Appellants, at least five of whom are not residents of Alaska,
challenged in state court the constitutionality of the "Alaska
Hire" statute (which was enacted professedly for the purpose of
reducing unemployment within the State) that requires that all
Alaskan oil and gas leases, easements or right-of-way permits for
oil and gas pipelines, and unitization agreements contain a
requirement that qualified Alaska residents be hired in preference
to nonresidents. The trial court upheld the statute. The Alaska
Supreme Court affirmed except for that part of the Act that
contained a one-year durational residency requirement, which it
held invalid.
Held:
1. The invalidation of the one-year durational residency
requirement does not moot the case, since a controversy still
exists between the nonresident appellants, none of whom can qualify
as "residents" under the statutory definition, and the appellees,
state officials. Those appellants thus have a continuing interest
in restraining the statutory discrimination favoring state
residents. P.
437 U. S.
523.
2. Alaska Hire violates the Privileges and Immunities Clause of
Art. IV, § 2. Pp.
437 U. S.
523-534.
(a) Though the Clause "does not preclude disparity of treatment
in the many situations where there are perfectly valid independent
reasons for it," it "does bar discrimination against citizens of
other States where there is no reason for the discrimination beyond
the mere fact that they are citizens of other States."
Toomer
v. Witsell, 334 U. S. 385,
334 U. S. 396.
See also Mullaney v. Anderson, 342 U.
S. 415. Pp.
437 U. S.
524-526.
(b) Even under the dubious assumption that a State may validly
alleviate its unemployment problem by requiring private employers
within the State to discriminate against nonresidents, Alaska Hire
cannot be upheld, for the record indicates that Alaska's
unemployment was not attributable to the influx of nonresident
job-seekers, but rather to the fact that a substantial number of
Alaska's jobless residents were unemployed either because of lack
of education and job training or because of geographical remoteness
from job opportunities. Employment of nonresidents threatened to
deny jobs to residents only to the extent that jobs for which
untrained residents were being prepared might be filled
Page 437 U. S. 519
by nonresidents before the residents' training was completed.
Moreover, even if a showing was made that nonresidents were "a
peculiar source of the evil,"
Toomer v. Witsell, supra at
334 U. S. 398,
at which Alaska Hire was aimed, the statute would still be invalid,
for its discrimination against nonresidents does not bear a
substantial relationship to the "evil" that they are said to
present, since statutory preference over nonresidents is given to
all Alaskans, not just those who are unemployed. Pp.
437 U. S.
526-528
(c) Alaska's ownership of the oil and gas that are the subject
matter of Alaska Hire constitutes insufficient justification for
the statute's pervasive discrimination against nonresidents. Alaska
Hire's reach includes employers who have no connection with the
State's oil and gas, perform no work on state land, have no
contractual relationship with the State, and receive no payment
from the State; and the Act's coverage is not limited to activities
connected with the extraction of Alaska's oil and gas. Pp.
437 U. S.
528-531.
(d) The conclusion that Alaska Hire cannot withstand
constitutional scrutiny is fortified by decisions under the
Commerce Clause that circumscribe a State's ability to prefer its
own citizens in the utilization of natural resources found within
its borders but destined for interstate commerce.
West v.
Kansas Natural Gas, 221 U. S. 229;
Pennsylvania v. West Virginia, 262 U.
S. 553; and
Foster Packing Co. v. Haydel,
278 U. S. 1. The oil
and gas upon which Alaska hinges its discrimination are bound for
out-of-state consumption and are of profound national importance,
while the breadth of the discrimination mandated by Alaska Hire
transcends the degree of resident bias that Alaska's ownership of
the oil and gas can justifiably support. Pp.
437 U. S.
531-534.
565 P.2d 159,
reversed. BRENNAN, J., delivered the opinion for a unanimous
Court.
Page 437 U. S. 520
MR. JUSTICE BRENNAN delivered the opinion of the Court.
