By Randy Gaylord
Special to the Islands’ Weekly
At a recent public meeting of the Port of Lopez, I answered many questions about the limits on the powers of a port district to operate a solid waste handling facility. Last fall I asked the County Administrator Pete Rose that same question. On Nov. 1, I said it would be good to ask the port’s attorneys to provide an answer.
In January the port’s attorneys answered the question and concluded that the Port of Lopez likely did not have the power to operate a solid waste facility on Lopez Island. The port’s attorneys wrote:
• “Is the port authorized to operate the waste facility [on Lopez Island]? While a statutory argument can be made that the port is authorized by statute to operate the waste facility, on balance such activity likely exceeds the port’s statutory authority.” [Page 1]
• “In light of the legislature’s silence on this issue and the statutory case law limiting the powers of municipal corporations, the port likely does not have statutory authority to operate the waste facility.” [Page 2]
• As discussed above it is our opinion that the port may lack statutory law to operate the waste facility. [Page 4]
I reviewed these conclusions and agreed with the attorneys for the Port of Lopez, and placed my opinion in writing:
• “The county has the authority under the Washington Interlocal Cooperation Act to contract with the Port of Lopez only on matters which each of them could accomplish separately.” [Page 2]
• “If there is any doubt whether a particular power has been granted, it is denied. [citation omitted]….We have examined the powers granted to ports under Chapters 53.04 and 53.08 RCW and we agree with the lawyers for the Port of Lopez that there is no legislative language expressly stating that ports have the authority to operate facilities for solid waste disposal.” [Page 3]
• “We agree that “on balance” the operation of a solid waste disposal facility and transfer station is not within the purposes and objective of rural ports. The express purposes of rural port districts, as confirmed by the express powers granted those districts in RCW 53.08 do not suggest that the purpose of rural port districts include engaging in an ancillary business of providing solid waste disposal to all citizens of Lopez Island. ….Moreover the activity of operating a solid waste handling facility is not “incidental” to another lawful business of a port….We agree with the conclusion by the port’s counsel that … “the Port [of Lopez] likely does not have statutory authority to operate the waste facility.” [Pages 4 and 5]
Next, I analyzed what it means if the Port of Lopez does not have the power to operate a solid waste facility. I concluded that “If the Port of Lopez does not have authority to operate a transfer facility, a contract for such activity is ultra vires” and void. While the lawyers for the port believed that a void contract could be handled with a contract clause, I disagreed, because from the county’s perspective, a void contract is unenforceable and that the making of such a contract presents unacceptable risks.
In light of these conclusions, I have offered some solutions. Because the question of a port’s powers has significance for the people of Lopez Island and on a statewide basis, I have asked that the opinion of the port’s lawyers be reviewed by the Attorney General. In addition, I have urged the county council, the port’s attorneys and others to seek a legislative solution, for it is the state legislature that determines the powers of a port district. I have also offered other approaches, such as establishing a solid waste disposal district for Lopez Island only.
I stand ready to find the solutions to the solid waste problems facing San Juan County that are lawful and will work for all of us.
— Randall Gaylord is the San Juan County Prosecuting Attorney