Legal battle for public use of Oswego Lake far from finished
The issue regarding public access to Oswego Lake is slowly resurfacing.
With a trial date set for next year to determine the fate of a lawsuit that went all the way to the Oregon Supreme Court and was remanded to lower courts in 2019, local community organizations have written a petition to encourage the Lake Oswego City Council to reverse its position on the matter right away.
The petition, which was addressed to Lake Oswego Mayor Joe Buck and sent to other local leaders June 1, pushed for the mayor to eliminate restrictions to public access on Oswego Lake.
The city stated its position in a 2012 resolution, which prohibited public access from city-owned properties.
Reasons for this stance included a lack of resources and staff to reconstruct and supervise facilites, safety risks for the public and liability risks for the city. The city also claimed that facilities like Millennium Plaza Park, Sundeleaf Plaza and Headlee Walkway weren't designed or constructed for safe water access for swimming and boat launching.
"At this moment in history, communities across the country are reassessing policies and systems that create barriers to a more diverse, equitable, and inclusive society. The City's lake access prohibitions perpetuate historical deed restrictions designed to exclude minority and low-income populations," read the petition, which was signed by the Minority Law Student Association and the Native American Law Student Association at Lewis & Clark Law School, the Northwest Environmental Defense Center, OPAL (Organizing People/Activating Leaders), Tualatin Riverkeepers and Willamette Riverkeeper. "They stoke unfounded fears that a diverse and inclusive community means increased crime, decreased property values, and overall community decline. In reality, access to natural resources is proven to improve communities, increase property values, and support economic development."
The Lake Oswego School District released a statement that said the issue of public access is up to the courts and the city to determine.
"Lake Oswego School District is firmly committed to actions that provide equitable experiences to all its students in all areas, including the Lake Grove Swim Park," the statement read. "The park was deeded to the district more than 60 years ago, and may be used by all LOSD students.
We are currently evaluating physical access as part of facility improvements we hope to undertake in the spring of 2022."
The lawsuit, which was filed after the 2012 ordinance restricting public access, has long been in limbo.
In a ruling issued in August 2019, the Oregon Supreme Court determined that the 2012 Lake Oswego ordinance prohibiting the public from entering Oswego Lake or launching boats from city-owned waterfront parks would need 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.
Pamplin Media Group previously reported that Lake Oswego officials cited safety concerns and the prevention of invasive species entering the lake among the 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.
Mauricio Valadrian, a father and first-generation immigrant from Colombia, is a Portland resident and diversity, equity and inclusion consultant who is both a supporter and spokesperson for the petition.
Valadrian said the intention of the petition is not to encourage people to come to Lake Oswego and make it a recreational destination, but to ask for non-motorized access to the lake with fee-based access. In turn, he said, this wouldn't create an "additional burden on expenses."
The petition essentially asks for the city to create regulations for public access and lists increased tourism, property values and "environmental stewardship of the lake and its watershed by connecting people directly with this unique natural resource" as benefits.
Valadrian noted that part of Buck's campaign for mayor was to try to make the city more equitable, diverse and inclusive.
"Here we have one opportunity to do something about it," said Valadrian, adding that it's not an "earth-shattering gesture but it's a necessary one to start changing that mentality."
Otherwise, Valadrian said, the city's work around issues of diversity, equity and inclusion just feels like "lip service."
Since the lawsuit is still under litigation, Buck declined to comment.
Nadia Dahab, a Portland attorney who is now the lead representative for the plaintiffs, said Clackamas County Circuit Court Judge Ann Lininger has decided to bifurcate the case, which means the trial will happen in two phases.
Phase one, which is scheduled for spring 2022, will be the trial court's determination of whether Oswego Lake is "navigable" and whether it was "navigable" at the time of statehood in 1859.
If the answer is yes, then phase two would include a jury trial to determine whether the city's decision to restrict access was "reasonable."
Valadrian said it's important to combat the notion that attracting more diverse people — whether in race or socio-economic status — is a bad thing.
"The bottom line for me and the work that I do is that this is exactly the kind of systemic disadvantage and white supremacy structure that we need to dismantle," Valadrian said. "It feels small but in the long run it isn't."
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