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Lake case moves to state court

Oswego Lake, a roughly 400-acre water body maintained by a corporation of homeowners, is at the heart of a dispute between two enthusiasts of water recreation and the city.A lawsuit that could open up public access to Oswego Lake is now making its way through Clackamas County Circuit Court.

The suit, filed last week, is similar to a complaint dismissed from federal court last month.

As in the previous case, plaintiffs Mark Kramer and Todd Prager contend that city rules barring access to the lake violate the public’s right to partake in recreation on the water. They want the court to settle questions over ownership of and public access to Oswego Lake, long maintained as a private water body by a corporation of lakefront property owners.

The lake’s waters “are held in trust for use and enjoyment by the entire public,” according to the lawsuit, which calls on the court to “enjoin the defendants to protect and preserve the public’s right of reasonable access to and use of the (lake) for recreational purposes.”

In October, U.S. District Judge Ancer L. Haggerty determined the debate couldn’t be resolved without the state’s involvement. Oregon has sovereign immunity in federal court.

The latest iteration of the complaint names not only the city of Lake Oswego but also Oregon’s State Land Board and Department of State Lands. It does not name the Lake Oswego Corporation, or Lake Corp., which has long overseen water quality and safety in the lake. Lake homeowners pay hefty dues so the corporation can keep the water clear of invasive species and algae blooms.

Kramer and Prager contend the lake is public because Oregon has sovereign rights to the land underlying bodies of water. Regardless of ownership of the lakebed, past attorney general opinions have said the public is allowed to use lakes and rivers so long as the water is deep and wide enough to boat in.

The lawsuit says the state has an obligation to protect the public’s use of its navigable waterways, a duty that extends to Oswego Lake.

The complaint includes a document showing the city of Lake Oswego paid the Department of State Lands for an easement when installing a new pipeline in the lake in 2008, when the city was working on the Lake Oswego Interceptor Sewer project.

The easement agreement states that the “easement area shall remain open to the public for recreational and other non-proprietary uses unless restricted or closed to public entry by the State Land Board” or Department of State Lands.

While the state hasn’t restricted or closed off the easement area for public access or recreational use, it also has not enforced public ownership or access to the lake, according to the lawsuit.

“As a consequence, full access to the (lake) is open to only those relatively few privileged citizens who are Lake Corporation shareholders and easement holders and cannot be fully enjoyed by the larger population,” it states.

Prager, a Lake Oswego resident, planning commissioner and arborist, is a longtime open-water swimmer who also enjoys canoeing, including on Oswego Lake. He swam in the lake as recently as April, according to the lawsuit. He stopped after the city adopted the rules prohibiting public access. Although he doesn’t live in Lake Oswego, Kramer, a Portland attorney and longtime enthusiast of paddling on the state’s lakes, rivers and streams, kayaked on Oswego Lake as recently as March 31.

They want the court to direct the state and city to “protect and preserve the public’s right of reasonable access to and use of” the lake for recreational pursuits. That includes requiring the city to remove obstacles or signs discouraging use of the lake and to incorporate access when developing or redeveloping public lakefront properties in the future.

While most of the land surrounding the city’s largest water feature is privately owned by the Lake Oswego Corporation, Lake Oswego owns some properties on the lake’s border, including Sundeleaf Plaza, Headlee Walkway and Millennium Plaza Park, where steps lead into the water.

Last spring, the city council adopted the new rules prohibiting anyone from accessing the lake from the park properties.

At the time, council members 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. The decision came on the heels of planning commission discussions about city recreation policies and followed threats of an Occupy-type demonstration on the water.




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  • 23 Jul 2014

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  • 24 Jul 2014

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