Nevada families hauling campers and boat trailers arrived at Ruby Lake as usual that fine June weekend in 1978, only to be stopped cold by federal marshals.
The lake had been closed to boaters by a federal court in faraway Washington, D.C., and no Nevada officials, much less the furious citizenry had known a thing about it beforehand.
Like many environmental groups seeking to change things in the heartland, the Washington-based Defenders of Wildlife had filed suit in a Washington court against Interior Secretary Cecil Andrus to keep motorboats off the lake, a national wildlife refuge. The court issued a permanent injunction.
Now legislation is pending in Congress which would force such a suit to be heard anywhere but in Washington.
Sponsoring U.S. Sens. Dennis DeConcini (D-Ariz.) and Paul Laxalt (R-Nev.) say the idea is to make things more convenient for all parties befored a judge who is familiar with the issues. But opponents say the real idea is to get the cases out of the D.C. hothouse to courts where they can be shot down.
Behind the flap is the frank assumption that some federal courts are more equal than others. Rightly or wrongly the U.S. District Court and Court of Appeals here are considered more likely to rule in favor of citizens' groups, environmentalists and Environmental Protection Agency rules than in favor of businessess, industries or utilities.
The 5th Circuit (New Orleans) and the 4th (Richmond, Va.) are considered pro-business, while the 2nd (New York), the 7th (Chicago) and the 1st (Boston) are thought to be friendly to the "fur and flowers" people, according to several attorneys surveyed. The 9th (San Francisco) is in a class by itself for hostility to environmentalists, it is said.
The result is intensive "forum shopping," often involving spectacular races in which contending attorneys slam their filings on courthouse desks thousands of miles apart within seconds of each other. Since the first filing takes precedence in jurisdiction, elaborate care is taken to get the case heard in the most favorable forum.
"If you think you can cut your costs and there's half an inch of an edge towards victory one place over another, you'll engage in the race," said Alan B. Morrison, director of Ralph Nader's Public Citizen litigation group.
The Tenneco Oil Co. and its rival the New York Public Service Commission used to open telephone lines and chains of attorneys transmitting hand signals around corners to get the first filing of their challenges to an offshore natural gas pipeline ruling in March of 1978. An awed administrative judge re-enacted both chains to determine which had actually filed first and decided that both sides had filed less than two seconds after the ruling was handed out.
Tenneco won the race so the case was heard in the 5th Circuit instead of Washington, where New York filed.
"There is definitely this perception of bias among the courts," said Richard Stoll, EPA's deputy associate general counsel. He authored last June's "racing statute" that broadcast this lawyers' secret and set a formal starting gun for future races: 1 p.m. of the day one week from the date a challenged regulation appears in the Federal Register.
The purpose, he wrote drily in the Register, is to replace "the increased emphasis on racing skills" with ground rules "for racers to position themselves adequately."
Many attorneys scoff at the races as unnecessary and the circuit labels as outdated. Washington got its reputation in the early 1970s when precedent-setting environmental law decisions came first out of here. The 5th and 9th circuits have huge trial backlogs that put any case in cold storage, not just nature trials.
"Frankly we've had as much success outside the District as we've had in it," said Joel Thomas, general counsel for the National Wildlife Federation. Any Washington advantage, he and others said, comes from the heavy media attention available, and that can cut both ways.
Washington judges are known as experts in tangled administrative laws and regulations. "They are willing to spend incredible numbers of hours going over those regs. They know the administrative law so well that you get a better reasoned decision," said Geoffrey Vitt, an attorney in the field.
In fact, most environmental cases are about government procedure anyway and not about citizen problems like the Ruby Lake case in Nevada, said Bruce J. Terris, another environmental lawyer. Appeals of air, noise and solid waste control rules must by law be heard in Washington now. The races occur over disputes involving the Clean Water Act, Occupational Safety and Health Administration, Consumer Product Safety Commission and Federal Energy Regulatory Commission, among others.
Even so, of 519 federal district court environmental cases opened between June 1977 and June 1978, only 37 were in Washington, according to DeConcini, and 33 to 155 appeals court cases on EPA rules were here. His bill, he said, "will not radically alter existing practice."
But Terris said, "When you talk about moving cases from one court to another, the reason is always because you don't like the results, whether you're a liberal or a conservative."
Both Laxalt and DeConcini would require environmental cases to be heard "where a substantial portion of the impact or injury" occurs, with DeConcini exempting cases of "nationwide impact." Opponents say that would spawn endless litigation to define the terms.
A pesticide regulation involving strawberry and potato workers affects both Washington state and Maine, said Public Citizen's Morrison. "Where do you challenge that one? We filed in D.C.," he said. To do anything else "would just mean taking the whole Washington show on the road," since interest groups are concentrated here as well as government agencies.
The best way to decide venue, Morrison grumbled, would be a lottery among competing jurisdictions. "That's what we're doing now anyway," he said. a