State Supreme Court will hear Oswego Lake access case
Oregon Supreme Court justices announced Friday that they will decide whether Oswego Lake is a public waterway and whether the City can bar access to it through its parks and other facilities.
Oral arguments now are scheduled to be heard in Salem on April 10, 2018. City officials have 28 days from Friday to file a written brief with the court; the plaintiffs will then have 28 days to respond. After the case is argued, it will be under advisement until a decision is issued by the court.
The case involves a lawsuit brought against the City of Lake Oswego and the Lake Oswego Corporation, which controls the lake and considers it to be private property. Plaintiffs Todd Prager and Mark Kramer filed a petition for review earlier this year after the Oregon Court of Appeals upheld an earlier Clackamas County Circuit Court ruling in favor of the city and the corporation.
When reached for comment earlier this week, Prager referred all questions to attorneys Thane Tienson and Greg Adrams.
"We're pleased that the Supreme Court saw fit to take the matter up on review," Tienson told The Review. "We thought it was an appropriate case for the court to review, and we're delighted they are."
The lawsuit challenges a 2012 City rule prohibiting access to the lake through public parks such as Sundeleaf Plaza. Kramer, a Portland attorney, and Prager, a former Lake Oswego planning commissioner, sued the State of Oregon and the City, arguing that the rule violated Oregon's "public trust" doctrine, which guarantees the public use of all navigable waterways and grants ownership of the land underneath to the State, to be held "in trust" for the public.
Because the rest of the lake is bordered by private property or sheer cliffs, the plaintiffs said, the de facto result of the rule was that the lake could only be accessed by people with lakefront property or easements.
A group of 35 law professors filed an amicus (friend-of-the-court) brief in support of the plaintiffs at both the Circuit Court and Court of Appeals hearings. One of them, Lewis & Clark law professor Micheal Blumm, told The Review shortly after the Court of Appeals verdict that the case had potential impacts beyond Lake Oswego.
"The crux of the case is, does the City have a right to restrict the public from using (public) parks to get to a waterway that the public has a right to use?" he said at the time. "That could happen elsewhere — access to Oregon beaches, for example."
City officials cited safety concerns as one of the primary reasons for the prohibition, as well as the prevention of invasive species in the lake. The City parks in question lack any kind of infrastructure to allow people and boats to safety enter and exit the water, officials said, and the City did not want to be responsible for having to construct it.
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 Oswego Corporation), but the City has declined to take an official position other than asserting that it has the right to control its own parks.
But the Lake Corp. is adamant that the lake is its own private property, and it joined the case on the side of the defendants shortly after it was filed.
The corporation was created by the Oregon Iron & Steel Company in 1942 to take over management of the lake. According to manager Jeff Ward, Oregon Iron & Steel originally owned the land around the lake and built the dam that raised it to its current size, which is why the corporation claims ownership of the lake bed.
The Court of Appeals agreed with the City in May, writing that the public trust doctrine does not obligate the State to ensure public access across City-owned land, and that the City has the authority to regulate its own properties.
Prager and Kramer appealed to the Oregon Supreme Court, which announced Friday morning that it would review the case.
According to the court, the issues under review include the central question of whether the lake is subject to public use under Oregon's public trust doctrine. Prager and Kramer's lawsuit seeks a declaratory judgement that the lake is a navigable waterway, which is the criteria for a body of water being considered public under the doctrine.
The Circuit and Appeals courts both declined to issue such a declaration, arguing that the case could be resolved without one because the City has the right to control its own parks regardless of whether the lake is public.
If the Supreme Court had declined to take up the appeal, the Appellate Court decision would have left the question of the lake's public status unresolved. But Friday's announcement says the high court's review will also look at whether Prager and Kramer are entitled to receive the declaratory judgement even if the court rules against them on their primary complaint about access.
The case will also look at whether the public use doctrine should override a local city's preferences if a city has opted to block all public access, as well as the question of whether a city has the authority to take actions that "allegedly have the effect of allowing access to a public lake by local residents exclusively."
Blumm declined to comment this week on the Oregon Supreme Court's decision to take up the case, citing the now-pending Supreme Court hearing.
Lake Corp. General Manager Jeff Ward told The Review that the group anticipated the possiblity of the state Supreme Court reviewing the appeal, but still feels that the Court of Appeals made the correct decision and hopes that the Supreme Court will uphold it.
Lake Oswego City Attorney David Powell told The Review on Friday that the City hopes the Supreme Court will resolve the case in a manner that respects the City's right to set its own rules in its parks.
"The City is optimistic that the Supreme Court will join the Circuit Court and Court of Appeals in ruling that the City Council has the authority to determine the best use of City park properties," Powell told The Review, "regardless of whether the state public trust doctrine applies to the adjacent lake."