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In the midst of Steven Davis’ pro bono representation of two environmental groups in 1999, he was faced with an unpleasant choice: abandon his client or leave his firm. A third-year associate at Seattle’s Lane Powell Spears Lubersky at the time, Davis was challenging a permit for a power line in an environmentally sensitive part of Alaska. But his lawsuit, he was told, would threaten the future business of a newly hired lateral partner with connections to the power industry. In the end, Davis left his firm. But he was not the only lawyer to feel the power of the industry. In a classic illustration of how hardball litigation tactics can work, another pro bono attorney, Harry Bader, wound up worrying that he might lose his job as a University of Alaska professor. And his clients, who picked up the fight where Davis left off, ultimately pulled back from their environmental mission. One dropped out of the suit rather than risk his home and savings amid industry hints of retaliatory lawsuits. The other two, having the same fear, settled the case without having changed the path of the power line. This bare-knuckle saga, which involves allegations of stolen mail and intimidating e-mails, centered on the Northern Intertie, the name for a transmission line slated to cross Alaska’s Tanana Flats. In 1999, Davis brought suit claiming the Alaska State Department of Natural Resources (DNR) had overlooked a review step in granting a permit for the intertie. Representing the Sierra Club and the Northern Alaska Environmental Center, he argued the state was required to do a “best interest finding,” which it hadn’t. His clients objected to construction of an intertie from the gates of the Denali National Forest to Fairbanks, through 100 miles of wild land. The case made its way to the Alaska Supreme Court, which in June 2000 overturned lower court rulings exempting the state from the review. Though Davis won the battle in the high court, his clients lost the war. Sen. Pete Kelly, whose brother Mike was then president and chief executive of the power company in question, Golden Valley Electric Association, introduced a bill that retroactively exempted the DNR from doing a “best interest finding” before issuing certain right-of-way permits. Golden Valley’s power line was in that category. The DNR did the review anyway and approved the route. That decision was upheld by a new commissioner in March. Davis landed on his feet, getting a job at Wilson Sonsini Goodrich & Rosati in Palo Alto, Calif. The intertie fight continued with new players. In filing papers to collect fees for his effort, Davis recounted the story of what had happened at his former firm. A Fairbanks Daily News-Miner columnist, Dan O’Neill, started an investigation and made public the story that Golden Valley and others in the power industry had told the new Lane Powell partner that if the firm didn’t drop the pro bono case, his legal business would suffer. Davis’ former supervising attorney, no longer at Lane Powell, confirms Davis’ allegation that his pro bono work forced him from the firm. Managing partner Michael Dwyer says that’s not the full story. Dwyer refuses to explain, citing confidentiality rules governing employees and clients, but he criticizes Davis for spending too much of the firm’s time and money on the case. He adds, “We as a firm, I believe, discharged our ethical and professional responsibilities as best we could under a situation that had become awkward for us in terms of the business and commercial interests we normally represent.” Golden Valley’s attorney, John Burns, of Borgeson & Burns in Fairbanks, says he has no knowledge of any threats, but adds, “I doubt very seriously that Golden Valley would have engaged in any of that.” O’Neill’s articles, which he says Burns complained about to his editor before publication, dispute this. Brian O’Donoghue, the paper’s editorial page editor, who edited O’Neill’s work, says the call from Burns, who is also the paper’s lawyer, had no effect. O’Neill is less sure of that. “He [Mr. O'Donoghue] rewrote it with changes that softened my presentations, but in the end I got 95 percent of what I wanted.” Burns, uncertain if he made the call to the paper, dismisses the notion that such a call would be a conflict of interest or an attempt at intimidation. Whatever happened, at this point the intertie project looked unstoppable. Enter Bader, a professor and department head at the University of Alaska School of Agriculture and Land Resources Management in Fairbanks. He teaches law to forestry students and has a small solo practice, focusing on international human rights investigations. A pro-development Republican, Bader’s specialty is silvaculture, the science of cutting down trees. He had never taken a pro bono case in Alaska in the 13 years he’s lived there. But he was concerned that the intertie would cut through fens, which are connected lakes covered by a mat of vegetation. These fens are apparently the largest aggregation in the world, but they have hardly been studied. Bader’s clients sought to reroute eight of the 500 intertie towers so that they wouldn’t be built in the fen beds. “I believe in stewardship,” he says. “I don’t believe we should be building these structures in potentially important ecosystems if it’s not necessary.” He used a novel approach in the suit