wouldn't be able to blame the company's "liberal bias.' The Lewin Group's website has a summary of a study they did on expanding Medicaid in the State of New Hampshire:

The report they did for the State of New Hampshire concluded that while there would be a modest reduction in state spending over six years if the state did not expand Medicaid, if it did it would be a huge improvement in health care access for people in New Hampshire and it would bring billions in federal revenues to the state. 

"This report provides estimates on Medicaid enrollment and costs under the option of not expanding Medicaid compared to the option of expanding the program under various program design options. We find that if the state does not expand Medicaid, it could reduce state Medicaid spending by $66 to $114 million over the 2014-2020 period. However, expanding Medicaid would (1) reduce the number of uninsured in the state by an additional 22,300 people, (2) provide subsidized coverage for low income adults in the state, who would not have access without the expansion, and (3) increase federal revenues in the state by $1.8 to $2.7 billion over the 2014-2020 period."      

 If that's not clear, it says

• if you don't expand, you'd save around $100 million BUT
• lose 20 times that much in Federal revenues and
•  cut out 22,000 uninsured people. 

Senator Bill Wielechowki's most recent request to see this report was linked in the press release.  It's dated September 25, 2013, but it also refers to previous requests for the report - one in March and one in August.  It also goes into much more legal detail than I have.  You can read it here.

Here's the Department of Health and Social Services response to his August request.

From:  Hooley, Jason M (GOV) [jason.hooley@alaska.gov]

Sent:  Tuesday, August 20, 2013 3:34 PM

To:  Michelle Sydeman  [Wielekowski's staff]

Subject:  Re: Request for contract re: actuarial analysis of Medicaid expansion

Hi Michelle,

Thank you for your request for a copy of the contract with the firm completing the actuarial analysis of Medicaid expansion costs and effects.  A copy of the contract is attached.

Like many other states, Alaska looks to move cautiously and deliberately towards a decision on this issue. The Department of Health and Social Services (DHSS) has reviewed actuarial analyses of cost estimates and effects that sketch out what Medicaid could look like in expansion scenarios.

  

The report is not meant to advocate for or against a particular position, rather it will be used as one point of data as we develop our recommendation. DHSS’s actuarial study completed by the Lewin Group on April 12, 2013 entitled “An Analysis of the Impact of Medicaid Expansion in Alaska,”  is not yet available for distribution.

It will be made available once DHSS has completed its analysis and submitted its recommendations to the Governor.

Jason Hooley

|

Legislative Liaison

Office of the Commissioner

| Department of Health and Socia

l Services

3601 C Street (#902) | Anchorage, AK 99503

(o) 907.269.7806 |

(c) 907.341.7806

What about the language that says "Shall give on request?"  It's been available since April 12.  The key reasons I can imagine that it has not been released is to prevent Sen. Wielechowski from having enough time to review the data.  Or because the report is not favorable to the governor's position.  

If you go to Wielechowski's request, you'll see it spells out the specific legal reasons why the document should be released and shows why it doesn't qualify for any of the exceptions. 

It would appear that the State is illegally withholding information that the people of Alaska bought and paid for. 

Cormorants Joined By Gull - Harlequin Duck and Spotted Towhee Too

We got a chance to walk along South Beach on Bainbridge Island.  Mostly we saw cormorants, and from what I can tell from the Slater Museum's blog, some if not all are Double Crested Cormorants.  The markings on the bird at right match what they say is a Double Crested Cormorant.  I just don't have good enough shots of all the others to know if there are any of the two other cormorants the Slater blog says are in Puget Sound - Brandt's and Pelagic Cormorants.









 



















 




Here a gull joins the line-up of cormorants.  





































A harlequin duck swam by in the background.
















And on land we saw this spotted towhee.

Court Sets Nov 7-14, 2013 Aside In Case Evidentiary Hearing Is Necessary

 Judge McConahy set aside a week in early November for an evidentiary hearing in the Alaska Redistricting Case, but says it's just in case there needs to be one. 

"Various motions are pending before the court.  It is not clear whether an evidentiary hearing will be needed on any issue.  The court will make that decision after the pending motions are ripe.  At the time the court will issue an omnibus order addressing all pending issues and note what, if any, issues require an evidentiary hearing.

For planning purposes the court has reserved full trial days [8:30 am to 4:30 pm] from 7 November 2013 through 15 November 2013.  The court expresses no opinion at this time whether such an evidentiary hearing will be necessary or that any such hearing would require all the allotted time.  The omnibus summary judgment order will address those details, including any time limitations on specific issues.  The intent of this order is simply to allow the parties to plan their schedules accordingly."

To show how far behind I am, this Order was dated September 19.  I was busy all day, so this short post will have to do.  Mark your calendars.  The hearing, if there is one, will be in Fairbanks, though the last time they had court hearings in Fairbanks, they were accessible by phone. 

