As the Oswego Lake case resumes, both parties hope to have evidence excluded

Starting next month, representatives of plaintiffs Mark Kramer and Todd Prager and their opponents, the Lake Corporation and city of Lake Oswego, will make their cases to a trial jury regarding whether the city’s current strictures barring public access to Oswego Lake are valid.

Prager and Kramer filed a petition challenging the city’s rules preventing lake access in 2012 and the case was heard at the Oregon Court of Appeals and the Oregon Supreme Court before being remanded back to circuit court. A Clackamas County Circuit Court judge ruled that the body of water was navigable at the time of statehood — therefore potentially opening it up to public access — in the first phase of the trial. The second phase zeroes in on the city’s rules preventing access to the lake.

Recent court filings show what each side asked the court to exclude from argumentation or evidence during the trial.

Lake Corporation

The Lake Corporation stated in a recent court filing that it wants racist or illegal covenants — which are unenforceable — restricted from discussion, saying that they serve no purpose other than to “taint Lake Corp with odious historical practices from nearly a century ago.”

Next, the Lake Corporation does not want the court to hear mention of the Indigenous history of the lake, saying that it’s prejudicial and irrelevant to the issue at hand and would only confuse the jury.

“Plaintiffs may attempt to introduce evidence or argument regarding indigenous people’s use of Sucker Lake to suggest that the history and development of the Lake and surrounding areas was the product of land theft or historically racist or otherwise harmful policies and attitudes toward indigenous people in the region,” the court filing reads. “None of that evidence or argument is relevant to the issues to be decided in this case—whether the City’s restrictions on access to the Lake from the City parks are objectively reasonable under the circumstances. Evidence about indigenous use of Sucker Lake thousands of years ago has no bearing on the question.”

The Lake Corporation also does not want to hear commentary on the perceived wealth of its shareholders —residents who live along the lake — nor mention of the corporation “monopolizing” the lake. The corporation said these assertions are irrelevant to the matter at hand.

Further, the corporation does not want to hear any mention from the plaintiffs that they represent the people of Oregon or the public.

“Plaintiffs are not bringing this case in a representative capacity or on behalf of any other person or group. Plaintiffs’ counsel are private lawyers representing two named plaintiffs suing on behalf of themselves only,” the court filing reads.

Also, the Lake Corporation wants the phase one ruling to be excluded from evidence in the trial, describing the ruling as hearsay and an example of unreliable evidence.

“Judge Lininger already found that a portion of Sucker Lake is title-navigable and pursuant to that finding and related analysis, concluded that Phase Two was necessary. The facts, analysis, and conclusions underlying that ruling are irrelevant to the objective reasonableness of the City’s restriction on access from the public parks or present-day circumstances,” the court filing reads.

Finally, the Lake Corporation does not want a discussion of Judge Ann Lininger’s removal from the case, saying that it would not be relevant.

Plaintiffs

On the other side, Kramer and Prager don’t want to hear argumentation regarding the city of Lake Oswego’s process for reexamining its lake access rules. The city initiated this process in 2022 but later decided to delay it until after the trial.

“The evidence, if admitted, risks the creation of substantial juror confusion, specifically with respect to the differences between the City’s 2022 review process and Resolution 12-12 itself,” the court filing states.

The plaintiffs also asked the court not to allow evidence related to property restrictions, reserved rights and other encumbrances on access to Lakewood Bay, asserting that deed restrictions are void in the face of Public Trust Doctrine.

“Stated another way, where this Court has already concluded that the waters of Oswego Lake are subject to the public trust doctrine and the public has a right to access from the City’s parks, the Lake Corporation’s affirmative defense simply presents nothing for the advisory jury to decide,” it reads.

Lastly, they also want reference to Kramer’s law practice and legal expertise to be barred from evidence.

The trial is slated to begin April 8.