The question of whether the public should be able to access Lake Oswego’s namesake lake remains murky after an Oregon Supreme Court ruling Thursday.
Currently, the lake can only be accessed by Lake Oswego residents through the city’s swim park. The city prohibits access to the water through other public parks that abut the lake.
In 2012, an open water swimmer and a kayaker sued the city, arguing that all navigable waterways are public under Oregon law. They lost in a Clackamas County court and the Oregon Court of Appeals.
The Oregon Supreme Court upheld some of the city’s arguments, but it concluded 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 of Lake Oswego can interfere with the public’s right to use it.
However, the Oregon Supreme Court did not specifically rule on whether or not the lake isindeed a navigable water. The court said that question would need to be remanded — returned to a lower court for consideration.
Jeff Ward is the general manager for The Lake Oswego Corporation, the nonprofit made up of roughly 3,500 homeowners that manages the lake.
Lake Corp., as it's known, was an intervenor-defendant in the case in support of the city.
Ward didn't weigh in on the corporation's view on the Oregon Supreme Court opinion but said the ruling was not necessarily a surprise.
"We knew fully well if the Supreme Court was going to take it, there might be a part of it that they thought needed more scrutiny," he said.
Ward said Lake Corp. will stay involved in future proceedings.
Karl Anuta, an attorney for the Association of Northwest Steelheaders, filed an amicus, or “friend of the court” brief, for the lawsuit.
He called the Oregon Supreme Court’s Thursday opinion a victory.
“The court did not buy all of the arguments the plaintiffs were making, but it ruled correctly on what I viewed all along as the crucial one — that if a water body is a navigable water body, it’s owned by the state, and there’s a right of public use and that a city is in the same boat as the state — it can’t unreasonably restrict access to that water across public property,” Anuta said.
Anuta said the trial court — in this case the Clackamas County Circuit Court — will need to reopen proceedings and address the issue of whether or not Oswego Lake is a navigable water body, and if so, the issue of whether Lake Oswego’s restrictions on public access are reasonable.
He said the only way the city would be able to argue against this ruling would be proving Oswego Lake is not navigable.
“There’s a whole Supreme Court definition of what navigability is,” Anuta said. “But it’s basically, could you use [the lake] for commerce at Oregon’s statehood? Could you paddle in a canoe across it to sell something, or could you float logs across it? That’s sort of the test.”
The issue that the city would most likely argue, he said, is that Oswego Lake was smaller at the time of Oregon’s statehood and there’s now a dam that has expanded the lake’s waters to where it exists now.
“They would have to argue that the lake was smaller, so the only part of the water that was navigable is the part that was above the original lake and the part of the water that’s over what, at the time of statehood, was private land (or at least not part of the lake now) — somehow that water is different than the water that was navigable,” Anuta said. “I think that’s a losing argument.”
Court proceedings could potentially take as long as another year if the city continues to fight, Anuta said.
“Then the trial court would issue an opinion, presumably on the issues of ‘Is it a navigable water? And if it’s a navigable water, is the city’s ban an unreasonable restriction?’ And then depending on how that comes out, either side of the dispute could take that issue back up to the Court of Appeals,” he said.
David Powell, Lake Oswego's city attorney, said his office is “taking a careful look” at the Oregon Supreme Court’s opinion and does not yet have a comment on it.
Copyright 2019 Oregon Public Broadcasting