In 1972, professedly for the purpose of reducing unemployment in
the State, the Alaska Legislature passed an Act entitled "Local
Hire Under State Leases." Alaska Stat.Ann. § § 38.40.010 to
38.40.090 (1977). The key provision of "Alaska Hire," as the Act
has come to be known, is the requirement that
"all oil and gas leases, easements or right-of-way permits for
oil or gas pipeline purposes, unitization agreements, or any
renegotiation of any of the preceding to which the state is a
party"
contain a provision "requiring the employment of qualified
Alaska residents" in preference to nonresidents. [
Footnote 1] Alaska Stat.Ann. § 38.40.030(a)
(1977). [
Footnote 2] This
employment preference is administered by providing persons meeting
the statutory requirements for Alaskan residency with certificates
of residence -- "resident cards" -- that can be presented to an
employer covered by the Act as proof of residency. 8 Alaska
Admin.Code 35.015 (1977). Appellants, individuals desirous of
securing jobs covered by the Act but unable to qualify for the
necessary resident cards, challenge Alaska Hire as violative of
Page 437 U. S. 521
both the Privileges and Immunities Clause of Art. IV, § 2, and
the Equal Protection Clause of the Fourteenth Amendment.
I
Although enacted in 1972, Alaska Hire was not seriously enforced
until 1975, when construction on the Trans-Alaska Pipeline
[
Footnote 3] was reaching its
peak. At that time, the State Department of Labor began issuing
residency cards and limiting to resident cardholders the
dispatchment to oil pipeline jobs. On March 1, 1976, in response to
"numerous complaints alleging that persons who are not Alaska
residents have been dispatched on pipeline jobs when
qualified Alaska residents were available to fill the
jobs," Executive Order #76-1, Alaska Dept. of Labor (Mar. 1, 1976)
(emphasis in original), Edmund Orbeck, the Commissioner of Labor
and one of the appellees here, issued a cease and desist order to
all unions supplying pipeline workers [
Footnote 4] enjoining them "to respond to all open job
calls by dispatching
all qualified Alaska residents before
any nonresidents are dispatched."
Ibid. (emphasis
in original). As a result, the appellants, all but one of whom had
previously worked on the pipeline, were prevented from obtaining
pipeline-related work. Consequently, on April 28, 1976, appellants
filed a complaint in the Superior Court in Anchorage seeking
declaratory and injunctive relief against enforcement of Alaska
Hire.
At the time the suit was filed, the provision setting forth the
qualifications for Alaskan residency for purposes of Alaska
Page 437 U. S. 522
Hire, Alaska Stat.Ann. § 38.40.090, [
Footnote 5] included a one-year durational residency
requirement. Appellants attacked that requirement as well as the
flat employment preference given by Alaska Hire to state residents.
By agreement of the parties, consideration of a motion for a
preliminary injunction was consolidated with the determination of
the suit on its merits. The case was submitted on affidavits,
depositions, and memoranda of law; no oral testimony was taken. On
July 21, 1976, the Superior Court upheld Alaska Hire in its
entirety and denied appellants all relief. On appeal, the Alaska
Supreme Court unanimously held that Alaska Hire's one-year
durational residency requirement was unconstitutional under both
the state and federal Equal Protection Clauses,
565 P.2d 159,
165 (1977), and held further that a durational residency
requirement in excess of 30 days was constitutionally infirm.
Id. at 171. [
Footnote
6] By a vote of 3 to 2, however, the court held that the Act's
general preference for Alaska residents was constitutionally
permissible. Appellants appealed the State Supreme Court's judgment
insofar as it embodied the latter holding, and we noted probable
jurisdiction. 434 U.S. 919 (1977). We reverse.
Page 437 U. S. 523
II
Preliminarily, we hold that this case is not moot. Despite the
Alaska Supreme Court's invalidation of the one-year durational
residency requirement, a controversy still exists between at least
five of the appellants -- Tommy Ray Woodruff, Frederick A. Mathers,
Emmett Ray, Betty Cloud, and Joseph G. O'Brien -- and the state
appellees. These five appellants have all sworn that they are not
residents of Alaska, Record 43, 47, 49, 96, 124. Therefore, none of
them can satisfy the element of the definition of "resident" under
§ 38.40.090(1)(D) that requires that an individual "has not, within
the period of required residency, claimed residency in another
state." They thus have a continuing interest in restraining the
enforcement of Alaska Hire's discrimination in favor of residents
of that State. [
Footnote 7]
Appellants' principal challenge to Alaska Hire is made under the
Privileges and Immunities Clause of Art. IV, § 2: "The Citizens of
each State shall be entitled to all Privileges and Immunities of
Citizens in the several States." That provision, which
"appears in the so-called States' Relations Article, the same
Article that embraces the Full Faith and Credit Clause, the
Extradition Clause . . . , the provisions for the admission of new
States, the Territory and Property Clause, and the Guarantee
Clause,"
Baldwin v. Montana Fish and Game Comm'n, 436 U.
