Managing Public Interest Litigation

Introduction

The thesis of this exposition is that judicial activism is a necessary, but insufficient

form of civic engagement for citizens seeking to implement economic fairness, social

justice, or ecological sanity. In order to project the provisions of progressive laws onto

the reality of every day life, one is required to gain a contextual view of the litigation

process, as well as an appreciation of how it interacts with other venues of societal debate

and protest. In this way, public interest litigation can make strategic use of anticipated

windows of opportunity for substantial public education.

From late 1992 through mid 1996, I was responsible for managing environmental and

growth management lawsuits for the Watershed Defense Fund, the Whatcom Falls

Neighborhood Association, and the Whatcom Environmental Council. The seven suits I

managed included county level administrative hearings, settlement negotiations, Superior

Court appearances, state level hearings, and an amicus brief before the Supreme Court of

the State of Washington. My responsibilities included all aspects of coordination,

including research, fundraising, strategic planning, communications, media relations,

networking, and public speaking.

As such, I was required to assess power structures, reinterpret policy, develop

persuasive argument, assert rival truths, research local history, and struggle to understand

diverse viewpoints. The fact that my efforts in the community and courtrooms were a

direct threat to privilege, power, and control over land use, water rights, and public funds,

imposed on me the responsibility to be firm with associates and adversaries alike.

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The subtopics I will address in this exposition are: strategy, networking, research, and

coordination. Strategy includes consideration of the ancillary benefits associated with

litigation, such as creating solidarity, exposing corruption, and recruiting new

participants. Networking discusses how to make the most of limited resources and

connections, including obtaining help and information from both allies as well as

defectors among one's opponents. Research addresses the need to probe beyond the

official record when investigating both the issues and one's opposition. Coordination

refers to all the administrative and political tasks that provide support for the battles

waged in the courtroom, including basic security, shaping public opinion, defining roles

and relationships, and seeing that all important functions are appropriately attended.

I learned managing public interest litigation on the job, so to speak. I was not paid,

and no one had hired me. My role in managing lawsuits for the Whatcom Falls

Neighborhood Association (WFNA), the Watershed Defense Fund (WDF), and the

Whatcom Environmental Council (WCEC), from the fall of 1992 through the summer of

1996 was a voluntary and largely self-selected one. As president of WFNA, as a founding

board member of WDF, and later as executive director of WCEC, my particular ability to

do original research, evaluate documents, analyze policy, communicate effectively, and

coordinate people, necessitated that I master the task. There was simply no one else

available.

While my first foray into the judicial system was before the Shoreline Hearings Board

(SHB) of the State of Washington, in July of 1993, I had spent much of 1991 and 1992

researching the Shoreline Management Act (SMA), the State Environmental Policy Act

(SEPA), and the newly legislated Growth Management Act (GMA). SMA, SEPA, and

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GMA had all been helpful in WFNAs successful defeat of a highway proposed within the

watershed of the City of Bellingham's municipal reservoir, known as Lake Whatcom, but

that battle never went beyond administrative hearings at the local level.

These three laws did, however, come into play in WFNAs and WDFs case against

expanded sewer service for development, around Lake Whatcom, before the SHB, as

well as on appeal in Superior Court and the State Court of Appeals. GMA, an all

encompassing tax abatement, environmental protection, and public process law, based on

an initiative of the people of the state, consumed my full attention as litigation manager

for WCEC before the state Growth Management Hearings Board (GMHB), the Superior

Court, the Court of Appeals, and the Supreme Court of the State of Washington. We

would appear several times over three years before the Growth Board, in repeated

attempts to coerce the Whatcom County Council and other local governments to abide by

this law.

Overview

The first task in managing public interest litigation, is to define the grievance or

injustice for which you are seeking a remedy. The initial briefings I crafted, summarized

the history, law, decision-making process, and potential impacts related to the issue

which my clients and I considered ripe for litigation. These summaries served as outlines

I later used in developing administrative testimony, flyers or newsletters, letters to the

editor, and in strategic planning sessions with my associates and our attorneys.