Equity versus Socio-Economic Integration - ADP Memo Supporting Motion on Socio-Economic Integration of HD 6, 37, 39, and 40

This is the first of three late motions from the Alaska Democratic Party supporting the Riley Plaintiffs' most recent redistricting challenges.   My hope is to make these motions more accessible to the average Alaskan so when the decisions come down, they will understand the ruling.  You can see the motion on HD 6, 37, 39, and 40 here.

Summary of the challenge

It's basically arguing that Tanana Chiefs Conference/Doyon villages in central Alaska were unnecessarily spread out into these four different districts (plus, I assume there are also TCC/Doyon members in the other Fairbanks districts).  The memo uses different maps to show that the Department of Labor, ANCSA, Schools, Housing, and Health systems all group these villages together, but that the Redistricting Board chose, unnecessarily, to split them to lower the overall deviations to a point lower than they need to be. 

Also see V. Conclusion below for their own summary of the arguments.

The basic issue I saw was the tension between equity among districts (by having very low deviations* from the perfect sized district of 17,775) and preserving socio-economic integrity (one of the Alaska constitutional requirements.)


Going through the motion, step-by-step

I.  Introduction
II  Facts (pp. 2-3)

Points out that the Board encouraged and accepted plans after the June 21, 2013 deadline.

"Fairbanks is the hub of the TCC/Doyon region.  It is surrounded by 47 smaller predominantly Alaska Native villages with populations from 20 to almost 1,000."
The (TCC/Doyon*) "Misplaced Villages" (ADP's term) =
HD 40:  Alatna, Allakaket, Evansville, Hughes, and Kaktovik
HD 39:  Galena, Huslia, Kaltag, Koyukuk, Nulato, and Ruby
HD 37:  Anvik, Grayling, Holy Cross, McGrath, Nikolai, Shageluk, and Takotna

[Different sources give different numbers of of TCC/Doyon villages.  I'm not sure how many are in HD 6 and how many members are in other Fairbanks districts.  Given a total of 47 villages, the misplaced villages represent 38% of the villages, but I don't know what percent of the population.]


III.  Districts 6, 37, 39, 40  Are Not Socio-Economically Integrated (pp. 3-9)

“In rural Alaska, the lines that most reflect socio-economic and political integration are the boundaries of the ANCSA*(see glossary below) regional corporations.”

A.  TCC/Doyon* Socio-Economic Integration
TCC= Tanana Chiefs Conference - Interior Alaska, the not-for-profit corporation
Doyon is the ANCSA for-profit regional corporation for TCC
    1.  Economic Development
ADP Exhibit 5 - Economic Regions of State on 2013 Proclamation Plan - Econ Regions come from the Alaska Dept. of Labor and Workforce Development.  Interior region is one of the few that closely follows the boundaries of a regional corporation.  The Board’s plan does not reflect the economic patterns of the region.
    2.  Education
1975 - Molly Hooch case and setting up of regional education attendance areas (REAA).  Legislation required state to establish boundaries of the REAA’s by using the boundaries and sub-boundaries of ANCSA regional corporations. 
Exhibit 6 - Map of AK school districts.  REAA boundaries in the interior vary only slightly from ANCSA boundaries.  All the Misplaced Villages are located in either Y-K or Ididarod Area REAA, both in TCC/Doyon region.
Thus, under Alaska law, the MVs are all socio-economically and culturally integrated with other TCC/Doyon villages in HD 6 and not with Arctic Slope, NANA, Bering Straits, and Calista villages in Districts 37, 39, 40.
High school athletics, esp. basketball.  The basketball conferences also show

Map of Basketball Conferences and Districts - click to enlarge

the socio-economic integration of the MV with other TCC/Doyon villages and not the villages in the house districts imposed by the Board.  The map is one of several exhibits showing the mismatch between TCC/Doyon villages and the Plan.
    3.  Health Care - TCC contracts with IHS to provide healthcare throughout the TCC/Doyon region.   All are linked to the Chief Andrew Isaac Health Center (CAIHC)
     4,  Housing - TCC is authorized to operate a housing authority in the interior region.  Pursuant to this authority, TCC established the Interior Regional Housing Authority (IRHA) which provides housing service to the TCC/Doyon region including all the misplaced villages.
    5.  HD 40:  Combines Athabaskan villages with substantially Inupiaq Eskimos.  Judge Larry Weeks “probably the single worst combination that could be selected if a board were trying to maximize socio-economic integration in Alaska.” 

IV.  The Board Had Alternatives Available (pp. 9 - 11)

Calista plan’s overemphasis on equal protection and low deviations wreaks havoc on SE integration.  Other plans including the Board’s Plan A offered much better SE Integration for TCC/Doyon

V.  Equal Protection Does Not Require Dismembering the TCC/Doyon Region (pp. 11-14)

Argues that the Board unnecessarily emphasized low deviations over other values and cites the Alaska Supreme Court's earlier interpretation in this case of the 2001 Redistricting cases:

"While the court finds the Board's intent to achieve low deviations to be commendable, it concludes that it must also live in harmony with the other constitutional requirements.  The Alaska Supreme Court's instruction did not imply that justification for deviating from the lowest possible deviation would not be accepted.  It simply stated that the Board must try to achieve low deviations."

