Kramer v. City of Lake Oswego

• Decision Date: 03 May 2017
• Docket Number: A156284
• Citation: 285 Or.App. 181,395 P.3d 592
• Parties: Mark KRAMER and Todd Prager, Plaintiffs-Appellants, v. CITY OF LAKE OSWEGO; and the State of Oregon, by and through the State Land Board and the Department of State Lands, Defendants-Respondents, and Lake Oswego Corporation, Intervenor-Respondent.
• Court: Oregon Court of Appeals

285 Or.App. 181

395 P.3d 592

Mark KRAMER and Todd Prager, Plaintiffs-Appellants,

v. CITY OF LAKE OSWEGO; and the State of Oregon, by and through the State Land Board and the Department of State Lands, Defendants-Respondents,andLake Oswego Corporation, Intervenor-Respondent.

A156284

Court of Appeals of Oregon.

Argued and submitted May 18, 2015.

May 3, 2017

Gregory M. Adams argued the cause for appellants. With him on the briefs were Richardson Adams, PLLC, Thane W. Tienson, P. C., and Landye Bennett Blumstein LLP.

Paul W. Conable, argued the cause for respondent City of Lake Oswego. With him on the brief were Robyn Aoyagi, Steven D. Olson, and Tonkon Torp LLP.

Carson L. Whitehead, Assistant Attorney General, argued the cause for respondent State of Oregon. With him on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

Brad S. Daniels and Stoel Rives LLP filed the brief for respondent Lake Oswego Corporation.

Kenneth Kaufmann filed the brief amicus curiae for Law Professors and Willamette Riverkeeper.

Brian T. Hodges filed the brief amicus curiae for Pacific Legal Foundation.

Before Armstrong, Presiding Judge, and Egan, Judge, and Haselton, Senior Judge.

ARMSTRONG, P.J.

Plaintiffs appeal a judgment dismissing their amended complaint for declaratory and injunctive relief under the Uniform Declaratory Judgments Act, ORS 28.010 to 28.160, relating to public access to the waters of Oswego Lake and adjoining Lakewood Bay (collectively the lake) for recreation. The complaint—brought against the City of Lake Oswego (city), the State of Oregon (state), and Lake Oswego Corporation (LOC)¹ —challenged a city ordinance, Resolution 12-12, that prohibits the public from entering Lakewood Bay from three city parks located adjacent to the lake, as well as a city policy limiting use of a city-owned swim park on Oswego Lake to city residents (the swim-park rule). Plaintiffs alleged three claims for relief, requesting declarations that Resolution 12-12 and the swim-park rule are preempted by the public-use and public-trust doctrines (claims one and two) and that they violate Article I, section 20, of the Oregon Constitution (claim three). In connection with those claims, plaintiffs also requested declarations regarding ownership of the lake bed and the rights of the public and the obligations of the city and state regarding recreational use of the lake under the public-use and public-trust doctrines. They further sought to enjoin enforcement of Resolution 12-12 and the swim-park rule and to enjoin the city and the state to meet their public-trust obligations regarding public access to the lake.

The trial court granted defendants' motions for summary judgment and denied plaintiffs' motion for partial summary judgment and defendant LOC's motion to dismiss. It then entered judgment for defendants on all claims and dismissed plaintiffs' claims with prejudice. In their first and second assignments of error on appeal, plaintiffs challenge those rulings, raising a variety of arguments. As explained below, we generally reject plaintiffs' challenges; however, because the trial court erred in dismissing the case rather than entering a declaration as to the parties' rights, we vacate and remand for the court to enter a declaratory judgment. We reject plaintiffs' third assignment of error without discussion.²

I. FACTS AND PROCEDURAL HISTORY

Although most of the property surrounding the lake is privately owned, the city, a home-rule municipality, owns or has an easement interest in four properties located adjacent to the lake. Three of those properties are adjacent to Lakewood Bay—Millennium Plaza Park, Sundeleaf Plaza, and the Headlee Walkway. In 2012, based on public safety, environmental, and liability concerns, the city adopted Resolution 12-12, prohibiting entry to the lake from those three city properties. Specifically, Resolution 12-12 amended the city's "Policies Governing the Use of City Owned Park and Recreation Facilities" to add the following new subsections:

"19. Entering Oswego Lake from Millennium Plaza Park, Sundeleaf Plaza or the Headlee Walkway

"It is prohibited for any person to enter Oswego Lake from Millennium Plaza Park, Sundeleaf Plaza or the Headlee Walkway by any means or method, including, without limitation, by wading or swimming, or by using water vessels or other floatation devices.

