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### IN THE SUPREME COURT OF THE STATE OF WASHINGTON

COLUMBIA RIVERKEEPER; SIERRA ) CLUB; and NORTHWEST ) ENVIRONMENTAL DEFENSE ) CENTER, ) Petitioners, V. PORT OF VANCOUVER USA; JERRY OLIVER, Port ofVancouver USA Board of Commissioners President; BRIAN WOLFE, Port of Vancouver USA Board of Commissioners Vice President; and NANCY 

### I. BAKER, Port ofVancouver USA Board of CommissionersSecretary, Respondents. ) ) ) ) ) ) 

### ) ) ) ) ) ) ) 

### ) ) )



## _________ ) Filed No. 92455-4 En Banc 

### JUN O 8

## 2017

------

WIGGINS, J.-Washington's Open Public Meetings Act (OPMA) requires that "[a]II meetings ofthe governing body ofa 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 considerthe minimum price atwhich real estatewill be offered for sale or leasewhen public knowledge regarding such consideration would cause a likelihood ofdecreased price." RCW42.30.110(1)(c). The parties dispute the scope of this exception asColumbia Riverkeeperetal. v. PortofVancouveretal. No. 92455-4 applied to five executive sessions conducted bythe PortofVancouver USA(the Port). The scope ofthis "minimum price" exception is a matteroffirst impression. 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 ofthe contextual factors themselves must still
occur at an open public meeting. As a result, we reverse the trial court's partial summaryjudgment in favor ofthe Port and remand forfurther proceedings consistent with our analysis.
FACTS AND PROCEDURAL HISTORY I. Factual History1 In 2013, the Port negotiated a leasefor a large rail terminal on public land with two private companies, Tesoro Corporation and Savage Companies. The two companies formed ajoint venture to contract with the Port, creating Tesoro Savage PetroleumTerminal LLC. As approved, theTesoro-Savage leasewould be "the Port's largest single revenue generator," worth "upwards of $200 million to the Port." Resp'ts' Br. at 8 (Port Br.).

1Since this case is a review ofagrant ofsummaryjudgment, "we considerall facts and make all reasonable factual inferences in the light most favorable to the nonmoving party," here, Columbia Riverkeeper, Sierra Club, and Northwest Environmental Defense Center. Scrivener v. Clark Coll., 181 Wn.2d 439,444, 334 P.3d 541 (2014). page 2 of31Columbia Riverkeeperetal. v. PortofVancouveretal. No. 92455-4 The new projectwould receive large quantities ofpetroleum products by rail for export. Located on approximately 42 acres ofthe 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. 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 financialboth forthe Port and for "the local community." Port Br. at 8. 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 maintenancefees, rail accessfees, rail maintenancefees, wharfagefees, and service and facilities fees. 2 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").

2 The lease further requires Tesoro-Savage to spend money that does not go into the Port's coffers at all, including a lease security payment and various forms of insurance. The company is required to carry $1 million in property insurance, $10 million in liability insurance (per incident, up to $15 million in aggregate), and $25 million in pollution legal liability insurance. page 3 of31Columbia Riverkeeperetal. v. PortofVancouveretal. No. 92455-4 

### 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." 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 adecision only atthe end ofa lease approval process, when the board deliberates and votes to either accept or deny a lease. 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 "expectthe staffto do the research." 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 ofthe time" that a public

3The overall price ofthe lease negotiated bystaffis distinctfrom the "land value" ofthe leased property itself. The value ofthe land is only part ofthe final agreement and does not include various fees related to use ofthe land. See, e.g., CP at 1184 (describing the components of the lease price as includingwharfage fees (the rate for moving commodities acrossthe dock), the land lease, rail maintenance fees, rail usage fees, etc.). According to the Port's "current policies," the "land value" component for a real estate lease must be set according to fair marketvalue. Id. at 1456. A separate real estate department sets this fair marketvalue for land. Id. But see id. at 1416 (quoting Commissioner Jerry Oliver indicating that the Port "usually" follows the real estate department's recommendation, "but not always"). page 4 of31Columbia Riverkeeperetal. v. PortofVancouveretal. No. 92455-4 meeting is also held. The Port meets in executive session in order to prevent "poaching" byother ports; seen as rivals forvaluabletenants, neighboring ports might undercut afledgling lease deal. Id. at 1471. In orderto avoid this "poaching,"the Portdiscusses "basicallyall 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 determin~ [the lease's] ultimate price" as including the amount of property to be leased; the market value of any existing feature or amenities ofthe site; the duration ofthe lease; any required investments or improvements by the Port; the Port's expected return on investment in the short and long term, and whetherthe lease represents the highest return to the Port for that location; the projected flow of potential revenue streams; the feasibility ofthe 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;[4l and the direct and indirecteconomic benefitsforthe local community (including familywagejobs). Opp'n to Mot. for Discr. Review at 3-4. Because changes to anyoftheseterms would change the acceptable lease price for a particular property, the terms themselves
were the subject ofexecutive session discussion. The Port held at least seven executive sessions to discuss the Tesoro-Savage project between March and July 2013. Two ofthe meetings are not at issue on this appeal becausethetrial court deniedthe Port's motionforsummaryjudgmentseeking

4Tenant risks include possible "untrustworthy" tenants, GP at 1423, environmental cleanup capacity, id. at 1470, and "operating experience," id. at 1425. page 5 of31Columbia Riverkeeperetal. v. PortofVancouveretal. No. 92455-4 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 summaryjudgment ofdismissal. 

