Procedural issue holds up federal lawsuit

Attorneys defending the city against a federal lawsuit that could open up public access to Oswego Lake urged a judge to dismiss the case in court this week.

About 15 people attended the hearing before U.S. District Judge Ancer L. Haggerty in a downtown Portland courtroom.

The hearing was the latest development in a case pitting the city government against Todd Prager, a Lake Oswego planning commissioner and arborist, and Mark Kramer, a Portland attorney. The two, both enthusiasts of recreation on the water, filed the lawsuit in May, contending their constitutional rights were violated when the city restricted access to Oswego Lake from its parks.

They have questioned how the lake can be private when Oregon has sovereign rights to land underlying bodies of water. Regardless of ownership of the lakebed, a 2005 attorney general opinion said the public is allowed to use lakes and rivers so long as the water is deep and wide enough to boat in.

But the Lake Oswego Corporation, or Lake Corp., has long managed the lake, working to maintain water quality and ensure users are safe on the water on behalf of lakefront property owners. Lake homeowners pay hefty dues so the corporation can keep the water clear of invasive species and algae blooms. Several were present at the hearing Monday.

Attorneys Paul Conable and Steven Olson of Tonkon Torp, representing the city, suggested the case would be difficult to resolve without a debate over who owns the lake or the lakebed. That could lead to questions about navigability, the natural lake’s historical size compared to its larger, dam-controlled size and more.

The state isn’t named in the lawsuit, even though addressing issues of ownership could lead to the imposition of obligations on state agencies, Conable said.

“By asking us to answer as a predicate to this determination,” he said, “the damage is already done.”

But the state hasn’t signed on as an affected party in the case.

Stephanie Parent, senior assistant attorney general, observed the court proceedings on Monday.

“So far there does not appear to be a dispute about the state’s ownership,” she said.

Attorneys Thane Tienson of Landye Bennett Blumstein and Raife Neuman of Intelekia Law Group argued the state could choose to intervene later.

At this point, Neuman said, the parties still don’t know “the contours of the controversy.”

He added that the case could be remedied without the state’s involvement, as it was the city’s prohibition of access that led to the lawsuit.

“Those actions are in violation of the public’s rights,” he said.

The issue of lake access emerged last year, during a periodic review of recreation goals in the city’s comprehensive plan. Prager asked fellow planning commissioners to consider whether Oswego Lake should be mentioned in policies related to water recreation.

Though the city avoided taking a formal position on the issue, it publicly advocated for keeping the “status quo” with lake access.

Then, in April, the council adopted new rules prohibiting anyone from accessing the lake from Sundeleaf Plaza, Headlee Walkway and Millennium Plaza Park, which has steps into the water. Council members cited a lack of facilities constructed for water access, a lack of resources to build such facilities or supervised lake-related activities, a lack of facilities and resources to check boats for invasive species and potential liability risks.

Neuman said the Vermont Supreme Court recently found that the state of Vermont, as the owner of a public water body in dispute, wasn’t a necessary party in the case.

Defendants in that case explored the idea of using Berlin Pond, the city of Montpelier’s water source, for recreational activities. Two were cited for kayaking on the pond, although the charges were later dismissed. Another challenged the city by obtaining a permit from the state to hold an ice fishing derby on the pond.

The judge gave Lake Oswego’s attorneys until next Wednesday to respond to arguments based on the Vermont case and others discussed this week.

After the hearing, Kramer said he remains confident the issue of public versus private Oswego Lake access will be addressed, regardless of whether the state is involved.

“The issue Lake Oswego is trying to duck is they’re criminalizing access to the lake,” Kramer said. “One way or the other the issue about public access to the lake is going to be resolved.”

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