LAKE OSWEGO, Ore. (Lake Oswego Review) — A 2012 Lake Oswego ordinance prohibiting the public from entering Oswego Lake or launching boats from city-owned waterfront parks will have to be reviewed following an Oregon Supreme Court ruling Thursday.
In a unanimous decision, the court found that “the public use doctrine does not grant plaintiffs a right to access the water from waterfront parks.” However, the court also found that any rules interfering with the public’s right to enter waterways held in trust by the state of Oregon must be “objectively reasonable,” and thus reversed and remanded the judgement for one of the plaintiffs’ three claims of relief to the lower courts.
“The public use doctrine does not grant plaintiffs a right to access the water from the waterfront parks,” Justice Meagan Flynn wrote in the court’s final opinion. “But we conclude that, if Oswego Lake is among the navigable waterways that the state holds in trust for the public, then neither the state nor the city may unreasonable interfere with the public’s right to enter the water from the abutting waterfront parks.
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“Accordingly, the case must be remanded for resolution of the preliminary question of whether the lake is subject to the public trust doctrine, and if the lake is subject to that trust, then for resolution of the factual dispute regarding whether the city’s restriction on entering the lake from the waterfront parks unreasonably interferes with the public’s right to enter the lake.”
Reached for comment Thursday morning, plaintiffs’ attorney Thane Tienson said “we’re feeling pretty good” about the ruling.
“The good news is, as we read the opinion, the Supreme Court has recognizred there’s a public right to enter waters from public land, and that the city — just like the state — cannot reasonably interfere with that right,” Tienson told the Review. “Here, given the fact that there’s no alternative means of public access, we’re confident that when this case goes back to trial court to determine that issue of ‘does this ordinance interfere with the public’s right to enter public waters from public land?’ the answer is absolutely yes.”
The plaintiffs’ three claims of relief at the Supreme Court were as follows: that the public has the right to gain access to the lake under the state “public use” doctrine; that the public has the right to access the lake via the state “public trust” doctrine; and that the City’s lake access resolution — as well as a policy limiting the use of the Lake Oswego Swim Park to city residents only — violated Article I, section 20 of the Oregon Constitution by “granting to a small class of citizens monopolistic privileges of access to the waters of the Lake.”
Previously, both the Clackamas County Circuit Court and the Oregon Court of Appeals ruled against the plaintiffs — Portland attorney Mark Kramer and former Lake Oswego Planning Commission Todd Prager — on all three claims of relief, prompting a petition to the Supreme Court in 2017.
Arguments from the plaintiffs and the defendants — the City of Lake Oswego, the State of Oregon and the Lake Oswego Corporation (a nonprofit that controls the lake on behalf of lakeshore homeowners and those with deeded access) — were heard in May 2018.
Read: Mark Kramer and Todd Prager vs City of Lake Oswego
While the Supreme Court reversed and remanded the lower courts’ decisions on the “public trust” claim of relief, the other two claims regarding “public use” and the Oregon Constitution were remanded for a declaratory judgement in favor of the defendants.
On the public trust claim, Flynn wrote, “The theory behind the doctrine of ‘public use’ does not extend to a right to demand access across the abutting upland to reach the public water.” Regarding the Constitution, Flynn wrote that “the city’s waterfront resolution does not grant anyone the privilege to enter the lake — unequally or otherwise — and thus does not implicate Article I, section 20.”
Further, she wrote that “although shareholders of Lake Corporation have the ability to enter the water from private property elsewhere along the lakeshore, that privilege is a product of private property rights. It is not a government-granted privilege.”
The City has cited safety concerns and the prevention of invasive species in the lake as its primary concerns in passing the 2012 ordinance. Parks along the lake do not have infrastructure to support people and boats entering the water safely, the City has said.