### A. March 26, 2013 Executive Session 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 forthe base lease rate, wharfagefees, dockagefees, 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. 

### B. July 9, 2013 Executive Session In this executive session, the Portdiscussedthe implicationsofTesoro-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. 

### C. July 16 and 17, 2013 Executive Sessions Overtwo daystotaling approximately eight hours, the Port's discussion in these back-to-back executive sessions was broad-ranging. Topics included "what type of crudewould flowthroughthefacility and its risks, timelinesforTesoro-Savageto begin and complete construction, the length ofthe operating term, and whether extensions would be allowed

...." Port Br. at 11.

page 6 of31Columbia Riverkeeperetal. v. PortofVancouveretal. No. 92455-4 D. July 23, 2013 Executive Session In this executive session, held before a vote in public later that day, the Port contemplated requiring the Port's approval ofTesoro-Savage's safety plan beforethe projectcould commence operation. This new leaseterm had been proposedthe night before, after substantial public comments in a publicworkshop. Outside ofthese executive sessions,5the Port also held public workshops in May, June, and July 2013, taking public comments at each one. Two formal public meetingswerethen held, the first on July23, 2013, beforethis lawsuitwas filed. This first meeting presented an overview of the lease to the public, followed by the commissioners' public vote approving the lease. The 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 whatthe Port described as "an abundance ofcaution," it held a newopen meeting and conducted a newvote on October 22, 2013. The meeting lasted about two hours and the Port again approved the lease.

5As noted infra p. 9, the commissioners met in additional executive sessions on April 9 and July22, 2013, butthevalidityofthese meetings is not before us becausethetrial courtdenied summaryjudgment as to these two meetings.
page 7 of31Columbia Riverkeeperetal. v. PortofVancouveretal. No. 92455-4 11. Procedural History On October 2, 2013, Columbia Riverkeeper, Sierra Club, and Northwest Environmental Defense Center sued the Port and its commissioners. 6 All three plaintiffs (collectively Riverkeeper) are nonprofit organizations dedicated to environmental issues. Columbia Riverkeeper in particular is concerned with the restoration and protection ofthe Columbia River Basin. In its 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 ReportofProceedings (RP) (July24, 2015) at7 (quoting Riverkeeper's counsel requesting that "[t]he lease

... be declared null and void until defendants retrace their steps and disclosethe content oftheir unlawful deliberations"). Afterthe Port held its secondformal public meeting on October22, Riverkeeper filed an amended complaint on October 31, 2013. This revised complaint noted the additional meeting and added various State Environmental PolicyAct (SEPA) claims. 7 Ch. 43.21C RCW.

6 The lawsuit named as defendants JerryOliver, BrianWolfe, and Nancy Baker in theirofficial capacities as the Port's commissioners. Unless otherwise specified, we refer to the respondents collectively as "the Port." 7 Riverkeeper's SEPA claims were the subject of a related appeal, Columbia Riverkeeperv. PortofVancouver USA, 188Wn.2d 80, 392 P.3d 1025 (2017). page 8 of31Columbia Riverkeeperetal. v. PottofVancouveretal. No. 92455-4 

### On summaryjudgment, the trial court held that any problems associated with the July 22 meeting were adequately corrected bythe October 22 meeting and vote, and by the adoption ofa "revised executive session announcement procedure." CP at 948. The new announcement procedure consisted ofa checklist allowing the Port to indicate which statutory exception an executive session invoked. 8 

### The court continued the remainder ofthe OPMA claims, pending further discovery. After discovery, Riverkeeper filed its second amended complaint. This complaintallegedfurtherOPMAviolations bythe Portatmeetings conducted between February and July 2013-a period that includes the five executive sessions now before us. In a second summaryjudgment order, the trial court held that each ofthe 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 ofthe 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 thatdiscussing issues relevantto pricewas a necessary partofconsidering the price itself, holding that the Port could discuss in executive session "(1) information

8 The checklist was developed in response to the faulty announcement of the July 22 executive session, in which Commissioner Oliver said that the commissioners would "discuss

...the public testimony

...." The Port conceded that the announcement of this session was flawed. page 9 of31Columbia Riverkeeperetal. v. PortofVancouveretal. No. 92455-4 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 thatwould decrease the Port's price." The court then concluded that interpretation ofthe "minimum price" exception
was "a question of first impression

... as to which there is substantial ground for a difference of opinion and immediate review ofthe order may materially advance the ultimate termination of the litigation." The remaining proceedings were stayed pending appellate review. Riverkeeperfiled a petition fordiscretionary review bythis 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. 9 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

9 Riverkeeper's briefto this court raises atangential challenge to the trial court's interpretive approach, disputing the court's use of testimony by the board of commissioner's general counsel, Alicia Lowe, when discerning how to properly interpret the OPMA's minimum price provision. Pet'rs' Opening Br. at 47 (Riverkeeper Br.). This evidentiary issue was not raised in the petition for review. See Port Br. at 39-40. We generally do not consider new issues not raised in the petition and thus accepted for review by this court. See RAP 13.?(b) ("the Supreme Courtwill review only the questions raised in the motion for discretionary review"). We therefore decline to considerthe issue.
page 10 of31Columbia Riverkeeperetal. v. PortofVancouveretal. No. 92455-4 July 22 meeting, which is not before us; as a result, we did not grant review ofthe mootness issue. 10 Becausewe disagree with the trial court's interpretation ofthe "minimum price" exception, we reverse the grant ofsummaryjudgmentfor each ofthe five meetings.
STANDARD OF REVIEW We review summary judgments de nova. 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 ofthe nonmoving party. Scrivener, 181 Wn.2d at 444. The construction and meaning of a statute is a question of law that we also review de nova. Dep'tofEcologyv. Campbell

