COLUMBIA RIVERKEEPER; SIERRA CLUB; and NORTHWEST ENVIRONMENTAL DEFENSE CENTER, Petitioners,
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.
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.
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
AND PROCEDURAL HISTORY
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.).
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.
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.
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. For the community, economic
benefits involve new jobs and anticipated increases in
regional spending. Id. (noting that the project will
provide "hundreds of construction jobs and other
permanent jobs for the community"). 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."
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
staff is also responsible for determining the appropriate
lease price. Staff recommends a minimum price, and the
commissioners confirm that the number is
reasonable. According to the commissioners, they
"are not directly involved" with setting the
minimum price and "expect the staff to do 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.
order to avoid this "poaching, " the Port discusses
"basically all topics" related to real estate in
executive sessions. Id. These topics, in turn,
influence the price at which real estate will be offered for
lease. For example, the Port describes the components
"that must be identified and analyzed to determine [the
lease's] ultimate price" as including
the amount of property to be leased; the market value of any
existing feature or amenities of the site; the duration of
the lease; any required investments or improvements by the
Port; the Port's expected return on investment in the
short and long term, and whether the lease represents the
highest return to the Port for that location; the projected
flow of potential revenue streams; the feasibility of the
lease rate, including the financial strength of the tenant,
the stability of the tenant's business industry, and any
tenant risks that must be mitigated; and the direct and indirect
economic benefits for the local community (including
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.
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.
March 26, 2013 Executive Session
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.
July 9, 2013 Executive Session
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.
July 16 and 17, 2013 Executive Sessions
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.
July 23, 2013 Executive Session
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
of these executive sessions,  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, followed by the commissioners' public vote
approving the lease.
second meeting took place after this action was filed. Due to
faulty announcement procedures in connection with the first
public meeting, see infra note 8, the Port decided
to operate under the assumption that the July 23 vote was not
effective. In what the Port described as "an abundance
of caution, " it held a new open meeting and conducted a
new vote on October 22, 2013. The meeting lasted about two
hours and the Port again approved the lease.
October 2, 2013, Columbia Riverkeeper, Sierra Club, and
Northwest Environmental Defense Center sued the Port and its
commissioners. All three plaintiffs (collectively
Riverkeeper) are nonprofit organizations dedicated to
environmental issues. Columbia Riverkeeper in particular is
concerned with the restoration and protection of the Columbia
first amended complaint, Riverkeeper claimed that the
Port's July 22, 2013, executive session included topics
that should have been discussed in a public meeting. As a
result, Riverkeeper asked that the meeting and the lease
approval be declared invalid and that the Port be required to
retrace its steps before reapproving the lease. See
Report of Proceedings (RP) (July 24, 2015) at 7 (quoting
Riverkeeper's counsel requesting that "[t]he lease
... be declared null and void until defendants retrace their
steps and disclose the content of their unlawful
the Port held its second formal public meeting on October 22,
Riverkeeper filed an amended complaint on October 31, 2013.
This revised complaint noted the additional meeting and added
various State Environmental Policy Act (SEPA)
claims.Ch. 43.21 CRCW.
summary judgment, the trial court held that any problems
associated with the July 22 meeting were adequately corrected
by the October 22 meeting and vote, and by the adoption of a
"revised executive session announcement procedure."
CP at 948. The new announcement procedure consisted of a
checklist allowing the Port to indicate which statutory
exception an executive session invoked. The court
continued the remainder of the OPMA claims, pending further
discovery, Riverkeeper filed its second amended complaint.
This complaint alleged further OPMA violations by the Port at
meetings conducted between February and July 2013-a period
that includes the five executive sessions now before us.
second summary judgment order, the trial court held that each
of the five executive sessions complied with the OPMA. The
court further found that genuine issues of material fact
precluded summary judgment as to the April 9 and July 22
executive sessions. The trial court's order specifically
embraced the Port's interpretation of the OPMA's
"minimum price" exception: "[F]actors other
than a bare numeric term are essential to an ultimate
determination of price, and ... the statute includes a
necessary degree of latitude beyond the bare numeric
terms." The court found that discussing issues relevant
to price was a necessary part of considering the price
itself, holding that the Port could discuss in executive
session "(1) information that would give the customer an
advantage in negotiating a lower price; and (2) information
that would give a competitor an opportunity to negotiate with
the Port's customer, thus creating a bidding process that
would decrease the Port's price."
court then concluded that interpretation of the "minimum
price" exception was "a question of first
impression ... as to which there is substantial ground for a
difference of opinion and immediate review of the order may
materially advance the ultimate termination of the
litigation." The remaining proceedings were stayed
pending appellate review.
filed a petition for discretionary review by this court,
seeking review of three issues: (1) the trial court's
interpretation of the OPMA, (2) the trial court's
determination that five of the Port's meetings were
lawful and that two remained inconclusive, and (3) the trial
court's mootness ruling related to Riverkeeper's
request for injunctive relief against the
lease. We granted review of the trial court's
interpretation of the OPMA's "minimum price"
exception and the determination that the five meetings-on
March 26, July 9, July 16, July 17, and July 23, 2013-were
lawful. The trial court's mootness ruling solely
concerned errors associated with the July 22 meeting, which
is not before us; as a result, we did not grant review of the
we disagree with the trial court's interpretation of the
"minimum price" exception, we reverse the grant of
summary judgment for each of the five meetings.
review summary judgments de novo. Scrivener, 181
Wn.2d at 444. Summary judgment is appropriate where there is
no genuine issue of any material fact and the moving party is
entitled to judgment as a matter of law. CR 56(c). We
construe evidence and inferences from the evidence in favor
of the nonmoving party. Scrivener, 181 Wn.2d at 444.
construction and meaning of a statute is a question of law
that we also review de novo. Dep't of Ecology v.
Campbell & Gwinn, LLC,146 Wn.2d 1, 9, 43 P.3d 4
(2002). When possible, the court derives legislative intent
from the plain language enacted by the legislature,
considering the text of the provision in question, the
context of the statute in which the provision is ...