Once the decision has been made to enter the judicial arena, it's necessary to shop for a

law firm with experience in the appropriate field of law, ideologically motivated if

possible, and willing to work at reduced fee, if not pro bono. This usually involved

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working with out-of-town firms, or staff attorneys in public interest organizations.

Sometimes, this involved using a local firm for local hearings and appearances, and a

separate firm for proceedings in the state capitol. In early cases, I naively participated in

local administrative hearings without benefit of legal counsel, relying on my own

research, interrogation, and argument. This had mixed results: presiding officials were a

little more lenient; I learned enough to know how risky it is; and I prepared myself for the

years to come, when I would be managing multiple cases and attorneys simultaneously.

Having mustered the gumption to take on local government and the building industry,

I had to determine whether to go it alone, or to seek partners among activists,

organizations, and state or federal government agencies, whether to use separate

attorneys, and how to split the costs. Sometimes, agencies can provide expert witnesses,

while activists provide legal teams. At any rate, overreliance on any governmental body

to look out for the public interest is highly foolish.

For all the cases I managed, I was the tactical decision-maker. Strategic decisions

were hammered out among the board of the organization or coalition, usually with my

facilitation, but always using my background briefings and recommendations to guide the

discussion.

It is essential in litigation, that all roles and relationships be clearly delineated, and

that all decisions be adequately documented and archived. There is no time, once the

battle begins, for sorting this out. There are no second chances or room for error--

everyone must know what they need to do and when. It is the responsibility of a litigation

manager to know what the tasks and deadlines are, to assign the tasks, and to make sure

they are completed.

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Given that public interest litigation, especially local, is typically underfunded, it is

essential to take good care of the lawyers, experts, and volunteers who assist you. Pay

them regularly, if not on time; invite them to socials with your clients; give them gifts

and recognition.

In the cases where I had time, I planned public relations prior to filing suit: calling a

press conference, taking out newspaper ads, preparing handouts and press kits. Most of

the time, I had to react to press inquiries or attacks, thinking on my feet. This illustrates

the importance of developing a message beforehand, knowing your issue well, and not

letting less well informed associates speak with the media.

Another aspect of my work was to provide cover for government bureaucrats, staff,

and officials who had valuable knowledge, but would be fired for helping us. In order to

do this, I would ask them where to find helpful documents, copy them, develop questions

that would have led to their discovery, and then send a formal letter of request or

subpoena to this person to officially get what I already had.

When the volume of documents was prohibitively expensive to obtain, due to

exhorbitant government copying fees, I just left it to my opponents to figure out how I

had obtained them. It never occurred to them to see if there was a purchase receipt for the

evidence I submitted. I guess they just assumed, because of my pervasive presence and

seemingly endless lawsuits, that I had a big backer. Once, I spent a week going into the

courthouse with an empty briefcase, loading it with documents, walking out at the end of

the day, copying them at a friends' place overnight, and returning them in the morning.

One element of strategic planning for litigation, is to explore and develop

opportunities for benefits other than winning the case, such as, public awareness and

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education, recruiting and conversion of allies, as well as leadership training and

development.

Keeping my clients on task raising money for our effort was very challenging. They

amazingly continued to hold out hope that some guardian angel or foundation would

rescue us financially. The most successful strategy I employed involved soliciting small

donations from residents who would benefit directly, and asking them to hold garage

sales, bake sales, or auctions. This not only gave them something achievable to do, but

also built ownership and commitment, provided social support for the warriors, and

served to spread our cause by word of mouth, essential in the absence of even-handed

media.

A crucial facet of my work was spousal support, for in spite of pledges, contracts, and

good intentions, I received no pay. Legal obligations to pay for my services were ignored

as our attorneys' fees piled up. Our cases and appeals became all important, and because I

was committed, I was taken for granted--something to consider before entering this field

of activism. The judicial system has momentum that carries the action-addicted along like

white water rafting. Even with spousal support, I was forced to declare bankruptcy after a

couple of years.

Watchdogging government meetings became an arduous task that could not be

neglected, nor performed by someone unschooled in the minutiae of the issue. Coming

prepared with concise handouts for media was crucial, since they rarely actually read any

court documents, relying instead on comments from officials and participants.