Cites Justice Erwin in Groh v Egan - that while it would be easy to divide the state simply by numbers,

"it would be inconsistent with traditional notions of representative government for it would lead to absurd combinations of historical, social, economic and geographical boundaries with the state.”

VI.  Conclusion (p. 14)

“The Alaska Natives of the TCC/Doyon region are socio-economically integrated.  They live in a defined economic region.  They have a common cultural heritage.  They have common educational systems.  They have a common health and social services provider.  The Board has parceled out the Misplaced Villages into districts with which they have no socio-economic ties to achieve low population variances.  The 2013 Proclamation Plan violates the socio-economic integration requirements of art. 6, section 6 of the Alaska Constitution with respect to Districts 6, 37, 39 and 40.  The Court should grant ADP’s motion for summary judgment.”

Glossary
Deviation - Number and percentage difference between a district's population and the ideal population (17,775) of a district.  Keeping all the districts as close as possible to 17,775 helps preserve the one-person-one-vote principle.
ANCSA - 1991 Alaska Native Claims Settlement Act
TCC - Tanana Chiefs Conference
Doyon - Doyon Native Corporation


Doyon website says they have over 18,000 shareholders.  Since 17,775 is the ideal number for a house district, if the population lived compactly enough, Doyon would have its own district with several hundred people left over.   It would seem the proportionality arguments could be applied here as well. 

I'd note that the Redistricting Board's website is adding motions that have been filed, so I'm way behind here.  

Cowboys, Indians, and Everyone Else - Adding Nuance To Homage to Hollywood Cowboys

NY Times writer Edward Rothstein had a thoughtful piece yesterday on the Autry Center of the American West.  Gene Autry was all over the radio and then television and movies when I was a kid.  A singing cowboy, whose "Happy Trails" is still a fixture in my head.  [Just goes to show how our memories aren't such good guides.  When I looked up "Gene Autry Happy Trails" it gave me Roy Rogers and Dale Evans.  Gene Autry's song was "Back in the Saddle Again." But I can understand the cross wiring.  Roy Rogers was the other big singing cowboy.]   I'm including the video for those who have never heard of Gene Autry or the song.   It's part of the historical context for the rest of this.




Autry made a lot of money and put up a monument to the cowboy to keep his memorabilia in Griffith Park in Los Angeles, not far from the LA zoo.  We've passed it on any number of occasions while in LA over the years, but never had any interest except maybe as a lark to look at the cowboy kitsch.

But the article says this place is becoming more serious:

You don’t hear shootouts at the Autry National Center of the American West any more, and the gunslingers at the O.K. Corral have been put out to pasture. Hollywood’s singing cowboy Gene Autry, whose fortune helped establish this institution in 1988, a decade before his death, is still cast in bronze out front, but his guitar and memorabilia have been retired to a modest display case. Even the museum’s central mural, “Spirits of the West,” which exultantly portrays that realm’s history, from Spanish missionaries to Clint Eastwood, has curtains that can be drawn to shield visitors from its out-of-sync sensibilities. 

Instead of simply promoting the Hollywood driven myths of the cowboy West, the museum is now trying to balance that with other perspectives on the West. 

The Autry no longer celebrates the Wild West the way the Disney “Imagineers” who designed it once expected it would — or even as it did when I visited seven years ago, as its evolution was well under way. It is long past High Noon. Last year, the Autry brought in a new chief executive, W. Richard West Jr., who is not only an American Indian (Cheyenne and Arapaho) but was also founding director of the Smithsonian’s National Museum of the American Indian. [Here's my own post on that Smithsonian Museum.] Two new permanent exhibitions (including a multicultural display of Western art) and two temporary exhibitions (one on Jews in Los Angeles, the other on Hopi spirit dolls) make no effort to bring the Old West back to life. They struggle, instead, to define something else.

Rothstein goes on to discuss the difficulties of changing the sensibilities of an institution like this.  He finds the different perspectives being added, but mostly they are separate and don't show the integration of them all.  This is a thoughtful essay that anyone interested in how history is portrayed and rethought, and the role museums play in that process, will want to read.

Here's the link again:  A Museum Works to Reinvent Itself, as Well as the American West

Maybe when we're in LA next week to check in on my mom, we can find time to check it out ourselves.

[UPDATE Aug. 16, 2014:  We did check it out last year and here's the post How Many Years Did The Pony Express Run and Other Tidbits From The Autry Center for the American West Part 1.  (There isn't a Part 2.)]

"The troubles of today are sufficient unto themselves and the troubles of tomorrow will take care of themselves." Court Accepts Late Filings By Alaska Democratic Party In Redistricting Case

The court wrote a short decision to accept the late motions.

