City faces lawsuit demanding public lake access
Lake Oswego resident Todd Prager and longtime water recreationist Mark Kramer are suing the city for restricting access to Oswego Lake, which has been long maintained as a private body of water by a corporation of homeowners.
The two filed a lawsuit last week in federal court in Portland. They contend that Lake Oswego City Council's adoption of rules that prohibit boats, swimmers and fishers from entering the lake from city parks unlawfully restricts the public's constitutional rights. Although Oswego Lake Corporation, or Lake Corp., was deeded the lakebed by Oregon Iron and Steel and owns much of the surrounding rim of property, the city's Millennium Plaza and Sundeleaf Plaza border Lakewood Bay. Millennium Plaza has steps leading into the water.
Kramer doesn't live in Lake Oswego but is a regular paddler in the state's streams, rivers and lakes, including Oswego Lake, according to the suit. Prager, a city planning commissioner, has advocated for opening up lake access and is an enthusiast of open-water swimming and canoeing.
The case hinges on whether the lake is 'navigable.'
Kramer and Prager contend the lake was a navigable waterway when Oregon became a state, and Oregon took title to lands underlying navigable waterways at that time. And in 1959, Oregon's attorney general issued an opinion declaring the public had an interest in the lake for transportation and commerce. But the state never enforced public ownership or access to the water.
The Lake Corporation maintains water quality, sets rules for safety and controls who can access the water through a system involving shareholders and easements. City residents have access to a seasonal swim park in one corner. Many residents in Lake Grove also have privileges to a swim park operated by the school district.
Shareholders pay dues to keep the lake safe and clear of algae blooms - a hefty premium that supports the watershed and could bring new expenses for the city, they say.
They also contend that federal legislation in the 1970s safeguarded Oswego Lake's insularity by declaring the 'privately built and maintained reservoir' a 'non-navigable water of the United States.'
But Lake Corp. isn't named in the lawsuit.
Kramer and Prager argue that the city's recent amendments to park rules 'essentially preclude any public use of the lake except at the behest of (Lake Oswego Corporation),' and the city has 'an equitable right and obligation to protect the public's interest' in the lake.
They say the city's rules discriminate against non-Lake Oswego residents and those who live here but don't have deeded access to the lake.
They want an official declaration that the general public has a right to use the lake for recreational purposes, and they want to restrict the city from installing fences, 'no trespassing' signs or obstacles to prevent public access to the lake.
They're also seeking reimbursement to cover their attorneys' fees, although lawyers are apparently performing the work pro bono for now. Thane Tienson of Landye Bennett Blumstein and Raife Neuman of Intelekia Law Group are representing Kramer and Prager.
Earlier this year, the Lake Oswego Planning Commission considered setting a goal to offer low-impact recreational activities in the lake. But it backed off the discussion after a public outcry from Lake Corp. shareholders concerned about their private property and others worried about the potential impact on property tax revenue and costs of maintaining the lake's water quality.
Members of the Lake Oswego City Council have stated they prefer to keep the 'status quo' of private access to the lake, although last year, officials hired attorneys to fight a wave-abatement structure Lake Corp. hoped to build in Lakewood Bay. The 231-foot-long wall, which would have spanned Sundeleaf Plaza Park, would have been 'a permanent structure that blocks the public from physically accessing the lake,' attorneys wrote. The Oregon Department of State Lands denied Lake Corp.'s application.
On Tuesday, the council had planned to discuss selling a narrow strip of property at Sundeleaf Plaza to Lake Corp., but Mayor Jack Hoffman pulled the proposal from the agenda after learning the corporation was no longer interested.
Asked for the city's take on the lawsuit, spokeswoman Christine Kirk said the city's attorney's office has been reviewing the case, and the city can't comment on pending legal matters.