LAKE OSWEGO, Ore. — A long-running court battle over public access to Oswego Lake is entering a key decisive phase, with an advisory jury set to review arguments about whether the city of Lake Oswego can legally enforce an ordinance barring people from entering the lake through two city-owned plazas in the downtown area.
Jury selection got underway this week, with the trail set to last two weeks. Regardless of the outcome, it's unlikely the verdict will bring an end to the case; both sides will have the opportunity to appeal if they lose.
Plaintiffs Mark Kramer and Todd Prager challenged the city's ordinance in a 2012 lawsuit, arguing that the lake is a public waterway, and the Oregon Constitution therefore gives the public a right to access it. Because nearly all of the other property around the lake is private, they argued, the city's ban on access through the plazas is a de facto ban on all public access.
The lawsuit originally named the city and the State of Oregon as defendants. The Lake Oswego Corporation — a business entity that manages the lake and represents lakeside homeowners — also joined the case as a defendant, arguing that the lake itself was private property and not a state-owned public waterway.
The case has followed a circuitous route through the legal system; it was appealed all the way to the Oregon Supreme Court during the first several years, only to be sent back to Clackamas County Circuit Court in 2019 for reevaluation. It landed with Circuit Court Judge Ann Lininger, who decided to split the case into two parts.
Phase 1 would address the question of whether the lake itself is a public waterway, which the constitution defines as any body of water that was "navigable" at the time Oregon became a state. The constitution mandates access to public waterways, but it does allow local governments to impose reasonable regulations on that access. If Phase 1 found that the lake was indeed a public waterway, then Phase 2 would evaluate whether the city's access restrictions are reasonable.
Part of the dispute hinged on the lake's history; although a portion of the lake did exist in 1859 under the name "Sucker Lake," it was later artificially expanded through the addition of a dam on its outlet creek. Lininger ultimately ruled in 2022 that only the original lakebed is state property, but she also found that since there is no practical way to delineate the original and artificial parts of the water itself, the entire modern lake must be considered a public waterway.
The advisory jury trial for Phase 2 was set to begin a few months after the Phase 1 ruling, but it was put on hold when the Lake Oswego Corporation moved to have Lininger disqualified from the case.
Lininger was appointed as a judge in 2017 and had previously been serving as a state representative, and the Lake Oswego Corporation said it had discovered during preparations for Phase 2 that the plaintiffs had met with Lininger in 2014 in her capacity as a lawmaker and discussed the case.
Nothing came of the 2014 meeting, but the Lake Oswego Corporation argued that Lininger's failure to disclose that history when the case was later assigned to her amounted to a conflict of interest. They asked for Lininger to be removed from the case and for her Phase 1 verdict to be thrown out.
A Multnomah County judge was brought in to serve as an impartial authority for the removal hearing, and he ultimately ordered the case to be reassigned to a different Clackamas County judge — but the new judge, Kathie Steele, declined to undo Lininger's Phase 1 ruling, concluding in 2023 that there was no evidence that the 2014 meeting had influenced the verdict. The Phase 2 trial was put back on the calendar with a new date in April 2024.