The Alaska Democratic Party filed three late motions in support of the Riley plaintiffs' challenge to Alaska Redistricting Board's plan.  The judge's decision to accept the late filings was short and philosophical.

"The Alaska Democratic Party [ADP] filed its motins several days late.  Counsel for ADP contends he miscalculated the due date and then was unable to file the motion due to electronic difficulties.  Basically ADP requests relief due to excusable neglect, i.e., the ordinary frailties of mankind.  The Riley plaintiffs support accepting the late filed motions.  The Board does not given the unique nature of the case and the expedited briefing schedule.

The troubles of today are sufficient unto themselves and the troubles of tomorrow will take care of themselves.  The court accepts the ADP motions as filed as of 16 September 2013 and any opposition to those motions are due ten days from that date and replies are due accordingly in five days.  The troubles of tomorrow will not be appreciably increased by this modest exception."

What exactly does this mean?  That the court is leaning toward the challenge?  I decided I needed to know whether accepting late challenges is common, normal, rare or what?

While waiting for an attorney friend to return my phone call, I tried to find out on line.  Either this isn't addressed, is on very low ranking websites, or I just used the wrong search words.  I found various court statistics, but nothing that addressed my question.

But I did  find a video tape of the Supreme Court of Ghana accepting a late petition on an election appeal in July this year.  I couldn't quite understand all the words, but the Justice established some criteria for waiving the deadline:

• Counsel should be guided by the reasonable foreseeability  test.
• Must not lightly be thought that court orders are any but solemn matters which ought to be treated as such. 
• Close [couldn't catch] of the delay filed at 9am this morning
• Sins of the counsel should not be on the head of the client
• Convenience of the Court
• Sheer magnitude and gravity of this case

This seems like a better list than 'frailties of mankind.'

The video is really short and it's a reminder that despite our stereotypes, other countries, even African countries, use the rule of law.





But what's common in Alaska courts. My attorney friend called back and said:

• it is very common for late filings to be submitted
• it is equally common for them to be accepted

The only time when a motion to waive a deadline is not accepted, if you can show it is significantly prejudicial to the other side.  This means, as I understood his explanation, that the other side would not be able to respond because of the delay.  He gave an extreme example of a client who went into a coma during the delay and so they wouldn't be able to respond to the filing.

He couldn't think of a reason for other the attorney to strongly object.
However, if a party has made a practice of filing everything late and is delaying the case, then it it taken more seriously by the court.  The closer you get to a trial date or resolution date, the more problematic.  But even then, the real assumption is that pleadings will be accepted. 

Supreme Court will review and no judge wants to be seen as rule obsessed or pedantic. 

The Supreme Court, he said, is far more serious and the assumption there is the opposite.  Won’t be accepted unless you have a good reason.  But they require it be accepted in lower courts.   

The point he made at the end was:

If the judge had enforced the deadline, you could say the judge was prejudiced.

So waiving the deadline means nothing.  It's routine.

What are the motions that were filed?  I've looked at them, but am not ready to post about them.  Briefly they cover:

1.  Challenge to the splitting of the Matsu and Kenai Boroughs
2.  Challenge to the splitting up of TCC/Doyon villages in the Interior into four different districts.
3.  Challenge to the lack of compactness of Fairbanks districts 3 and 5.





You can see the three motions at the Redistricting Board's website here. Documents 385, 386, 387.

Hell's Gate Tram - Hiking Down - Open Coal Trains

"Originally perceived as a major obstacle to travel between the Coast and the Interior, the Canyon over time became the principal route for commercial and passenger traffic.  Originally dangerous in the extreme, travel through the Canyon was always a formidable prospect, although today's vastly-improved modern highway does not hint at the once terrifying and difficult journey that clung to the mountain's walls as if by sheer nerve.  Simon Fraser's journals speak of having to traverse sections of the canyon by a series of precipitous ladders and rock-climbs, and although several generations of road-builders had a crack at it (from 1859 onwards), the route remained a dizzying cliff-hanger until major highway improvements began in the later 1950s."

Before we got out of the canyon, we  stopped at Hell's Gate tram parking lot for lunch.  We made some sandwiches and checked out the tram office.  $21 to ride the tram - 1000 feet down into the gorge and their tourist shops and restaurant.  Not for us.

(I thought I'd written on this before and I do have a post that focuses on how the original work in the canyon resulted in disaster for the salmon and the people who lived off the salmon.)  

Another couple talked to the guy at the tram and when they passed us said there was a trail to the bottom that only took half an hour.

We walked along a path, under the red bridge to the other parking lot and then came to another parking lot.  The trail was wide enough for a vehicle, but gated off.  And it was a beautiful forest.  The sign said 1 km - a little more than half a mile. 

 This mourning cloak butterfly was flying and resting near me so, I thought I should get a picture. 




It was was definitely down hill, but not bad.  At the bottom there were no trespassing signs and danger signs, but I figured if they guy had said you could walk down, I'd do it.

