Understanding Nuisance Law: As Applied to Mushing in Alaska Dog Kennels

When mentioned in conversation to most people, that word evokes a conception of a boarding facility for animals or perhaps even the various-sized crates often used to transport canines during long-distance travel. But to the fair readers of this magazine, that term often will describe their business, home, hobby, and passion.

Dog kennels are a way of life for mushers, breeders, and racing competitors. They and the grounds surrounding them facilitate everything that enables the mushing and dog racing lifestyle from pupping to breeding, training to storage, and so much more. It is not a joke or an understatement to say that the mushing way of life could not exist without dog kennels and lots of them.

Yet, the mushing community, both in Alaska and across the lower 48, and the dog kennels that go with it are increasingly under the threat of legal attacks. It’s not just PETA or the odd “animals are better than humans” campaigner. Often, it is the disagreeable neighbor who holds a grudge or wants to pick a fight and has money to spend to try to force their way.

And why? Some people pick on the barking, some people complain of the smell, and some people believe it lowers their property value. No one who reads this magazine has any understanding of what PETA is thinking, but they likely feel that the dogs at a minimum need to be afforded their rights as preferred shareholders in the kennel.

These people do not care if their actions and lawsuits mean wrecking traditions, families, businesses, livelihoods, and all manner of things to get their way. Most people in the Alaskan mushing community are familiar with several examples of this happening in the recent past: from Kevin Bopp and Lynn DeFilippo suing Artic Sky Kennels in Nome over a decade ago to the Van Deusens family suing the Seavey family in Seward and the fight over Dogwood Kennels’ license renewal in Anchorage almost twenty-five years ago. There will undoubtedly be more such lawsuits in the future.

The response and reaction to this growing trend has been by some, including the pages of this Magazine, to call for the State of Alaska to pass a law that would treat mushing on a similar basis to farming and establish a “Right to Mush” and prevent many of these lawsuits from occurring in the first place. While that is a worthwhile effort and should continue, the mushing community needs to receive a bit of education on the main issue that underpins most of the legal attacks on the mushing world: Nuisance.

A “Nuisance” is a word that typically is used to refer to something (or someone) that causes annoyance, inconvenience, or harm. In legal terms, a nuisance is more specifically defined as an unreasonable interference with the use and enjoyment of one’s property. Nuisances can come in various forms, including:

1. Public Nuisance: A nuisance that affects a community or neighborhood rather than specific individuals. Common examples include pollution, excessive noise, or obstructions on public roads. Legal actions against these types of nuisance typically involve a lawsuit by a town, borough, state, or the federal government.
2. Private Nuisance: A nuisance that affects an individual or a limited number of individuals rather than the public at large. Possible examples might include regular and loud parties, offensive odors, or even maybe overhanging tree branches from a neighbor’s property.
3. Private nuisances primarily affect individuals or a limited group, while public nuisances affect the general public or an entire neighborhood or community.
4. Nuisance Per Se: Certain activities or conditions are considered nuisances by their very nature, regardless of the circumstances. For example, storing a large amount of explosives in a residential area would probably be considered a nuisance per se.

Resolving nuisance issues often involves legal action, such as filing a lawsuit – like in the case involving Artic Sky Kennels – against the party responsible for the nuisance. Legal remedies or the desired outcomes sought when an individual files a lawsuit for nuisance include injunctive relief – requesting a court order to stop the nuisance activity – and pursuing damages for the harm caused by the nuisance – normally this is the form of the loss of value to a property and occasionally the loss of business or income. Sometimes a nuisance action involves working with regulatory agencies to address environmental concerns caused by the nuisance itself such as a concrete company polluting lead and toxic metals onto an adjoining property. Lastly, there can also be the possibility of an award of attorney’s fees to the prevailing party under the Alaska Rules of Civil Procedure.

However, the important thing to walk away from this article is that nuisance is an extremely subjective and fact-driven legal concept. One man’s nuisance is not always another’s. In court cases, the facts that come out during trial are all that the judge is allowed to consider – actions for nuisance do not have the right to a jury trial and instead must be resolved through a bench trial in front of a judge.

Now probably most of you, if you haven’t fallen asleep yet, are asking yourselves what can we, as kennel owners and boarders, do to limit our liability to having our kennels, livelihoods, and lifestyles being attacked from frivolous and baseless lawsuits? There is not a clear answer here because nuisance does not need to be intentional conduct. What matters for a person to make a credible claim of nuisance are the facts about the conduct you have been committing and the facts about the effect on the complaining person.

Hopefully, this article underscores the importance of the need for the “Right to Mush” in Alaska. Perhaps my next musings will explore the “Right to Mush” legislation, what would mean for the mushing, and explaining the process to pass legislation in Juneau.