In the lead up to statehood, fishing and mining mismanagement represented huge challenges to territorial Alaska. With little power to self govern afforded by the first and second Organic Acts, Alaskans lacked the authority to control and regulate commercial fisheries, mining, and other resource development. That lack of local control was the impetus of the push for statehood, and the driver of Article VIII of the state constitution, which secures collective ownership of natural resources in the state.
Trustees for Alaska was founded in 1974, in response to the oil boom, pipeline construction, and an initiative which sought to transfer ownership of 30 million acres of state land to residents. Trustee’s first director, Bill Rice, filed a lawsuit against the proposal, citing that the lands must be developed in accordance with Article VIII — for the maximum benefit of all Alaskans and in line with the public interest. The Supreme Court agreed. Had the land been forfeited, much of Alaska’s infrastructure never would have been developed.
40 years later, Trustees is still engaged in litigation involving oil and gas development and mining. They have argued that many past and current proposals infringe on the public trust doctrine laid out in Article VIII of the Alaska State Constitution. “The public trust doctrine simply requires the government to protect natural resources for public use,” Trustees’ Executive Director, Victoria Clark, told an audience in Anchorage last Thursday. “We should have a say about how to balance is struck between resource development and conservation.”
To illustrate that mission, Trustees invited the last surviving delegate to the Alaska Constitutional Convention, Vic Fischer, to participate in a talk about Article VIII’s legacy. Local political commentator, Anchorage Daily News columnist — and Just-a-Girl-from-Homer — Shannyn Moore moderated the conversation. Clark introduced Fischer:
Vic Fischer is one of our elder statesmen. After serving in World War II and getting an education in planning, he came to Alaska in the 1950s. He fought hard for statehood and served in the territorial legislature. He was a delegate to the Constitutional Convention and had a hand in drafting all parts of the constitution in his role on the style and drafting committee. He was the first director of what is now called the Institute of Social and Economic Research at the University of Alaska Fairbanks, and helped shape development and conservation during his time there.
Moore led the discussion off on a different note, recollecting a discussion with a coworker about the night’s event. “I have this event at the museum tonight with Vic Fischer…. He wrote the Constitution,” she told him, explaining why she was dressed up. Her coworker recoiled: “Jesus Christ, how old is that guy?”
The video below contains the full event, complete with an introduction of Trustees for Alaska from Clark, the conversation between Fischer and Moore, and a question and answer segment with the audience. Below the jump is the transcript of the conversation.
SM: You said something really remarkable about the Constitutional Convention and how it was open. And that what Bob Bartlett had said was nobody really cared about — nobody was going to care about anything except for how we dealt with our resources. Can you talk about that a little bit?
VF: Bob Bartlett was our nonvoting delegate to the U.S. Congress before we became a state and he became our first U.S. Senator. Bob was one of the great Alaskans. He was “Mr. Statehood.” He really worked for it. And he gave the keynote address for the Constitutional Convention on November 8, 1955, when we convened in Fairbanks. And among the statements that Bartlett made was that, 50 years hence, [it will not be] remembered what you did with local government, or the structure of the three branches of the state government, or districting. The most important thing is what was done on the issue of resources. And he emphasized that. He went out to warn about the big dangers of Outside interests taking advantage of Alaska’s resources and not leaving and not providing adequate benefit to the people of Alaska who will be owning the resources. And, secondly, he warned about Outside interests that might just lock up Alaska’s resources for the benefit of the resources that they may own or control elsewhere. And he met with the delegates, with the resources committee, and others, after the convention got going; while the deliberations were going on; while we were crafting the constitution. He kept emphasizing the importance of resources. And I admit that I was one of those who came thinking about local government and home rule and self determination at the local level; at the state level. And it was Bob who really drove home to me personally, as well as the other delegates, the importance of crafting a resource article that would deal with the over a hundred million acres of land and subsurface resources that the Congress was about to give us when we became a state.
VF: 104. Plus or minus.
SM: Well, what’s a million acres, right? You know, when we were talking about this, I looked it up and — do you mind if I quote him?
VF: You can quote him, you can quote me. Anybody.
SM: Thanks. He said:
Many states have included in their constitutional statements that the natural resources of the state should be ‘developed for the benefit of the people of the state.’ Such pious generalities without further concrete policy statements have proved wholly inadequate as effective barriers against the dissipation of resources, fraud, and corruption. Alaskans will not want, and above else do not need, a resources policy which will prevent orderly development of the great treasures which will be theirs. But they will want and demand effective safeguards against the exploitation of the heritage by persons and corporations whose only aim is to skim the gravy and get out, leaving nothing that is permanent to the new state except perhaps a few scars in the earth which can never be healed.