From the bottom, here's one of the trams.  It took about 15 minutes to get down and 20 to get back up.  But you do have to cross the railroad tracks and given the long trains we saw, you could get stuck.  I decided I didn't need the touristy stuff - the tram website says:

Facilities include:  Simon’s Cafe, Gold Panner Gift Shop, Education Centre, Fudge Factory, Gold Panning, Simon’s Wall, Observation Decks & Suspension Bridge.

 I was more interested in the walk and the gorge.  The water must have been low because it wasn't the rushing torrent I was expecting.

Shortly after I got back over the tracks and started my return trip to the highway, this coal train came by.  I was amazed to see the coal transported in open cars.  Was there something I was missing?  I didn't see any coal dust going into the air, but it was a warm, windless day.

So I checked. 


 Coal Train Facts, a website opposed to shipping coal from Montana to Cherry Point in northwest Washington for shipment to China outlines coal dust concerns:

Because most coal trains are uncovered, they produce significant amounts of coal dust in the course of transporting the coal from one place to another. According to BNSF research, 500 pounds to a ton of of coal can escape a single loaded car. Coal dust is regarded as a nuisance, as the dust can damage the ballast and, the railway claims, cause derailments.  BNSF asks that shippers pay for dust mitigation; shippers typically balk at paying. The Puget Sound coast line is notoriously rainy and windy; it is unclear as to how effective surfactants might be at containing the pulverized coal in adverse weather. There seem to be no guarantees that dust would successfully be controlled en route from the mines to the port. 

Dust is also generated at the terminal site, as bulldozers continually shift and rotate the ground-up coal. Constant turnover is required to both keep the coal in one area, and also to prevent spontaneous combustion.  Wind and moisture can agitate the combustive properties of coal. The potential adverse effects of coal dust on adjacent sites was a factor in the Port of Vancouver rejecting a proposal to export coal from a new export site there. The dust is notoriously difficult to control, and has proven to be a concern for residents close to Westshore, the coal port in BC. The coal at the proposed GPT terminal will be stored in open heaps on 80-105 acres located in proximity to the Cherry Point Aquatic Reserve. Cherry Point can be buffeted by high winds, winter conditions often see wind gusts in the 60-70 knot range. It seems likely that the wind will agitate the heaped, pulverized coal. 

The leaching of toxic heavy metals from coal ash into water supplies is a proven problem. Exposure to arsenic, cadmium, barium, chromium, selenium, lead and mercury can cause any number of health problems, including cancers and neurological diseases.  It is unknown if and to what extent these heavy metals might leach out from the coal and/or fugitive coal dust, from the train cars and at the terminal storage site, into local water supplies and into the marine environment. There are potential implications for the safety of the water we drink and the seafood we eat.
- See more at: http://www.coaltrainfacts.org/key-facts#sthash.kjyRH0uH.dpuf

The pro coal side, represented by Freedom Works in this case, tends to pick at the details, but essentially seems to acknowledge the problems - just not where the environmentalists say.  Here's an example (which doesn't refer to the quote above): 

That passage from the white paper is instructive for a couple of other reasons. The author cites derailments and the average amount of dust lost from coal cars, but he does not say WHERE these things occur. It turns out that the two derailments in 2005 happened on the short Powder River Basin line, not far from the train's point of origin. It was attributed to coal dust fouling the ballast used as a bed for the rails. Regarding the amount of coal dust lost, what the enviros never tell you is WHERE that dust is lost. It doesn't take much effort to realize that most of the dust will be lost at the point of origin - near the mine where the cars are loaded. The further the train travels away from the loading point, the more the load will settle, meaning that less dust is going to blow away. The environmental extremist way of explaining this is to say, "It is unclear how much coal dust might escape in the Pacific Northwest ..."

Juan did a much better job of getting pictures of the spot than I did.  Check his site.

Clinton, BC - 150 Years Old

"Staying true to its rawhide roots today, Clinton’s Main Street still exudes a Wild West flavour, with many of the buildings boasting their original storefronts, restored to retain the western atmosphere and character." [from Visit British Columbia]

Maybe that's what lured us, after getting gas, to just park on the main street - Cariboo Highway - and walk around.  And then pull out my camera.

After the discovery of gold in the Cariboo, Royal Engineers were commissioned to build a road through the Fraser Canyon to the Cariboo to join the already existing wagon road from Lillooet to 47 Mile. The junction was 47 miles from Lillooet and thus 47 Mile was the name used until 1863, when 47 Mile officially became Clinton. The community also boasts of hosting one of British Columbia's oldest continuously running events, the "Clinton Annual Ball," held in May of each year.  [BCAdventure.com]

"Once a busy junction on the wagon road leading to the Cariboo and Barkerville gold fields, Clinton was originally known as The Junction, and Cut Off Valley, before being renamed in 1863, honouring the Colonial Secretary, Henry Pelham Clinton, the 5th Duke of Newcastle." [Visit British Columbia]

The sign in front of this old Church says
"High Bar First Nations."