### & Gwinn, LLC, 146Wn.2d 1, 9, 43 P.3d 4 (2002). When possible, the court derives legislative intentfrom the plain language enacted bythe legislature, considering thetextofthe provision in question, the context ofthe statute in which the provision is found, related provisions, amendments to the provision, and the statutory scheme as awhole. Id. at 10-11.
ANALYSIS The crux of the parties' dispute is whether the OPMA permits the governing body ofa public entity to discuss in executive session all factors influencing the price

10 Because we are reviewing only claims for declaratory relief, Riverkeeper requests no relief beyond reversal ofsummaryjudgment. Riverkeeper Br. at 49. page 11 of31Columbia Riverkeeperetal. v. PortofVancouveretal. No. 92455-4 to sell or lease property. The OPMA's "minimum price" exception allows governing bodiesto enterexecutivesession "[t]oconsiderthe minimum priceatwhich real estate will be offered for sale or lease when public knowledge regarding such consideration would cause a likelihood ofdecreased price." RCW42.30.110(1)(c). The Port argues for a broad interpretation by which government entities could "consider in executive session the key deal factors that drivethe minimum price

...." Port Br. at 3. Riverkeeper argues for a narrow interpretation, limiting discussion to "the least amount of money to be accepted for a lease." Pet'rs' Opening Br. at 27 (Riverkeeper Br.). In the alternative, Riverkeeper offers a middle ground approachallowing "some discussion ofthe reasons supporting a particular price," but with the executive session "still

... confined to deliberations focused on setting the minimum price." Pet'rs' Reply Br. at 3, 7. Thus, in aquestion offirst impression, we are asked to clarify the exception's scope. The clear language of the statute limits discussion in executive session to consideration ofthe lowest acceptable value to sell or lease property. To the extent thatvarious factors directly alterthe lowestacceptablevalue, the governing body may discuss how these factors impact the minimum price. This limited scope does not permit a general discussion ofthe contextual factors themselves; any such general discussion must occur at an open public meeting. Once the relevant factors have been discussed in public session, then, armed with this knowledge, the governing body may enter executive session; there, the governing body can apply this knowledge to set a new minimum price. This interpretation is supported by the

page 12 of31Columbia Riverkeeperetal. v. PortofVancouveretal. No. 92455-4 statutory mandate to liberally construe open meetings protections, by the provision's legislative history, and by the rule's practical implications. Because this case is before us on interlocutory review, and because the trial court has yet to consider the validity of these meetings with adequate interpretive guidance, we reverse the partial summary judgment and remand for further proceedings consistent with this analysis. I. The OPMA Broadly Ensures GovernmentTransparency The OPMA is Washington's comprehensivetransparency statute. 11 Enacted in 1971, the Act seeks "to ensure public bodies make decisions openly." 12 Millerv. City ofTacoma, 138 Wn.2d 318, 324, 979 P.2d 429 (1999). "[T]he purpose ofthe Act is to allow the public to view the decisionmaking process at all stages." 13 Cathcart v. Andersen, 85Wn.2d 102,107,530 P.2d 313 (1975). In orderto ensurethis oversight of government entities, the OPMA requires that "[a]II meetings

... be open and public." 14 RCW 42.30.030. This general rule is subject to a series of exceptions. RCW 42.30.110.

11 The OPMA is similar to statutes in many other states. See William R. Sherman, The Deliberation Paradox andAdministrative Law, 2015 B.Y.U. L. REV. 413, 432 (2015) (noting that "Washington State's Open Public Meetings Act is typical"); see also id. at 432 n.84 (describing similar state laws in California, Idaho, Iowa, Kansas, and Tennessee). 12 A public body includes "all public commissions, boards, councils,

... and all other public agencies ofthis state and subdivisions thereof

...." RCW42.30.010. The parties agree that the OPMA applies to the Port. 13 Transparency statutes seek to protect and promote an engaged democratic process. See DetroitFree Press v. Ashcroft, 303 F.3d 681, 683 (6th Cir. 2002) (noting that "[d]emocracies die behind closed doors"). 14 A "meeting" is defined as "meetings at which action is taken." RCW 42.30.020(4). An "action" is defined as "the transaction ofthe official business ofa publicagency byagoverning page 13 of31Columbia Riverkeeperetal. v. PortofVancouveretal. No. 92455-4 II. The "Minimum Price" Exception Narrowly Permits Executive Sessions The "minimum price" exception of RCW 42.30.11Oallows government entities to hold executive sessions [t]o consider the minimum price at which real estate will be offered for saleorleasewhen public knowledge regarding such considerationwould cause a likelihood of decreased price. However, final action selling or leasing public property shall be taken in a meeting open to the public. RCW 42.30.110(1)(c). We have not previously interpreted this exception. When interpreting a statute, the court's fundamental objective is to ascertain and give effect to the legislature's intent. Hama Hama Co. v. Shorelines Hr'gs Bd., 85 Wn.2d 441, 445, 536 P.2d 157 (1975). We begin with the plain meaning of the statute. See Campbell& Gwinn, 146Wn.2d at 9. In doing so, we considerthe text of the provision, the context of the statute in which the provision is found, related provisions, amendmentsto the provision, and the statutory scheme as awhole. 

