    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

ARTHUR WEST,
                                                No. 73014-2-1
                    Appellant,
                                                DIVISION ONE

                                                PUBLISHED OPINION
SEATTLE PORT COMMISSION,
TACOMA PORT COMMISSION,
PORT OF TACOMA, PORT OF
SEATTLE, CLARE PETRICH, DON
JOHNSON, RICHARD MARZANO,
DON MEYER, CONNIE BACON, TOM
ABRO, STEPHANIE BOWMAN, BILL
BRYANT, JOHN CREIGHTON,
COURTNEY GREGOIRE,

                     Respondents.               FILED: July 5, 2016


      Trickey, J. — Arthur West sued he Port of Tacoma and the Port of Seattle for

violating the Open Public Meetings Act o 1971 (OPMA), chapter 42.30 RCW. The Ports

moved for dismissal for failure to state a claim. The Port ofTacoma claimed West lacked

standing to bring his OPMA claim. The Port of Seattle argued that the Federal Shipping
Act of 1984, 46 U.S.C. §§ 40101-41309, preempted this application of the OPMA. The
trial court granted both motions.

       Because the OPMA authorizes any person to file an action, we hold that the trial

court erred when it concluded that West lacked standing. But, because we hold that

complying with the OPMA would frustrate the purposes of the Shipping Act in this case,
we affirm the dismissal of West's claims.

                                            FACTS

       The Commissioners of the Port of Tacoma and Port of Seattle conducted a series

of confidential meetings between May and September 2014. West became aware of the
No. 73014-2-1/2


meetings in September 2014 and sought to attend one. The Ports explained that the
Federal Shipping Act authorized their meetings and allowed them to keep the meetings

confidential. Therefore, they claimed, the meetings were not subject to the OPMA. West

was not allowed to attend any of the meetings.

      West filed suit against both Ports and several individual commissioners on

September 26, 2014. He sought a declaratory judgment and sanctions under the OPMA.
      The Ports moved to dismiss West's complaint for failure to state a claim because

he lacked standing and federal law preempted the OPMA for this type of meeting. The
trial court granted both motions to dismiss with prejudice. West appeals the dismissal of
his OPMA claims.

                                       ANALYSIS

                                    Motions to Dismiss

       West argues that the trial court erred when it dismissed his OPMA claims for
"failure to state a claim upon which relief can be granted." CR 12(b)(6). When deciding
whether to dismiss under this standard, the court assumes all the plaintiff's factual

allegations are true and "may consider hypothetical facts supporting the plaintiffs claims."
Kinney v. Cook, 159 Wn.2d 837, 842,154 P.3d 206 (2007). Dismissal is appropriate only

where "it appears beyond doubt that the plaintiff cannot prove any set of facts which would
justify recovery." Tenore v. AT&T Wireless Servs., 136 Wn.2d 322, 330, 962 P.2d 104
(1998).

       We review dismissal under CR 12(b)(6) de novo as a question of law. Tenore, 136

Wn.2d at 329-30. We also review questions of standing, statutory interpretation, and

preemption de novo. Trinity Universal Ins. Co. of Kansas v. Ohio Cas. Ins. Co., 176 Wn.
No. 73014-2-1 / 3


App. 185, 199, 312 P.3d 976 (2013), review denied, 179 Wn.2d 1010, 316 P.3d 494
(2014) (standing); State v. Mitchell, 169Wn.2d 437, 442, 237 P.3d 282 (2010) (statutory
interpretation); Veit. ex rel. Nelson v. Burlington N. Santa Fe Corp., 171 Wn.2d 88, 99,
249 P.3d 607 (2011) (preemption).

      The trial court granted the Port ofTacoma's motion to dismiss on the grounds that
West lacked standing under the OPMA to bring his claims. It also granted the Port of
Seattle's separate motion to dismiss West's claims under CR 12(b)(6) because the
Shipping Act preempted the OPMA in these circumstances.

                                        Standing

       The threshold question in this case is whether West has standing under the OPMA
to bring this claim against the Ports. The trial court held that he did not. We agree with
West that this was error.