I looked hard to find more than business info on the High Bar and eventually went back to the Wikipedia entry:

"The High Bar First Nation is a First Nations government of the Secwepemc (Shuswap) Nation, located in the Fraser Canyon-Cariboo region of the Central Interior of the Canadian province of British Columbia. It was created when the government of the then-Colony of British Columbia established an Indian Reserve system in the 1860s. It is one of three Secwepemc bands that is not a member of either the Shuswap Nation Tribal Council or the Northern Shuswap Tribal Council. The High Bar people are also partly Tsilhqot'in and have links with some Chilcotin First Nations.
In the Chilcotin language, the High Bar people are the Llenlleney'ten. The Secwepemc in the Fraser Canyon and on the Chilcotin Plateau are also known as the Canyon Shuswap and have traditionally had close ties with the Tsilhqot'in people."

The High Bar First Nations Facebook page offers a little more information.

This painting on the builiding looks a lot like Southeast Alaska art work.  I don't know the relationship between the High Bar and Tlingit/Haida peoples.  

Our modern world changes how we know and what we can know easily.  Just googling the address I found the listing for this house.  They want $215,000 (that's Canadian, but pretty close to US.)

We also learned about Clinton the old fashioned way.  We talked to Bruce who owns this second hand store.  Even after figuring out we weren't planning on buying anything, he was friendly and talkative.  He was less sanguine about Clinton suggesting it was more like a town in a Stephen King novel and that the Many Good Things sign was an allusion to King. (I couldn't find the book it comes from, but I did learn that a lot of people use the phrase "I've heard many good things" when they post about Stephen King.)  He's also a former figure skating coach and an artist. 

I didn't check online for the price of this motorcycle, but if someone is really interested, email me.  The phone number is legible on the original.

Google came up blank on Mr. and Mrs. Joe Dealz.  I think it's a great title for a book. 

The museum.

I do appreciate people who make the extra effort to do things like design their fence around a rock. 

An historical cairn in Clinton marks the junction of two routes to the Cariboo gold mines; The original 1859 Cariboo Trail from Lillooet, and the Cariboo Road through the Fraser Canyon, built in 1863 by the Royal Engineers.
Situated halfway to these gold fields, Clinton was an ideal place for weary travellers suffering from gold fever to stop for a rest, food, entertainment, and even encouragement. Clinton grew with the demand for these services. [from Visit British Columbia]

I guess this is the 150th Anniversary of this town becoming Clinton.  Travel British Columbia says 793 people live in Clinton.  City Data says 636 in 2011.  They also had a map.   Clinton's the blue spot in the upper right.  Click to make it clearer and bigger.

Anchorage to Seattle Day 6: Lac La Hache to Bainbridge Island

He was comfortably resting by the porch when I showed up, then ambled up to the picket fence where he just wanted to be petted and get some attention.  This was on the main street of Clinton, BC, which happens to be the highway.  We stopped here for gas and it seemed so much less spoiled by strip malls and chain stores that we walked around.  I'm going to do a whole photo portrait of Clinton.  This is just a preview.

We began after breakfast at the Provincial campground at Lac La Hache.  We're clearly getting into civilizations.  The campground bathrooms had flush toilets and and granite counter tops.

Compared to three years ago, Thursday (Day 5) and Friday (Day 6) went much faster because there was less traffic and almost no interruption due to construction.  And this last day was mostly sunny and warm - about 20˚C I would guess.

The landscape was getting more arid.  We were passing what almost looked like semi-desert, with these bunches of yellow flowers topping gray-green foliage.  I don't know what they are, but they were everywhere. 

And then we got to the Fraser River and Canyon.  We followed this passage for several hours.  The train seemed endless and was there whenever we looked.  One side of the canyon was dry and the other side lush with evergreens. 

At this point we're closer to the water.  We couldn't see the end of the train in either direction. 

And there were lots of tunnels along this route.  Most, so well lit up, I didn't need to take off my sunglasses. 

Along this route we got to Devil's Gate, where we had lunch and took a short hike in the beautiful weather, which I'll do a separate post on. 

Eventually we got out of the canyon and onto a freeway - Canada Highway 1.  At Abbotsford we got off the freeway and headed south a couple of miles to the US border.  I just checked now and found there's a cam at the border you can check online to see how crowded the customs line is. 

Crossing into the US here was easier than when we crossed into Canada in the relatively remote Beaver Creek crossing into the Yukon.  Then we were back on small rural road heading west and then south into Bellingham where we caught the I-5 to Seattle.  It was here, in the middle of five lanes of southbound traffic, as it was getting dark, that it started pouring.  But by the time we got to the ferry terminal, the rain had ended.  Below is a view of some of the Seattle skyline as the ferry took off for Bainbridge Island. 

