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Circuit court ruling that could allow lake to be opened to the public is disputed.

PMG FILE PHOTO - A recent court decision could pave the way for Oswego Lake to become publicly accessible, although a second phase of the trial looms.

Last week, the Lake Oswego Corp., which represents the homeowners living along Oswego Lake, filed an objection to the conclusions from a recent Clackamas County Circuit Court ruling stating that the privately owned lake is subject to public trust doctrine.

The opinion in phase one of the trial could lead to the lake becoming open to the public, although phase two of the trial focusing on the city of Lake Oswego's policies limiting access will provide further clarity. The lake currently is only available to the homeowners who live along its shoreline or who have a deed granting lake access.

The circuit court's decision hinged on the idea that Sucker Lake (now called Oswego Lake) was navigable at the time of statehood (1859) and therefore subject to public doctrine, which is a mandate to protect public rights of fishing, navigation and commerce.

The Lake Oswego Corp.'s rebuttal, filed April 29, noted that a portion of what the court refers to as the "expanded lake," Lakewood Bay, was not created until 1928 and would not exist without human intervention. Therefore the corporation objected to the idea of lumping in the bay with the rest of the lake.

The bay, which previously was known as Duck Pond, was sometimes inundated with water and other times served as an ice rink, according to the circuit court opinion.

"As discussed, both Dr. Brunengo (a Portland State University professor) and Dr. Annear (an environmental engineer) testified, uncontroverted by Plaintiffs, as to the nature and characteristics of Sucker Lake, on the one hand, and Lakewood Bay, which was created in 1928, on the other. Thus, there is an easy and practical way to draw a distinction between the waterway and waters of Oswego Lake and those of Lakewood Bay," the objection read.

The Lake Oswego Corp. also questioned the determination that Sucker Lake was navigable at the time of statehood and disputed that significant commercial activity took place along the lake in 1859 and before that.

A transportation route that included Sucker Lake did not exist at the time, according to the corporation.

"To the extent a transportation route existed, three rivers existed and converged at or near Willamette Falls — the trading destination well south of Sucker Lake and Sucker Creek," the document read.

The circuit court's decision said that Indigenous people canoed the lake to transport goods, and that commerce continued along the lake in the 19th century. Some commercial activities cited, which the corporation largely disputed, were the transportation of logs and other goods using a sternwheeler and the powering of a mill.

"It was used or susceptible to use in its ordinary and natural condition as a highway for commerce, over which trade or travel were or could have been conducted, using modes of trade and travel on water," the court decision read.

The opinion also stated that commerce does not need to be widespread or profitable to warrant title-navigability.

Further, the circuit court decision cited testimony that the lake was open to recreational activities — including fishing — for decades following statehood. The Lake Oswego Corp. asserted that these activities were granted by permission from the owner at the time, Oregon Iron & Steel Co.

"Although Dr. Beckham testified about certain events that occurred at Oswego Lake and Lakewood Bay, Dr. Beckham also testified on cross-examination that he believed that LOC's predecessor, Oregon Iron & Steel Co., permitted and, in fact, encouraged those uses in an effort to sell adjoining upland property. Access, to the extent it was provided, was granted by permission," the objection read.

The circuit court decision asserted that public trust doctrine is "flexible, forward-looking and subject to expansion" depending on society.

The Lake Oswego Corp. also cited legal precedent in its objections to the ruling.

The determination of what to do in response to an objection is up to Judge Ann Lininger, said a Clackamas County Circuit Court representative. A couple options could be the holding of a hearing or allowing a retort to the objections.

The hearing for phase two of the trial is slated for July.


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