IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON FOR CLARK COUNTY ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

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1 IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON COLUMBIA RIVERKEEPER; SIERRA CLUB; and NORTHWEST ENVIRONMENTAL DEFENSE CENTER v. Plaintiffs, 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, Defendants. FOR CLARK COUNTY No. COMPLAINT FOR VIOLATIONS OF THE WASHINGTON STATE OPEN PUBLIC MEEGTINGS ACT Plaintiffs Columbia Riverkeeper, Sierra Club, and Northwest Environmental Defense Center (collectively, Plaintiffs, by and through their undersigned attorneys, hereby bring the following complaint against the 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 (collectively, Defendants, for violations of the Washington State Open Public Meetings Act of 1, RCW ch..0 (the Act. Plaintiffs and their undersigned attorneys make the allegations herein upon personal knowledge as to themselves COMPLAINT E. John St. -0-

2 and their own acts and upon information and belief based on investigation by Plaintiffs and their attorneys as to all other matters set forth herein. I. INTRODUCTION. 1. Defendants violated the Act by deliberating on and voting to approve a -year lease to two private companies for the development and operation of a petroleum product storage and transport facility on forty-two ( acres of property owned by the Port of Vancouver USA. Exhibit E of the lease agreement defines petroleum products expansively as any mixture of hydrocarbons that exist in the liquid phase at atmospheric pressure. Accordingly, the facility could handle crude oil, Canadian tar sands oil, heavy oil, or any number of other products.. Plaintiffs bring this action under the Act, RCW.0., and the Uniform Declaratory Judgments Act, RCW ch.., and seek declaratory and injunctive relief and the recovery of litigation expenses, including attorneys fees. II. PARTIES.. Plaintiff Columbia Riverkeeper is a 01(c( non-profit corporation registered in the State of Washington. The mission of Columbia Riverkeeper is to restore and protect the water quality of the Columbia River and all life connected to it, from the headwaters to the Pacific Ocean. To achieve these objectives, Columbia Riverkeeper operates scientific, educational, and legal programs aimed at protecting water quality, air quality, and habitat in the Columbia River Basin. Columbia Riverkeeper has over,000 members.. Plaintiff the Sierra Club is a national nonprofit organization of approximately 00,000 members dedicated to exploring, enjoying, and protecting the wild places of the earth; to practicing and promoting the responsible use of the earth s ecosystems and resources; to COMPLAINT - 1 E. John St. -0-

3 educating and enlisting humanity to protect and restore the quality of the natural and human environment; and to using all lawful means to carry out these objectives. Sierra Club s concerns encompass water quality in the Columbia River and other environmental, recreational, and aesthetic interests in the vicinity of the Port of Vancouver USA. The Washington State Chapter of Sierra Club has approximately,000 members.. Plaintiff Northwest Environmental Defense Center ( NEDC is a non-profit, public interest organization with its principal place of business located at 01 S.W. Terwilliger Boulevard, Portland, Oregon. NEDC is a membership organization, with more than 00 members. NEDC was founded in to preserve and protect the environment and natural resources of the Pacific Northwest by providing legal support to individuals and grassroots organizations with environmental concerns, and engaging in litigation independently or in conjunction with other environmental groups. NEDC and its members participate in education and public outreach. The members of NEDC derive educational, scientific, aesthetic, recreational, spiritual, and other benefits from the protection of our earth s ecosystems and natural resources.. Plaintiffs and Plaintiffs members have been and will be injured by Defendants violations of the Act described herein. Members of Plaintiffs live in the vicinity of the Port of Vancouver USA and are concerned that the proposed project will adversely affect their use and enjoyment of their property. Members of Plaintiffs regularly visit, use, and enjoy the Columbia River and adjacent areas near the proposed petroleum products storage and transport facility, including for a variety of recreational activities. For example, Plaintiffs members use these areas for fishing, hiking, walking, boating, photograph, and observing wildlife. These members are concerned that the proposed project will adversely affect their enjoyment of these COMPLAINT - 1 E. John St. -0-