This is a great road trip and I wish we had more time to poke around, hike, and just enjoy the beautiful country.  Driving through Canada does require us to think differently - the signs are in kilometers and the gas comes in litres.  The dollars are pretty close to equal so that's relatively easy.  It's generally good when the things we take for granted get skewed a bit and we have to think about them and realize our world is not the only possible world.  (Just not too much at once.)


Our grand daughter has grown a lot, is crawling and pulling herself up to a standing position, and picking up bits of food and stuffing them into her mouth.  She's also a lot more cautious about straying far from Mama. 

Redistricting Board Challengers Claim Political Gerrymandering In Court Filing

[Saturday 9/21/13:  I thought this got posted the other day, but apparently not.  I've taken advantage of the delay to clean it up a bit.]

I posted the September 13, 2013 Riley court filings without really having time to read them, but while J drove I finished them.  These new filings add details to the original filing that challenged the latest Redistricting Proclamation Plan. 

I’m typing in the passenger seat as we drive through spectacular fall colors near Whitehorse,  so this won’t go into too much depth, you can see the whole complaint on my earlier post and find the sections you want to read further.  I’ll put up several posts, I hope, when we get to Whitehorse.

Here’s an outline of the filing with some comments. 

I.  Summary Judgment Standard

II.  Compactness Claims
House districts 3, 5 - Fairbanks; 9, 12 - Matsu; and 32 Kenai.)  By breaking the Borough boundaries, they argue they also make the districts less  compact.  As proof they offer options submitted by other private parties.  

III.  Unnecessary splitting in the Matsu and Kenai Districts
There are challenges to some Fairbanks and Matsu and Kenai house districts because they are unnecessarily joined with populations outside of the boroughs they’re in.  These splits, besides violating the standard to keep political boundaries as intact as possible, also, they argue, results in the compactness problems they first mentioned.

They also get into discussion of deviation inconsistencies.  They offer options that were before the Board, even adopted as draft options by the Board, that they claim take care of these issues in a way that meets the Alaska constitutional standards better.  And they find fault with the Board’s articulated reasons for what they did as either inconsistent or non-existent. (I’m simplifying this so I can get it done by the time we get to Whitehorse.  [UPDATE 9/21/13:  I thought I'd posted this from Whitehorse, but didn't so I'm cleaning up and adding.  Probably a good thing it didn't go up before.]

You can read the original document HERE.


The Gerrymandering Claims

But when you read further down, there is a quote from Board member Bob Brodie talking to the Riley attorney, Michael Walleri.

III. [This is III in the original but should be IV] Avoidable Deviation Variance in SD 5 and 6

 I posted a detailed explanation of the deviation issues in an earlier post.  The numbers aren’t all that significant by themselves, but when you combine them with the compactness issues of the house districts involved - and for me the contiguity issue for HD 5 - and the splitting of UAF campus, they all seem to point toward something fishy. 

They argue here also argue that the Board really didn’t consider deviation among Senate Districts at all.  This is the first time they quote Board member Brodie. 

“Mr. Brodie admitted that the Board never considered or otherwise attempted to reduce deviations between Senate Districts.”

A little later they write:

“More interestingly, Mr. Brodie urged his fellow board members to deny the lower deviation configuration [switching housed districts in senate districts A and B] on political grounds:  i.e. to deny the Riley plaintiffs a perceived political advantage.” (p. 36)

This leads to footnote 94:

“94.  Boardmember Bob Brodie indicated that “he (referencing the undersigned [Riley plaintiffs’ attorney Walleri]) just looked at the political makeup of the senate districts where his clients live and now he wants to change it to give them (Mr. Riley and Mr. Dearborn) the biggest advantage they possibly can without any altruistic feelings of the state redistricting process.  . . Of course, Dr. Handley [the voting rights consultant] identified the residents of Ester/Goldstream as Democratic leaning voters, and Board counsel has often stated that the Riley Plaintiffs were stalking horses for the Democratic party.  Of course, the Board denies any motivation to benefit the Republican party with the resulting district configuration, however, the statements by Mr. Brodie indicate that he believed that the senate pairing benefited the political interests of the political party that the Board associated with the Riley Plaintiffs, and an intention to ignore deviation considerations in furtherance of an intention to deny any such advantage to the Riley Plaintiffs and their Democratic associates.  The motivations present factual issues in dispute that will require trial.” (p. 36)

We’re getting close to Whitehorse, so let me cut to the chase.

I’ve heard on various occasions that gerrymandering is illegal, but no one has every won a case against a redistricting board based on gerrymandering.  It’s too hard to prove the intentions of the Board members.  So, the proxy for this is whether they stick to the procedural rules while doing their work and whether they balance the different standards - compactness, one-person-one vote, contiguity, socio-economic integration, etc. - better than any alternative plans others offered.

The Riley Plaintiffs are arguing that they didn’t.  Here they don’t ask the Court to find gerrymandering - though they point it out - but rather find that districts are not as compact and deviations aren’t as low as they could have been.  That’s all I can do at this point. 

