The two men who filed a lawsuit over access to Oswego Lake over a decade ago were the first to provide testimony in the second phase of the trial this week.
Lake Oswego resident Todd Prager and Portland resident and lawyer Mark Kramer answered questions from their own attorneys as well as those from the Lake Corporation and the city of Lake Oswego following opening statements Wednesday, April 10 at the Clackamas County Courthouse. The jury trial, which is scheduled to take two weeks, will assess whether Lake Oswego’s laws prohibiting access to the lake from Millennium Plaza Park, Sundeleaf Plaza and the Headlee Walkway are objectively reasonable. The case began in 2012 and was heard at the Oregon Supreme Court before being remanded back to Clackamas County Circuit Court. A 2022 court decision asserted the lake was subject to public trust doctrine and therefore its waters were considered public.
‘Didn’t make sense to me’
In his testimony, Prager explained that he is an arborist who helps communities plan for the maintenance and growth of their tree canopies. He has lived in Lake Oswego since 2007 but does not have access to Oswego Lake except at the swim park (which is open to Lake Oswego residents) in the summer. He said he enjoyed swimming Chesapeake Bay and the San Francisco Bay and moved to Lake Oswego without knowing that he largely would not be able to enjoy the local body of water.
“That didn’t make sense to me,” he said. “I believe I and the public have the right to access the lake.”
Further, Prager said the lack of lake access is an equity issue and individuals without power and wealth should also have the right to recreate on public waters. He added that creating public access complements Oregon’s reputation as a state with symbiosis between residents and natural resources.
Prager said that prior to the lawsuit, he swam into the lake from the steps at Millennium Plaza Park and received conflicting answers from the city about the public’s right to enter the water. The police department, he said, did not return his call.
Prager was also on the Lake Oswego Planning Commission from 2010 to 2016 and helped advise the city’s update of its comprehensive plan, but said the response from the local government was frustrating when he brought up the public access issue. He also said shareholders within the Lake Corporation, who have lake access, were aggressive toward him.
“We were basing our planning decisions on the false assumption that it was a private lake when it was public,” he said.
Steve Olson, an attorney representing the city, questioned Prager on some of his work to promote legislation to secure public access. Prager said he had discussions with a few legislators and a lobbyist.
In one email Olson cited as part of the record, Prager said that a ballot initiative would be too “daunting” to undergo and asked a recipient if there might be a representative in eastern Oregon who would want to “stick it to LO.”
Prager said that he didn’t have the time or the resources to push forward a ballot initiative.
Olson also mentioned a summit hosted by the city, where the majority of attendees apparently favored keeping rules barring lake access in place. Prager felt this informal tally wasn’t a representative sample and that public meetings were “commandeered” by members of the Lake Corporation, who vociferously opposed public access.
Kramer’s perspective: Kayaking trips prompted involvement in case
Kramer, for his part, said he works in mediation law and has enjoyed kayaking across the Pacific Northwest for decades. He said he kayaked Oswego Lake for three hours in 2012 and then did so again later. Kramer said he was threatened with a misdemeanor for breaking laws governing lake access during his second trip. After such trips, he got in touch with Prager and a Lewis & Clark professor, leading to the lawsuit.
“I thought the case would end in six weeks. But it got complicated,” he said, adding that he filed the lawsuit based on his belief in the public trust doctrine and that certain natural resources should be available to all.
Prager and Kramer received scrutiny from Lake Corporation lawyer Brad Daniels, Olson and city-appointed attorney Paul Conable about which of the city’s reasons for restricting access they would consider to be unreasonable.
The lawyers for the city and Lake Corporation said that railroad property between the city parks and the lake complicates the potential for allowing access; they added that fencing protects the public from the five-foot drop at Headlee Walkway, noted that the LakeShore Inn parking lot’s is located between one entry point and other factors like the the need to protect the public from hazards, traffic impacts and invasive species risk.
The plaintiffs essentially said that it’s reasonable for the city to enact some restrictions and guardrails, like not allowing access from certain dangerous places and establishing fencing, but that disallowing access entirely was unreasonable.
The city has cited legal risk as a reason for disallowing lake access, about which Kramer said: “Anyone can sue anybody for anything. That doesn’t mean shutting down all activities is reasonable.”
Kramer also said the city’s study of the issue and planning processes prior to the adoption of Resolution 12-12 preventing lake access did not inherently make the restrictions reasonable.
Prager added that the city should be required to take out some of its fencing and vegetation designed for wetlands habitat to usher in public access.
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