Three environmentally focused organizations filed a motion for summary judgment with the Clark County Superior Court this week, seeking to render the lease by the Port of Vancouver with Vancouver Energy (a partnership between Tesoro and Savage companies) to site and operate an oil transfer terminal at the port. This latest attempt to have the courts set aside the lease is based on the contention that the port commission took action concerning the lease during a series of executive sessions, which, by rule, the public is not allowed to attend. Repeated motions (dating back to October 2013) to gain the court’s support have been denied, yet here we are again.
While the issue of conducting the public’s work in the public’s view is key to holding our public officials accountable and is spelled out in our laws, there are anticipated exceptions to those statutes and it is within those provisions that the port has acted. This is a situation reserved primarily for port districts and deserves to be considered through a business perspective, as anticipated by the statutes.
When negotiating a lease or sale of property, owners and agents in the private sector rarely release the name of the party they represent or who they are dealing with, or the points of negotiation such as terms, price and infrastructure requirements. If released to the public, these components could result in killing the deal due to the highly competitive nature of commercial real estate. For example, the owner of a similar property could approach the named prospective client with a proposal to consider his or her similar property. At the very least, such disclosure would put pressure on the original property holder to make concessions to keep the deal alive.
Now let’s look at this from the perspective of a port district. While ports are a type of public agency, they are also by nature quasi-business organizations. The ports in the state of Washington were created as economic drivers in their respective communities. Specifically, the Revised Code of Washington (RCW) states in its authorizing of ports that they are “for the purposes of acquisition, construction, maintenance, operation, development and regulation within the district of harbor improvements, rail or motor vehicle transfer and terminal facilities, water transfer and terminal facilities, air transfer and terminal facilities, or any combination of such transfer and terminal facilities, and other commercial transportation, transfer, handling, storage and terminal facilities, and industrial improvements.”
The aforementioned consequences drive the need to conduct some aspects of these transactions out of public view – protected of course by the constraints of the Open Public Meeting Act (OPMA). This act mandates that action taken by port commissioners be done in a duly noticed public meeting. The act also provides, however, for the deliberation of certain aspects of a land deal in executive session. Referring back to the RCW of Washington, a port district is allowed, “To 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. However, final action selling or leasing public property shall be taken in a meeting open to the public;” emphasis added.
Attacking the port commission over technicalities and interpretations in the OPMA seems to us a red herring at best. The issue most talked about, including in the most recent motion for summary judgment filed this week, is the safe transportation of oil by rail through our communities. Our focus should be on demanding the oil companies (along with the railroad companies) improve the rail cars, rail corridors and tracks, and provide the necessary resources to bolster our first responders. We will never have more leverage than right now, while the terminal is a potential reality, to assure that we have the safest rail corridor in the world.