By mid 1993, I was already a self-taught lay expert, and fairly capable paralegal on

these laws, a fact that enabled the organizations I served with to save considerably on

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legal bills. My forte was in digging out useful information from government archives and

bureaucrats, presenting cogent strategies to my associates, and in directing our attorneys

to what we felt were the most productive political tactics. I was very hands on, providing

the primary evidence and documentation with accompanying analysis, that was then used

by the attorneys to formulate legal argumentation and courtroom strategy. On the sewer

line case, the findings of fact and rulings of law established by the county Hearing

Examiner were based on my research, cross-examination, and oral argument without the

benefit of legal counsel. His rulings formed the backbone of higher court victories where

we were represented by fine legal teams.

Sometimes, vignettes are helpful in appreciating an extraordinary occupation like

litigation management. My first big case was before the Shoreline Hearings Board (SHB)

in Olympia, the state capitol.

Case Studies

The filing requirements of the SHB included something like five copies of our

briefings, which amounted to two giant briefcases loaded to the hilt. They were due on a

Friday at 5 p.m., and their was no second chance, unless our attorney had a heart attack or

something equally tragic transpired. The lawyer we’d just hired to help us, Roger

Ellingson, was a good guy, but clearly out of his league, and I’d already brought a

specialist on board. The day the filings were due, I was prepared to drive the documents

down from Blaine to Olympia, a three-hour drive under good conditions. I figured that if

I left our lawyer’s office in Blaine by noon, everything would be fine. When I arrived at

his office at ten to pick up the stuff, his secretary, Maureen, had piles of paper all over the

floor, collating by hand, because they had a cheap copier, and Roger, our attorney, was

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on the phone with Mickey, our specialist lawyer for the state case, arguing over verb

tense of a word in the last page of the brief that they’d faxed back and forth some half

dozen times before I’d poured my coffee. Cognizant of the need to get rolling, as well as

the fact they were each billing us $100/ hour, I got on the extension in Maureen’s office

and brought the argument to a halt. Mickey was lead counsel, and what he said went. The

briefs were departing for Olympia--end of story.

Roger got off the phone, a little bruised from his demotion, but ready for instructions.

I suggested we all help box up the paper so I could head out. When Maureen checked a

sample pile, she discovered a couple pages missing, so we had to go through each pile,

make necessary copies on their model t copier, and recollate and bundle up the briefs.

Once this was on the homestretch, I realized it was now 2 p.m., and there was no way to

get to Olympia by car on time. I told Roger to call the airport to find out if there were any

flights out of Bellingham. There was nothing commercial except to Seattle, but we could

charter a flight for $300. I told him to tell the charter service to have the plane warmed up

and ready to go, and jumped into my pickup.

As I pulled up to the terminal and jumped out with the bags, I could see the pilot

waiting out back next to a puddle jumper with the engine running. I ran past the

switchboard desk, tossed the receptionist my credit card, and yelled back as I went

through the exit to the airfield, to call Olympia and have a cab waiting when we landed.

We touched down at 4:30, just as my cab pulled away. I ran into the terminal and out the

front in time to see him round the corner. As I searched around for another phone, he

pulled up in front, and I ran back out. He said he wasn’t sure which terminal I’d be at and

had gone to check the other end. I told him where I had to go and offered him an extra

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$20 if I got there in time. He said there was no problem, and mosied off under the speed

limit, with me in the back looking at my watch. At five minutes to five, he pulled up in

front of the Ernvironmental Hearings Office, and I streaked into the building. As I

plopped down my bags on the counter to be stamped “received”, I noticed there was no

one present. I started looking around, and found a lady doing filing in a back room, and

explained what I needed. She casually got up, walked out to the counter, grabbed a stamp

pad, and delivered the official thumps like a pro. Relieved of my anxiety, I strolled out

beaming, and hopped into the taxi to head back to the airport. When we pulled up, I

reached into my pocket, fetched my wallet, and found I had no cash. Embarrassed, I

asked the cabby if he’d take an out of town check, to which he replied “No charge man, I

know what it’s like trying to get building permits with all these damn environmental

laws.” With that, I was off and never enjoyed a flight over Puget Sound more.