S. 371,
436 U. S. 379
(1978), "establishes a norm of comity,"
Austin v. New
Hampshire, 420 U. S. 656,
420 U. S. 660
(1975), that is to prevail among the States with respect to their
treatment
Page 437 U. S. 524
of each other's residents. [
Footnote 8] The purpose of the Clause, as described in
Paul v.
Virginia, 8 Wall. 168,
75 U. S. 180
(1869), is
"to place the citizens of each State upon the same footing with
citizens of other States, so far as the advantages resulting from
citizenship in those States are concerned. It relieves them from
the disabilities of alienage in other States; it inhibits
discriminating legislation against them by other States; it gives
them the right of free ingress into other States, and egress from
them; it insures to them in other States the same freedom possessed
by the citizens of those States in the acquisition and enjoyment of
property and in the pursuit of happiness; and it secures to them in
other States the equal protection of their laws. It has been justly
said that no provision in the Constitution has tended so strongly
to constitute the citizens of the United States one people as
this."
Appellants' appeal to the protection of the Clause is strongly
supported by this Court's decisions holding violative of the Clause
state discrimination against nonresidents seeking to ply their
trade, practice their occupation, or pursue a common calling within
the State. For example, in
Ward v.
Maryland, 12 Wall. 418 (1871), a Maryland statute
regulating the sale of most goods in the city of Baltimore fell to
the privileges and immunities challenge of a New Jersey resident
against whom the law discriminated. The statute discriminated
Page 437 U. S. 525
against nonresidents of Maryland in several ways: it required
nonresident merchants to obtain licenses in order to practice their
trade without requiring the same of certain similarly situated
Maryland merchants; it charged nonresidents a higher license fee
than those Maryland residents who were required to secure licenses;
and it prohibited both resident and nonresident merchants from
using nonresident salesmen, other than their regular employees, to
sell their goods in the city. In holding that the statute violated
the Privileges and Immunities Clause, the Court observed that
"the clause plainly and unmistakably secures and protects the
right of a citizen of one State to pass into any other State of the
Union for the purpose of engaging in lawful commerce, trade, or
business without molestation."
Id. at
79 U. S. 430.
Ward thus recognized that a resident of one State is
constitutionally entitled to travel to another State for purposes
of employment free from discriminatory restrictions in favor of
state residents imposed by the other State.
Again,
Toomer v. Witsell, 334 U.
S. 385 (1948), the leading modern exposition of the
limitations the Clause places on a State's power to bias employment
opportunities in favor of its own residents, invalidated a South
Carolina statute that required nonresidents to pay a fee 100 times
greater than that paid by residents for a license to shrimp
commercially in the three-mile maritime belt off the coast of that
State. The Court reasoned that, although the Privileges and
Immunities Clause "does not preclude disparity of treatment in the
many situations where there are perfectly valid independent reasons
for it,"
id. at
334 U. S.
396,
"[i]t does bar discrimination against citizens of other States
where there is no substantial reason for the discrimination beyond
the mere fact that they are citizens of other States."
Ibid. A "substantial reason for the discrimination"
would not exist, the Court explained, "unless there is something to
indicate that noncitizens constitute a peculiar source of the evil
at which the
Page 437 U. S. 526
[discriminatory] statute is aimed."
Id. at
334 U. S. 398.
Moreover, even where the presence or activity of nonresidents
causes or exacerbates the problem the State seeks to remedy, there
must be a "reasonable relationship between the danger represented
by non-citizens, as a class, and the . . discrimination practiced
upon them."
