Judges reject challenge to rules prohibiting the public from using city parks to enter the water

The Oregon Court of Appeals ruled Wednesday that the City of Lake Oswego has the right to restrict public access to Oswego Lake from City-owned parks such as Sundeleaf Plaza.

The decision is a victory for the City and the Lake Oswego Corporation, which manages the lake, but the plaintiffs said Friday that they intend to appeal the ruling to the Oregon Supreme Court.

"We believe that the Supreme Court will accept review and ultimately vindicate our claims that Oswego Lake is owned by the citizens of Oregon and that no private or public actor can unreasonably deny access to the lake," Lake Oswego resident Todd Prager and Portland attorney Mark Kramer said in a statement.

The ruling ties into a long-standing dispute about whether the lake itself should be considered a public waterway— an issue the Appeals Court did not resolve as part of the current case. But with most of the lake bordered by private property, upholding the City's restrictions appears to eliminate the only potential means of public access.

The specific regulation at the core of the case is a 2012 City parks rule that prohibits people from using Sundeleaf Plaza, Millennium Plaza Park or the Headlee Walkway to launch boats or otherwise enter Oswego Lake. City officials say the rule was based on safety and liability factors — none of the City-owned spaces are designed for swimming or boat access — as well as concerns about invasive species.

Prager and Kramer sued the City and the State of Oregon later that year, arguing that the park rule violated Oregon's "public trust" doctrine, which gives the public the right to use all "navigable waterways" and grants ownership of the land underneath those waterways to the State, to be held "in trust" for the public.

Aside from the City properties named in the lawsuit, land on the lake's perimeter is almost entirely privately owned. But the plaintiffs argued that the lake is a "navigable waterway," and therefore the waters themselves are owned by the State of Oregon and must be open to the public, regardless of who owns the lakebed or surrounding land.

According to Lake Oswego Corporation manager Jeff Ward, the Oregon Iron & Steel Company originally owned the land around the lake. The company eventually began to sell off parcels to be developed as residential housing, but it reserved the riparian rights for lake access.

"Oregon Iron & Steel, when they decided to start developing in real estate, they raised the lake to the height it is now with that in mind," Ward said. "And when they got to where it was time to dissolve the company, they needed to create an entity to maintain what they had put together, so they created the Lake Oswego Corporation in 1942."

The access rights were transferred to the corporation, which has managed the lake ever since. The corporation is a private entity controlled by its shareholders, who include lakefront property owners and nearby property owners with easements for lake access. The corporation quickly joined the case as an intervenor on the side of the defendants.

"The City and the State were the original defendants, but we intervened right off the bat," Ward said.

In January 2014, Circuit Court Judge Henry Breithaupt granted a motion from the defendants to dismiss the case. Prager and Kramer appealed that ruling, but the Oregon Court of Appeals decision announced April 3 concurred with the lower court's opinion that the public trust doctrine does not require the City or State to ensure public access to a waterway from land that is not state-owned.

"Although we understand the concept of public trust to protect the public's right to use navigable waters," the court wrote in its opinion, "the (prior) cases (cited by the plaintiffs) do not suggest that the doctrine also carries with it an obligation to ensure access to the waterway over adjoining uplands that are not likewise held in trust by the state for that use."

The opinion further stated that "we generally reject the plaintiff's challenges," but added that the Circuit Court should have entered a declaration regarding the party's rights rather than simply dismissing the case. The Court of Appeals therefore remanded the case and directed the Circuit Court to reframe the judgment accordingly.

Ward told The Review this week that the Lake Oswego Corporation was happy with the ruling, and Lake Oswego City Attorney David Powell said the City also was pleased with the decision.

"The plaintiffs, rather than taking a policy advocacy point of view, filed a lawsuit arguing that the public trust doctrine requires the City to use its parks in the way they were advocating," Powell said. "That's simply not correct, and so the City is very satisfied with the rulings from the Circuit Court and now the Court of Appeals."

The Appeals Court also ruled against Prager and Kramer on a separate claim that the City's park rules violated Article 1, Section 20 of the Oregon Constitution, which prohibits the granting of specific "privileges or immunities" to any particular class of citizens without granting them to all citizens.

The park rules prohibit non-residents from using the City's swim park, which Prager and Kramer argued has the effect of affording special privileges to Lake Oswego residents. But the City responded that the ongoing restriction was mandated as a condition of sale when the City acquired the park from The Oregon Iron & Steel Company in the 1930s.

Additionally, the City argued that the restriction was appropriate because the park's operations and maintenance are paid for by the City's general fund, which is supplied by Lake Oswego taxpayers. The court agreed with both of the City's arguments.

The court's ruling protects the City's parks rule, but it does not settle an overall dispute about the public status of the lake. As part of the case, the plaintiffs had requested that the court make a declaration that the lake is navigable and therefore public.

But the Circuit Court ruled — and the Appeals Court agreed — that the State was not obligated to provide such a declaration because the case could be resolved without one and the outcome would be the same either way.

"Even assuming that the lake was navigable and the public-use and public-trust doctrines applied," the Appeals Court wrote, "neither would invalidate the City's actions or otherwise impose on the City or the State an obligation to provide plaintiffs with recreational access to the lake."

The public ownership status of the lake has been the subject of numerous and sometimes contradictory rulings and opinions over the years. Some of Lake Oswego's elected officials have at times spoken in favor of maintaining "the status quo" (i.e., private access managed by the Lake Corp), but the City has declined to take an official position because the lake is not City property.

"The City has not taken a position, and has not needed to," Powell told The Review. "It's only position in this case — and elsewhere — was that it can control and decide the best use of its parks."

Ward said that as far as the Lake Oswego Corporation is concerned, "it's a restricted-access lake."

"We (the Lake Oswego Corporation and its shareholders) are the stewards of the lake," he said, "and have been inheritors of the folks who expanded the original lake to the size it is today."

In their statement this week, Prager and Kramer said they were "acting to vindicate the rights of all Oregonians to use public waterways without interference from the City of Lake Oswego or the Lake Corporation."

The court's decision to avoid issuing a declaration ensures that the dispute will continue unresolved. But with public access officially prohibited on all of the properties surrounding the lake, members the public may have no legal way to reach the water to test the broader public access doctrine.

Contact Lake Oswego Review reporter Anthony Macuk at 503-636-1281 ext. 108 or This email address is being protected from spambots. You need JavaScript enabled to view it..

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