Lake access: Is it a public right or private privilege?

by: VERN UYETAKE A plaque warns the public to stay off the privately owned Oswego Lake, and artificial reeds provide not only decoration but keep the public from tying up boats in lower Millennium Plaza Park on Lakewood Bay.

A battle may be brewing over what historically has been a hands-off topic: Whether the public can launch a boat or take a dip in Oswego Lake.

Until recently, few have questioned the exclusive access enjoyed by lakeside homeowners.

Although the public can use the city's seasonal swim park, only those who own property along the water - and those with access to easements, essentially private park areas, docks and beaches - can use the lake, a rule rooted in the area's transformation from an iron town to a resort community.

But Todd Prager, a member of the city's planning commission, hopes the question of lake access will be addressed as the city works to update its comprehensive plan, a process that will result in a revised set of goals and policies guiding how the community develops over the next 25 years.

'The lake is such a defining feature of the community, and I think its legal and historical background is unclear,' he said. 'State law requires cities to address the recreational needs of their citizens. … With the lake, it would be good to know one way or another what the policy is in that planning area.'

Prager is an arborist for the city of Tigard who has lived in Lake Oswego for four and a half years. He has access to the Lake Grove Swim Park on the lake through an easement. Though he doesn't own a canoe or a kayak, he thinks that sort of low-impact activity should be allowed on the lake no matter who owns the boat.

He said he began hearing questions about the lake at city meetings in the past year or two; often, he said, it seemed like there were more questions than answers.

'I think there is community interest in addressing the issue on a policy basis,' he said. After Prager began advocating for a discussion, the comprehensive plan advisory committee received at least a handful of emails from local residents interested in canoeing and kayaking on the lake.

Lake Corp.'s view

Doug Thomas, president of the Lake Oswego Corporation's board of directors and a longtime resident, isn't convinced.

'We're very comfortable with the way things have been for the last 100 years,' he said. 'We're not trying to prevent Lake Oswegans from enjoying the lake; everybody can enjoy the lake, visually, and from the swim parks and with friends who live on the lake. The problem is that once you open the lake, you open it to everyone. … We can't regulate who that would be.

Lake Corp. controls the lake, deeded to the organization decades ago by Oregon Iron and Steel Company.

'The last time the lake was open was when Native Americans lived here,' Thomas said. Back then, the water body was known as Sucker Lake, and it was much smaller. 'It would have been biologically qualified as a pond.'

A canal was later dug, a dam installed and marshy areas dredged to form bays. Thomas guessed today's 415-acre lake is about three times the size of its former incarnation, with a water surface about 21 feet above where it used to be.

About 690 lakeside property owners are active shareholders in the corporation. Another 11,000 to 12,000 city residents have access to the lake through deeded easements. The city has a population of about 36,600. The corporation owns most of the lake rim property by people's homes but gives them access to the water.

Lake Corp. shareholders shoulder a major burden to keep the lake pristine, Thomas said.

The average member has eight 'shares' based on lake frontage and pays $2,500 to $2,700 in dues each year, Thomas said. The fees support management and maintenance of the lake, an annual cost of about $2 million.

The corporation sets size limits on boats and requires operators' licenses separate from those mandated by the state. It requires any boat entering the water to first be decontaminated, ensuring the removal of invasive animal and plant species. A water quality specialist is on staff to monitor lake conditions on a regular basis and take steps to resolve problems, such as those related to algae.

Without an aggressive invasive species management program, Thomas said, the city's new buoyant sewer line through the lake could be in trouble; if foreign quagga mussels made it into the water, they could cling to the pipe and make it 'unfloatable.'

From his perspective, opening up lake access poses risks to the entire city, including lower property values and reduced property tax revenues.

'To me, it's not just about legal access - it's a community thing,' Thomas said. 'The concerns - safety, the environment and the economy - those impacts alone would be devastating.'

Access a right or a privilege?

Although few have questioned Lake Corp.'s longstanding assertion that the lake is privately owned, some legal experts see the issue as murky, at best.

Use of Oregon waterways depends on two legal doctrines. One dates to statehood in 1859, when all land under waterways that could be used to transport people and goods was declared state-owned. The other gives the public 'floatage' rights as well as a right to use certain upland areas for access to the water.

Regardless of state ownership, in 2005 Oregon's attorney general said the public is allowed to use lakes and rivers so long as the water is deep and wide enough to boat in.

However, Lake Corp. representatives contend a federal act in the 1970s safeguarded Oswego Lake's insularity. The legislation declared the 'privately built and maintained reservoir known as Lake Oswego, Oregon, a non-navigable water of the United States.'

'It was Sen. (Mark) Hatfield's hope this lake would always remain the way it was as a community asset and not by destroyed by community overindulgence,' Thomas said.

Still, there's a discrepancy in the intention of that legislation. Some policy experts say it had nothing to do with public use of the waterway but instead ensured the Army Corps of Engineers didn't have regulatory jurisdiction over the lake.

In emails filed with a city advisory committee, Jeff Kroft, a senior policy specialist with the Oregon Department of State Lands, highlighted testimony about the federal legislation from then-Sen. Hatfield, who said: 'A Congressional declaration that Lake Oswego is not a navigable waterway for the purposes of the federal government will not affect any future determination by the state of Oregon as to its ownership interest, if any, in the bed of the old Sucker Creek, from ownership transfers that occurred when Oregon became a state in 1859.'

In addition, Kroft found a 1976 letter in a state file from then-Rep. Les AuCoin that read: 'The intent of this legislation is solely to cancel the Corps' claim of jurisdiction. It is not the intention to affect the state of Oregon's claim to jurisdiction over the Lake in any way.'

Kroft also said the public can legally use the surface of lakes and rivers so long as it doesn't trespass on private property to get there. Some argue the public's right to access the water extends even farther.

'I think it's really clear there are public rights in Lake Oswego to recreate and float on the lake,' said Michael Blumm, a professor at Lewis and Clark Law School who recently completed a study involving public water use rights in Oregon. 'I think there are access rights to the lake even over private property if there is no other way to get to the lake. That will probably be upsetting to people, but it's true.'

He said the corporation legally might have to provide an easement allowing public access, even if it owns land rimming the lake.

'They can regulate them,' laying out certain requirements for boats and others on the water, and Lake Corp. might be able to charge admission fees related to public access, Blumm said. 'But they couldn't interfere with the public right.'

What's next?

The city owns lakefront property and pays Lake Corp. dues, but it doesn't have anyone sit in on shareholder meetings. And even if city-owned land abuts the waterfront, it's unclear whether deed restrictions might restrict public access from those properties.

It's also unclear whether the issue will rise to the top of the city council's agenda.

None of the council members lives on the lake, although several have access through easements.

Mayor Jack Hoffman said as far as he knows, the city has never taken a formal position on whether the public should have physical access to Oswego Lake. He isn't sure whether it will be a policy discussion in the future, either.

At this point, Hoffman said, 'I don't see an overwhelming interest in the subject.'

'I don't think that the city needs to address it at this time,' he said. 'I think the city would address the issue only if it became a community issue; to me, that means if a significant number of citizens made a request of their local government and elected officials to explore the idea of whether the public has a right to access Oswego Lake.'