Id. at
334 U. S. 399.
Toomer's analytical framework was confirmed in
Mullaney v. Anderson, 342 U. S. 415
(1952), where it was applied to invalidate a scheme used by the
Territory of Alaska for the licensing of commercial fishermen in
territorial waters; under that scheme residents paid a license fee
of only $5, while nonresidents were charged $50. Even assuming that
a State may validly attempt to alleviate its unemployment problem
by requiring private employers within the State to discriminate
against nonresidents -- an assumption made at least dubious by
Ward [
Footnote 9] --
it is clear that, under the
Toomer analysis reaffirmed in
Mullaney, Alaska Hire's discrimination against
nonresidents cannot withstand scrutiny under the Privileges and
Immunities Clause. For although the statute may not violate the
Clause if the State shows "something to indicate that noncitizens
constitute a peculiar source of the evil at which the statute is
aimed,"
Toomer v. Witsell, supra at
334 U. S. 398,
and, beyond this, the State "has no burden to prove that its laws
are not violative of the . . . Clause,"
Baldwin v. Montana Fish
and Game Comm'n, 436 U.S. at
436 U. S. 402
(BRENNAN, J., dissenting), certainly no showing was made on this
record that nonresidents were "a peculiar source of the evil"
Alaska Hire was enacted to remedy, namely, Alaska's "uniquely high
unemployment." Alaska Stat.Ann. § 38.40.020 (1977). What evidence
the record does contain indicates that the major cause of Alaska's
high unemployment was not the influx of nonresidents seeking
employment, but rather the fact that a substantial number of
Alaska's jobless residents -- especially the unemployed Eskimo and
Indian residents -- were unable to
Page 437 U. S. 527
secure employment either because of their lack of education and
job training or because of their geographical remoteness from job
opportunities; [
Footnote 10]
and that the employment of nonresidents threatened to deny jobs to
Alaska residents only to the extent that jobs for which untrained
residents were being prepared might be filled by nonresidents
before the residents' training was completed.
Moreover, even if the State's showing is accepted as sufficient
to indicate that nonresidents were "a peculiar source of evil,"
Toomer and
Mullaney compel the conclusion that
Alaska Hire nevertheless fails to pass constitutional muster. For
the discrimination the Act works against nonresidents does not bear
a substantial relationship to the particular "evil" they are said
to present. Alaska Hire simply grants all Alaskans, regardless of
their employment status, education, or training, a flat employment
preference for all jobs covered by the Act. A highly skilled and
educated resident who has never been unemployed is entitled to
precisely the same preferential treatment as the unskilled,
habitually unemployed Arctic Eskimo enrolled in a job training
program. If
Page 437 U. S. 528
Alaska is to attempt to ease its unemployment problem by forcing
employers within the State to discriminate against nonresidents --
again, a policy which may present serious constitutional questions
-- the means by which it does so must be more closely tailored to
aid the unemployed the Act is intended to benefit. Even if a
statute granting an employment preference to unemployed residents
or to residents enrolled in job training programs might be
permissible, Alaska Hire's across-the-board grant of a job
preference to all Alaskan residents clearly is not.
Relying on
McCready v. Virginia, 94 U. S.
391 (1877), however, Alaska contends that, because the
oil and gas that are the subject of Alaska Hire are owned by the
State, [
Footnote 11] this
ownership, of itself, is sufficient justification for the Act's
discrimination against nonresidents, and takes the Act totally
without the scope of the Privileges and Immunities Clause. As the
State sees it
"the privileges and immunities clause [does] not apply, and was
never meant to apply, to decisions by the states as to how they
would permit, if at all, the use and distribution of the natural
resources which they own. . . ."
Brief for Appellees 20 n. 14. We do not agree that the fact that
a State owns a resource, of itself, completely removes a law
concerning that resource from the prohibitions of the Clause.
Although some courts, including the court below, have read
McCready as creating an "exception" to the Privileges and
Immunities Clause, we have just recently confirmed that,
"[i]n more recent years . . . , the Court has recognized
Page 437 U. S. 529
that the States' interest in regulating and controlling those
things they claim to 'own' . . . is by no means absolute."
Baldwin v. Montana Fish and Game Comm'n, 436 U.S. at
436 U. S. 385.
Rather than placing a statute completely beyond the Clause, a
State's ownership of the property with which the statute is
concerned is a factor -- although often the crucial factor -- to be
considered in evaluating whether the statute's discrimination
against noncitizens violates the Clause. Dispositive though this
factor may be in many cases in which a State discriminates against
nonresidents, it is not dispositive here.