       "The claims of a plaintiff who lacks standing cannot be resolved on the merits and
must fail." Trinity Universal Ins., 176 Wn. App. at 199. Questions of standing under
Washington law begin with the statutes themselves. See, e^, Grant County Fire Prot.
Dist. No. 5 v. Citv of Moses Lake, 150 Wn.2d 791, 802, 83 P.3d 419 (2004) (looking first
to the language of the Uniform Declaratory Judgments Act, chapter 7.24 RCW, to
determine whether a party had standing).

       Courts give effect to the plain meaning of unambiguous statutes. West v. Wash.
Ass'n of Ctv. Officials, 162 Wn. App. 120, 130, 252 P.3d 406 (2011). Courts may look at
the provision of a statute in context to determine its plain meaning. Dep't of Ecology v.
Campbell & Gwinn. LLC, 146Wn.2d1, 10, 43 P.3d 4 (2002).

        Here, West seeks to bring suit under the OPMA. The act requires that "[a]ll
No. 73014-2-1/4


meetings of the governing body of a public agency shall be open and public and all

persons shall be permitted to attend any meeting of the governing body of a public

agency." RCW 42.30.030.

      The standing requirements in the OPMA are very broad: "Any person may

commence an action either by mandamus or injunction for the purpose of stopping

violations or preventing threatened violations of this chapter by members of a governing

body." RCW 42.30.130. And "[a]ny person" may bring an action to enforce civil penalties
against members of a governing body who attend meetings in violation of the OPMA.

RCW 42.30.120.

      The statute does not define "person" or limit the people eligible to bring claims

under the act. RCW 42.30.130. It does not indicate that a person seeking standing must

show a particular injury or satisfy a rigorous standing test. A permissive standing
requirement is in line with the legislature's declaration that "the people ... do not yield
their sovereignty" and "insist on remaining informed" and the OPMA's instruction to
construe the statute liberally. RCW 42.30.010, .910.

       Few published cases have addressed the OPMA's standing requirements. In Lopp
v. Peninsula School District No. 401, the Washington State Supreme Court concluded

that RCW 42.30.130 "allows anyone standing to challenge the validity of a governing

body's action." 90 Wn.2d 754, 757, 585 P.2d 801 (1978). But the court later determined
that a plaintiff did not have "standing to raise the matter of improper notice" to a specific
member of a governing body. Kirk v. Pierce Ctv. Fire Prot. Dist. No. 21, 95 Wn.2d 769,

772, 630 P.2d 930 (1981).

       In Kirk, a board of fire commissioners terminated the fire chief through a special
No. 73014-2-1/5


meeting.1 95 Wn.2d at 770-71. The board, allegedly, did not properly notify one of the

commissioners of the meeting. Kjrk, 95 Wn.2d at 772. The terminated fire chief sought

to invalidate the action taken at the meeting, on the grounds that the failure to notify one

of the commissioners violated the OPMA. Kirk, 95 Wn.2d at 771-72. The court ruled that

only the aggrieved commissioner, who did not receive proper notice, would have had

standing to raise the issue. Kirk, 95 Wn.2d at 772.

       The different results in Kirk and Lopp may be due to the different relief they sought.

The plaintiff in Lopp sought to enjoin a school district from selling bonds and to fine the
individual board members of the school district.      90 Wn.2d at 755.     Both actions are

contemplated in RCW 42.30.120 and .130. The fire chief in Kirk sought to invalidate
action taken at an earlier meeting. 95 Wn.2d at 771. Although the OPMA declares that

"[a]ny action taken at meetings failing to comply with [chapter 42.30 RCW] shall be null
and void" it does notauthorize individual peopleto annul or invalidate those actions. RCW

42.30.060(1).

       Additionally, Kirk isdistinguishable on its facts. There, the OPMA violation at issue
was improper notice to a specific person. Kjrk, 95 Wn.2d at 771. There was no claim
that anyone, including the fire chief, was prohibited from attending the meeting. By
contrast, West claims he was personally denied access to the Ports' meetings.
       Accordingly, Kirk did not establish more stringent requirements for standing under
RCW 42.30.120 or .130 than those suggested by the statute's plain language. This
conclusion is consistent with cases following Kjrk that have allowed OPMA actions to

proceed without analyzing standing. See, e^, West, 162 Wn. App. at 127; Euqster v.