As an aside, we never lost a case, but that doesn't mean we won all our legal battles. In

my concluding remarks, I'll have more to say about the limits of judicial activism.

The case before the Shoreline Hearings Board in the summer of 1993 dredged up a lot

of dirty laundry, or skeletons if you prefer, from the closets of Whatcom County, Water

District # 10, and the City of Bellingham. Much as they seemed to enjoy finger pointing

and fighting with each other, they soon closed ranks together in protection from the

righteous indignation of the citizenry. Water District # 10 v Whatcom County eventually

collapsed as development industry lobbyists, one by one, got to council members. WFNA

and WDF were soon on their own in defending the county Hearing Examiner's ruling. In

fact, by the time we went before the SHB, the county's attorney spent his time in court

doing crossword puzzles and enjoying the show put on by our lawyer. I was to witness

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this caving in by state and local agencies in every one of our cases over the next several

years. I learned well that getting their initial support and participation was important,

difficult, and fleeting. The real estate industry simply had too much influence with their

political bosses in the capitol, liberals and conservatives, Democrats and Republicans

alike.

Initially, in digging up the dirt, I’d often just popped in on government department

heads, especially the public works and planning offices, and asked them where the

background files and documents were on a topic. About half the time, the heads were

absent, but clerical staff, mostly helpful, were happy to point me to the appropriate

cabinet and provide me with a table to work at. Many heads, at the outset, were eager to

show me the volume of correspondence and documents they’d compiled over the years,

assuming I’d be impressed by the quantity if not the quality of their effort. In hindsight, it

was probably advantageous that I acquired so much information in the form of primary

documents like contracts, memos, and ordinances, before launching our first suit, since it

did become more difficult for staff to be so accommodating to my requests afterward. If I

knew what I was looking for, they’d provide it, but if I didn’t, only those who

sympathized with our position would volunteer knowledge of its existence.

The nice thing about working in the office of department heads when they were

absent, was that I’d discover extensive files and correspondence that was not included in

the official files of the council, unless the head had specifically sent it to them as

background on an issue before them. The councils were usually just briefed by

department heads, and rarely provided copies of primary documents, the stuff used as

evidence in court, except occasionally by reference. Heads’ correspondence with

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engineers, lawyers, and other agencies is very detailed and forthright, often spelling out

fiscal, legal, political, and environmental risks in order to cover their backsides. I spent

weeks combing files in various offices of city hall and the county courthouse. I read

budgets, financial analysts reports, and revenue projections, and sat around with budget

directors discussing the nuances regarding the legality or illegality of using dedicated

funds for other purposes. As I became a fixture around the hallways, I think they actually

enjoyed having someone to chat with who appreciated the complexity of their work. As I

reflect on this aspect of my “public” education, I have to admire the job many bureaucrats

are able to accomplish in spite of the often whimsical politicians.

As I became an object of fear, having dashed the hopes of Water District # 10,

Whatcom County, and the lakeside developers, bureaucrats with a conscience started to

cover themselves, in responding to my written requests for documents, by photocopying

those I requested along with some that I didn’t know about, or by asking when I phoned,

as though someone was listening, if I wanted all the x,y, and zs, or just the public

summary of something I hadn’t even mentioned. Eventually, it got to be like Woodward

and Bernstein in “All the President’s Men.” One water resource woman, with the Lummi

tribe, called to tell me that she would not be able to help me, but that if she was

subpoenaed, then of course she’d have no choice but to appear, and it would be nice if we

could rent her a reliable car to drive down in.

So in the summer of 1993, as we prepared to present our case to the SHB, Mr.

Gendler, our attorney, and I, discussed the merits of our case and the prospects of our

prevailing, given the political makeup of the board. Due to my exhaustive research, his

only concern for the hearing was one of overkill. He didn’t want to generate any

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sympathy for the crooked district or the incompetent county officials. If we hit them with

everything we had, they might look like public servants doing their best under attack by

enviros with nothing better to do. As to our prospects, the board was about evenly

matched between greens and developers, so it was anybody’s guess, unless the new green

Governor appointed someone to fill the one vacancy on the board, which would tip the

balance our way. About a week before our hearing, after some lobbying by our friends at

the Washington Environmental Council, the Governor came through.