The reason is that Alaska has little or no proprietary interest
in much of the activity swept within the ambit of Alaska Hire; and
the connection of the State's oil and gas with much of the covered
activity is sufficiently attenuated so that it cannot justifiably
be the basis for requiring private employers to discriminate
against nonresidents. The extensive reach of Alaska Hire is set out
in Alaska Stat.Ann. § 38.40.050(a) (1977). That section
provides:
"The provisions of this chapter apply to
all employment
which is a result of oil and gas leases, easements, leases or
right-of-way permits
for oil or as pipeline purposes,
unitization agreements, [
Footnote 12] or any renegotiation of any of the preceding
to which the state is a party after July 7, 1972; however, the
activity which generates the employment must take place inside the
state and it must
Page 437 U. S. 530
take place either on the property under the control of the
person subject to this chapter
or be directly related to
activity taking place on the property under his control and
the activity must be performed directly for the person subject to
this chapter
or his contractor or a subcontractor of his
contractor or a suppler of his contractor or
subcontractor."
(Emphasis added.) Under this provision, Alaska Hire extends to
employers who have no connection whatsoever with the State's oil
and gas, perform no work on state land, have no contractual
relationship with the State, and receive no payment from the State.
The Act goes so far as to reach suppliers who provide goods or
services to subcontractors who, in turn, perform work for
contractors despite the fact that none of these employers may
themselves have direct dealings with the State's oil and gas or
ever set foot on state land. [
Footnote 13] Moreover, the Act's coverage is not limited
to activities connected with the extraction of Alaska's oil and
gas. [
Footnote 14] It
encompasses, as emphasized by the dissent below, "employment
opportunities at refineries and in distribution systems utilizing
oil and gas obtained under Alaska leases." 565 P.2d at 171. The
only limit of any consequence on the Act's reach is the requirement
that "the
Page 437 U. S. 531
activity which generates the employment must take place inside
the state." Although the absence of this limitation would be
noteworthy, its presence hardly is, for it simply prevents Alaska
Hire from having what would be the surprising effect of requiring
potentially covered out-of-state employers to discriminate against
residents of their own State in favor of nonresident Alaskans. In
sum, the Act is an attempt to force virtually all businesses that
benefit in some way from the economic ripple effect of Alaska's
decision to develop its oil and gas resources to bias their
employment practices in favor of the State's residents. We believe
that Alaska's ownership of the oil and gas that is the subject
matter of Alaska Hire simply constitutes insufficient justification
for the pervasive discrimination against nonresidents that the Act
mandates. [
Footnote 15]
Although appellants raise no Commerce Clause challenge to the
Act, the mutually reinforcing relationship between the Privileges
and Immunities Clause of Art. IV, § 2, and the Commerce Clause -- a
relationship that stems from their common
Page 437 U. S. 532
origin in the Fourth Article of the Articles of Confederation
[
Footnote 16] and their
shared vision of federalism,
see Baldwin v. Montana Fish and
Game Comm'n, 436 U.S. at
436 U. S.
379-380 -- renders several Commerce Clause decisions
appropriate support for our conclusion.
West v. Kansas Natural
Gas, 221 U. S. 229
(1911), struck down an Oklahoma statutory scheme that completely
prohibited the out-of-state shipment of natural gas found within
the State. The Court reasoned that, if a State could so prefer its
own economic wellbeing to that of the Nation as a whole,
"Pennsylvania might keep its coal, the Northwest its timber, [and]
the mining States their minerals," so that "embargo may be
retaliated by embargo" with the result that "commerce [would] be
halted at state lines."
Id. at
221 U. S. 255.
West was held to be controlling in
Pennsylvania v.
West Virginia, 262 U. S. 553
(1923), where a West Virginia statute that effectively required
natural gas companies within the State to satisfy all fuel needs of
West Virginia residents before transporting any natural gas out of
the State was held to violate the Commerce Clause.
West
and
Pennsylvania v. West Virginia thus established that
the location in a given State of a resource bound for interstate
commerce is an insufficient basis for preserving the benefits of
the resource exclusively or even
Page 437 U. S. 533
principally for that State's residents.