4 activities. The proposed petroleum products storage and transport facility is expected to create new rail and marine vessel traffic that will diminish the members use and enjoyment of the Columbia River and surrounding areas, and thereby harm the environmental, health, aesthetic, and recreational interests of Plaintiffs members. The petroleum products terminal will also contribute to global climate change, which adversely affects Plaintiffs members environmental, health, aesthetic, and recreational interests. The proposed project also poses significant risks for spills into the Columbia River during the transport of petroleum products in rail cars and ocean-going vessels. For these and other reasons, Plaintiffs and their members have actively opposed the development of a petroleum products storage and transport terminal at the Port of Vancouver USA, and have participated in the public processes related thereto. Defendants violations of the Act deprived Plaintiffs and their members of legally protected opportunities to participate in and observe the Port of Vancouver USA s decision about leasing port property for a petroleum products terminal. These injuries are fairly traceable to the violations and redressable by the Court.. Defendant Port of Vancouver USA is port district under Washington law. RCW Title. The Port of Vancouver USA owns approximately four miles of riverfront property along the Columbia River west of downtown Vancouver, Washington.. Defendant Jerry Oliver is the President of the Board of Commissioners for the Port of Vancouver USA. Mr. Oliver has been on the Board of Commissioners for the Port of Vancouver USA since 0.. Defendant Brian Wolfe is the Vice President of the Board of Commissioners for the Port of Vancouver USA. Mr. Wolfe has been on the Board of Commissioners for the Port of Vancouver USA since 0. COMPLAINT - 1 E. John St. -0-

5 Defendant Nancy I. Baker is the Secretary of the Board of Commissioners for the Port of Vancouver USA. Ms. Baker has been on the Board of Commissioners for the Port of Vancouver USA since 0. III. JURISDICTION AND VENUE.. This Court has jurisdiction under RCW.0. and RCW ch... The requested relief is available under RCW.0. (injunctive relief and mandamus, RCW.0.00(1 (actions taken in violation of Act shall be null and void, RCW.0.1( (attorneys fees and costs, and RCW..0 (declaratory relief. 1. Venue is appropriate in this Court because the Port of Vancouver USA is located within, and the violations occurred within, Clark County, Washington. IV. STATUTORY FRAMEWORK. 1. The Washington State Legislature declared through the Act a broad interest in having the actions of public commissions and agencies taken openly and in having their deliberations conducted openly. See RCW.0.0. The Act declares that the people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people [therefore] insist on remaining informed so that they may retain control over the instruments they have created. Id. 1. The Act requires that all meetings of the governing body of a public agency be open and public and that all persons be permitted to attend any [such meeting], subject to narrow and limited exceptions. RCW COMPLAINT - 1 E. John St. -0-

6 The Act prohibits any governing body of any agency from adopting any ordinance, resolution, rule, regulation, order, or directive, except in a meeting open to the public. RCW.0.00(1. 1. The Act requires that any final action leasing public property be taken in a meeting open to the public. RCW.0.1(1(c. Final action includes a collective positive or negative decision. RWC.0.0(. 1. RCW.0.1(1 provides the exclusive list of topics that governing bodies of public commissions and agencies may consider during executive sessions that are closed to the public. One such narrow exception to the requirement that meetings be public and open allows a governing body to go into executive session 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. RCW.0.1(1(b.. The Act requires that, before convening an executive session, the presiding officer of a governing body publicly announce the purpose for excluding the public from the meeting place and the time when the executive session will be concluded. RCW.0.1(. V. FACTS.. Two private companies Tesoro Corporation and Savage Companies have proposed a joint venture to develop a proposed petroleum products storage and transport facility on the Columbia River at the Port of Vancouver USA. The project would receive petroleum products by rail, store the material in tanks prior to export, and load the petroleum products onto marine vessels. The facility would include a rail unloading rack, six storage tanks with a combined capacity of. million barrels (. million gallons, and a vessel COMPLAINT - 1 E. John St. -0-

