Supporters and opponents of public access to Oswego Lake are now waiting to see whether the Oregon Supreme Court will agree to hear arguments in the long-running legal battle.
Plaintiffs Todd Prager and Mark Kramer filed a petition for review last month, following a defeat at the Oregon Court of Appeals.
"Either way the decision went with the lower courts, we expected the other side to appeal," Prager told The Review this week, "so it's not a big surprise (to see the case reach the Supreme Court)."
A group of 35 law professors and three environmental conservation groups recently announced that they had submitted an amicus (friend-of-the-court) brief in support of Prager and Kramer. Among them was Michael Blumm, a professor of law at Lewis & Clark Law School, who says the chief concern of the friendly parties is the precedent that they say the case could set elsewhere in Oregon.
"The crux of the case is, does the City have a right to restrict the public from using (public) parks to get to a waterway that the public has a right to use?" Blumm told The Review. "That could happen elsewhere — access to Oregon beaches, for example."
Blumm and other signatories to the amicus brief have been following the case through the lower courts, filing similar briefs when the case was before the Clackamas County Circuit Court and later the state Court of Appeals. When contacted for comment about the case, Prager directed most questions to Blumm.
The case centers on a 2012 City parks rule prohibiting access to Oswego Lake through public parks such as Sundeleaf Plaza. Kramer, a Portland attorney, and Prager, a former Lake Oswego Planning Commissioner, sued the State of Oregon, arguing that the rule violated the Oregon "public trust" doctrine, which guarantees the public use of all navigable waterways.
Because the rest of the lake is bordered by private property, the plaintiffs said, the de facto result of the rule was that the lake could only be accessed by people with lakefront property or easements.
"There's no question that the City would have the authority to set reasonable use regulations," Blumm says. "(But) the City doesn't have the right to flatly prohibit the vast majority of the public — which includes about two-thirds of the population of the City of Lake Oswego — from the lake."
City officials cited safety concerns as one of the primary reasons for the prohibition, as well as the prevention of invasive species in the lake. The City parks in question lack any kind of infrastructure to allow people and boats to safety enter and exit the water, officials said, and the City did not want to be responsible for having to construct it.
The Court of Appeals agreed, writing that the public trust doctrine does not obligate the State to ensure public access across City-owned land
and that the City has the authority to regulate its own properties.
But Blumm argues the safety concerns are overstated, and he points to an alternative reason for the prohibition.
"If they thought there really was a safety issue, then maybe they'd have to make some expenditures," he says. "But they don't forbid public access to the Willamette River, and it's a lot more dangerous than Oswego Lake. So the City can say what it wants, but the truth is they've been fostering and protecting a monopoly by the landowners for about 60 years. We'd like to break up that monopoly."
By "monopoly," Blumm is referring to the Lake Oswego Corporation, a private entity that controls the lake and is owned by lakeside property owners. The corporation takes the position that the lake is private because the lake itself
is partially artificial, and it joined the City's side of the case at an early point in the legal battle.
Blumm says the ownership of the lakebed is irrelevant, because the public trust doctrine should mean that the water itself is public either way. He says Prager and Kramer didn't try to litigate the issue of lakebed ownership because it would have required expert witnesses that the group can't afford.
"The City has been running up way over a couple hundred thousand dollars," he says. "Our guys are working for free, in the public interest."
(According to Lake Oswego City Attorney David Powell, the City has spent $238,168 on the litigation so far).
The Supreme Court now has to decide whether to take up the case, and Blumm estimates that a decision will likely be made by the end of August, based on the average time it's taken the court to make similar decisions. Lake Oswego City officials say the lawsuit was resolved by the Appeals Court ruling, and they don't expect the Oregon Supreme Court to revisit it.
Powell says the case is simply about the City Council's authority to determine the best use of City park properties.
"The Circuit Court ruling and the recent unanimous Oregon Court of Appeals decision each strongly confirmed that the City's park rules are valid under Oregon law," he said, "regardless of whether the public trust doctrine applies to the adjacent water."
If the Oregon Supreme Court declines the appeal, then the lower court ruling would remain in place. That outcome would leave the City's parks rule in effect, but would not answer the larger question of the lakebed's ownership.