### Id. at 10-11. Ifthe meaning ofthe statute is plain on its face, then we must give effect to that meaning as an expression of legislative intent. 

### Id. "[W]e may discern the plain meaning of nontechnical statutory terms from their dictionary definitions." State v. Cooper, 156 Wn.2d 475, 480, 128 P.3d 1234 (2006). If, after this inquiry, the statute remains ambiguous or unclear, it is appropriate to resort to canons of construction and legislative history. Campbell

### & Gwinn, 146Wn.2d at 9.

body including but not limited to
... deliberations, discussions, considerations,

... and final actions." RCW42.30.020(3). The parties agree that the gatherings at issue were meetings at which action was taken, subjecting these sessions to the OPMA's transparency requirements. page 14 of31Columbia Riverkeeperetal. v. PortofVancouveretal. No. 92455-4 The OPMAadds an additional lens to this interpretive process; the statute itself declares that its protections "shall be liberally construed." RCW 42.30.910. Liberal construction requires that we resolve ambiguous provisions in favor of government transparency. See Ross v. State Farm Mut. Auto. Ins. Co., 132 Wn.2d 507, 515, 940 P.3d 252 (1997). Liberally construing the statute's protections further '"implies a concomitant intent that its exceptions be narrowly confined."' Miller, 138 Wn.2d at 324 (quoting Mead Sch. Dist. No. 354 v. MeadEduc. Ass'n, 85 Wn.2d 140, 145, 530 P.2d 302 (1975)). As a result, where multiple reasonable interpretations of an exception are available, we are directed to adoptthe narrowest ofthe alternatives. 15 Here, the parties offer three different interpretations of the "minimum price" exception. The Port argues that discussing "minimum price" necessarily includes discussion ofall informationthat might influence price. Becausetopics such as safety issues, job creation, liability allocation, and environmental impacts are relevant to the lease price, the Port argues that its executive sessions discussing all ofthese factors fall within the OPMA's "minimum price" exception.

15 The Portwould modifythis approach to interpreting the OMPA: "[W]hile exceptions to open government provisions should be strictly construed, the OPMA should not be construed to disadvantage a public entity in confidential communications." Port Br. at 5. The Port relies on Port of Seattle v. Rio, 16 Wn. App. 718, 724, 559 P.2d 18 (1977) (holding that a government entity "should neither be given an advantage, nor placed at a disadvantage in litigation" because "public agencies are entitled to effective legal representation"). Rio is rooted in government entities' independent right to receive confidential attorney-client communications. Id. The Port offers no authority suggesting that a government actor has a corresponding independent right not to be disadvantaged in commercial negotiations. As a result, we decline to abridge the OPMA's direction that its protections be liberally construed. page 15 of31Columbia Riverkeeperetal. v. PortofVancouveretal. No. 92455-4 Riverkeeper argues that discussing "minimum price" means discussing numbers alone-that is, the lowest number of dollars at which real estate will be offered for lease or sale. Contextual discussion, under this approach, would be foreclosed entirely. If some discussion beyond bare numbers is necessary, Riverkeeper offers a compromise interpretation-contextual references to the reasons behind a particular minimum pricewould be permittedwhere necessaryto makethe discussion coherent. However, the discussion itselfwould still be focused on setting the minimum number ofdollars. The parties' interpretations rely on different characterizations of (1) the plain language ofthe statute, (2) the legislative history ofthe statute, and (3) the practical import ofa narrow interpretation ofthe statute. We address each factor in turn. 

### A. Plain Language We discern a statute's plain language by considering the text itself, amendmentsto the statute, and related statutory provisions. Campbell& Gwinn, 146 Wn.2d at 10-11. We begin with the text. 1. The Text The "minimum price" exception permits a government entity to convene in executive session [t]o consider the minimum price at which real estate will be offered for saleorleasewhen public knowledge regarding such considerationwould cause a likelihood of decreased price. However, final action selling or leasing public property shall be taken in a meeting open to the public.

page 16 of31Columbia Riverkeeperetal. v. PortofVancouveretal. No. 92455-4 RCW 42.30.110(1)(c). The scope of this provision is tied to its opening phrase "to consider the minimum price." To "consider" means to "think about with a degree of
care or caution." WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 483 (2002); see also In re Parental Rights to K.J.B., 187 Wn.2d 592, 603, 387 P.3d 1072 (2017). Carefully thinking about price, the Port explains, "encapsulates those things that necessarily affect price." Port Br. at 23. We disagree. The phrase "things that necessarily affect" is not in the statute. The subject of careful thought must be the price itself. Theword "price" is defined as follows: [archaic definition omitted] 2 a : the quantity of one thing that is exchanged or demanded in barter or sale for another[;] a ratio at which commodities and services are exchanged

... b : the amount of money given or set as the amountto be given as a consideration forthe sale of a specified thing

... 3 :the terms or consideration forthe sake ofwhich something is done or undertaken : as a : an amount orgain sufficientto bribe one : something for which one is prepared to sacrifice probity, responsibility, or otherquality orduty

.... WEBSTER'S, supra, at 1798. Price can thus reasonably mean either (1) a single monetary amount or (2) a mix of terms or elements of consideration. 16 "Minimum"