1 Special meetings have different notice requirements than regularly scheduled meetings. Cf.
RCW 42.30.075, .080
No. 73014-2-1/6


City of Spokane, 128 Wn. App. 1, 7, 114 P.3d 1200 (2005). Therefore, West, a person,

has standing to bring actions under the OPMA.

      The Ports also claim that Washington draws its standing requirements from federal

law, citing High Tide Seafoods v. State, 106 Wn.2d 695, 702, 725 P.2d 411 (1986). While

the court followed federal authority in High Tide Seafoods, the plaintiffs there sought to

invalidate Washington's tax code on the basis of federal authority: the United States

Constitution and treaty rights of Indians. 106 Wn.2d at 701-02. Therefore, the court was

addressing standing under federal law, not Washington law. High Tide Seafoods, 106
Wn.2d at 701-02.      There was no assertion in that case that Washington's standing

doctrine is always parallel to its federal counterpart.

       The Ports rely heavily on Luian v. Defenders ofWildlife and otherfederal cases to
support their argument that West does not have standing because he cannot demonstrate
any injury. 504 U.S. 555, 577, 112 S. Ct. 2130, 119 L. Ed. 2d 351 (1992).2 This line of
cases does not automatically apply to Washington courts interpreting Washington law.
       The Court held in Luian that Congress, although able to establish new categories

of cognizable injuries, did not have the authority to confer standing by statute on plaintiffs
who had suffered no injury. 504 U.S. at 577-78. The Court held that the plaintiff must
allege a concrete injury in order to satisfy the "case-or-controversy requirement" of article
III, from which federal courts receive their authority to adjudicate cases. Luian, 504 U.S.
at 560, 577; U.S. Const, art. Ill, § 2, cl. 1.

       State courts are not bound by this requirement because they do not rely on the



2Those cases include Allen v. Wright, 468 U.S. 737, 104 S. Ct. 3315, 82 L. Ed. 2d 556 (1984);
Craig v. Boren, 429 U.S. 190,193-94, 97 S. Ct. 451, 50 L. Ed. 2d 397 (1976); Fairchild v. Hughes,
258 U.S. 126, 129-30, 42 S. Ct. 274, 66 L. Ed. 499 (1922).
No. 73014-2-1/7


federal constitution for their authority. "In federal courts, a plaintiffs lack of standing

deprives the court of subject matter jurisdiction, making it impossible to enter a judgment

on the merits." Trinity Universal, 176 Wn. App. at 198-99 (citing Fleck &Assocs., Inc. v.

City of Phoenix, 471 F.3d 1100, 1102 (9th Cir. 2006)). "By contrast, the Washington

Constitution places few constraints on superior court jurisdiction." Trinity Universal, 176

Wn. App. at 198; see Wash. Const, art. IV, § 6. The Ports do not suggest that standing

is a constitutional issue in Washington.

       In short, the Ports have not shown that West lacks standing under the OPMA.

Because West has not appealed the dismissal of his claim under the Uniform Declaratory

Judgments Act, chapter 7.24 RCW, we do not address the Ports' argument that West
lacks standing to bring a claim underthat statute.3
       Concluding that West does have standing, we proceed to the merits of the Ports'
preemption argument.

                                Federal Conflict Preemption

       West argues that the trial court erred when it determined that the Shipping Act
preempted the OPMA for these meetings between the Ports. He asserts that the Shipping
Act is irrelevant because there is no maritime component to this case. The Ports argue

that federal law preempts this application of the OPMA because the Shipping Act
preempted state regulation in this field, and because the OPMA and Shipping Act conflict.




3West argues in his reply brief that the Port of Tacoma is judicially estopped from asserting a
standing argument here because, in another case, the Port of Tacoma used thetrial court's order
to argue that federal law preempts the operation of Washington's Sunshine laws. This argument
refers to material outside the record on appeal. We do not consider it. State v. McFarland, 127
Wn.2d 322, 335, 899 P.2d 1251 (1995).
No. 73014-2-1/8


We hold that the Shipping Act preempts this application ofthe OPMA because complying

with the OPMA would frustrate the goals and purposes of the Shipping Act.