Foster Packing Co.
v. Haydel, 278 U. S. 1 (192),
went one step further; it limited the extent to which a State's
purported ownership of certain resources could serve as a
justification for the State's economic discrimination in favor of
residents. There, in the face of Louisiana's claim that the State
owned all shrimp within state waters, the Court invalidated a
Louisiana law that required the local processing of shrimp taken
from Louisiana marshes as a prerequisite to their out-of-state
shipment. The Court observed that,
"by permitting its shrimp to be taken and all the products
thereof to be shipped and sold in interstate commerce, the State
necessarily releases its hold, and, as to the shrimp so taken,
definitely terminates its control."
Id. at
278 U. S. 13.
West, Pennsylvania v. West Virginia, and
Foster
Packing thus establish that the Commerce Clause circumscribes
a State's ability to prefer its own citizens in the utilization of
natural resources found within its borders, but destined for
interstate commerce. Like Louisiana's shrimp in
Foster
Packing, Alaska's oil and gas here are bound for out-of-state
consumption. Indeed, the construction of the Trans-Alaska Pipeline,
on which project appellants' nonresidency has prevented them from
working, was undertaken expressly to accomplish this end. [
Footnote 17] Although the fact that
a state-owned resource is destined for interstate commerce does
not, of itself, disable the State from preferring its own citizens
in the utilization of that resource, it does inform analysis under
the Privileges and Immunities Clause as to the permissibility of
the discrimination the State visits upon nonresidents based on its
ownership of the resource. Here, the oil and gas upon
Page 437 U. S. 534
which Alaska hinges its discrimination against nonresidents are
of profound national importance. [
Footnote 18] On the other hand, the breadth of the
discrimination mandated by Alaska Hire goes far beyond the degree
of resident bias Alaska's ownership of the oil and gas can
justifiably support. The confluence of these realities points to
but one conclusion: Alaska Hire cannot withstand constitutional
scrutiny. As Mr. Justice Cardozo observed in
Baldwin v. G. A.
F. Seelig, Inc., 294 U. S. 511,
294 U. S. 523
(1935), the Constitution
"was framed upon the theory that the peoples of the several
states must sink or swim together, and that, in the long run,
prosperity and salvation are in union, and not division. [
Footnote 19]"
Reversed.
[
Footnote 1]
The regulations implementing the Act further require that all
nonresidents be laid off before any resident "working in the same
trade or craft" is terminated: "[T] he nonresident may be retained
only if no resident employee is qualified to fill the position." 8
Alaska Admin.Code 35.011 (1977).
See also 8 Alaska
Admin.Code 35.042(4) (1977).
[
Footnote 2]
The complete text of § 38.40.030(a) is as follows:
"In order to create, protect and preserve the right of Alaska
residents to employment, the commissioner of natural resources
shall incorporate into all oil and gas leases, easements or
right-of-way permits for oil or gas pipeline purposes, unitization
agreements, or any renegotiation of any of the preceding to which
the state is a party, provisions requiring the lessee to comply
with applicable laws and regulations with regard to the employment
of Alaska residents, a provision requiring the employment of
qualified Alaska residents, a provision prohibiting discrimination
against Alaska residents and, when in the determination of the
commissioner of natural resources it is practicable, a provision
requiring compliance with the Alaska Plan, all in accordance with
the provisions of this chapter."
[
Footnote 3]
See Trans Alaska Pipeline Rate Cases, 436 U.
S. 631 (1978); Trans-Alaska Pipeline Authorization Act,
87 Stat. 584, 43 U.S.C. § 1651
et seq. (1970 ed., Supp.
V).
[
Footnote 4]
App. 13-14. The vast majority of pipeline jobs were filled
through union dispatchment. Deposition of David Finrow, Deputy
Director of the Wage and Hour Division of the Alaska Dept. of
Labor, in No. 3025 (Sup.Ct. Alaska), pp. 18-19, 28, 48.
[
Footnote 5]
Section 38.40.090 provides:
"In this chapter"
"(1) 'resident' means a person who"
"(A) except for brief intervals, military service, attendance at
an educational or training institution, or for absences for good
cause, is physically present in the state for a period of one year
immediately before the time his status is determined;"
"(B) maintains a place of residence in the state;"
"(C) has established residency for voting purposes in the
state;"
"(D) has not, within the period of required residency, claimed
residency in another state; and"
"(E) shows by all attending circumstances that his intent is to
make Alaska his permanent residence."
[
Footnote 6]
Appellees have not cross-appealed this portion of the Alaska
Supreme Court's decision, which rests upon an independent and
adequate state ground.
