What to know heading into next week’s Oswego Lake trial

Nearly two years after the first phase concluded, the second phase of the trial over public access to Oswego Lake will proceed next week.

Here are a few things to know about the case.

Genesis

Plaintiffs Mark Kramer and Todd Prager filed the lawsuit after the city of Lake Oswego adopted policies formalizing rules that forbid access to Oswego Lake from park properties in 2012. The case was considered by the Oregon Court of Appeals and the Oregon Supreme Court, then remanded to Clackamas County Circuit Court for this two-part trial.

In the first phase of the trial, the court ruled that the lake was navigable at the time of statehood and is therefore considered public. The lake is managed by the Lake Corporation, which represents shareholders who live along the lake, and access is generally limited to shareholders and those with easements, although Lake Oswego residents are permitted at the Lake Oswego Swim Park. However, the city owns properties along the lake — Millennium Plaza Park, Sundeleaf Plaza and the Headlee Walkway — that could become access points if the city’s rules barring entry were eliminated. In the second phase, the judge will decide whether such rules are objectively reasonable.

What is the jury’s role?

The trial will include a jury, but there is some question about the jury’s role. The city and Lake Corporation have argued that the jury should simply answer factual questions related to the case, like whether the local government underwent a public process when determining its lake rules and whether the city faces potential legal liability if it decides to usher in more access. However, the plaintiffs want the jury to answer the question of whether the city’s rules are objectively reasonable.

“The issue is whether the restrictions are objectively reasonable in light of the purpose of the trust—here navigation and recreational use—and the circumstances of the case. These questions fail to focus on the purpose of the trust. They should be omitted. The only question for the jury is reasonableness,” a plaintiff court filing reads.

The Lake Corporation synthesized its viewpoint in a recent court filing.

“The Court will be the sole decisionmaker regarding whether the City’s Resolution 12-12 and related policies restricting physical entry into Oswego Lake are ‘objectively reasonable’ in light of the purposes of the public trust doctrine and the circumstances of this case. It would be improper to submit this ultimate question to a jury, for three related reasons,” the Lake Corporation argued. “First, in many contexts, including when a court applies a legal standard to a set of acts and when evaluating the conduct of government actors, ‘objective reasonableness’ is a legal question that must be decided by courts, without a jury’s assistance. Second, consistent with that view, the objective reasonableness and validity of a legislative act is uniquely for the court to decide. Just as juries do not decide the constitutionality of statutes or the legality of administrative regulations, juries should not declare whether a City’s park restrictions are consistent with, or properly weigh, the complex factors that must be assessed when those restrictions are balanced against the purpose of the public trust, the legal principles and concepts underlying the public trust doctrine, and related issues, including the City’s other legal obligations and duties. Third, jury determinations of the ‘reasonableness’ of an ordinary actor’s conduct are distinguishable, because those cases, unlike this one, allow for a factual determination regarding a typical individual.”

A representative of Judge Kathi Steele’s office said Steele would clarify the jury’s purview either this week or early next week.

Trial format

The trial will last for up to two weeks. There will be 12 jurors who are Clackamas County residents and the proceedings will start at 9 a.m. and run until around 5 p.m. each day. Steele will take into account the jury’s verdict and the evidence presented in her final decision. The judge’s representative said that Steele could deliver a ruling on phase 2 a week after the trial is completed, although it could be later.

Implications

The trial may ultimately determine whether the city has to create access points for residents to enter Oswego Lake from local parks, like Millennium Plaza Park, Sundeleaf Plaza and the Headlee Walkway, or Steele could rule that the status quo will proceed. However, both sides will have the opportunity to appeal the decision to a higher court.