This part begins around page 35 of the document.

[Saturday update:  I'm adding on here since this didn't get posted earlier.]

Rejected Settlement Offer

In this section on  "Avoidable Deviation Variance in SD 5 and 6" the filing also reveals that the plaintiffs

"made an offer to settle the present litigation if the Board would swap the Dist. 4-B to 4-C, and to change Dist. 6-C to Dis. 6-B in the proposed "Concept Plan" under consideration by the Board."

This would swap two house seats and rearrange Senate Districts B and C to a configuration that, in my mind, makes much more sense.  The new districts would have much more contiguous house districts and the University of Alaska Fairbanks wouldn't be split and the deviations would be lower.

The Plaintiffs' complaint is not so much that the offer was rejected, but how it was rejected.  It was originally rejected without being mentioned in public meetings .  They also claim that the Board's attorney said that he had conveyed the message to the Chair who had discussed the issue one-on-one with each Board member and they had decided to reject it.

Three or more Board members are not allowed, by law, to discuss Board issues except in public meetings.  The plaintiffs argue that

"such a procedure --- often called daisy-chain communication - - - violated the state Open Meeting Act, and that the Board should cure the violation by meeting and placing the matter on the record.  Board counsel requested that the offer be made in writing, and on July 17, 2013, the undersigned [plaintiffs attorney Michael Walleri] provided the offer in writing which was included in the Board record."

It subsequently did go on the record on July 18.  So, presumably, the Board cured the violation, but the plaintiffs write

"In rejecting the offer, Mr. Brodie admitted that the Board never considered the deviations between Senate districts as a relevant factor."

 IV.  [Again, this should be V]  TRUNCATION

I've already done a long post about truncation related to this 2013 "Final" Proclamation Plan. 

The filing looks at the prior case law on truncation and then what's happened with truncation with this current Board's several Proclamation Plans.  And finally in this cycle.

The focus here is the change from the very high level of same constituency (I had put it at 10%, but the filing says 13%) in the previous round to 25% this last round which allowed Sen. Coghill to escape truncation.

The Riley filing goes on to point out that while SD P [Democratic Sen. Egan in Juneau] with an 86.7% same constituency was not truncated,

"Oddly, the Board truncated SD B (City of Fairbanks) [which had been held by Democratic Sen. Paskvan] despite the fact that SD B had changed less than SD P"

They also point out that in 2012

"As a result [of using 13% as the truncation cutoff] all seats with less than 85% of the population of the former district were truncated, including two (2) seats over 75%:  i.e. SD L (77.7%) SD T (78.1%)."

 As I understand the term truncation, it means cutting short those seats that still would have two more years to serve in the next election.  This allows the electorate a say on who represents them.  After the board truncates seats with substantially new constituents, it has to re-stagger the seats so that only ten seats come up for election each election. 

Under that definition, the three seats the Riley document claims were truncated (SD B, SD L, and SD T) were NOT really truncated because their terms were up in 2012 anyway (as I read the admittedly confusing charts that assign two and four year terms.  I say confusing because tracking the changing seat numbers and incumbents over the various changes takes some effort.) 

However, the fact that all three had their next terms limited to two years probably is of relevance.  But then the whole way this Board did the truncation and assignment of two and four year terms was significantly less straightforward and rational than the previous Board as I demonstrated in this previous post comparing how the 2000 Board and the 2011 Board went about truncating districts.

I do think it is significant that in the previous round, the Board made the cutoff for truncation about 87% and shortened the next terms of three Democratic Senators to two years, even though their districts were over 75% the same, while this time making 75% the cutoff point for truncation allowing a Republican senator to escape truncation.  It is also significant that this is the very district in which the plaintiffs in this case reside. 



V.  SENATE DISTRICT B AND UAF

Here, the Riley Plaintiff filing challenges the compactness of Senate District B  (the two house districts (3 and 4) it joins are contiguous at one tiny point, then they each go off in totally different directions).  Both districts are much more contiguous with the districts the plaintiffs proposed switching to. And they also point out that the University of Alaska Fairbanks is unnecessarily split into two different Senate seats and the deviations are lower.  They also imply that this was in part done in retaliation against the plaintiffs who live in this district.

"As noted in Mr. Bordie's [sic] comments at the July 17th hearing, the Board was fully aware that the configuration was adverse to the interest of the Ester/Goldstream area [where the plaintiffs live].  The totality of the evidence - -  meandering bizarre shaped district, mixing different communities of interest, and a Board record that clearly demonstrates conflicting political inclinations - - - demonstrates a strong inference of discrimination."

Is everyone totally confused now? Posts with pictures of trees was a lot easier to read (and write.) I hope some of this makes sense and helps a few people understand a little better what is before the court.  Perhaps reading this post will make reading the whole court filing easier.  Although it is 51 pages, the print is big, the line spacing is big, and there are a bunch of maps, so it isn't all that long.  Here's the link to the original filing again.