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Law professors from around the country sign on to support public access

by: VERN UYETAKE - Access to Oswego Lake is blocked, even in public parks.Is the city’s namesake lake public?

The City of Lake Oswego has spent $180,000 arguing that the answer is a resounding “no,” while Todd Prager and Mark Kramer have spent the past two years insisting that the public should have access to Oswego Lake.

Now, as the Lake Oswego City Planning Commission member and the Portland attorney prepare to take the argument for public access to the Oregon Court of Appeals, 36 law professors from across the country are going on record to say that they are paying attention — and that they agree with Prager and Kramer.

The public-access lawsuit has been derided locally as both an inane pet project and as country club-style politicking. But the three dozen legal scholars and academics who are applying as amici curiae — or friends of the court — say this is a far bigger issue than that.

The fight began when the city passed a local ordinance in 2012 to restrict boat-launching from city-owned access points at Sundeleaf Plaza, Lower Millenium Plaza Park and Headley Walkway. As a navigable waterway, the lake is a public resource, owned by all citizens under the state Public Trust Doctrine. The city’s actions, Prager and Kramer argued, effectively ensured that only members of the Lake Oswego Corporation — a private homeowners group — could lawfully access the waterway.

Oswego Lake is “a little microcosm of public trust law,” according to Zygmunt Plater, a professor at Boston College’s School of Law and an amicus petitioner.

The Lake Oswego Corporation owns much of the lake’s rim, and has established a set of rules governing its use and recreation. Under corporation regulations, only its members or residents with access to Lake Corporation easements — which include private docks and swim parks — may use the water. Boaters who wish to use the lake must license both themselves and their watercraft, which can be a significant investment. Securing a license to operate a powerboat costs $1,160 for easement members, and obtaining a boater’s license costs $40 a year. Boats must be decontaminated of plant matter before launching, and boaters are required to carry a minimum of $500,000 in liability insurance.

The lawsuit’s plaintiffs insisted that the rules were unlawful and unenforceable. But in January, Clackamas County Circuit Court Judge Pro Tem Henry C. Breithaup found the city was well within its rights to impose restrictions. Because the state did not own the park property in question, he ruled, the state’s authority to enforce public trust was limited.

Prager and Kramer appealed in February. Reached for comment, Lake Corporation lake manager Jeff Ward said his group was not troubled by the appeal.

“We’re not particularly concerned by the opinions of a group of out-of-state law professors,” Ward said. “We think what matters is what the judge decided, and we’re confident that the judge rendered a carefully considered opinion.”

The “friends of the court” list includes supporters who are not named parties in the suit. It includes the nonprofit organization Willamette Riverkeeper; professors from institutes in the Pacific Northwest, such as Lewis & Clark College and the University of Oregon; and academics from the University of California at Berkeley, Stanford University, Duke University and even the University of Tasmania in Australia, among others.

Gary Meyers, a public trust scholar now teaching at the University of Tasmania, is a former Lake Oswego resident who says he fully expects the court to uphold Prager and Kramer’s appeal.

“Oregon has been a leader among the states in public trust jurisprudence,” Meyers said. “Maintaining public access to and control of public resources is critical. This is particularly true today when pressure to privatize resources is so great, whether for profit or control by a small minority of private landholders.”

Plater, who teaches environmental law as well as property and land use law at Boston College, became aware of the lawsuit through his friend Michael Blumm, a law professor at Lewis & Clark Law School and an adviser for the plaintiffs.

Historically, Plater said, “Oregon has long been really strong in clearly noting the public trust doctrine.” It is incorrect, he said, to say that the state does not have a responsibility to protect resources in the public trust.

“Nobody has ever come up with the theory that the state is (only) a trustee when it wants to be,” he said.

Sean B. Hecht, a professor at the UCLA School of Law, agreed.

“The public trust doctrine — which varies somewhat from state to state but which is based on consistent principles throughout the U.S. — requires that states take affirmative steps to protect public trust resources,” Hecht said.

Hope Babcock, a professor at Georgetown University Law Center in Washington, D.C., went a step further in explaining her decision to join the suit as a friend of the court.

“I was particularly troubled by the state’s position that it need not enforce the (Public Trust Doctrine),” Babcock said. “The state is a trustee and has a duty to protect it for the trust beneficiaries — the public.”

“Incidentally,” she added, “several jurisdictions have found that the doctrine applies to public park land and many more that the public has a right to cross even private land to get to water that is protected by the Public Trust Doctrine.”

Plater said Breithaup’s ruling “basically contradicts the point of the Public Trust Doctrine, which is that the interest of the public as beneficiaries is to be protected by the law of the courts.”

“When the government doesn’t act,” Plater said, “the Public Trust Doctrine is completely ready to adjudicate in the public interest.”

The city has argued that hemming access was a matter of public safety, but Plater dismissed the idea outright.

“Municipal liability is typically limited,” he said, pointing out that aside from issues of gross negligence, cities along the Willamette and Columbia rivers are not liable for drowning deaths or accidents.

Still, Plater did not believe the city was acting in bad faith. Rather, he found that knowledge of the Public Trust Doctrine was not widespread.

“The Public Trust Doctrine is bigger than state statutes, it’s bigger than local ordinances,” he said. “It’s a beautiful doctrine. It would be a shame to have it sullied in the clean waters of Oswego Lake.”

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