SM: This was the warning, right? And it reminded me of Eisenhower’s whole Military Industrial Complex. I mean, this was like a resource extraction complex that was going to come here. Do you think that, without this specific warning of corruption and wanted protection, that Article VIII wouldn’t have been written the way it was?
VF: Well, I think that we would have gotten there, because every Alaskan — every delegate to the Constitutional Convention — knew the history of Alaska. Knew about the Russians coming, exploiting the Aleuts and other Native peoples for the sake of getting furs. The Gold Rush. The copper along the Copper River. The Outside control of salmon fishing, which was just outrageous prior to our becoming a state, where the resource was raped for the benefit of Outside interests while local fisherman were standing by and watching fish traps, very efficiently grabbing the fish; getting them canned and hauled out of state without any benefit to the local people; to the people in the territory of Alaska. So, I think the delegates were primed. And, right after we convened, within two days, Ernest Gruening gave a second keynote — Alaska’s territorial governor — and Gruening gave a wonderful oration about “Alaska the colony.” And really driving home the history of Alaska. The extent to which we were a colonial possession of the United States, to be taken advantage of by non-Alaskan interests.
SM: You bring these people up like they’re not buildings. [Laughter] Oh, that made me feel young to say!
VF: Well, you know, I’ve had the pleasure of going to Bartlett High School and to Gruening, and to talking to assemblies of students, and telling them who this person was, after whom this school is named. And this is one of the benefits of a long life. You get to know them personally, and Bob in particular became a very close friend.
SM: Yeah, and you outlived them so you can say whatever you want. “Oh, this one time Bob and I…”
VF: Read my book.
SM: Yeah, it’s in there. Is there anyone — were there any delegates that you were just, like, “Come on… Really? You get to be a delegate?”
SM: You know what I mean? Because there were a lot of you. Did you have to roommate with people?
VF: In fact, when I got to Fairbanks, in freezing November, 1955, and I’d seen who was elected as a delegate from different places. But I found out there was one guy, E.B. Collins, from Fairbanks. An attorney. And his profile in the Fairbanks Newsminer said he was 82 years old. Can you imagine? [LAUGHTER] Somebody who’s 82 years old being elected to serve in a Constitutional Convention. I mean, it just seemed proposterous. Well, I was 31 at the time [LAUGHTER]. And here I am at 90, and if we had a Constitutional Convention, I certainly could do it, but I didn’t believe then that somebody in his eighties could possibly function. And he ended up being a chairman of a committee. So, if you want to look for somebody way out there, he seemed to be way out there. We had wonderful characters. But it would take too much time, unless you want to pursue Yule Kilcher and people like that.
SM: Oh, Yule. I’m familiar. He was just a…
VF: He was.
SM: Just a man from Switzerland, right? Who found his way to Homer. So, it seems as though, in reading Article VIII, that this wasn’t about conservation. It was about development. Meaning, the Owner State whole concept — I mean, you were writing this to get more development, correct? I mean, that was the “Drill Baby Drill” of nineteen —
VF: Right. We wanted, among many other goals of statehood, we wanted to get control of land and resources. We wanted to be able to support ourselves at a time when 99.8 percent, or something like that, of the land was federally controlled. And everything was controlled by Washington or special interests outside Alaska. And I would say that fish conservation was an important issue. But when it came to minerals — it was small time minerals. It wasn’t massive, corporate mining that was viewed. But mining was sort of family styled, small operations. And same thing for timber operations and so on. We wanted the control, we wanted development, and Congress only gave us 100 million acres because they figured we were totally without resources; we were incompetent to take care of our future schools, of our running of state government or whatever. And we better give them a dowry of land and subsurface resources so that they can support the future state and services that a state has to give. And the oil development that we’ve seen — even the scale of mining that we have, which doesn’t amount to much in terms of state income — but, timber cutting and what you see. The scale of that was not really conceived. The Constitution was really written with development in mind, but at the same time with rules that would assure that the public interest — and I’m grateful of [Victoria Clark] and the slides — it was in the public interest. It was maximum benefit of the people; common use doctrine; sustainable yield; keeping the public informed, public notice of whatever the state did. Those were principles that would guide the state in resource development as well as setting land aside for parks and recreation and so on, which also were provided in the Constitutional article on resources.
