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Feb. 2, 2023

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Judge backs legality of port’s oil terminal lease

Judge Gregerson also says port violated open meetings law

By , Columbian Port & Economy Reporter
Published:

The Port of Vancouver’s lease for what would be the nation’s largest rail-to-marine oil transfer terminal will stay in place because the port took a second public vote to correct problems with how it initially handled the contract, a Clark County Superior Court judge ruled Friday.

Judge David Gregerson’s decision against voiding the lease came as part of a larger set of rulings that were largely favorable to the port in a lawsuit alleging it violated the state’s open public meetings law. However, Gregerson also ruled that the port violated the law when it failed to give a proper reason and an end-time for a closed-door executive session its elected commissioners held on July 22, 2013 — the evening before the commission’s first unanimous vote to approve the lease with Tesoro Corp. and Savage Cos.

Meanwhile, the legal battle between the port and three environmental groups isn’t over. Gregerson said the facts surrounding two of seven closed-door meetings held by the port remain in dispute and must go to trial, a date for which has yet to be established. Gregerson suggested attorneys for the port and Columbia Riverkeeper, Sierra Club and Northwest Environmental Defense Center may want to use a mediator and negotiate a settlement.

“I recognize that it’s a very, very tough issue,” he said during his oral ruling Friday after hearing arguments from both sides. “It’s likely that a reviewing court would see this differently. I’m just trying to make my best read and my best shot at it.” In part because of a lack of guidance from upper courts, Gregerson said, the case marked “a first impression, at least for me.”

Outside the courtroom, Lawson Fite, an attorney for the port, said Gregerson’s ruling “validates the approach” taken by the Port of Vancouver and other ports to privately discuss real estate issues to maintain their business positions and to maximize the value of public assets.

Miles Johnson, clean water attorney for Columbia Riverkeeper, said he was pleased the judge found the port broke the meetings law during the July 22, 2013, executive session. The groups haven’t decided whether to appeal Gregerson’s decision, he said, and look forward to the trial concerning the port’s two other closed-door meetings.

‘Enormous impact’

Several issues were in play during Friday’s court hearing.

The environmental groups alleged the port and its three commissioners — Nancy Baker, Jerry Oliver and Brian Wolfe — illegally excluded the public from at least seven meetings that were held as closed-door executive sessions in 2013: March 26, April 9, and July 9, 16, 17, 22 and 23.

Gregerson ruled the port properly held five of the seven executive sessions to discuss real estate matters related to the minimum price at which it would offer to lease land to Tesoro and Savage. He said there’s a certain amount of latitude for the port to privately discuss several things that go into “setting the price of a particular transaction.”

However, Gregerson said, whether what was discussed during two of the closed-door meetings — April 9 and July 22 — complied with the open public meeting law’s exemptions remain in factual dispute and will go to trial.

Part of the port’s defense was that it held a second public meeting and a re-vote on Oct. 22, 2013, in response to concerns it mishandled how it convened the July 22 executive session. In legal filings, the port conceded it failed to properly announce that closed-door session and to give the public an end-time for the private gathering.

Gregerson sided with the argument that the port rendered the complaint moot by holding another public meeting and vote. In doing so, the judge maintained an earlier ruling he’d made that also allowed the environmental groups to conduct pre-trial fact-finding in the case.

“Without the ability to do that,” he said of the port’s re-do, an agency could potentially “be hamstrung in perpetuity.”

Brian Knutson, an attorney for the three environmental groups, argued otherwise. Citing a state Supreme Court case, he said closed-door executive sessions are to be used narrowly. Instead, Knutson said, the port “repeatedly” excluded the public from broad discussions about a project with the potential for “enormous impact on the local community and beyond.”

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