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Attorneys defend federal lawsuit in court motions

by: AARON SHELL - Legal maneuverings behind the scenes continue in the legal efforts over a lawsuit alleging Lake Oswego violated the public's constitutional rights by barring access to Oswego Lake. This aerial shot of the lake was taken in colder weather several years ago.Attorneys who filed a lawsuit alleging Lake Oswego violated the public’s constitutional rights by barring access to Oswego Lake have responded to the city’s motion to dismiss the case.

Representing resident Todd Prager, a Lake Oswego planning commissioner and arborist for the city of Tigard, and Mark Kramer, a Portland lawyer, attorneys Thane Tienson and Raife Neuman rebuffed the city’s claim that there’s no way for a judge to rule on who owns the lake if the likely owners are not parties in the lawsuit.

In court documents filed this week, they wrote that the state isn’t a necessary party to the case, as Oregon “has explicitly recognized this Court’s authority over determinations of navigability and, regardless, equity and good conscience should allow this action to proceed in the state’s absence.”

Prager and Kramer, both enthusiasts of water recreation, allege in their lawsuit that the city council’s recent adoption of rules prohibiting boats, swimmers and fishers from entering Oswego Lake from city parks unlawfully restricted their constitutional rights and discriminated against Oregonians who either don’t live in Lake Oswego or who live here but don’t have full access to the water.

While Oswego Lake has long been maintained as a private body of water — access is controlled by the Lake Oswego Corporation, or Lake Corp., which manages the lake on behalf of a group of waterfront homeowners — Prager and Kramer contend the state of Oregon owns the lakebed. They also argue the city has “an equitable right and obligation to protect the public’s interest” in the lake and must provide “reasonable access” to the water.

The Lake Oswego City Council adopted new rules in April that prohibit lake access from Sundeleaf Plaza, Headlee Walkway and Millennium Plaza Park, which has steps into the water.

Council members cited a lack of facilities constructed for water access, a lack of resources to build such facilities or supervise lake-related activities, a lack of facilities and resources to check boats for invasive species and potential liability risks. They said the decision had nothing to do with controversy over public use of the lake, though it came on the heels of recent debate over public vs. private lake access and threats of a potential “Occupy Oswego Lake” event.

The city’s lawyers have asked a judge to dismiss the case because neither the state nor the Lake Oswego Corporation is named in the suit, filed in federal court in May.

In response, Prager and Kramer’s attorneys wrote: “At heart, this case is about whether Defendant can prohibit certain uses of public property so as to deprive members of the public from exercising publicly held rights, rights whose exercise is contingent upon the prohibited uses.”

They also noted that regardless of whether the state must be involved, it could choose to intervene in the lawsuit. Oregon Department of Justice attorney Stephanie Parent is monitoring the case, and the state hasn’t yet decided whether to intervene, according to court records.

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