Oswego Lake lawsuit pushes ahead
State defends ownership of lakebed in recent court filings
A lawsuit that could decide whether the general public is allowed to use Oswego Lake is moving ahead in Clackamas County Circuit Court.
The roughly 400-acre body of water in the heart of the city has been maintained for decades as a private lake by the Lake Oswego Corporation, which represents more than 600 lakefront homeowners. But in some of the latest court filings, the state maintains it owns the land underlying much of the water, putting into question whether the Lake Corp. can keep out most of the public.
According to court records, the state has retained a qualified expert who is available and willing to testify in defense of its ownership of the land at the bottom of Oswego Lake.
Even so, its possible the issue wont be settled in court; the lawsuit centers on city rules barring people from accessing the water from publically owned park properties. The Lake Corp. owns much if not all of the rest of the waters rim. Under the organizations rules, only its members or residents with access to easements essentially private docks and swim parks can use the water. Easements include the city-run swim park, which is open to Lake Oswego residents during the summer.
Mark Kramer and Todd Prager filed the suit last year challenging the citys ability to restrict access to the lake from Headlee Walkway, Sundeleaf Plaza and Millennium Plaza Park, the last of which has steps leading into the water.
Kramer, of Portland, and Prager, a resident of Lake Oswego and member of the citys planning commission, contend city rules enacted last year violate the publics right to swim in and boat on the water and the state has an obligation to protect the publics use of navigable waterways, including Oswego Lake.
The suit also names the Oregon Department of State Lands. In addition, the Lake Oswego Corporation, which continues to maintain that it owns all of the land underlying the lake, joined the case on behalf of the city.
This week, attorneys debated whether the plaintiffs should be able to amend their suit.
Arguing on behalf of Kramer and Prager, attorney Greg Adams said any proposed changes would simply clarify the original claims and wouldnt cause delays as the case proceeds to trial.
Our theory all along has been the city doesnt have the right to cut off the publics access to the lake, Adams said.
Attorney Greg Mowe, representing the Lake Corp., and Steven Olson, representing the city, both voiced concerns about amendments hindering the cases progress.
At some point this has to stop, Olson said. We have to get certain claims that we can focus on to prepare the defense.
Stephanie Parent, representing the state, said she hoped any amendments wouldnt pull additional state agencies into the proceedings.
This case is about access to the lake, Parent said, noting the state marine board, for example, hadnt impeded anyones access to the water.
She added that any ruling requiring the city to remove obstacles such as fences or structures in the water or similar relief should be against the city and not the state.
Judge Robert Herndon said he, too, was concerned about the cases continual evolution.
The theory is in constant metamorphosis here and is somewhat of a moving target. ... At some point in time were going to have to say, Lets go to trial and get this case tried, he said.
Herndon decided to allow for some amendments to the original complaint but kept the case on its current path toward trial.
According to earlier Lake Corp. filings, a ruling in favor of the plaintiffs would undermine private property rights and interfere with its ability to enforce safety and other regulations on the water.
The corporation called Oswego Lake and the attached Lakewood Bay reservoirs created from the smaller body of water formerly known as Sucker Lake. Oregon Iron and Steel owned the surrounding property and created what is today known as Oswego Lake by artificially inundating its private property, according to the Lake Corp. It also built a canal.
Oregon Iron and Steel later transferred ownership to Lake Corp., whose 600-plus shareholders now pay dues to support a full-time staff responsible for building and maintaining docks and boat ramps, managing water quality and hiring patrol boats to enforce its rules. The organization also controls the dams used to store water in the Lake to generate electrical power and for irrigation and other purposes, court documents state.
The Lake Oswego City Council enacted rules prohibiting anyone from accessing the lake from city-owned parks last year. At the time, 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.
The decision came on the heels of planning commission discussions about city recreation policies and followed threats of an Occupy-type demonstration on the water.
Kramer and Prager have argued the lake is public because Oregon has sovereign rights to land underlying bodies of water. Regardless of ownership of the lakebed, past attorney general opinions have said the public has a right to use lakes and rivers so long as the water is deep and wide enough to boat in.
The state hasnt enforced public ownership or access to the lake, according Kramer and Pragers original complaint.
According to the state, it might not have to.
While the state has the ability to regulate waterways, water and fish and wildlife held in trust for the public, an October court filing says it has no affirmative duty to take specific actions to enforce anyones right to use the water.
The case is set for trial in the coming months. A hearing on a request for summary judgment is set for next week.
Kara Hansen can be reached at firstname.lastname@example.org and 503-636-1281, ext. 107. Follow her on Twitter, @LOreporter.Add a comment