Access pending? Oswego Lake debate will return to lower courts
The plaintiff sees momentum turning in his favor — and victory on the distant horizon. The defendants say they were prepared for a continued legal fight, even after the case was reviewed by the state's highest court.
The battle over access to Oswego Lake isn't over quite yet.
In a ruling issued Thursday, Aug. 1, the Oregon Supreme Court said a 2012 Lake Oswego ordinance prohibiting the public from entering Oswego Lake or launching boats from city-owned waterfront parks will have to be reviewed.
In a unanimous decision, the court found that "the public use doctrine does not grant plaintiffs a right to access the water from waterfront parks." However, the court also found that any rules interfering with the public's right to enter waterways held in trust by the state of Oregon must be "objectively reasonable." In turn, the court reversed and remanded the original judgement for one of the plaintiffs' three claims of relief to the lower courts.
"The public use doctrine does not grant plaintiffs a right to access the water from the waterfront parks," Justice Meagan Flynn wrote in the court's final opinion. "But we conclude that, if Oswego Lake is among the navigable waterways that the state holds in trust for the public, then neither the state nor the city may unreasonably interfere with the public's right to enter the water from the abutting waterfront parks.
"Accordingly, the case must be remanded for resolution of the preliminary question of whether the lake is subject to the public trust doctrine, and if the lake is subject to that trust, then for resolution of the factual dispute regarding whether the city's restriction on entering the lake from the waterfront parks unreasonably interferes with the public's right to enter the lake."
Lake Oswego officials have cited safety concerns and the prevention of invasive species entering the lake as reasons for the 2012 ordinance barring public access from city-owned parks (effectively banning all public use, given that other access points are on private land). Portland attorney Mark Kramer and former Lake Oswego Planning Commissioner Todd Prager filed a lawsuit in response to the ordinance, arguing that the lake is a public waterway under Oregon's Public Trust Doctrine.
The lawsuit argued that the ordinance should be struck down, while also asking for a declaratory judgement affirming that the lake is a public body. Both the Clackamas County Circuit Court and the Oregon Court of Appeals ruled in favor of the defendants — the City of Lake Oswego, the State of Oregon and the Lake Oswego Corporation (a nonprofit that controls the lake on behalf of lakeshore homeowners and those with deeded access) — and refused to consider the question of whether the lake is a public body.
Kramer and Prager petitioned to the Oregon Supreme Court in 2017, and arguments were heard in May 2018. More than a year passed before a ruling was issued last week.
Reached for comment last Thursday, the plaintiffs' attorney Thane Tienson said "we're feeling pretty good" about the ruling.
"The good news is, as we read the opinion, the Supreme Court has recognized there's a public right to enter waters from public land, and that the city — just like the state — cannot reasonably interfere with that right," Tienson told the Review. "Here, given the fact that there's no alternative means of public access, we're confident that when this case goes back to trial court to determine that issue of 'does
this ordinance interfere with the public's right to enter public waters from public land?' the answer is absolutely yes."
According to Prager the ruling is a huge win for his cause, which at its core is about upholding a deeply held Oregonian value that everyone has a right to access nature.
"I think at this point, it's inevitable that there will be public access. The momentum is completely in our favor," he told The Review. "It has to do with fairness and access to public lands. It might take a few years, but we're going to win."
Kramer told The Review by email last week that he also considers this to be a great victory for Oregonians, viewing it as a vindication of the right of the public to use public resources without obstruction from the government whether state, county or city.
"Resources like Oswego Lake should be enjoyed by all of us, and not just a select (few)," Kramer said. "We look forward to further action in the trial court to implement the court's decision and allow us reasonable use of this resource."
The City of Lake Oswego has not released an official statement on the ruling, but Lake Corporation General Manager Jeff said that his organization is ready to continue the legal battle.
"We knew there was a good possibility they might say we're going back to trial court," Ward said. "We're prepared for that."
The plaintiffs' three claims of relief at the Supreme Court were as follows: that the public has the right to gain access to the lake under the state "public use" doctrine; that the public has the right to access the lake via the state "public trust" doctrine; and that the City's lake access resolution — as well as a policy limiting the use of the Lake Oswego Swim Park to city residents only — violated Article I, section 20 of the
Oregon Constitution by "granting to a small class of citizens monopolistic privileges of
access to the waters of the Lake."
While the Supreme Court reversed and remanded the lower courts' decisions on the "public trust" claim of relief, the other two claims regarding "public use" and the Oregon Constitution were remanded for a declaratory judgement in favor of the defendants.
On the public trust claim, Flynn wrote, "The theory behind the doctrine of 'public use' does not extend to a right to demand access across the abutting upland to reach the public water." Regarding the Constitution, Flynn wrote that "the city's waterfront resolution does not grant anyone the privilege to enter the lake — unequally or otherwise — and thus does not implicate Article I, section 20."
Further, she wrote that "although shareholders of Lake Corporation have the ability to enter the water from private property elsewhere along the lakeshore, that privilege is a product of private property rights. It is not a government-granted privilege."
Read the court's full opinion here.
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