       Federal law preempts state law when state law operates in a field that is completely

occupied by federal law or when state law conflicts with federal law. Inlandboatmen's
Union of the Pac. v. Dep't of Transp., 119 Wn.2d 697, 700-01, 836 P.2d 823 (1992); U.S.

Const, art. VI, cl. 2.       Congressional intent guides federal preemption analysis.

Inlandboatmen, 119 Wn.2d at 701. There is a presumption against preemption when the

state acts within the scope of its historic police powers.4 Wveth v. Levine, 555 U.S. 555,

565, 129 S. Ct. 1187, 173 L. Ed. 2d 51 (2009).

       Conflict preemption exists when it is impossible to comply with federal and state
law, or when "a state law stands as an obstacle to the accomplishment and execution of
the full purposes and objectives of Congress." Inlandboatmen, 119 Wn.2d at 702.
Compliance is impossible when a federal law forbids an action that state law requires.
Mutual Pharm. Co.. Inc. v. Bartlett, _ U.S. _, 133 S. Ct. 2466, 2476, 186 L. Ed. 2d 607

(2013).

        Here, the two potentially competing laws are Washington's OPMA, described
above, and the Federal Shipping Act of1984. The Shipping Act regulates ocean shipping.
It allows certain marine actors, including ports, to work cooperatively, including in ways

that might otherwise run afoul of antitrust legislation.           46 U.S.C. §§ 40301-07.
Regulations implementing the statute require that the parties take detailed minutes for
any meetings they hold under the act and submit those minutes to the Federal Maritime


4The Court held there was no presumption against preemption in U.S. v. Locke, but both the
federal and state laws in that case were clearly in the field of maritime safety and commerce.
 529 U.S. 89, 108, 120 S. Ct. 1135, 146 L. Ed. 2d 69 (2000).
                                                8
No. 73014-2-1/9


Commission (FMC). 46 C.F.R. §§ 535.701(b), .704(a). The statute exempts those

minutes from disclosure under the Freedom of Information Act (FOIA), 5 U.S.C. § 552:

      Information and documents (other than an agreement) filed with the Federal
      Maritime Commission under this chapter are exempt from disclosure under
      [FOIA] and may not be made public except as may be relevant to an
      administrative or judicial proceeding.

46 U.S.C. § 40306; see also 46 C.F.R. § 535.701(i).

      The Ports argue that allowing the public to attend their meetings would conflict

directly with that nondisclosure requirement. West counters that Congress's decision to
exempt written records from disclosure under FOIA does not require the agencies to
make the meetings themselves closed to the public. We agree with West. It would be

possible for the Ports to have their meetings open to the public and then file the minutes
confidentially with the FMC. There is no impossibility preemption here.
       But the Shipping Act could still conflict with the OPMA if complying with the OPMA
would frustrate Congress's purposes and objectives. To determine whether state law
presents an obstacle to federal objectives, courts must examine "the federal statute as a
whole and [identify] its purpose and intended effects." Crosby v. Nat'l Foreign Trade
Council, 530 U.S. 363, 373, 120 S. Ct. 2288, 147 L. Ed. 2d 352 (2000).       Because the

presumption against preemption applies, state law "'must do major damage to clear and
substantial federal interests before the Supremacy Clause will demand that state law will

be overridden.'" Hillman v. Maretta, _ U.S. _, 133 S. Ct. 1943, 1950, 186 L. Ed. 2d 43
(2013) (internal quotation marks omitted) (quoting Hisouierdo v. Hisguierdo, 439 U.S.
572, 581, 99 S. Ct. 802, 59 L. Ed. 2d 1 (1979)).

