Riverkeeper v. Port of Vancouver USA
| Decision Date | 08 June 2017 |
| Docket Number | No. 92455-4,92455-4 |
| Citation | 395 P.3d 1031,188 Wash.2d 421 |
| Court | Washington Supreme Court |
| Parties | COLUMBIA RIVERKEEPER; Sierra Club; and Northwest Environmental Defense Center, Petitioners, v. PORT OF VANCOUVER USA ; Jerry Oliver, Port of Vancouver USA Board of Commissioners President; Brian Wolfe, Port of Vancouver USA Board of Commissioners Vice President; and Nancy I. Baker, Port of Vancouver USA Board of Commissioners-Secretary, Respondents. |
Brian Alan Knutsen, Kampmeier & Knutsen, PLLC, 833 S.E. Main St., Ste. 318, Portland, OR, 97214-3427, Eric D. ‘Knoll’ Lowney, Smith & Lowney PLLC, 2317 E. John St., Seattle, WA, 98112-5412, Miles Johnson, Attorney at Law, 111 3rd St., Hood River, OR, 97031-2009, for Petitioners.
Kristin Mariko Asai, David B. Markowitz, Anna Joyce, Markowitz Herbold, P.C., 1211 S.W. 5th Ave., Ste. 3000, Portland, OR, 97204-3730, for Respondents.
Frank Joseph Chmelik, Seth Ananda Woolson, Chmelik Sitkin & Davis P.S., 1500
Railroad Ave., Bellingham, WA, 98225-4542, as Amicus Curiae on behalf of Washington Public Ports Association.
Ian Christopher Cairns, Howard Mark Goodfriend, Smith Goodfriend PS, 1619 8th Ave. N., Seattle, WA, 98109-3007, as Amicus Curiae on behalf of University of Washington.
Katherine George, Johnston George LLP, 1126 34th Ave., Ste. 307, Seattle, WA, 98122-5137, as Amicus Curiae on behalf of Allied Daily Newspapers of Washington.
Katherine George, Johnston George LLP, 1126 34th Ave., Ste. 307, Seattle, WA, 98122-5137, as Amicus Curiae on behalf of Washington Coalition of Open Government.
¶1 Washington's Open Public Meetings Act (OPMA) requires that "[a]ll meetings of the governing body of a public agency shall be open and public ... except as otherwise provided in this chapter." RCW 42.30.030. An exception to this open meeting mandate permits governing bodies to enter executive session "[t]o consider the minimum price at which real estate will be offered for sale or lease when public knowledge regarding such consideration would cause a likelihood of decreased price." RCW 42.30.110(1)(c). The parties dispute the scope of this exception as applied to five executive sessions conducted by the Port of Vancouver USA (the Port). The scope of this "minimum price" exception is a matter of first impression.
¶2 We now hold that a government entity may enter executive session to discuss the minimum acceptable value to sell or lease property, but not to discuss all factors comprising that value. To the extent that various factors directly alter the lowest acceptable value, the governing body may discuss how these factors impact the minimum price; but general discussion of the contextual factors themselves must still occur at an open public meeting. As a result, we reverse the trial court's partial summary judgment in favor of the Port and remand for further proceedings consistent with our analysis.
¶3 In 2013, the Port negotiated a lease for a large rail terminal on public land with two private companies, Tesoro Corporation and Savage Companies. The two companies formed a joint venture to contract with the Port, creating Tesoro Savage Petroleum Terminal LLC. As approved, the Tesoro-Savage lease would be "the Port's largest single revenue generator," worth "upwards of $200 million to the Port." Resp'ts' Br. at 8 (Port Br.).
¶4 The new project would receive large quantities of petroleum products by rail for export. Located on approximately 42 acres of the Port's property, the facility would handle roughly 120,000-360,000 barrels of petroleum products each day. Transporting these products would require between two and six trains per day, each train a mile and a half long in length. Once at the terminal, the petroleum products would then be loaded onto ships for export.