16 AmicusWashington Public PortsAssociation (WPPA) arguesthattheword "price" isfurther expanded by the statute's subsequent phrase "such consideration." Br. of Amicus Curiae WPPA at 9; see RCW42.30.110(1)(c) ("when public knowledge regarding such consideration would cause a likelihood of decreased price" (emphasis added)). "The Legislature," WPPA claims, "uses the term 'such consideration' to refer to its immediately prior use of 'price', indicating such terms are interchangeable in this exemption." WPPA Br. at 9. "Consideration," WPPA continues, refers to the legal term by which some value is conveyed or legal burden incurred. Id. There are two problems with this analysis. First, it inappropriately relies on a technical definition of "consideration," as used in a legal or contractual setting. There is no reason to assumethatthe word is used in atechnical sense. See Cooper, 156 Wn.2d at 480 (noting that we "discern the plain meaning of nontechnical statutoryterms from theirdictionarydefinitions"). Second, the argument overlooks the use of
page 17 of31Columbia Riverkeeperetal. v. Port ofVancouveretal. No. 92455-4 also constrains this definition, meaning "of, or relating to, orconstituting a minimum : least attainable or possible

...." WEBSTER'S, supra, at 1438. Taken together then, "to considerthe minimum price" means to carefully think aboutthe leastacceptable amountofmoneyor benefits to be accepted for a piece of property. Under this plain meaning, an executive session must be specifically concerned with the minimum price and information discussed must be tied to that minimum price. 2. The Statute as aWhole Plain language interpretation of a statute looks not only to the provision in question, butto other related provisions that illuminate legislative intent. Campbell

### & Gwinn, 146 Wn.2d at 11. In the Act's opening provision, the legislature set forth the statute's general purpose: The legislature finds and declares that all public commissions, boards, councils

... and all other public agencies ofthis state and subdivisions thereofexistto aid in the conductofthe people's business. It is the intent of this chapter that their actions be taken openly and that their deliberations be conducted openly. The people of this state do not yield their sovereignty to the agencies which serve them. The people, in delegating authority, do not give their public servants the right to decidewhat is good for the people to know and what is not good for them to know. The people insist on remaining informed so thatthey may retain control overthe instruments they have created.

the derivative word, "consider," in the preceding clause, highlighted by the word "such." "Such" means "previously characterized orspecified." WEBSTER'S, supra, at2283. Here, the phrase "such consideration" points backward to the previously stated derivative word "consider," notto the word "price." page 18 of31Columbia Riverkeeperetal. v. PortofVancouveretal. No. 92455-4 RCW 42.30.010. This is "some of the strongest language used in any legislation." Equitable Shipyards, Inc. v. State, 93 Wn.2d 465, 482, 611 P.2d 396 (1980). We are not permitted to frustrate these goals of transparency and popular sovereignty by approving expansive discussion in executive session ofmatters squarely in the public interest. Here, the Tesoro-Savage lease involved topics that were clearly matters of substantial public concern, including environmental risks, public safety hazards, and local economic impacts. A broad construction ofthe "minimum price" exception thus would invade the people's right to decide for themselves "what is good for [them] to know and what is not good forthem to know." RCW42.30.010. Similarly, the breadth of other provisions providing for discussion in executive session contrasts with the narrowness ofthe "minimum price" exception. "When the legislature uses differentwords within the same statute, we recognize that a different meaning is intended." State v. Beaver, 148 Wn.2d 338, 343, 60 P.3d 586 (2002). Considerthe OPMA exception allowing wide-ranging discussion in executive session with legal counsel: [t]o discusswith legal counsel

... litigation or potential litigation to which the [government entity]

... is, or is likelyto become, a party
...." RCW42.30.110(1)(i). Whereasthis exception refersto all actual orpotential litigation, the "minimum price" exception is much more narrowly drawn. Far from permitting discussion ofreal estate generally, it allows executive sessions only [t]o consider the minimum price at which real estate will be offeredfor saleorleasewhen public knowledge regarding such considerationwould cause a likelihood ofdecreased price

....

page 19 of31Columbia Riverkeeperetal. v. PortofVancouveretal. No. 92455-4 RCW 42.30.110(1)(c) (emphasis added). Because the "minimum price" exception
uses more limited language, the exception more strictly limits executive sessions. These related statutory provisions reinforce the specifictextual analysis ofthe "minimum price" exception. The legislature plainly did not intend to allow pervasive discussion of important public issues behind closed doors. The legislature was fully capable ofcreating such a broad exception had itwished to. It did not. 3. StatutoryAmendment Plain language analysis also looks to amendments to the statute's language
over time. Campbell 

### & Gwinn, 146 Wn.2d at 10-11. In this case, the legislature amended the "minimum price" exception in 1985, adopting the provision's final sentence: "However, final action selling or leasing public property shall be taken in a meeting opentothe public." SUBSTITUTES.B. 3386, at 1, 49th Leg., Reg. Sess. (Wash. 1985) (underline omitted). The Port argues that this amendment serves as the "boundary for a public entity's discussions while in executive session, and in turn leaves room for discussions on topics that drive price so long as they do not cross thatboundary, i.e., reach afinal decision

...." Port Br. at27. However, the legislative report on this amendment specifically stated that the legislature did not intend this
new sentence to modifythe existing exception: Specific, nontechnical, modifications ofexisting law are as follows: (1)Theauthorizationto discuss, in executive session, the minimum price at which public property may be sold or leased is left intact. However, the law is amended to clarifythatfinal action must be taken at a meeting open to the public.