"20. Leaving the Pathway Portion of the Headlee Walkway

"It is prohibited for any person to leave the pathway portion of the Headlee Walkway when using that facility, or to climb, traverse or occupy the fencing or the planted areas adjacent to the path."

(Underscoring in original.) The city also constructed physical barriers to water entry at Millennium Plaza Park and the Headlee Walkway and erected a sign at Millennium Plaza Park saying "Private Lake" and instructing people to stay on the land.

The fourth property is a small swim park located on Oswego Lake.³ The city acquired title to the park in the 1930s from The Oregon Iron & Steel Company (Oregon Iron & Steel), LOC's predecessor, subject to certain covenants and restrictions. One of those covenants provided that the property was to "be used and enjoyed by the resident children of the City of Oswego for recreational purposes and for no other purpose." A reversionary clause in the deed provides that, if the city fails to comply with the deed restrictions, the title "shall revert" to Oregon Iron & Steel. The city's swim-park rules provide, among other things, that the swim park is open only to city residents.

Oregon Iron & Steel created the residential development around the lake, reserving the riparian rights and privileges relating to water access from the upland parcels that it sold. It transferred those reserved riparian rights and privileges to LOC in 1942. LOC has managed all access, safety, and other private regulations associated with the lake since that time, and it is responsible for the physical management of the lake. LOC is "owned" by its shareholders—consisting of approximately 700 waterfront property owners and 20 easement associations of about 3,415 upland property owners throughout the city. LOC shareholders and easement owners contribute annual dues to support the lake's management and maintenance. In exchange, they are provided limited access to the lake; they are also subject to LOC's bylaws, rules, and regulations.

Plaintiffs filed the present action challenging Resolution 12-12 and the swim-park rule. Plaintiff Kramer, who is not a resident of the city, had kayaked on the lake up until the adoption of Resolution 12-12 by entering the lake from city-owned property. Plaintiff Prager, who is a resident of the city, had swum in the open waters of the lake but had discontinued doing that after the passage of Resolution 12-12. Their operative complaint—the second amended complaint—purportedly asserts three claims for relief.⁴ In their first claim, labeled "Floatage Easement—Public Use Doctrine—Preemption of Municipal Ordinances and Policies" (boldface and italics omitted), plaintiffs contend that, because the lake is "navigable-in-fact" and was meandered, Resolution 12-12 is "preempted by the Public Trust and/or Public Use Doctrine," regardless of who owns the underlying lake beds.⁵ On that claim for relief, they request in their prayer a judgment

"declaring that the Lake is navigable-in-fact, and that, regardless of any title interest or other interest that the City, State, LOC, or other persons may have in the soil underlying the Lake, there exists a right of the public of access to the waters of the Lake, and that the waters of the Lake are owned by the State of Oregon and are held in trust for the preservation of the public right of recreation, including paddling, canoeing, boating, and swimming, and other public rights which all citizens enjoy in such waters under common law."

In their second claim, entitled "Public Trust Doctrine—Title Navigability—Preemption of Municipal Ordinances and Policies" (boldface and italics omitted), plaintiffs request a declaration that "the submerged and submersible lands below the ordinary high water mark of the Lake have been and are owned by the State of Oregon and held in trust for the public since the time of statehood"—that is, that the lake is "title navigable"—and that Resolution 12-12 and the swim-park rule are likewise "preempted by the Public Trust Doctrine and/or Public Use Doctrine." On that claim, they ask for a judgment

"declaring that title to the navigable waters of the Lake as it existed at statehood and its submerged and submersible lands are held by the State of Oregon and impressed in trust for the preservation of the public right of recreational use and other public rights which all citizens enjoy."

In their third claim for relief, against the city only, plaintiffs contend that the city's adoption and enforcement of Resolution 12-12 and the swim-park rule violate Article I, section 20, of the Oregon Constitution (the "Privileges and Immunities Clause"); they seek a judgment

"declaring that the defendant City, through its adoption, implementation, and enforcement of Resolution 12-12, has violated Or. Const. art, I, § 20, by effectively granting a small class of Oregon citizens monopolistic, privileged access to, and use of, the waters of the Lake that do not belong upon the same terms to all citizens, and declaration that Resolution 12-12 is therefore void."⁶

With respect to all claims for relief, plaintiffs also sought injunctive relief, specifically a judgment enjoining defendants from enforcing Resolution 12-12 and the swim-park rule; from "limiting access from City-owned properties to classes of individuals limited to residents of the City and/or members or guests of LOC and easement association members who enjoy access to the Lake"; and from erecting or maintaining fences, boulders, signs, or other obstacles designed to prevent or discourage the public from exercising its rights to...