Following jury selection and other procedural matters earlier this week, the second phase of the trial over Oswego Lake access began in earnest Wednesday, April 10. Attorneys representing plaintiffs Mark Kramer and Todd Prager, as well as defendants the Lake Corporation and the city of Lake Oswego, issued opening statements about why or why not the city’s rules prohibiting public access to the lake from local parks should remain in place.
Lake Oswego resident Todd Prager and Portland resident Mark Kramer filed the lawsuit in 2012 after the city passed a resolution enshrining rules prohibiting lake access from Millennium Plaza Park, Sundeleaf Plaza and the Headlee Walkway. Those are the only three city facilities that sit next to the lake.
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 determined that the waters of the lake are public. The second phase will be decided by Judge Kathie Steele but will include advisory recommendations from a jury.
Plaintiff attorneys focus on bigger picture
Throughout the trial, the plaintiffs will argue that the city’s rules are not “objectively reasonable.”
Nadia Dahab, an attorney for the plaintiff, noted during opening statements that only shareholders within the Lake Corporation and those with easements have access to the lake and posited that the city’s rules, contrary to state law, unreasonably impinge on the public’s ability to use public waters for recreational purposes. The lake, she said, spans 400 acres and 2.5 miles with lakefront property that is almost exclusively privately owned. The three public properties that connect with the lake are in Lakewood Bay, which was created and connected to the original Sucker Lake in the 20th century. The plaintiffs, she said, simply believe the lake should be available for anyone to use.
“This is an important case,” she said. “Public access to lakes and rivers is important.”
Dahab noted some of the reasons the city cited for disallowing lake access — among them that the parks weren’t designed for water entry, that the city doesn’t have the resources to create lake access and that allowing access would cause safety and water quality risks.
Dahab asserted that the city could have taken steps to reduce these risks, such as adding signage and lifejacket kiosks like at George Rogers Park, but chose not to. The city has also cited potential legal liability associated with opening up lake access; Dahab said state law already offers protections, likely referencing recreational immunity , for owners of recreational facilities.
Lake Corporation says situation is more complicated
Due to the evolution of property rights abutting the lake and the city’s planning efforts over decades, Lake Corporation attorney Brad Daniels said that the case is more complicated than the plaintiffs may assert.
First he provided a brief history lesson, noting that lakefront properties — including those at Lakewood Bay — were originally owned by the receivers of land claims, then by Oregon Iron & Steel and finally the Lake Corporation. The Lake Corporation maintained riparian rights while lakefront property owners were granted the right to access the lake.
He said that the Lake Corporation and its shareholders are concerned about property rights.
“For the last 80 years, we’ve had important property rights related to the lake,” Daniels said.
He added that the organization is also charged with taking care of the lake — implementing boat patrols and water quality programs, for instance — and that public access would impact these operations.
Daniels also mentioned what could become a key aspect of the case — property lines and ownership. He noted that at the Headlee Walkway and Millennium Plaza Park, there is a strip of land between city property and the lake that is owned by a railroad company. He said this means there actually isn’t a direct connection between the lake and city-owned property there.
Lake Oswego government emphasizes planning that went into parks rules
Paul Conable, who works for city legal consultant Tonkon Torp, issued the local government’s opening statements. He asked the jury not to think about the broader idea of the public’s accessibility to waters.
“The issue is not whether people in Oregon should have access to the water. The question is much more limited,” he said, adding that the question is whether the city’s rules preventing access are objectively reasonable.
“They can be reasonable even if you don’t agree,” Conable said.
Conable asserted that the city had planned for decades through its East End urban renewal plan starting in the 1980s. Throughout the process, he said public comment was collected and opinions were voiced about the future of the properties, and the local government ultimately chose not to allow lake access.
Conable also explained how this litigation started: the city passed Resolution 12-12 after Willamette Week ran an article in 2012 about a secret kayak trip along the lake. But he said the resolution only reiterated previously existing policy.
Conable explained that Lake Oswego would call on a number of city employees for testimony — Parks and Recreation Director Ivan Anderholm would comment on considerations for managing parks property, Finance Director Sean Cross would discuss budgetary constraints to major overhauls of parks properties and Lake Oswego Police Department Captain Clayton Simon would talk about the challenges of the city having to police the lake.
“We ask the court to conclude that decisions were objectively reasonable and the product of analysis and careful consideration,” he said.
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