page 20 of31Columbia Riverkeeperetal. v. PortofVancouveretal. No. 92455-4 HOUSE COMM. ON STATE Gov'T, H.B. REP. ON SUBSTITUTE S.B. 3386, at2-3, 49th Leg., Reg. Sess. (Wash. 1985) (emphasis added). The Port offers no authority suggesting that the legislature meant to undercut precisely the protection it purported to leave whole. As a result, the plain language analysis ofthe statutory protection remains unaltered. "To consider the minimum price" means to think carefully about the least acceptable value, notto discussthe factors contributing to thatvalue. Lastly, even if a broad reading were consistent with the plain language ofthe statute, we would still interpret exceptions to the OPMA narrowly. See RCW 42.30.91

### O. Thus, where multiple interpretations ofthe exception are reasonable, we must adhereto the narrowest alternative. B. Legislative History The "minimum price" exception's legislative history reinforces the provision's
narrow scope. The exception was passed in 1979 as Substitute House Bill 248, and soughtto prevent "potential buyers" ofpublic real estatefrom becoming "aware of[the government entity's] minimum price and, therefore," failing to "offerthe public agency a higherprice." H.B. REP. ON SUBSTITUTE H.B. 248, at 1, 46th Leg., Reg. Sess. (Wash. 1979). The new legislation thus protected only the government's bottom-line price from public disclosure. In floordebate, one ofthe bill's sponsors explainedthe purposeoftheexception in detail: What this bill then is trying to accomplish is to say that the public body could hold a[n]

... executive session

...when it is considering the sale or lease of property, but the executive session would be limited to deciding how high or how low they are willing to go on-in terms of negotiation with the other entity that is concerned. All other aspects page 21 of31Columbia Riverkeeperetal. v. Port ofVancouveretal. No. 92455-4 relating to the sale or lease ofthe property
... , the decision to sell or lease and the reasons for it and what property might be sold or leased and so on would have to be conducted in open meeting and only the details of the proposed negotiation with respect to the price could be conducted in executive session. 46 S. Floor Proceedings, SUBSTITUTE H.B. 248 (Mar. 2, 1979)at 73:44 to 74:35 (Mar. 2, 1979, Floor Proceedings) (statement of Sen. Wilson), https://www.digitalarchives.wa.gov/Media/25/297/858/a160dbba-ec84-4a51-ac94- 3bde2e2a08bd.mp3. Opposition to the bill expressed concern that "chicanery will take place" if disposition ofpropertywerediscussed in executivesession. H.B. REP. ON SUBSTITUTE H.B. 248, at 1. Responding to these concerns, the executive director of the Washington Public Ports Association (WPPA) sent a letter reassuring the legislature that discussion in executive session would be limited: The rationale for this [bill] is quite simple. Any publicly known minimum terms or prices will become, during purchase or lease negotiations, the maximum price offered by the potential purchaser or lessee

.... 

### The intent ofthis bill is not to transact real estate business in secret. Letter from Lewis R. Holcomb, Exec. Dir. ofWash. Pub. Ports Ass'n, to Members of the Senate Rules Comm. 1 (Mar. 1, 1979) (WPPA Ltr.) (emphasis added). In light of these statements, we reject the suggestion that the legislature intended to allowprivatediscussion ofall topics related to real estate, so long as those topics impact price. On the contrary, the legislature plainly soughtto limit discussion in executive sessions to the negotiation's backstop amount, that is, "how high or how low" the price mightgo, while nonetheless requiring that "[a]II otheraspects" ofa sale page 22 of31Columbia Riverkeeperetal. v. PortofVancouveretal. No. 92455-4 or lease be discussed in public. 17 Mar. 2, 1979, Floor Proceedings at 74:00 to 74:02, 74:09 to 74:11 (statement of Sen. Wilson). Thus, the Port's interpretation would achieve preciselywhat the legislature soughtto prevent: "real estate business" being discussed "in secret." WPPA Ur. at 1. In sum, the statutory provision's legislative history supports, ratherthan rebuts,
a narrow interpretation of the exception's scope, confining discussion in executive session to the lowest acceptable monetary value forthe sale or lease of property. 

### C. Practical Implications The Port argues that a broader interpretation is nonetheless necessary because (1) discussing unmoored numbers in executive session is impractical and (2) disclosing key deal terms would underminethe Port's "negotiating power." Port Br. at 17. Either outcome, the Port states, would be absurd. Id. at 23. We disagree. We "avoid [a] literal reading of a statute" only when doing so "would result in unlikely, absurd, or strained consequences." Fraternal OrderofEagles, TeninoAerie No. 564 v. GrandAerie ofFraternal OrderofEagles, 148 Wn.2d 224, 239, 59 P.3d 655 (2002). We usethe canon ofavoiding absurd results sparingly because it "refuses to give effectto the words the legislature has written." Five Corners FamilyFarmers 