7 loading operation, all of which would be located on approximately forty-two ( acres of Port of Vancouver USA property. The facility would receive approximately 1,000 to 0,000 barrels of petroleum products each day. This would require two ( to six ( trains per day, each consisting of around 1 rail cars and measuring a mile and a half in length.. On Monday, July, 1, the Port of Vancouver USA Board of Commissioners held a public meeting to deliberate on a lease for the proposed petroleum products terminal. Clark County Television made a video recording of the hearing.. Representatives of Plaintiffs Columbia Riverkeeper, NEDC and Sierra Club attended the July, 1, public meeting and provided testimony.. The July, 1, meeting began with a presentation by Port of Vancouver USA staff, who advocated approving the lease.. Prior to taking public testimony during the July, 1, public meeting, Defendant Jerry Oliver, President of the Board of Commissioners for the Port of Vancouver USA, announced to those in attendance that following public comments the Board of Commissioners will recess into executive session for a minimum of 1 minutes to discuss what we ve heard here this evening and how that impacts our deliberations.. Nearly 0 members of the community provided public comments regarding the proposed project during the July, 1, public meeting. Most of these public comments were in opposition to a petroleum products terminal at the Port of Vancouver USA.. At the conclusion of public testimony at the July, 1, public meeting, Defendant Jerry Oliver, President of the Board of Commissioners for the Port of Vancouver USA, announced to those in attendance that the commissioners are now going to recess into executive session for a minimum of 1 minutes to review your comments and discuss them. COMPLAINT - 1 E. John St. -0-

8 Port of Vancouver USA commissioners Jerry Oliver, Brian Wolfe, and Nancy I. Baker then deliberated in a non-public meeting. Based upon Mr. Oliver s representations during the public portion of the meeting, the Board of Commissioners deliberated on matters that included the recent public comments and, given the strong public opposition, whether to approve the proposed lease for the petroleum products storage and transport facility.. Mr. Oliver subsequently represented to a journalist that the Board of Commissioners discussed the lease as it pertained to real estate during the closed portion of the July, 1, meeting. This statement to the journalist is inconsistent with the reason that Mr. Oliver declared publicly during the hearing.. The matters deliberated on by the Board of Commissioners during the portion of the July, 1, meeting that was closed to the public were not limited to the minimum price at which real estate will be offered for sale or lease.. The Port of Vancouver USA Board of Commissioners did not reconvene the public meeting on July, 1, after excluding the public and going into a purported executive session. 0. The Port of Vancouver USA Board of Commissioners held another public meeting the next morning July, 1 to vote on the proposed lease for a petroleum products terminal. 1. Representatives of Plaintiffs Columbia Riverkeeper, Sierra Club and NEDC attended the July, 1, public meeting.. The Board of Commissioners allowed limited public comments during the July, 1, meeting. The Board of Commissioners did not allow public comments during that meeting from any member of the public that had provided public comments during the July, COMPLAINT - 1 E. John St. -0-

9 , meeting, including a representative of Columbia Riverkeeper that requested an opportunity to provide additional testimony.. The Board of Commissioners voted unanimously to approve the proposed lease during the July, 1, meeting.. The approved lease provides for occupancy of approximately forty-two ( acres of Port of Vancouver USA property for ten ( years with two ( options each for five ( year extensions.. Jerry Oliver, Brian Wolfe, and Nancy I. Baker were aware of the value, duration, and number of acres involved in the proposed lease for the petroleum products terminal before the July, 1, public meeting. Further, the Port of Vancouver USA had entered into an exclusive bargaining contract with Tesoro Corporation and Savage Companies regarding the proposed lease. Public deliberations regarding the minimum price at which the Port of Vancouver USA would lease property for the petroleum products facility during the July, 1, meeting therefore would have been unlikely to decrease the price of the lease.. The Board of Commissioners collectively determined to approve the lease during the closed portion of the meeting held on July, 1, as indicated by the following facts: (1 the Board of Commissioners heard extensive public comment during the July, 1, meeting in opposition to the proposed lease; ( then excluded the public from the meeting for the stated purpose of discussing the public comments and how that impacts [their] deliberations ; and ( then convened the next morning for a public vote but appeared to have previously collectively determined to approve the lease. VI. CAUSES OF ACTION. A. First Cause of Action Deliberating Outside of an Open Public Meeting. COMPLAINT - 1 E. John St. -0-

