Suit argues for general access from public parks

A lawsuit to establish public access to Oswego Lake may be returning to court.

In January, a Clackamas County judge sidestepped the issue of lake and lake bed ownership by ruling that the city was well within its rights to restrict access to Oswego Lake through publicly owned property.

That did not sit well with Mark Kramer and Todd Prager, who last year filed a suit arguing for public access to the lake from Headlee Walkway, Sundeleaf Plaza and Millenium Plaza Park. They filed an appeal Feb. 24, challenging Circuit Court Judge Pro Tem Henry C. Breithaupt’s decision.

Kramer, an attorney from Portland, and Prager, a Lake Oswego resident and member of the city’s planning commission, first filed the suit in response to city rules enacted in 2013 that curbed general access to the lake from public parks.

The approximately 400-acre lake has long been maintained by the Lake Oswego Corporation on behalf of more than 600 lakefront homeowners. But the state’s assertion it owns the land underneath the body of water gave Kramer and Prager’s lawsuit momentum.

When they first filed the suit, Kramer and Prager noted that the state had not enforced public ownership or public access to the lake. The state argued in an October court filing that it was not necessarily obligated to, and that despite its ability to regulate waterways and water held in trust for the public, the state had “no affirmative duty to take specific actions” to enforce public use.

“We filed the appeal because we believe state law does not allow the privatization of a public waterway,” Prager said this week. “This precedent-setting case will have implications for the public’s right to access waterways throughout Oregon for current and future generations. Because this case is of statewide importance, it is important that it is fully vetted by the state’s courts.”

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