So did the Bullitt Foundation, the green heavyweights in Seattle, with a check to cover

our expenses. I’d been working on them for nine months, stopping in to talk in their

office, trying to get a handle on their perspective. I’d gotten some dough out of them back

in 1991 for a trail project for county parks, but had been kind of shunned by them since

pointing out, at a luncheon they sponsored in 1992 for bike transportation advocates, that

recalcitrant public works heads were more likely to respond favorably to advocates who

knew the law and promoted it, essentially giving heads the choice of being heroes or

bums, than they were to advocates who cheerily put up posters for alternative

transportation day, as Bullitt was suggesting. At any rate, our choice of retaining Bricklin

and Gendler as our law firm, partly because of their coziness with Bullitt, had evidently

paid off.

The hearing went beautifully, with county bureaucrats explaining that they routinely

didn’t do the tasks they promised the public in planning processes, such as setting up

emergency response equipment in preparation for events like a gasoline tanker going off

the road into the reservoir, and Sudden Valley’s lawyer describing six thousand homes, a

golf course, and mini-mall as an “undevelopment”. By the third day, the SHB was in

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stitches as our lawyer deadpanned his responses to our opponents’ amateurish theatrics.

Showmanship is a big part of trial lawyering, and we were working with a master.

That fall, while Sherilyn was campaigning in the general election, the Shoreline Board

came down with their decision in our favor. Their ruling, however, left the door open for

the district to bring forward an alternative proposal, one that did not include any

additional routing of sewage along the shore of the lake, and one that demonstrated how

the overflows from the faulty pipes would be prevented. We couldn't have been more

delighted, especially since we'd had so many close calls, beginning with the settlement

negotiations mandated several months in advance of the hearing.

We could have refused to negotiate, and were tempted to, knowing the district had

never historically done anything in good faith, but then we'd have looked like hard asses

to the board, and we couldn't afford to take the chance. For a month, we danced around

the same old issues, with no one budging, and both sides running up billable hours for the

law firms. But since everyone but us was using public monies, they were in no hurry.

Strategically, public agencies and deep pocket legal adversaries frequently file endless

motions for reconsideration and other tactics designed to win through attrition. Even

without the sometimes frivolous motions, the appeals process often accomplishes the

same purpose. That's why it's always wise to look at alternative means of accomplishing

one's goals, including trying your case in the press, as well as working with political

allies who have the ability to coerce your opponents into submission. In this case, we had

access to neither.

The other thing about the cases we were involved with, some contesting permits, and

some challenging the validity of local ordinances and public process, is that the clock

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runs from the time when the local governing body in question, in these cases the county

council, either enacts a law, or fails to meet a deadline established by the state. Once it

starts to run, there are only so many days within which petitions for review or other suits

can be brought, often only 30 to 60 days. Within that timeframe, sometimes less, we were

required to not only raise the filing fee, but to also review the action in detail, and raise

all objections that we considered potentially relevant and necessary. There is no rest in

judicial combat.

When you're already behind on your payments from the previous case, it becomes

more and more difficult to convince your lawyer that you're good for the money.

Sometimes, we'd get passed down to an associate in the firm who needed the training.

Sometimes, we had to find another firm or staff attorney employed by an organization

connected with our coalition. This is where it really paid off having Sherilyn on the board

of WEC. She introduced us to a pool of rotating pro bono attorneys, as well as WEC's

staff attorney, Toby Thaler.

The problem with these alternatives, of course, is that you usually get what you pay

for, and while we were grateful for what representation we could get, we occasionally

prevailed only because our opponents were either incompetent, or so flagrantly in

violation of the law, that only a few judges, looking for election votes, were willing to

render decisions against us. This only happened twice, in five years of perpetual

litigation, simultaneously trying cases in various venues. Ironically, it was the same

Superior Court judge, and we subsequently shopped for a more even handed judge in one

of the two neighboring counties, as allowed by law.