Murdock v.
Memphis, 20 Wall. 590 (1875).
[
Footnote 7]
As to the remaining three appellants -- Sidney S. Hicklin, Ruby
E. Dorman, and Harry A. Browning -- the case does appear moot. At
the time this suit was instituted, all three claimed to be Alaskan
residents, but none had lived in the State continuously for one
year. Record 45, 51-52, 126-127. Consequently, the only aspect of
Alaska Hire they challenged was the Act's one-year durational
residency requirement. When this requirement was held invalid by
the Alaska Supreme Court, their controversy with the appellees
seems to have terminated.
[
Footnote 8]
Although this Court has not always equated state residency with
state citizenship,
compare Travis v. Yale & Towne Mfg.
Co., 252 U. S. 60,
252 U. S. 78-79
(1920),
and Blake v. McClung, 172 U.
S. 239,
172 U. S.
246-247 (1898),
with Southern R. Co. v.
Mayfield, 340 U. S. 1,
340 U. S. 3-4
(1950);
Douglas v. New Haven R. Co., 279 U.
S. 377,
279 U. S.
386-387 (1929);
and La Tourette v. McMaster,
248 U. S. 465,
248 U. S.
469-470 (1919), it is now established that the terms
"citizen" and "resident" are "essentially interchangeable,"
Austin v. New Hampshire, 420 U. S. 656,
420 U. S. 662
n. 8 (1975), for purposes of analysis of most cases under the
Privileges and Immunities Clause of Art. IV, § 2.
See Toomer v.
Witsell, 334 U. S. 385,
334 U. S. 397
(1948).
[
Footnote 9]
Cf. Edwards v. California, 314 U.
S. 160 (1941).
[
Footnote 10]
For example, a report quoted in the State's Memorandum in
Opposition to Plaintiffs' Motion for Partial Preliminary Injunction
and Second Motion for Preliminary Injunction, Record 58,
observed:
"The skill levels of in-migrants and seasonal workers are
generally higher than those of the unemployed or underemployed
resident workers.
Their ability to command jobs in Alaska is a
symptom of, rather than the cause of, conditions resulting in high
unemployment rates, particularly among Alaska Natives. Those
who need the jobs the most tend to be undereducated, untrained, or
living in areas of the state remote from job opportunities. Unless
unemployed residents -- most of whom are Eskimos and Indians --
have access to job markets and receive the education and training
required to fit them into Alaska's increasingly technological
economy, and unless there is a restructuring of labor demands, new
jobs will continue to be filled by persons from other states who
have the necessary qualifications."
Federal Field Committee for Development Planning in Alaska,
Economic Outlook for Alaska 311-312 (1971) (emphasis added;
footnote omitted).
[
Footnote 11]
At the time Alaska was admitted into the Union on January 3,
1959, 99% of all land within Alaska's borders was owned by the
Federal Government. In becoming a State, Alaska was granted and
became entitled to select approximately 103 million acres of those
federal lands. Alaska Statehood Law, 72 Stat. 340, § 6, note
preceding 48 U.S.C. § 21. The selection process is not yet
complete, but, since 1959, large portions of land have been
conveyed to the State, in fee, by the Federal Government. Full
title to those lands and to the minerals on and below them is
vested in the State. 72 Stat. 342, § 6(i), note preceding 48 U.S.C.
§ 21.
[
Footnote 12]
The term "unitization agreement" is not defined in the Act.
Alaska's Commissioner of Natural Resources gave the following
definition of the term:
"Well, unitization agreement is an agreement between the
operators and any given oil field as to the equity that each of
them would have with respect to the oil and gas resources in that
field. And in some cases, that word is used to also include
something called the 'Plan of Operations,' which sets out the way
in which an oil field or gas field would be operated pursuant to
the State's conservation laws."
Deposition of Guy R. Martin in No. 3025 (Sup.Ct. Alaska), p.
5.
[
Footnote 13]
According to one of the administrative regulations implementing
Alaska Hire,
"[s]uppliers shall have the same hiring requirements as an
employer covered by this chapter, as to that portion of their
supply business that is the result of a project or activity of a
lessee, contractor or subcontractor."