SM: When you said that the feds looked at Alaska like, ‘oh, they’re not going to be able to take care of themselves,’ and all that. You know, if who’s in charge now was in charge then, they might have had a point. You know? I mean, could you imagine if [Governor] Sean Parnell and [Governor] Sarah Palin were sitting down to write our Constitution? With [State Senator John] Coghill over there and… Yeah, that’s, I’m sorry. I just scared myself. I mean, it’s not recognizable.
VF: It’s not recognizable. And, at the same time, we have a judiciary that still interprets the Constitution to give an occasional victory to the Trustees for Alaska. Because they interpret the Constitution the way it was meant to be interpreted. And that is, in the context not of 1955 — in the thinking of 1955 — but in terms of a living constitution that’s applied to today’s issues and the principles of the public interest and maximum benefit and public owners. [These] are principles — whether certain people in Juneau like it or not — that the courts will enforce.
SM: So, this Owner State is sort of what we call all of these concepts in Article VIII. Do you think Alaskans even are aware of the concept of Owner State? That it’s more than a dividend check, it’s a responsibility. And that they own this.
VF: People come and go and we’ve had governors who make these concepts their foundation for what they do as chief executives for Alaska, or as legislators. And they live those concepts. [Governor] Wally Hickel and the Owner State are synonymous. And [Governor Jay] Hammond certainly lived the concept of the public interest. And look at Palin, also — Palin is the mother of [Alaska’s Clear and Equitable Shares Act], which Parnell and company just got rid of as of the first of this year. But we did well under the oil tax regime that Sarah Palin and the majority of the legislature gave Alaska back in 2007, or whenever it was. So, they come and go, and we have an election coming up this November and maybe we’ll have a big change.
SM: And we also have one in August. Yeah, speaking of, I mean, that’s the whole, the fight right now with, like you said, ACES being gone and Senate Bill 21 going forward, and there’s a referendum to do a recall on that. And it’s, I mean, this is a fight — this is the second fight for statehood. This is, are we an oil colony or are we a sovereign state. You know, it wasn’t that long ago that ten percent of our legislature was indicted for taking bribes from the oil companies. And people would ask me, ‘How did Sarah Palin get elected? Because, she’s crazy.’ And I was, like, no. She was anti-oil corruption. I think most Alaskans were, ‘Oh, she was pretty,’ but whatever. So is Andrew Halcro, so there’s that.
VF: We’ll see. Frank Murkowski was governor and Sarah Palin challenged him in the primary and she beat him in the Republican primary. She beat the Democratic candidate in the general election.
SM: [Governor] Tony Knowles.
VF: She stepped forward on her own and she had — she was against corruption. She talked about ethics.
SM: Open and transparency.
VF: Whatever. And she was — I was going to say — on the right side of many issues. I didn’t want to use the word “right” in political sense.
SM: She was correct.
VF: On the correct point, from my standpoint. Then she went on the national stage and was — went in a direction that many of us may not appreciate. But she came back just a few weeks ago and said, ‘Hey, we did pretty well under the ACES oil tax legislation.’ When prices were high, we did well, the oil companies did well. When prices were low, our taxes were down, the oil companies were sort of in tandem. So, we did well and SB21 ain’t so good. And that’s where we are.
SM: Yes, absolutely. I know, I find it an interesting place, and why I love Alaska, that I’m in disagreement with Tony Knowles and total agreement with Sarah Palin on an issue. If we could only shoot SB21 out of a plane.
VF: So, and the thing is that, you know, we go through these ups and downs, just like oil prices. Like some people who say, well, they project the future and oil prices will be like that. But, in fact, oil prices are constantly going up and down and back up again. But the Constitution survives. And it survives the individuals. It will survive Parnell. It’ will survive you and me and all of us. And it was written that way. And, Marty Rutherford, who probably many here know, was a deputy commissioner of the Department of Natural Resources. She gave a talk yesterday at Commonwealth North on the meaning of some Constitution language. What does maximum benefit mean? What does best interest finding mean in [Department of Natural Resources]? And she really took these issues apart and she said it’s very hard to define what they mean because it changes in the context and within the framework within the issues that you’re addressing and so on. And Marty did a phenomenal job. And the gist of which was that you have these broad principles that you then have to apply to specific cases, because the magnitude of whatever is being proposed — the economics, the social impacts, the environmental impacts — there are all sorts of questions that need to be addressed that deal with each individual thing within the Constitution. And, fortunately, the Constitution is not so rigid that we have to amend it each five, ten years to take into account the changing values, the changing conditions of Alaska; knowledge and the specifics of each case.
