Mining News: Nonprofit does not mean public interest

Environmental groups benefit from blurring of distinctions as age-old concept of common good is subverted in self-interested trend

J. P. Tangen

For Mining News

It seems that with the passage of time the concept of the common good, the general welfare and the public interest, all variations of the same theme, have become so diluted as to make them indecipherable. There was a time when charitable, educational, and eleemosynary entities were honored for their selfless contributions to the general welfare. Dedicated volunteers worked with trivial stipends or no recompense at all to attend to the poor and sickly. Tax benefits were extended toward charitable entities and, notwithstanding the obvious and sometimes extensive gaps in the general system, everyone clearly understood what concepts were subsumed by the public interest.

Somewhere along the line, however, the concept was perverted by a new breed of players who arrogated themselves to be the guardians of the community, without benefit of election or appointment. The leaders of the modern environmentalist community are clear representatives of this trend.

Modern Environmentalism is a big and growing business. It is not populated by Mother Theresa types working for little beyond a higher calling. According to a Sept. 22, article in the Washington Examiner, and based on data generated by the Internal Revenue Service for 2007, the key players in 10 leading environmentalist organizations were knocking down annual salaries in excess of a US$250,000 each, and ranging up to nearly US$500,000, plus generous benefits.

Inexplicably, the courts are also complicit in this farce. Under the Alaska Rules of Civil Procedure, the prevailing party in litigation has long been entitled to apply for attorneys’ fees to be partially compensated for participating in the litigation. The amount of the award is generally within the sound discretion of the court, except that since 1974, it has been “an abuse of discretion [for a court] to award attorneys’ fees against a losing party who has, in good faith, raised a question of genuine public interest before the courts.” Since whether a question is of genuine public interest is purely subjective, the ruling has the net effect of vitiating discretion. Generally, the courts do not examine whether a public interest litigant’s application for relief is “genuine.” Since awards of attorneys’ fees can run to the hundreds of thousands of dollars, the genuineness of the litigant’s application is, itself, a genuine issue.

The ongoing attack on the Pebble Project illustrates another incidence where the concept of the public interest has been thrown to the wind. In 2008, Ballot Measure 4 was hard fought. Without scruple, the proponents of the measure dumped millions of dollars into a campaign to derail exploration activities at Pebble and drag down Alaska’s mining industry in the process. Art Hackney, in conspiracy with Bob Gillam and others, admits he set up the Renewable Resources Coalition “to veil contributors.” The ensuing investigation by the Alaska Public Offices Commission staff resulted in a recommendation for maximum fines and a referral to the state Attorney General for prosecution. While the matter is still unresolved, the point is clear, not all nonprofits are concerned with the “genuine” public interest.

Rousseau’s insights into the Social Contract we, as a community and as a nation, embrace are as true today as they were in the 18th Century. “[T]he common good makes itself so manifestly evident that only common sense is needed to discern it.” Although it may be true that “common sense” isn’t all that common; nonetheless, it appears that now we have before us an opportunity to reverse a trend that has rendered the contemporary concept of “public interest” an oxymoron.