Ownership of Oswego Lake will not be determined in federal court

Last Thursday, U.S. District Judge Ancer L. Haggerty dismissed a lawsuit that could have opened up access to the lake, long maintained as a private water body by a nonprofit corporation of homeowners.

Lake Oswego resident Todd Prager, a planning commissioner and arborist, and Mark Kramer, a Portland attorney, filed the lawsuit against the city of Lake Oswego in May, contending the city council’s adoption of rules prohibiting boats, swimmers and fishers from entering the lake from city parks unlawfully restricts the public’s constitutional rights. Both fans of water-based recreation, they contended the state of Oregon owns the lakebed and the city unlawfully barred the public from the water.

Attorneys representing the city of Lake Oswego called for the case’s dismissal because neither the state nor the Lake Oswego Corporation is named in the suit. They said a judge couldn’t rule on who owns the lake if the likely owners aren’t parties in the lawsuit, and the state has sovereign immunity in federal court.

Haggerty agreed. In the court’s opinion, he wrote “it is clear that the state would incur obligations to protect the public’s interest in the lake if this court determined that the state owns the lake.”

He also noted the state could be a party in the case if the lawsuit were brought in state court.

“Because resolution of this matter requires a determination of title, there is little the court could do to tailor any judgment to avoid prejudicing the state’s interests,” the opinion stated.

The city council adopted the new rules prohibiting anyone from accessing the lake from Sundeleaf Plaza, Headlee Walkway and Millennium Plaza Park last spring. At the time, city leaders 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.

In a public announcement about the ruling issued Friday, Lake Oswego Mayor Jack Hoffman said, “I am pleased that the court agreed with our position. I have long said that our actions relating to the design, use and staffing of a park and the resulting park rules are not related to the legal status of Oswego Lake.”

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