10 Plaintiffs re-allege and incorporate by reference each and every allegation set forth in the paragraphs above.. The Board of Commissioners for the Port of Vancouver USA is a governing body of a public agency subject to the Act.. Defendants violated the Act by deliberating on the proposed lease for the petroleum products facility, including the public comments provided thereon, in a meeting that was closed to the public. See RCW During that meeting, the Board of Commissioners deliberated about topics that RCW.0.1 does not allow governing bodies of public agencies to discuss in executive sessions closed to the public. B. Second Cause of Action Failure to Take Final Action on Leasing of Public Property in an Open Public Meeting. 0. Plaintiffs re-allege and incorporate by reference each and every allegation set forth in the paragraphs above. 1. Defendants violated the Act by collectively determining to approve the lease during the illegally-closed portion of the meeting on July, 1. See RCW.0.00(1,.1(1(c. C. Third Cause of Action Failure to Announce Duration of the Executive Session.. Plaintiffs re-allege and incorporate by reference each and every allegation set forth in the paragraphs above.. Defendant Jerry Oliver, President of the Board of Commissioners for the Port of Vancouver USA, was the presiding officer of the Board of Commissioners during the July, 1, meeting under the Act. COMPLAINT - 1 E. John St. -0-

11 Defendant Jerry Oliver violated the Act by failing to publically announce before excluding the public from the meeting on July, 1, when that purported executive session would be concluded. See RCW.0.1(. D. Fourth Cause of Action Failure to Announce the Purpose for Excluding the Public from the July, 1, Meeting.. Plaintiffs re-allege and incorporate by reference each and every allegation set forth in the paragraphs above.. Defendant Jerry Oliver violated the Act by failing to publically announce before going into the closed meeting on July, 1, a valid purpose for which the public was being excluded. See RCW.0.1(.. Defendant Jerry Oliver violated the Act by failing to publically announce before going into the closed meeting on July, 1, each actual purpose for which the public was being excluded, including the purpose subsequently provided by Defendant Jerry Oliver to a journalist (i.e., the lease as it pertained to real estate. See RCW.0.1(. VII. REQUEST FOR RELIEF. WHEREFORE, Plaintiffs pray that this Court: A. Issue a declaratory judgment declaring that Defendants violated the Act by deliberating on the proposed lease for the petroleum products storage and transport facility, including the public comments provided thereon, in a meeting closed to the public. B. Issue a declaratory judgment declaring that Defendants violated the Act by collectively determining to approve the lease during the portion of the July, 1, meeting that was closed to the public. COMPLAINT - 1 E. John St. -0-

12 C. Issue a declaratory judgment declaring that Defendant Jerry Oliver violated the Act by failing to publically announce before excluding the public from the meeting on July, 1, when that purported executive session would be concluded. D. Issue a declaratory judgment declaring that Defendant Jerry Oliver violated the Act by failing to publically announce before excluding the public from the meeting on July, 1, each purpose for which the public was being excluded from the meeting place. E. Issue a declaratory judgment declaring that the Defendants decision to approve the lease for a petroleum products facility at the Port of Vancouver USA is null and void. F. Issue a mandatory injunction vacating and setting aside Defendants decision to approve the lease for a petroleum products terminal at the Port of Vancouver USA. G. Issue a mandatory injunction prohibiting Defendants from taking any action in furtherance of a lease for a petroleum products terminal at the Port of Vancouver USA unless and until Defendants decide to approve a lease in a manner that complies with the Act. H. Issue a mandatory injunction requiring Defendants to disclose to the public the nature and content of their deliberations during the portion of the July, 1, meeting when the public was unlawfully excluded. I. Grant such preliminary and/or permanent injunctive relief as Plaintiffs may from time to time request during the pendency and resolution of this case. J. Award Plaintiffs their reasonable litigation expenses, including attorney fees, expert witness fees, Court costs, and other expenses as necessary for the preparation and litigation of this case under RCW.0.1( and/or as otherwise authorized by law; and K. Grant such additional relief as the Court deems just and proper. DATED this nd day of October, 1. COMPLAINT E. John St. -0-

13 Smith & Lowney, pllc By: Knoll Lowney, WSBA # Brian A. Knutsen, WSBA # 0 Elizabeth H. Zultoski, WSBA # 1 E. John Street, Tel: ( 0-; Fax: ( 0- knoll@igc.org; briank@igc.org elizabethz@igc.org COMPLAINT E. John St. -0-