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'This is a regrettable outcome: perhaps good news for lawyers and historians, but not for the public.'

In 2012, Mark Kramer, a kayaker, and Todd Prager, an open-water swimmer, were excluded from recreating in Oswego Lake, a large, 400-plus-acre lake, due to municipal regulations that called for restricting lake access to local property owners.

Seven years later, on Aug. 1, in a unanimous but perplexing decision, the Oregon Supreme Court decided that they could have access rights if they could prove that the lake was navigable in 1859.

The long-running Oswego Lake saga, concerns a 70-year-old monopoly of the lake by a corporation representing local landowners. Surprisingly, the Lake Oswego City Council endorsed this exclusion, thereby denying lake access to two-thirds of the residents the City Council represents. No other large lake in Oregon is subject to such a monopoly.

The kayaker and swimmer claimed the city's ordinances conflicted with public rights to use waterways under the state's public trust doctrine, long recognized by Oregon courts and implicit in the 1859 Statehood Act's declaration that the navigable waters of the state were "common highways and forever free."

Although the Oregon Supreme Court avoided examining the origins of the state's public trust doctrine, it made two important rulings of considerable statewide significance.

First, the court recognized the public's right to access the lake from public uplands, indicating that the state's public trust doctrine extends beyond water bodies.

Second, the decision ruled that all governments in the state, including local governments, must assure public access to certain public waterways. That was a clear win for the Oswego Lake plaintiffs and perhaps for members of the public denied waterway access by local governments excluding nonresidents.

Unfortunately, the Supreme Court decision also endorsed the state's position that public water bodies are divided into two classes. The first category are water bodies commercially navigable at the time of statehood, and whose beds are owned by the state as a result.

Oswego Lake likely meets this first classification, for it was used for commercial purposes at statehood in 1859. That would mean the public has access rights to the lake from public lands surrounding it unless the city can show an "objectively reasonable" reason to deny access. The city will be hard pressed to meet this standard.

The second class are water bodies considered "navigable-in-fact" under state law and include all water bodies that are used by recreational watercraft. The public has "paramount" rights to use these waters, even if their beds are privately owned.

But according to the Oswego Lake opinion, the public lacks the right to access them from public lands, meaning that local governments may limit access to residents.

The court made no attempt to explain its reasoning for limiting public access rights from public lands to 1859 navigable waters. Its motivation could not have been a judicial concern over interfering with private property rights because there aren't any private property rights affected by public access from public lands to public waters.

Although the public likely will soon be able to swim and kayak on Oswego Lake, the decision will encourage lawsuits over whether a water body is in one classification or the other, involving complicated issues of the kind of use that existed in 1859 on a particular water body.

This is a regrettable outcome: perhaps good news for lawyers and historians, but not for the public. Avoiding the prospect of costly and unnecessary litigation will require the Oregon Legislature to clarify that the public has access rights from public lands to all public waters in the state.

Michael Blumm teaches environmental and natural resources law at Lewis & Clark Law School.


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