SM: You asked me to to talk about more current issues than what happened when you were writing about this as much.
VF: You can ask me anything. We can talk about anything.
SM: Really? What are you wearing, Vic? [LAUGHTER] No, so, I wanted to ask you about [House Bill] 77. How it seems that what’s happening right now with DNR in this administration, is, if they could get rid of the Owner State, do you think they would? And do you think that’s part of what they’re whittling away with some of these policies, like HB77 for instance?
VF: Well, for sake of those who may not know what HB77 was, and fortunately it’s gone, but it was very much alive. Being pushed by the governor and other legislators, and it looked like it was going to go through the legislature until the people rose up and said wait a minute, this is going too far. And that was legislation that would have given a commission of natural resources — virtually — individual say over resource exploration, resource development, permitting —
SM: No notice.
VF: Without public notices, without specific project approvals, giving vague authority for massive things that could have happened. It was broad authority without limitation, really. And some hearings took place on the Kenai Peninsula, in Fairbanks, in the valley and Anchorage. And people just said, ‘this is just crazy.’ And it wasn’t just people who were into issues of conservation and the environment. It was sports fishermen and hunters and others who were just don’t want to be subsumed by a bulldozing administration that wanted to have, essentially, virtually unlimited power. And I think that, certainly, the governor was totally behind HB77. It was dreamed up within the Department of Natural Resources under this certain candidate for the United States Senate who has the same name as our Anchorage mayor — I won’t say who. [LAUGHTER] There are interests that would do away with the Constitution, and that would have — well, it would have put the Trustees to work real, real hard.
SM: So, that brings up a question of, I mean, yeah, certainly it would go to court. And they’d be testing the constitutionality of it. And the state is fine. I mean, our legislators — I mean, correct me if I’m wrong, if they pass a law that’s constitutional, Trustees or someone else sues them for it — the state has the Attorney General’s office defending them, right? So, they have nothing to lose to pass that sort of law. But how is SB21 not been taken to court under the Constitution, under Article VIII, for maximum benefit clause.
VF: Well, if I were on the SB21 side, I’d say, ‘Of course it’s constitutional. It meets the maximum benefit of the people because the oil industry is projecting increased production in the future. The governor has said we’ll have an oil throughput production of one million barrels, essentially doubling the production today. And this will be a maximum benefit within five years, 10 years, 20 years, for our children and grandchildren. Because the industry will invest more money in more production and Alaskans will live happily ever after.’ And the Attorney General’s office would happily take on the case and take it to the Supreme Court and argue all along that SB21 meets the maximum benefit criteria.
SM: With a straight face.
VF: With a straight face. And as Marty described yesterday, it’s very hard to argue these issues unless you go through the real best interest finding. And, of course, nobody really went through the best interest finding in SB21. It was proposed by the governor and passed the legislature without ever really going into the impacts; what it really means to the future of Alaska. Nobody ever does that in legislation.
SM: Doesn’t that seem like kind of a conservative, prudent idea? I mean, that, like a smart thing, not in a conservative, politically thing, that you actually find out if it’s a good law?
VF: Oh, no, no. You come into Juneau and you know what you want. And if you don’t know the lobbyists are going to tell you. And then, you go into a caucus in the side room in the Capitol, and the leadership is going to tell you exactly how you’re going to vote. And that’s all there is to it.
SM: Was that what you had in mind?
VF: What I had in mind? No, we didn’t do that in my day.
SM: Really? You and Clem Tillion just duked it out?
VF: I fortunately never dealt [with him]. He’s a lot bigger than I am. In the Constitutional Convention, we didn’t have caucuses that had special interests. There were 55 people who had the common goal of writing the best constitution; who studied, who might have different ideas, but they all got together, they worked together. Compromise was not a dirty word. We worked everything out, Bill Egan was a phenomenal presiding officer who made sure that everyone had a chance to participate. Every issue and every article and every section and every sentence and wording on concepts and anything and everything — everything got worked out. We took votes. Some of us were on the winning side and some of us were on the losing side of specific issues. And, you know, some wanted the voting age to be 18. Others wanted the voting age to be 21. The compromise was 19, which had no particular reason, but it wasn’t 18 and it wasn’t 21, so that’s how it worked out. And, of course nationally we went to 18, but we agreed on that and went on to the next issue. And the legislatures function, pretty much, like that.