he filed in April. He argued the fens are navigable waters and, under Alaska’s constitution, any impact on them requires a public trust analysis — another review not done by the state. Bader’s approach put him at odds with environmentalists. If the fens are navigable waters, many acres of wetlands would shift from being classified as federal land — a dangerous precedent, given the more pro-development stance the state takes in reviewing land matters. Still, Bader’s clients, two professors and a graduate student, were determined to lessen the impact of the intertie’s environmental harm and create an extra layer of review and protection for the fens. As Golden Valley moved to intervene in the suit, Bader says things began to heat up. One plaintiff, a female graduate student, began receiving nasty anonymous e-mails. Then a senior tenured faculty member approached Bader, threatening to initiate an investigation to ascertain if he had used any of the state-funded school’s resources in the course of his representation. Bader hadn’t, but he wondered if his career might be in jeopardy after the faculty member, whom he refuses to identify, then pressured him to drop the suit, warning that Bader’s legal representation might hurt the school’s accreditation because angry legislators might pull funding for faculty positions. The agriculture school’s dean, Carol Lewis, promised to protect Bader from any pressure to resign. In the end, there were no complaints, nor does the dean expect there to be. “I have talked to a person who, I believe, may have spoken to Mr. Bader,” she says. “The person assured me that there would be no repercussions.” SLAPP SUIT THREATS As the litigation progressed, Bader says Burns increased his threats to bring a strategic lawsuit against public participation (or SLAPP) suit. The term SLAPP describes suits brought by companies to discourage public interest litigants by seeking damages for delays. Burns says he never threatened a SLAPP action. He points to his briefs, which state that Golden Valley’s desire to intervene is expressly for the purpose of opposing a stay to the intertie construction. However, in a letter to Bader on April 25, Burns wrote, “Golden Valley fully intends to pursue every available avenue to recapture from your clients any damages that Golden Valley and its cooperative members suffer as a consequence of the appeal.” Burns says the letter was a response to Bader’s refusal to negotiate with Golden Valley unless the state first agreed that the fens are navigable waters. “There was no intent to file a SLAPP action, but it wouldn’t be precluded if it was appropriate,” he says. One Bader client, Edward Murphy, a professor of biology and wildlife, felt he couldn’t take that risk. He dropped out. “We have a home and retirement savings,” says Murphy, “But not only were we in jeopardy in terms of our present savings and assets, but potential future savings and assets, which is pretty ugly.” The week before the case finally settled, Bader’s mail was stolen — except for his Golden Valley electric bill. He does not believe the electric company had anything to do with the theft, but it added to the pressure he and his clients felt. The final straw came after a teleconference with Burns. Bader says the opposing lawyer threatened his clients in two alarming ways. He says Burns said he would file a motion on May 21 such that “the gates of hell shall open and fall upon your clients.” Bader says Burns compared his litigation strategy to hunting: promising to go for “a head shot rather than a gut shot.” The former is riskier, but the deer doesn’t escape wounded, Bader notes. Burns, asked if he made such comments, says, “I have absolutely no idea. I don’t think I said that at all.” He says the impending motion was an opposition to the stay for which the judge had requested papers by that date. But he never filed those papers. Instead, negotiations began and two days later, the parties settled the suit. The agreement requires that the state give a higher level of consideration to the fens in the future. Golden Valley will donate $10,000 for studying fens and the impact of the development on them. Both the state and Golden Valley waived rights to damages or restitution from plaintiffs. “I felt compelled to settle,” Bader says. “This agreement was the best we could do without exposing my clients to extraordinary risk.” Burns professes ignorance that the plaintiffs felt there was an atmosphere of intimidation. “If that’s the case, that’s unfortunate. All parties should be commended [for the settlement]. It is really foresighted, and it shows a wonderful desire to truly address the issue affecting a fen.” Tom Waldo, an attorney with EarthJustice Legal Defense Fund, who was co-counsel on Davis’ suit, says he wasn’t aware of the SLAPP threat in this suit and doesn’t know of any SLAPP actions that have been filed in Alaska to date. Any SLAPP suit that does occur is likely to galvanize his organization, he says. “We want to be sure that people feel like they can safely file these lawsuits and not feel intimidated,” he says. It may be too late for that, says Dave Valentine, the third of Bader’s plaintiffs. He says the threat of the SLAPP action in his case already did that: “It will clearly have a chilling effect on any future participation in this sort of thing.”

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