### v. State, 173 Wn.2d 296, 311, 268 P.3d 892 (2011) (further noting that the absurd

17 We appreciate that a binary "high or low" conception of price may appear excessively simplistic in light of the Port's complex lease agreements. As the trial court noted, "[T]he legislature gave us this one clause with one word[-price-]thatfails to take into account in atransaction ofthis size and complexity and scope the multitude of possible factors that play into the decision-making of this agency body." RP (July 24, 2015) at 54. We must nonetheless apply the rule we are given. page 23 of31Columbia Riverkeeperetal. v. PortofVancouveretal. No. 92455-4 results canon "necessarily results in a court disregarding an otherwise plain meaning and inserting or removing statutory language, ataskthat is decidedlythe province of the legislature"). Withthese cautionary principles in mind, we proceed to considerthe Port's twin practicality arguments. 1. Focusing Discussion on Setting the LowestAcceptable Value Is Practical The Port's concern that discussing unmoored numbers is impractical also animated the trial court's opinion. The court noted thatthe word "price" alone "fails to take into account
... the multitude of possible factors that play into the decisionmaking ofthis agency body. RP (July 24, 2015) at 54. "And the notion of price taken by itselfin a vacuum really means nothing. Price

... is afunction ofa priorequation." Id. As a result, the court reasoned, there must be "a necessary degree of latitude" to permit the Port "to discuss in executive session many things which go into the price ofa particulartransaction." Id. at 55. We disagreewith this analysis in two respects. First, while the Port is correct that effectively considering price must factor in "thosethingsthat necessarilyaffect price,"the Port is incorrectthatthe commissioners need to learn about ordiscuss "thosethings" in executive session. Port Br. at23. The factors behind price-the quantity of land, the environmental impacts, the property improvements, etc.-canand mustbe discussed in publiceven iftheirspecificdollarsand-cents impact on price is considered in executive session. Having educated themselves on the issues relevantto the property in an open session, commissioners
can then retire to executive session to decide an appropriate minimum value for the lease or sale ofthat property.

page 24 of31Columbia Riverkeeperetal. v. PortofVancouveretal. No. 92455-4 Second, the Port is mistaken that focused discussion on the appropriate minimum value restricts the conversation in executive session to mere numbers, detached from meaning. Commissioners can properly reference the reason for a particular price without making those factors the focus ofdiscussion. Again, focus is key. Contextual references are appropriate so long as the goal and outcome ofthe discussion remains identification ofthe lowest acceptable value. Pet'rs' Reply Br. at 

### 7. 2. Focusing Discussion on Setting the LowestAcceptable Value Does Not lmpermissiblyJeopardizethe Port's Negotiating Power Tlie Port's concern that its negotiating powerwould be jeopardized appears to be more deep-seated, and reflects many of the commissioners' comments: The region's ports, we are assured, are "cutthroat competitors." CP at 1427 (quoting Commissioner Jerry Oliver). The Port claims that publicly discussing key deal terms would open up the deal to "poaching" by rival ports. For instance, disclosing environmental impacts in public "might enhance another port in [its] competitive pursuit of this potential tenant because [the other port] might be willing to make concessions that our port would not
...." 

### Id. at 1423 (Commissioner Oliver). "The public," Commissioner Oliver further cautioned, "includes our competitors." 

### Id. at 1428. Thus, while the Port and its commissioners "try to be transparent [with the public,]

... sometimeswe feel that it is necessaryto restrict the flow of information to protect eitherourtenantorourselvesfrom competitive influences." 

### Id. (Commissioner Oliver). To do otherwise would prevent the Port from meeting "its obligation to maximize the value for public property." Port Br. at 28. page 25 of31Columbia Riverkeeperetal. v. PortofVancouveretal. No. 92455-4 The OPMA is crystal clear in its response to such arguments: "The people

... do not givetheir publicservantsthe rightto decidewhat is goodforthe peopleto know and what is not good for them to know." RCW 42.30.010. The fact that "the people" in this case includes the Port's competitors is not an independent justification for shielding a broader swathe ofthe Port's discussions. Moreover, the Port's analysis ofthese pragmatic implications founders on the facts. The Port bluntly stated that the commissioners were not involved in lease negotiations. Minimum price is determined by staff and, according to the commissioners, largely accepted by the board, as commissioners have neither the time nor the manpower to conduct their own research. Thus, it is unclear how the Port justifies extensive executive meetings to arrive at a minimum price when the commissioners are explicitly not involved in its development and quickly approve its proposal. Nor does the public's participation weigh solely on the side of impracticality. For instance, when the public participated in the Port's July 22 public meeting, comments sparked a proposed lease provision requiring the Port's preapproval ofthe project's safety plan. Withoutthe public's participation, this provisionwould, perhaps, have gone unconsidered. Amid this discussion of practicalities, it is worth remembering thatthe public can also substantively contribute. In sum, carefully limiting discussion in executive discussion is far from absurd. The most immediate impact would be the presence of substantially fewer-or

page 26 of31Columbia Riverkeeperetal. v. PortofVancouveretal. No. 92455-4 substantially shorter-executive sessions. Public meetings would thus include the bulk ofa government entity's discussions. Applying our analysis to the Port's facts, we see some initial practical impacts
as follows-public meetings would review a lease's potential impacts on local jobs, local spending, environmental risks, public safety, and risks to neighboring tenants. 18 Forinstance, discussion ofTesoro-Savage's limited liabilitystructurewouldtake place in public, exploring the possible need for environmental cleanup, the limits on the prospective tenant's ability to pay, and the role of insurance in responding to uncovered risks. After a full discussion of these issues in public, the Port's commissioners would then enter executive session to establish the dollar impact on the acceptable lease price-setting the new minimum value. Having established this minimum value, the commissioners would return to discussing the project in public session. In contrastto this hypothetical scenario, the Port's broad interpretation ofthe

