LAKE OSWEGO, Ore. — It’s been 10 years since Lake Oswego passed an ordinance prohibited access to its central lake from downtown city parks, and almost as long since Mark Kramer and Todd Prager filed a lawsuit challenging the rule. There’s still no official determination about the rule’s legality, but an upcoming trial might finally provide an answer.
The advisory jury trial scheduled for later this month is the second of two phases in the case and will focus on the ordinance itself. The first phase was argued back in March and focused on the prerequisite question of whether the public has a right to access Oswego Lake under state law.
Clackamas County Circuit Court Judge Ann Lininger largely sided with the plaintiffs in phase one, ruling that the lake is subject to Oregon’s public trust doctrine, which holds that the state is obligated to preserve public access to waterways that were navigable when Oregon achieved statehood in 1859.
The access rule
Lake Oswego passed the ordinance at the heart of the case in 2012, prohibiting anyone from using the city’s three public lakeside parks in the downtown area to enter the lake on foot or launch any watercraft. Kramer and Prager filed their lawsuit later that year against the city and the state.
There are two swim parks elsewhere on the lake, one of which is restricted to city residents and the other of which is restricted to residents of a local school district.
Outside of those areas and the downtown parks, almost all the other land around the perimeter of the lake is private property, making the rule a de facto ban for anyone who doesn’t have a lakeside home or a deeded access easement recognized by the Lake Oswego Corporation, the waterfront property owner consortium that manages the lake. The Corporation joined the case as a co-defendant.
The lake is naturally occurring and was known as Sucker Lake at the time of Oregon’s founding, which Kramer and Prager argued makes it subject to the public trust doctrine and makes the city’s parks rule illegal, according to a summary in Lininger’s phase one verdict.
But its footprint was later artificially expanded from about 230 acres to about 385 through the addition of a dam at the eastern end, which the Lake Oswego Corporation argued places the modern lake outside the doctrine, according to Lininger’s summary.
The city has argued that the parks weren’t designed with lake access in mind, and allowing access would create safety and liability risks, according to the Portland Tribune.
Kramer and Prager lost in Clackamas County Circuit Court and again in the Oregon Court of Appeals, but they appealed to the Oregon Supreme Court and in 2019 the Court declined to rule on the central question and sent the case back for re-evaluation, landing it back in Clackamas County Circuit Court nearly a decade after it was originally filed.
Phase one
Phase one concluded in April when Lininger ruled that Sucker Lake was navigable at statehood and Oregon therefore owns the lakebed up to the original high-water mark. She also ruled that the public trust doctrine – and the resulting right of public access – expanded along with the lake and applies to the entire modern body of water.
“Oswego Lake consists primarily of title-navigable waters. Despite that, the lake has been functionally privatized,” Lininger wrote. “After statehood, private parties artificially raised the lake level for private benefit… There is no meaningful way to segregate the public trust water from other water in the lake; it intermixes and flows together.”
Any city or state interference with the public right of access must be “objectively reasonable,” she wrote, setting up the criterion that will be used to evaluate the city’s park access ordinance in phase two.
Speaking to KGW on Wednesday, Lake Oswego Corporation general manager Jeff Ward said he was surprised that the doctrine would apply to the whole lake, but said there were additional concerns that could factor into the reasonability of the access restrictions such as water quality and safety issues – particularly regarding interactions between motorized and nonmotorized watercraft.
“Many people who launch, we’ve observed, don’t have the proper safety equipment that’s required on every body of water, and have no idea what the safety rules on the lake are to safely navigate,” he said. “So that would be our main concern as far as people launching. We do have a lake patrol here that has authority over our own people, because they signed something saying they’ll obey the direction of lake patrol, but that doesn’t apply to someone who’s not a member of the Lake Oswego Corporation.”
Kramer did not reply to a request for comment. Prager acknowledged receipt of a request for comment but did not get back to KGW on Wednesday.
Phase two
Lake Oswego released a statement after the ruling reiterating its stance that public access through the parks would be unsafe, but last month the city council voted to begin a review of the park rules relating to lake access. City attorney Jason Loos said the current park rules won’t change during the review, and the city isn’t giving up on defending itself in phase two.
“Frankly, we don’t really know what the [phase one] ruling means, which is why we want to initiate a public process,” he said during the council meeting.
The phase two advisory jury trial is scheduled to begin July 19 and run for two weeks. An initial hearing scheduled for Wednesday was intended to focus on several motions filed by each side about evidence that they requested be excluded from the trial, but it ended up centering on a request by the Lake Oswego Corporation that Lininger recuse herself.
In a letter send to Lininger last week, the corporation wrote that during discovery, it had obtained emails indicating that in 2014 the plaintiffs sought a meeting with Lininger, who at the time was serving as an Oregon State Representative, to lobby for a legislative fix to the lake access dispute.
Lininger declined to recuse herself, according to Ward, and the case’s page in the Clackamas County Circuit Court system still lists her as the judge for the upcoming trial. The hearing for the evidence exclusion motions is now scheduled for Monday.
The trail will wrap up the circuit court proceedings, but it won’t necessarily mark the end of the road for the overall case. The case has been appealed multiple times in the past, and Ward acknowledged the possibility that it could happen again.
“There are many parties involved, so what I will say is there’s a way that this – the final result of the trial could come out that there’s more than one party who may or may not want to appeal. For our part, we’re just keeping all of our options open,” he said.