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Lawsuit poised for dismissal

by: REVIEW FILE PHOTO - This sign, posted by the city, discourages the public from trying to enter Lakewood Bay, part of Oswego Lake, at lower Millennium Plaza Park.A Clackamas County judge has found that the city of Lake Oswego has the right to bar the public from accessing Oswego Lake.

In an opinion issued Jan. 8, Circuit Court Judge Pro Tem Henry C. Breithaupt did not address whether the public has the right to access the water, a fundamental issue in a lawsuit against the city. Instead, Breithaupt ruled that regardless of who owns the lake or the lake bed, the city can restrict people from using public property to get in the water.

That means the lake remains privately controlled by the Lake Oswego Corporation, which represents hundreds of lakefront homeowners. The Lake Corp. owns most of the Oswego Lake shoreline and has long maintained it as a private 400-acre body of water.

It’s unclear whether the decision will be appealed.

Todd Prager, a Lake Oswego planning commissioner, and Portland attorney Mark Kramer filed the lawsuit in 2012 after the Lake Oswego City Council tightened rules to prohibit boaters from entering the lake from city-owned parks, including Headlee Walkway, Sundeleaf Plaza and Millennium Plaza Park, where steps lead into the water.

They argued the rules violate the public’s right to swim and boat in the lake. They said the state has an obligation to protect the public’s use of navigable waterways, including Oswego Lake, because Oregon has sovereign rights to land underlying bodies of water.

But while the state argued it does indeed own the land at the bottom of Oswego Lake, it also contended it had “no affirmative duty to take specific actions” to enforce anyone’s right to use the water.

The judge decided the state can’t be forced to take action because it doesn’t own the park property subject to the city’s restrictions. In addition, he noted the city’s rules don’t unfairly single out a particular class or group of people because they apply to everyone — including the lakefront homeowners who are able to access the water from elsewhere.

Breithaupt acknowledged the case involved a “very difficult balancing of public costs and public benefits.”

But while covenants placed on the property to limit lake use could “have to yield in the face of overriding public concerns,” he wrote, the reconciliation of those competing interests — and the likelihood that the process would be an expensive one — is a topic for the Legislature, not the court system, to address.

Paul Conable, an attorney with Tonkon Torp., who represented the city, applauded the decision.

“The judge recognized that cities have to have the ability to make reasonable regulations in their parks and public spaces,” Conable said. “At the end of the day, the case against the city simply turned on the question about whether the city’s regulations of its park were reasonable.”

When council members approved lake access rules, they 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 a debate over public versus private lake access and threats of a potential “Occupy Oswego Lake” event.

Prager called any safety concerns cited by the council “disingenuous.”

“They claim safety as the reason for prohibiting access but they allow unsupervised access to the more dangerous Willamette River,” Prager said. “Throughout the case, the state has consistently asserted its ownership of the original lake bed. ... The only thing preventing public access is the city with their claims of public safety.”

He said a “variety of options” are available for achieving public access but he hadn’t yet decided which to pursue.

“I still firmly believe that public access to Oregon’s waterways is a fundamental right guaranteed to all Oregonians through our statehood act,” Prager said. “I think it is wrong that the city is spending public money in an attempt to privatize a public resource.”

According to the city attorney’s office, as of last week, the city had spent about $179,272 on attorney fees to defend itself.

The Lake Oswego Corporation intervened in the case on the city’s behalf and will continue to support the court’s ruling, said Doug Thomas, president of the Lake Oswego Corporation’s board of directors.

“The court decided that the claims had no merit and neither our city nor state can be compelled to provide public access to Oswego Lake,” Thomas said. “The lawsuit did nothing to change the city’s regulations for the safe use of its parks, or the restrictions on access to and the private status of Lakewood Bay and Oswego Lake.”

The Lake Oswego Corporation maintains water quality, sets rules for safety and controls who can access the water through a system of shareholders and easements, essentially private docks and beaches. The city has one of those easements, which it uses to run a seasonal swim park that is open to Lake Oswego residents during the summer. Many residents in Lake Grove also have privileges to a swim park operated by the school district.

“We hope this decision will end the needless litigation and allow our city to devote its resources to priorities other than defending itself in court,” Thomas said.

By Kara Hansen
News editor
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