8 Alaska Admin. Code 35.080(a) (1977).
[
Footnote 14]
The Commissioner of Natural Resources expressed this
understanding of the scope of the Act:
"
Mr. Martin: . . . I think it would cover relationships
such as anything on a work pad or an associated construction road
or possibly a site for a support camp or construction camp."
"
Mr. Wagstaff (attorney for appellants): What about
things such as docks if shipping is being used?"
"
Mr. Martin: I would think that it could possibly
include that."
Deposition of Guy R. Martin,
supra at 4.
[
Footnote 15]
Heim v. McCall, 239 U. S. 175
(1915), and
Crane v. New York, 239 U.
S. 195 (1915) -- if they have any remaining vitality,
see Sugarman v. Dougall, 413 U. S. 634,
413 U. S.
643-645 (1973),
C. D. R. Enterprises, Ltd. v. Board
of Education, 412 F.
Supp. 1164 (EDNY 1976),
summarily aff'd sub nom. Lefkowitz
v. C. D. R. Enterprises, Ltd., 429 U.S. 1031 (1977) -- do not
suggest otherwise. In those cases, a New York statute that limited
employment "in the construction of public works" to United States
citizens and also required that an employment preference be given
to New York citizens in such projects was upheld against challenges
under both the Constitution and the Treaty of 1871 with Italy.
Although the Art. IV, § 2, Privileges and Immunities Clause, along
with the Due Process, Equal Protection, and Privileges and
Immunities Clauses of the Fourteenth Amendment, was listed as one
of the constitutional bases for attacking the statute, no
out-of-state United States citizen challenged the law. As a
consequence, both the appellants and the Court were concerned
almost exclusively with the statute's discrimination against
resident aliens. This was reflected in the Court's holding, which
was limited to the Fourteenth Amendment and Treaty challenges, and
expressed no view on appellants' passing Art. IV, § 2, privileges
and immunities claim.
[
Footnote 16]
That Article provided:
"The better to secure and perpetuate mutual friendship and
intercourse among the people of the different states in this union,
the free inhabitants of each of these states, paupers, vagabonds
and fugitives from justice excepted, shall be entitled to all
privileges and immunities of free citizens in the several states;
and the people of each State shall have free ingress and regress to
and from any other State, and shall enjoy therein all the
privileges of trade and commerce, subject to the same duties,
impositions, and restrictions, as the inhabitants thereof
respectively; provided, that such restrictions shall not extend so
far as to prevent the removal of property, imported into any State,
to any other State of which the owner is an inhabitant; provided,
also that no imposition, duties or restriction, shall be laid by
any State on the property of the United States, or either of
them."
9 Journal of the Continental Congress 908-909 (1777) (Library of
Congress ed., 1907).
[
Footnote 17]
In authorizing the construction of the Trans-Alaska Pipeline,
Congress expressly found that
"[t]he early development and delivery of oil and gas from
Alaska's North Slope
to domestic markets is in the
national interest because of growing domestic shortages and
increasing dependence upon insecure foreign sources."
43 U.S.C. § 1651(a) (1970 ed., Supp. V) (emphasis added).
[
Footnote 18]
In enacting the Alaska Natural Gas Transportation Act of 1976,
15 U.S.C. § 719
et seq. (1976 ed.) Congress declared:
"(1) a natural gas supply shortage exists in the contiguous
States of the United States;"
"(2) large reserves of natural gas in the State of Alaska could
help significantly to alleviate this supply shortage;"
"(3) the expeditious construction of a viable natural gas
transportation system for delivery of Alaska natural gas to United
States markets is in the national interest; and"
"(4) the determinations whether to authorize a transportation
system for delivery of Alaska natural gas to the contiguous States
and, if so, which system to select, involve questions of the utmost
importance respecting national energy policy, international
relations, national security, and economic and environmental
impact, and therefore should appropriately be addressed by the
Congress and the President in addition to those Federal officers
and agencies assigned functions under law pertaining to the
selection, construction, and initial operation of such a
system."
15 U.S.C. § 719 (1976 ed.).
See n 17,
supra.
[
Footnote 19]
In light of our conclusion that Alaska Hire is invalid under the
Privileges and Immunities Clause of Art. IV, § 2, we have no
occasion to address appellants' challenges to the Act under the
Equal Protection Clause of the Fourteenth Amendment.