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The other close call we had was when The water district's attorney, Skip Johnson, and

our lawyer, Roger Ellingson, conferred over what the issues would be in the trial. The

conference was transcribed by a court reporter, and any agreements were binding.

Inexperienced with SEPA, and somehow overlooking its importance to our case, Roger

agreed that it was no longer an issue. Unfortunately, he was mistaken, and the fact that

that the district manager had submitted a blatantly fraudulent SEPA application at the

outset, was now off limits. When Mickey Gendler heard the tape of the conference, and

realized Mr. Johnson had deliberately set Roger up, he was ready to pursue disbarment of

their lawyer, and was only persuaded not to by Roger, because there would be no benefit

to us, and presumably because of the embarassment he would suffer for being snookered.

It was an eye opener for us as well. A cheap lawyer is no bargain.

So in January of 1994, feeling pretty confident of my litigation management abilities,

and indignant at the setback our community had suffered at the hands of the Building

Industry Association (BIA), I was ready to bring the judicial nemesis to bear on their

stooges, the new county council. The remedies under GMA were significantly different

than under the Shoreline Management Act. Under the SMA, permits for projects could be

withheld and development brought to a halt. Under Growth Management, zoning and

regulations could be ruled invalid, and public participation requirements could be ruled

inadequate, but subsequent permits, issued under invalid and illegal acts of the county

had only one remedy. The Governor, under advisement by the Growth Board, had the

authority to withold state revenues from recalcitrant county governments. This was a big

hammer, perhaps too big, and was ultimately used only once by Governor Lowry, the

same Governor who'd made the favorable SHB appointment.

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But in early 1994, we had nothing to lose, and everything to gain. Our Wise Use

county council was out to emulate their heroes Ronald Reagan, Ed Meese, and James

Watt. The situation was grim.

The training I received on the shoreline case would be useful in assisting our attorneys

with the growth management cases. I knew where to look for information, how to review

documents quickly, and what evidence was essential. I was familiar with the process of

discovery, deposition, subpoena, and various motions. I was attuned to deadlines,

timeframes, and potential obstacles.

I was also aware of petty, underhanded adversarial tactics, like when a transcript copy

we submitted in evidence showed vague traces of highlighting, and our opponents

insisted on new copies for all parties, costing us an unexpected $1,000 overnight in the

middle of a three day hearing. As our trial lawyer pointed out early on, litigation is

warfare without guns. Our opponents were not in court to help us discover the truth or

render justice. Adversaries, under these circumstances, even those who have been helpful

or friendly in the past, should be treated courteously, but should not be trusted

whatsoever. Expecting them to risk their livelihood for principle is naive and foolish.

Bureaucrats learn early on that keeping their heads down, and mouths shut, is basic

survival in the public realm. Politicians and their agendas come and go. Bureaucracies

usually endure.

Some of my associates would learn the hard way, that treachery and betrayal are

commonplace in politics, and that "carpet-bombing" authorities with everything you've

got in administrative hearings, meant that you eliminate the element of surprise for

eventual courtroom battles. In managing litigation for my sometimes strident advocates

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and zealous do-gooders, I came to realize that it was my responsibility to keep the board

members strategically informed, but, on occasion, tactically in the dark. I did this by

communicating regularly, drawing their attention to what I needed them to focus on, like

politicking and raising money, and only allowing them to be distracted by the intriguing

details of behind-the-scenes drama and courtroom theatrics after the cat was out of the

bag.

In order to get them motivated to go to their respective organizations and other

financial wells, I provided summaries of our grievances, including highlights of official

misconduct and misfeasance, formatted as basic primers, in order to be easily accesible

for the general public. This was necessary both to bolster board members confidence and

effectiveness, as well as to preempt their composing treatises on their own--much better

to have them edit my drafts than to have to veto theirs.

Avoiding board micromanagement is a vastly underappreciated task, requiring adept

diplomacy and psychology, especially in public interest litigation, where the pressures of

conflict often drive activists to despair. Clients who have no financial reward, and often

suffer slander and lible in the press, require constant nurturing. Keeping up morale under

these circumstances is a formidable challenge. I tried to make meetings as pleasurable as

possible, holding them in parks or at home, often around a campfire, serving

refreshments, and regaling humorous anecdotes about our pathetic opponents.

