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.

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

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

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.

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

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

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 wed just hired to help us, Roger Ellingson, was a good guy, but clearly out of his league, and Id 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 lawyers 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

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 theyd faxed back and forth some half dozen times before Id 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 Maureens 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 wasnt sure which terminal Id be at and had gone to check the other end. I told him where I had to go and offered him an extra

$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 hed take an out of town check, to which he replied No charge man, I know what its 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

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, Id 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 theyd compiled over the years, assuming Id 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, theyd provide it, but if I didnt, 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 Id 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 didnt 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 hadnt even mentioned. Eventually, it got to be like Woodward and Bernstein in All the Presidents 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 shed 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 didnt 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 anybodys 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. Id been working on them for nine months, stopping in to talk in their office, trying to get a handle on their perspective. Id 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 didnt 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 Valleys 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 reeducation, 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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