SM: So, is there anything that you wish would have gotten into Article VIII? Is there anything you think would have just pushed it a little more in the direction you wanted to see it?
VF: No. No. I think it’s essentially there. I think if we were writing it today — Oh, God, no. We don’t want to write it today. Because we would be thinking about the oil and gas and pipelines and there would be so many extraneous issues. I was going to say, we would have a greater balance between development orientation that delegates had at the time. They underlined direction. It would be more balanced with environmental concerns and quality of air and water and so on. But, I wouldn’t want to change anything at this point because opening up the resource article, opening up the judiciary article could just make the whole state as a structure — not as a physical structure — but the state come crashing down with special interests getting there —
SM: So, the calls for a Constitutional Convention now that we’re hearing, you wouldn’t want to see that?
VF: Well, we just voted on that two years ago and it was overwhelmingly turned down.
SM: Well, the legislature is still, you know, poking at that.
VF: Well, they tried to undermine it. They tried to undermine the structure of the Judicial Council to give more political control to the governor and to the legislature over the appointment of judges — I should say, the selection of judges. But, fortunately, that kind of constitutional amendment was stopped. And I think the people are smarter than the politicians in Juneau give them credit for. He says hopefully.
SM: I mean, there is the proof in the polls. The fact that that’s what we have in Juneau sometimes proves it. But sometimes people don’t feel the responsibility to vote. I sort of have this theory that, to get a Permanent Fund, you should have to seal it with your “I voted” sticker that they give you. And, by the way, if you’re allergic to latex, don’t put them on you, they’ll give you the hives.
VF: Well, you know, my response to that is, who knows how they will vote.
SM: Are you hopeful for this next election?
VF: I’m very hopeful that our referendum will be approved and the oil tax regime will be changed. Those of us are working on a repeal of the giveaway, we aren’t necessarily wedded to ACES as it was a year ago, two years ago. We think that there are aspects of ACES that should be changed, can be changed. And what we really need is a legislature and a governor who will see to it that we have oil tax legislation where truly the benefits from development — from production of oil; it’s our oil; it’s our resources — that full benefits from them will come to the people of the state, as required in Section 2 of Article VIII. And at the same time be fair to industry. I’m one who believes that Alaska has benefited tremendously from production of oil. We’re sitting in a building that Elmer Rasmussen helped fund, but oil has been a big, big factor in the quality of life that we’ve had. None of us involved in the “Vote Yes” referendum are anti-oil, per se, or even anti-industry. We think we need more exploration. More exploration and more independent oil companies getting involved in Alaska. SB21 is not conducive to more exploration for new fields, for truly new oil.
SM: But, you know, I got to go to a $40 million high school for 400 kids because of oil. I mean, you can’t throw a rock and not hit something with a sign on it that says something about them, right? I get that part. But I’m not grateful to them for coming here and producing oil that they make a profit off of. I’m grateful to you, and the founders of this state, who wrote Article VIII the way you did. [APPLAUSE] I mean, to oil companies, I say, “You’re welcome.” Nobody’s shooting at you here, except for those two brothers that got in a fight and shot at the pipeline. But other than them, I mean, they don’t have to have security. People aren’t being kidnapped. It feels like it in winter, I get it. But, you know, you’re welcome, oil companies. You got to come here, you got to produce our oil, and you got to make a giant profit. Now stop acting like we’re the ugly girl on a date and we’ve got to, like, buy your dinner too.
VF: Well, Shannyn, I agree with you. The oil companies are here because their job is to make money for their shareholders and the managers and they’re not going anywhere. And if they went, then if smaller companies came, it wouldn’t be a disaster. I took off on a long harangue. You asked me a question, am I hopeful. Yes, I’m hopeful that people will approve, vote yes on the referendum. It’s a David versus Goliath kind of a thing where they’ve got $10 million already put into media, and we’re still way ahead in the polls, and the more money they put in, the stronger I think we will be when people go to the polls and vote. So, yes, I’m hopeful. And after we win, then it will be a manner of getting, in order to get where we want to get, and it will be a matter of electing a governor and electing legislators who will put together the proper kind of package that will benefit Alaskans.