Whatcom Environmental Council's initial lawsuit, the first gauntlet thrown down

before the Whatcom County Council, forced a public hearing on setting Urban Growth

Boundaries, as mandated under GMA. For some unexplained reason, these scofflaws,

once in office, observed the legal process, even when having no intention of following

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the substance of the law. I suppose, that they were counseled by the Wise Use legal

foundation attorneys, who magically appeared at their disposal, that the appearance of

fairness and propriety would go a long way to undermine liberal support of the "radical

environmentalists" who were suing the county. They were not far off the mark.

At any rate, with a hostile media and government, it was important for me to convince

what supporters we did have, that they had an obligation to at least attend public hearings

to show moral support for us, the warriors. Bearing witness had the added benefit of

arousing righteous indignation in otherwise passive, conflict averse individuals. As they

say, all's fair in love and war, and I had no qualms about educating and converting new

recruits.

The preliminary conference with the Growth Board, where we and our opponents

presented our lists of issues for the hearing, as well as remedies sought, and supporting

documents, was usually a congenial affair, attended only by myself, a couple board

members, all the lawyers, and a stenographer. As with all functions of litigation, though,

this relatively casual gathering was not to be entered thoughtlessly. Board members

should be instructed to say absolutely nothing, allowing their attorneys to speak on their

behalf. Easier said than done for advocates, I frequently had to escort one or more of

them out of the room to explain to them what was transpiring, and why it was

disadvantageous for them to raise a concern they had slipped to me on a piece of paper.

Conferences, in general, are opportunities to impress hearings boards with your

reasonableness, entitlement to remedy, and, as is the case with judges, your potential

electoral clout. A congenial demeanor, normal appearance, and sense of humor, can go a

long way in establishing a rapport that might be useful later. Well-reasoned arguments,

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that are well-documented, make it easier for authorities to assist you, especially in fields

of law, like GMA, where precedent, at that time, did not exist. Since case law was being

established by our petitions, we had to be extra careful as well as visionary. Since

radicals rarely get appointed to positions of authority, we had to be creative and

entertaining, as well as persuasive in our presentations. The less work and risk we asked

the board to do and take on our behalf, the better were our chances.

The hearings themselves were run similarly to courtrooms. Rules of evidence,

procedure, service, and standing, were all in effect. In spite of the pro se friendly

preamble to the act, participation in petitions for review, which required former

participation in public legislative hearings, was significantly hampered for those who

chose to get by without legal counsel. Despite all the good intentions of the initiative and

subsequent act, boards and judges are legally trained, and hence feel unduly burdened, if

not annoyed, by amateurs who appear before them. Again, confusing the ideal society

with present reality is to the detriment of activists of all stripes.

One advantage we exploited as opportunities arose, was to sense and play to the

obvious frustrations of the Growth Board, in having to suffer the tired and belabored

arguments of local prosecuting attorneys, who, fortunate for us, were not climbers on

their way to more lucrative private practice, but rather, condemned by their

incompetence, destined to be career public servants. An unspoken sense of camaraderie

ensued between us and the board, dramatized by such things as passing around a bottle of

aspirin at the plaintiffs' table, in the middle of the defendant's argument, when the

patience of the Growth Board became visibly tried.

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Because we knew the board would be relying on the record established in local

hearings and committee meetings, we advised and encouraged participation by people

directly affected by whichever ordinance was under consideration. The advantage was

that all they had to do was to show up and say what they thought and what concerned

them. We could develop legal arguments later, once issues were on the record, and it

always looked better in court and the press, when it was local concerned citizens

involved, as opposed to professional activists. The difference between us and our

opponents, was that we were helping people to find remedies for real grievances. Our

opponents were misinforming people with contrived grievances, in order to create a

populist front for their real estate scams.

