Court of Appeals Upholds Park Rule Prohibiting Access to Oswego Lake

Posted Thu, 05/04/2017 - 10:07am

On May 3, 2017, the Oregon Court of Appeals issued its opinion upholding a City of Lake Oswego park rule that prohibits entering Oswego Lake from three city park facilities.  The Court did not decide whether the public otherwise has the right to use Oswego Lake.

In 2012, the City adopted a park rule prohibiting any person from using Millennium Plaza Park, Sundeleaf Plaza, or the Headlee Walkway as an entry point to Oswego Lake. The rule was based upon safety (none of the facilities is designed, constructed, or staffed for swimming or boating activities), liability issues, and concerns about invasive species such as zebra mussels being introduced from uninspected vessels and affecting the city’s buoyant interceptor sewer line.

That same year, Portland attorney Mark Kramer and Lake Oswego resident Todd Prager filed a lawsuit against the city and the State of Oregon, alleging that the park rule violates legal doctrines that establish the right of the public to use navigable waterways and require the state to hold waterways that were navigable at statehood “in trust” for the use of the public.  The Lake Oswego Corporation, which manages Oswego Lake, joined the suit as an Intervenor.

On January 8, 2014, Circuit Court Judge Henry Breithaupt granted the defendants’ motion for summary judgment and dismissed the claims.  The Plaintiffs appealed this ruling to the Oregon Court of Appeals.

Yesterday’s Oregon Court of Appeals decision held that the public trust doctrine does not obligate the city or the state to provide public access to navigable waters over upland properties that the state does not own.  As a result, the Court found that the city’s park rule should be upheld, and that it was unnecessary to decide whether the public trust doctrine actually applies to Oswego Lake.

The Court of Appeals also found against the Plaintiffs on their separate claims that the park rule, and the restriction on use of the city’s swim park to city residents, violates the “equal privileges and immunities” clause of the Oregon Constitution.

The Court of Appeals ruled that, as a technical matter, the Circuit Court judge should have framed his order as a declaration of the parties’ respective rights, rather than as a dismissal of claims.  The decision was remanded to the Circuit Court to re-frame the judgment accordingly.

For more information, please contact City Attorney David Powell at 503-635-0225.



Published May 4, 2017