18 In oral argument and in amicus briefing, the parties contemplate an alternate scenario in which governmententities do not increasethe numberofpublic meetings, but instead decline to discuss important issues either in public or in executive sessions. See Wash. Supreme Court oral argument, Columbia Riverkeeper v. Port of Vancouver, USA, No. 92455-4 (Feb. 16, 2017) at 12 min., 22 sec., audio recording by TVW, Washington State's Public Affairs Network, http://www.tvw.org. In this scenario, entities like the Portwould conduct the bulk of their communications in writing or in one-on-one conversations between individual commissioners and staff (which are not generally subject to public meeting requirements). Riverkeeper appears to concede that this result is permissible, though it would defeat the OPMA's goal of allowing "the public to know what's going on." Id. But we are not asked to considerthe implications ofsuch ascenario orwhether government entities could effectively shield their deliberations by engaging only indirectly through staff and written memoranda. To the extent that such a stratagem would deliberately undercut the central purpose of the OPMA, it is a deeplytroubling hypothetical. page 27 of31Columbia Riverkeeperetal. v. PortofVancouveretal. No. 92455-4 

### statute would allow the vast majority ofdiscussions pertaining to the sale or lease of real estate to continue taking place behind closed doors. Again, we stress that it is the role of the legislature to balance the practical implications and possible disadvantagesofthe OPMA. Policy arguments cannotalter the plain language ofthe exception, which requires discussions in executive session to explicitly and narrowly focus on the minimum value to sell or lease property. We
are not "authorized to rewrite a statute because [we] might deem its effects susceptible of improvement." Badaracco v. Comm'r, 

### 464 U.S. 386, 398, 104 S. Ct. 756, 78 L. Ed. 2d 549 (1984). As a result, wherethe Portwould interpret "[t]o consider the minimum price" (RCW 42.30.110(1)(c)) to involve consideration of "the key deal factors that drive the minimum price," we lack authority to so modify the statutory pl1rase. Port Br. at 3. Ill. Summary JudgmentWas Inappropriate Now we must consider the Port's five meetings in light of our interpretation of the "minimum price" exception. Construing the facts in favor of Riverkeeper, each of the meetings discussed factors relevant to the lease price but was not focused on setting the minimum price itself. The March 26, 2013, meeting discussed the duration for the "proposed exclusivity agreement" the Port planned to enter, as well as an update on the negotiated lease terms. Riverkeeper Br. at 12. The July 9, 2013, meeting discussed Tesoro-Savage's formation of a limited liability corporation and whetherthe new entity would be able to pay for possible environmental cleanup. 

### Id. at 16. The July 16 and 17, 2013, sessions discussed, among other topics,

page 28 of31Columbia Riverkeeperetal. v. PortofVancouveretal. No. 92455-4 construction timelines, who would be responsible for construction costs, what types of petroleum products would flow through the facility, '"risk associated with any ofthe potential crude oil,"' and related insurance requirements. 

### Id. at 17. TheJuly23, 2013, meeting discussed requiring the Port's approval ofthe project's safety plan beforethe project could commence operation. 

### Id. at 20. Taken in the light most favorable to Riverkeeper, summaryjudgmentforthe Portwas plainly inappropriate. Therefore, we reverse the entry ofsummaryjudgment and remand the case forfurther proceedings consistentwith this interpretation ofthe OPMA. 19
CONCLUSION The OPMA broadly mandates transparency in Washington government. Its protections must be liberally construed and its exceptions narrowly construed. Therefore, the exception permitting executive sessionsto considerthe minimum price at which to offer public land for sale or lease must be read narrowly. The plain language of the provision confines discussion in executive session to the lowest acceptable value to offer land for sale or lease, and does not permit discussion ofall factors that influence price. This narrow interpretation is consistent with the provision's legislative history, which limited executive sessions "to deciding how high
or how low [government entities] are willing to go." Mar. 2, 1979, Floor Proceedings

19 Riverkeeper also requests that it be awarded costs and fees related to this appeal "only upon a determination that the Board violated OPMA." Pet'rs' Reply in Supp. of Mot. for Appellate Fees at 2. Becausewe merely reverse the entry ofsummaryjudgmentforthe Port and do not enter summaryjudgmentfor Riverkeeper, we decline to award appellate fees and costs. Any allocation ofcosts and fees will abide the outcome ofthe case on remand. page 29 of31Columbia Riverkeeperetal. v. PortofVancouveretal. No. 92455~4 

### at 73:59to 74:03 (statement ofSen. Wilson). "All other aspects relating to the sale or lease ofthe property
... have to be conducted in open meeting[s]

..." 

### Id. at 74:09 to 74:26. In practice, this means that a government entity's discussion ofthe factors comprising value must occur in public. While conversation in executive session may address how these factors impact the minimum price, these contextual references cannotthemselves become the focus ofdiscussion. Construing the facts in the light most favorable to Riverkeeper, the Port's five executive sessions at issue here concerned factors influencing price and were not themselves focused on arriving at a minimum price. As a result, we reverse the grant of summary judgment as to the five meetings and remand for further proceedings consistent with our analysis. Any potential award of costs and fees will abide the outcome ofthe case on remand.

page 30 of31Columbia Riverkeeperetal. v. PortofVancouveretal. No. 92455-4

WE CONCUR. 

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# c.

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