As we went through the motions, so to speak, over the following three years, the

pattern would repeat itself: BIA choreographed local hearings would be held, with

"sincere" developers and property rights goons blowing smoke; local media would decry

State bureaucrats meddling in local affairs; scathing decisions would be handed down;

and the law would continue to be violated and ignored by local governments beholden to

the development industry.

In the summer of 1994, after the State Supreme Court ruled the Wise Use critical areas

referendum invalid, the county council enacted an essentially identical law, which would

provide no protection whatsoever for public water supplies, endangered salmon, or

prospective purchasers of properties prone to flooding, landslides, or volcanic

displacement. We responded with another petition for review.

This time, we actually had support from the state ecology and fisheries departments,

who'd invested considerable time in assisting the county staff since 1990 with identifying

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these critical areas in order that future development and resource extraction could take

place in a more knowledgeable and responsible manner. We began to think that the new

Governor, former US Representative, Mike Lowry, would eventually use his authority

under GMA to rein in the scofflaws in our county government. All we had to do, we

thought, was continue to build case law showing their conduct to be both harmful and

unlawful.

Throughout the remainder of 1994, and all of 1995, we stayed the course,

demonstrating beyond any doubt to the board that local officials were not only corrupt

and incompetent, but were endangering public health and safety. Consequently, the

Growth Board exercised their authority under the law, and recommended the Governor

impose financial sanctions against the county to force compliance.

In the summer and fall of 1995, caught up in a tight reelection race, Governor Lowry

chose not to act in Whatcom County. He would not get a second chance, as he was

defeated by a nominal Democrat, one in debt to the BIA.

Conclusion

We continued to build the record before the Growth Board until August 1996, at

which time I resigned from the Whatcom Environmental Council, both battle weary, and

seriously questioning the limitations of judicial activism. One by one, my associates

dropped by the wayside over the following two years, as they realized that the rule of law

required lawful officials and elections, something Whatcom County was unlikely to get

with a right-wing media and thoroughly corrupted political parties.

The community would have to undergo a long process of de-education followed by re-

education, before it would be prepared for self-governance, let alone democracy. The

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establishment of an independent weekly newspaper in mid 1997, by two progressive

entrepreneurs, holds out promise, but it's still too soon to tell if it can undo the vast level

of ignorance fostered by decades of disinformation by corporate media.

It's hard to appreciate beforehand, the pressure of being in the public spotlight, being

libeled, attacked, and marginalized. Keeping my composure and sense of humor when it

mattered most was a challenge I didn't always meet, and I had to learn to both forgive

myself, as well as to stick it to my opponents with a smile. This aspect of litigation

management, more than any other, probably accounts for the prevalence of conflict

aversion: it's tough; it's stressful on marriages; it changes social relationships; it affects

your business or employment. Everyone I met that was doing what I was, had

experienced all these symptoms.

Looking back, it's clear to me that my colleagues and I were, despite our herculean

efforts at communicating, just too far ahead of the general populace in our awareness,

substantively and procedurally. Local media had kept our communities ignorant of

opportunities for public involvement, and misinformed on the issues around which they

might take an interest. Thus, there was little history of activism in the area. A handful of

party hacks got excited around election cycles, but in between, there was almost no

political activity.

Because growth had been slow in our border county, people had been able to adjust to

changes like higher taxes and minor traffic congestion, and had not been involved in

demanding growth management. Our economy was relatively stable and diversified, and

the cost of living was reasonable. A large percentage of people owned their homes. Given

that most folks don't think about problems until it hits them personally, let alone take

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preventive action, we were self-marginalized from the outset. The fact that our concerns

about economic dislocation, environmental and public health crises, as well as shifting

tax burdens, have all been born out, does little good for a community that still does not

know how to self-organize. As such, they are doomed to repeat their mistakes.

In hindsight, I think that it might have been helpful to build participation capacity

through more intentional engagement with such groups as League of Women Voters and

Interfaith Alliance, but this is only speculation. Conservative forces were organizationally

and financially light years ahead of liberals in our region. They were not conflict averse

like the liberals, and they had the support of media. Add to this the covert electoral

subversion strategy of the Building Industry Association, and it's hard to imagine a

different outcome.

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