May 18, 2015 Port of Vancouver, USA

Columbia Riverkeeper
111 Third Street
Hood River, OR 97031
phone 541.387.3030
www.columbiariverkeeper.org
May 18, 2015
Port of Vancouver, USA
Commissioner Baker
Commissioner Wolfe
Commissioner Oliver
3103 NW Lower River Road
Vancouver, WA 98660
RE:
Request for Public Vote on Early Terminating the Tesoro-Savage Oil
Terminal Lease.
Dear Commissioners,
If Tesoro and Savage cannot secure all necessary permits and approvals in the relatively
near future, the Port of Vancouver will again have the opportunity to decide whether Tesoro and
Savage should be allowed to operate a crude-by-rail terminal in Vancouver. The “Early
Termination” section of the Lease between the Port of Vancouver and Tesoro and Savage
provides that:
“If any or all of the conditions set forth in Paragraph 2.D has not been satisfied or waived
on or before the Conditions Precedent Outside Date, either Lessor or Lessee may
terminate this lease on or before the Conditions Precedent Outside Date . . . .”
Tesoro-Savage Ground Lease, Paragraph 1.C (emphasis added). The conditions referenced in
Paragraph 1.C require Tesoro and Savage to obtain “all necessary licenses, permits, and
approvals . . . .” Tesoro-Savage Ground Lease, Paragraph 2.D(1). These include, but are not
limited to, a Site Certification Agreement from the State of Washington, and a permit from the
Army Corps of Engineers for in-water work. Accordingly, if Tesoro and Savage cannot secure
these permits by the Conditions Precedent Outside Date, the Port of Vancouver may terminate
the Lease.
The Conditions Precedent Outside Date is probably in the near future, and Tesoro and
Savage may not be able to secure the necessary permits before that date. Unfortunately, the Port
of Vancouver has kept the precise Conditions Precedent Outside Date secret. Nevertheless,
documents released by the Port of Vancouver strongly suggest that the Conditions Precedent
Outside Date will be August 1, 2016—36 months after the Lease’s effective date. Whenever the
Conditions Precedent Outside Date will actually fall, that date is approaching and the state and
federal permits that Tesoro and Savage need are nowhere near complete. The Port of Vancouver
should begin considering—publicly—how it will respond if Tesoro and Savage violate the
Conditions Precedent Outside Date.
To protect and restore the water quality of the Columbia River and all life connected to it, from the headwaters to the Pacific Ocean.
Any discussions, deliberations, or communications of any kind by two or more of the
Commissioners on the issue of terminating the lease for expiration of the Conditions Precedent
Outside Date are “action” for the purposes of the Open Public Meetings Act (“OPMA”). RCW
42.30.020(3). Such actions may only be taken in open public meetings, and not in executive
sessions, as none of the OPMA’s narrowly-tailored exemptions would apply. See RCW
42.30.110. Specifically, if and when the Port of Vancouver decides to terminate the Lease upon
the expiration of the Conditions Precedent Outside Date, or decides to ignore Tesoro and
Savage’s inability to meet the deadlines in the Lease, that decision should be made by a vote of
the Commissioners in an open public meeting. Likewise, any action by the Port to waive the
conditions precedent in Paragraph 2.D(1) of the Lease should also be made by a public vote of
the Commissioners.
Thank you for your consideration of this important matter.
Sincerely,
Miles Johnson
Clean Water Attorney
Columbia Riverkeeper
(541) 490 - 0487
[email protected]
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