       The purposes of the Shipping Act include developing "competitive and efficient
ocean transportation" and establishing "a nondiscriminatory regulatory process" for
No. 73014-2-1/10


international maritime commerce "with a minimum of government intervention and

regulatory costs." 46 U.S.C. §40101(1), (4). To further these purposes, the Shipping Act

allows the Ports to "discuss, fix, or regulate rates or other conditions of service" and

"engage in exclusive, preferential, or cooperative working arrangements." 46 U.S.C. §

40301(b)(1), (2).

       Allowing the public, including possible competitors, access to the Ports' meetings

on these matters would make it far more difficult for the Ports to develop competitive

approaches. As the Ports argue, open meetings here would "give the Ports' competitors
access to their strategies and would place the Ports at a competitive disadvantage vis-a

vis marine terminal operators (both here and abroad) whowere notsubject to similar open

public meetings acts."5 Congress's decision to exempt the records filed with the FMC
from disclosure requests under FOIA, is consistent with the Ports' argument.

       Similarly, Washington has recognized that, in certain circumstances, having open
meetings may be incompatible with competitive activity. There are several exceptions to
the OPMA that allow the governing body to hold an "executive session," without the
public's scrutiny. RCW 42.30.110(1). Three of the exceptions are for instances when
"public knowledge" of the meeting's contents "would cause a likelihood of increased
costs" or decreased income to the governing body. RCW 42.30.110(1 )(b), (c), (d).6
       Requiring the Ports to open their meetings to the public would frustrate Congress's
intent to have American marine terminal operators be competitive in international

maritime commerce. We hold that the Shipping Act preempts this application of the

OPMA, because the OPMA would do major damage to the Shipping Act's objectives.


5Answering Br. of Defs./Resp'ts at 28.
6 Neither party has argued that the Ports' meetings fall within these exceptions.
                                                10
No. 73014-2-1/11


Because there is conflict preemption, we do not address whether there would also be

field preemption.

                                        Continuance


       West argues that the trial court erred by denying his motion for a continuance. We
conclude that the trial court did not abuse its discretion by failing to grant West a

continuance.

       West requested a continuance under CR 56(f), the rule for summary judgment,

even though the Ports moved to dismiss for failure to state a claim under CR 12(b)(6).
But, assuming thatthe trial court converted the motions todismiss into summary judgment
motions when it considered the discussion agreements, the trial court did not abuse its

discretion by denying West's request for a continuance.

       When a party moves for summary judgment, the opposing party may request a
continuance if it needs additional time to obtain affidavits that will justify its opposition to

summary judgment. CR 56(f). But the court "may deny a motion for a continuance when
(1) the moving party does not offer a good reason for the delay in obtaining the evidence;
(2) the moving party does not state what evidence would be established through the
additional discovery; or (3) the evidence sought will not raise a genuine issue of fact."
Coggle v. Snow, 56 Wn. App. 499, 507, 784 P.2d 554 (1990).

       This court reviews a trial court's decision to deny a continuance for an abuse of

discretion. Coggle, 56 Wn. App. at 504. It is an abuse ofdiscretion if the court bases its
decision on untenable grounds or for untenable reasons. Coggle, 56 Wn. App. at 507.
        West did not file a separate motion for a continuance but requested one in the
 conclusion of his response to the Ports' motions to dismiss. He did not support his one-


                                               11
No. 73014-2-1/12


sentence request with affidavits orspecify exactly what evidence he could obtain through
additional discovery. Additionally, this case revolves around a pure question of law. No
evidence could help West raise a genuine issue of material fact. Denying West's request

was within the trial court's discretion.

                                           Attorney Fees

       The Port of Tacoma requests attorney fees on the grounds that West's appeal is
frivolous. See RAP 18.9(a). "An appeal is not frivolous or brought for purposes of delay
if it involves 'debatable issues upon which reasonable minds might differ.'" O'Neill v. City
of Shoreline, 183 Wn. App. 15, 26, 332 P.3d 1099 (2014) (internal quotation marks
omitted) (quoting Olsen Media v. Energy Scis., Inc., 32 Wn. App. 579, 588, 648 P.2d 493
(1982)).

       The Port of Tacoma's entire argument that West's appeal is frivolous relates to
standing. West prevailed on the issue of standing. His appeal of that issue was not
frivolous.


        Affirmed.




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