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Plaintiffs continue to argue for public ownership

The question of Oswego Lake access and ownership will once again go before a judge.

On Feb. 24, co-plaintiffs Mark Kramer and Todd Prager appealed Clackamas County Circuit Court Judge Pro Tem Henry C. Breithaupt’s January decision that the city was well within its rights to restrict access to Oswego Lake from publicly owned park property. Kramer and Prager have since appealed, arguing that by amending park rules to prohibit public lake access, the city was overreaching its authority and violating the public trust doctrine.

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 2012.

The city council cited safety concerns in passing resolution 12-12, which restricted boat-launching from Sundeleaf Plaza, Lower Millennium Plaza Park and Headley Walkway.

“We’ve always said from the beginning that we’re amenable to discussing safety considerations, it’s just that the city’s never agreed to sit down at the table and discuss those considerations,” Kramer said, adding that the city might consider reducing liability by placing signs warning swimmers that they use the lake at their own risk, and that the city could mitigate associated lake costs by charging a reasonable access fee.

But in January, Breithaupt found the state’s authority was limited, as it did not own the park property in question. He also argued the restrictions applied equally to the public, and did not unfairly single out one particular group.

Kramer and Prager’s argument hasn’t changed, which is why they’re taking it to the Oregon Court of Appeals.

“Oregon contends it has a trustee responsibility but doesn’t have the obligation to tell Lake Oswego to remove its barriers to allow public access,” Kramer said. “We find the basis for the public trust doctrine in the Statehood Act, that says all navigable waters in state of Oregon are to be forever free.”

Kramer added, “We also think the judge was wrong on saying this was a political or legislative issue, rather than a judicial one.”

To Prager, public interest is at the center of the issue.

“Two-thirds of the city doesn’t have access, and then of course what we’re contending, and what the state says, is that it’s a statewide resource.”

“I don’t know that the public has really had the opportunity to discuss this issue,” Prager added.

Kramer said he became a plaintiff in the suit shortly after he started using the lake himself, inspired by a March 7, 2012 article in Willamette Week in which an editor, Martin Cizmar, wrote about and filmed himself kayaking in Oswego Lake. Cizmar contacted the Clackamas County Sheriff’s Office to confirm he would not be charged with trespassing.

Kramer said he himself was filmed recreating in the lake, but without his knowledge.

The footage was posted to YouTube, he said.

“I guess the sight of someone crossing route 43 and going in at Millennium Park wasn’t an everyday thing,” Kramer said.

The city denies there was any connection between Cizmar’s subsequent article, “Occupy Portland Debates Occupying Lake Oswego,” but Prager thinks differently.

“I think it’s pretty clear that helped spur them on to draft an ordinance,” he said.

Michael Blumm, a law professor at Lewis & Clark Law School, is acting as adviser for the plaintiffs. He argued the lake is a state-owned, public resource that the Lake Corp. has little to no authority to regulate.

“To the extent that Lake Corp. exists to exclude other people from Oswego Lake, yeah, then I think it’s illegitimate,” Blumm said. With proper application of the public trust doctrine, he added, “the Lake Corp could keep a useful function, it just can’t exclude” the public from accessing the Lake.

But Lake Corp. was confident Breithaupt’s decision would be upheld on appeal, Doug Thomas, president of the Lake Oswego Corporation board of directors, said.

“The court determined that the claims lacked merit, and neither the city of Lake Oswego, nor the state of Oregon, can be compelled to open access to Oswego Lake,” Thomas said. “The main thing is, nothing changed the city’s authority to regulate the safe use of the parks.”

But the city’s fight to maintain the access status quo comes at a price. City Attorney David Powell said Lake Oswego had spent roughly $180,000 to date fighting the lawsuit. Related expenses fall under uninsured litigation, and are paid for out of a risk management fund.

During Tuesday night’s meeting, the city council agreed to a transfer of an additional $160,000 to the fund from the contingency fund.

Finance assistant director Shawn Cross said associated legal costs have run the city about $120,000 so far this year, and that the additional money was in anticipation of future costs.

Kramer said regardless of the outcome in the Court of Appeals, the suit would likely proceed to the state Supreme Court.

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