¶5 The Port evaluated the project in the context of its threefold mission to "1) maximize marine business and development, 2) maximize industrial business and development, and 3) generate and sustain diversified revenues." Clerk's Papers (CP) at 2491. Together, these three aims are part of a common effort "to enhance economic development for the benefit of our community."Id. at 1415. Because the Port's focus is fundamentally economic, the lease's benefits are similarly financial—both for the Port and for "the local community." Port Br. at 8.
¶6 For the Port, the lease's most obvious economic benefit is the monthly rent. Other financial benefits to the Port take the form of different kinds of fees: area maintenance fees, rail access fees, rail maintenance fees, wharfage fees, and service and facilities fees.2 For the community, economic benefits involve new jobs and anticipated increases in regional spending. Id. (). According to the Port, the project would indirectly generate an estimated 2,700 local jobs peripheral to the project, as well as "$61 million in annual local purchases."
¶7 The lease's terms and associated benefits were negotiated by the Port's staff. While staff kept the Port's board of commissioners updated through summary documents and one-on-one conversations, commissioners had "no involvement with the negotiations of [the] lease." Id. at 9. According to the Port's executive director, Todd Coleman, commissioners generally render a decision only at the end of a lease approval process, when the board deliberates and votes to either accept or deny a lease.
¶8 Port staff is also responsible for determining the appropriate lease price. Staff recommends a minimum price, and the commissioners confirm that the number is reasonable.3 According to the commissioners, they "are not directly involved" with setting the minimum price and "expect the staff to do the research."
¶9 In the case of the Tesoro-Savage lease, the Port's staff first presented the project to the entire board of commissioners in executive session—a meeting closed to the public. The Port commonly holds executive sessions; according to Commissioner Brian Wolfe, they occur "[a]bout 95 percent of the time" that a public meeting is also held. The Port meets in executive session in order to prevent "poaching" by other ports; seen as rivals for valuable tenants, neighboring ports might undercut a fledgling lease deal. Id. at 1471.
Opp'n to Mot. for Discr. Review at 3-4. Because changes to any of these terms would change the acceptable lease price for a particular property, the terms themselves were the subject of executive session discussion.
¶11 The Port held at least seven executive sessions to discuss the Tesoro-Savage project between March and July 2013. Two of the meetings are not at issue on this appeal because the trial court denied the Port's motion for summary judgment seeking dismissal of claims as to those two meetings. In their briefing, the parties generally agree as to the contents of the remaining five meetings as to which the trial court granted summary judgment of dismissal.
¶12 In this executive session, the Port's staff presented the Tesoro-Savage lease terms to the board of commissioners. The Port discussed the values staff had negotiated for the base lease rate, wharfage fees, dockage fees, and rail fees, as well as the proposed duration of the exclusivity agreement. The Port also discussed another unrelated real estate matter and a litigation issue.
¶13 In this executive session, the Port discussed the implications of Tesoro-Savage forming a limited liability company. According to Commissioner Wolfe, there was some concern that the new joint venture entity might be "merely a shell without adequate assets," unable to perform environmental cleanup if necessary. The Port also discussed unrelated national security and litigation matters.
¶14 Over two days totaling approximately eight hours, the Port's discussion in these back-to-back executive sessions was broad-ranging. Topics included "what type of crude would flow through the facility and its risks, timelines for Tesoro-Savage to begin and complete construction, the length of the operating term, and whether extensions would be allowed...." Port Br. at 11.
¶15 In this executive session, held before a vote in public later that day, the Port contemplated requiring the Port's approval of Tesoro-Savage's safety plan before the project could commence operation. This new lease term had been proposed the night before, after substantial public comments in a public workshop.
¶16 Outside of these executive sessions,5 the Port also held public workshops in May, June, and July 2013, taking public comments at each one. Two formal public meetings were then held, the first on July 23, 2013, before this lawsuit was filed. This first meeting presented an overview of the lease to the public,...
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