Kramer v. City of Lake Oswego

Decision Date01 August 2019
Docket NumberSC S065014
Citation446 P.3d 1,365 Or. 422
Parties Mark KRAMER and Todd Prager, Petitioners on Review, v. CITY OF LAKE OSWEGO; and the State of Oregon, by and through the State Land Board and the Department of State Lands, Respondents on Review, and Lake Oswego Corporation, Respondent on Review.
CourtOregon Supreme Court

Thane W. Tienson, Landye Bennett Blumstein LLP, Portland, argued the cause for petitioners on review. Gregory M. Adams, Richardson Adams PLLC, Boise, Idaho, filed the briefs for petitioners on review. Also on the briefs was Thane W. Tienson.

Carson L. Whitehead, Assistant Attorney General, Salem, argued the cause and filed the brief for respondent on review State of Oregon. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Brad S. Daniels, Stoel Rives LLP, Portland, argued the cause and filed the brief for respondent on review Lake Oswego Corporation.

Robert Koch, Tonkon Torp LLP, Portland, argued the cause and filed the brief for respondent on review City of Lake Oswego. Also on the brief was Paul Conable.

Kenneth E. Kaufmann, West Linn, filed the brief for amici curiae Law Professors, American Whitewater, Columbia Riverkeeper, Human Access Project, Rogue Riverkeeper and Willamette Riverkeeper.

Christopher G. Winter, Crag Law Center, Portland, filed the brief for amici curiae Olivia Chernaik, Lisa Chernaik, Kelsey Cascadia Rose Juliana, and Catia Juliana.

Karl G. Anuta, Law Offices of Karl G. Anuta, PC, Portland, filed the amicus curiae brief for Northwest Association of Steelheaders, Inc. Also on the brief was Mike Sargetakis.

Before Walters, Chief Justice, and Balmer, Nakamoto, Flynn, Duncan, Nelson, and Garrett, Justices.**

FLYNN, J.

Plaintiffs seek a declaration that the City of Lake Oswego must allow them recreational access to Oswego Lake, either from the shoreline of the city’s waterfront parks—from which the city prohibits all water access—or through the city’s residents-only swim park. According to plaintiffs, the common-law doctrines of public trust and public use protect the public’s right to enter the lake, and the city’s restrictions on access to the lake are contrary to those common-law doctrines. Plaintiffs also contend that the city’s restrictions violate the Equal Privileges and Immunities guarantee of the Oregon Constitution, Article I, section 20. Defendants are the City of Lake Oswego and the State of Oregon, as well as the Lake Oswego Corporation, which holds title to riparian rights to the lake.1 The case reaches this court following a summary judgment in which the trial court assumed that the lake is among the public waterways to which the doctrine of public trust or public use applies but held that neither those doctrines nor Article I, section 20, entitle plaintiffs to the declarations that they seek. The Court of Appeals affirmed, also without deciding whether the lake is a public waterway and this court allowed review.

We conclude that the trial court correctly granted summary judgment on plaintiffsArticle I, section 20, challenges. We also conclude that neither the public trust nor the public use doctrine grants plaintiffs a right to enter the swim park property and that the public use doctrine does not grant plaintiffs a right to access the water from the waterfront parks. But we conclude that, if Oswego Lake is among the navigable waterways that the state holds in trust for the public, then neither the state nor the city may unreasonably interfere with the public’s right to enter the water from the abutting waterfront parks. Accordingly, the case must be remanded for resolution of the preliminary question of whether the lake is subject to the public trust doctrine and, if the lake is subject to that trust, then for resolution of the factual dispute regarding whether the city’s restriction on entering the lake from the waterfront parks unreasonably interferes with the public’s right to enter the lake from the abutting waterfront parks.

I. BACKGROUND

Most of the land surrounding Oswego Lake is privately owned, but the city has an interest in four properties that abut the lake. Along an area of the lake known as Lakewood Bay, the city has created three waterfront parks, called Millennium Plaza Park, Sundeleaf Plaza, and Headlee Walkway. The fourth property is a small swim park on city land abutting the shore of the main lake.

Recorded ownership claims to the land surrounding Oswego Lake date to 1850, when two early settlers staked a federal Donation Land Claim to land abutting what was then called Sucker Lake. Eventually, a company called Oregon Iron & Steel acquired all of the property surrounding the lake and, over time, built dams and an artificial channel. Those projects increased the lake to its current size. In the early 20th century, Oregon Iron & Steel created a residential development around the lake. In doing so, the company platted subdivisions and changed the lake’s name to "Oswego Lake." When the company sold off the lots abutting the lake, it reserved to itself ownership of the riparian rights and then transferred those rights to Lake Oswego Corporation, whose shareholders—waterfront property owners and others—pay dues in exchange for access to the lake.

During the same era, Oregon Iron & Steel deeded two parcels of waterfront land to the city, with a covenant that the land was to be used "by the resident children of Lake Oswego" for purposes of recreation. Those parcels became the swim park, which is open during July and August each year. The swim park land is fenced on three sides and bordered on the water side by a fenced dock, which creates a small, enclosed swimming area—smaller than an Olympic-size pool—and prevents access from the park to the open lake. The city limits use of the park to city residents and limits water activities to swimming.2

More recently, the city acquired the properties on which the three downtown, waterfront parks are located. Two of those parks, Headlee Walkway and Sundeleaf Plaza, have physical barriers that prohibit entry into the water. Millennium Plaza Park, which the city acquired through condemnation, has steps that lead from the park to the water. Millennium Plaza Park also has a grassy area from which plaintiff Prager entered the lake in the past. Although the waterfront parks are open to the public, the city has prominently posted signs at Millennium Plaza Park announcing, "Private Lake. Please stay on the steps." The city also passed a resolution prohibiting entry into the water from the city’s waterfront parks. That resolution provides, in pertinent part:

"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.)

Plaintiffs, who have no access to the private land surrounding the lake, filed suit under the Uniform Declaratory Judgments Act, ORS 28.010 to 28.160. They alleged that they have an interest in swimming in and kayaking on the lake, and they sought declarations that the city’s waterfront-parks resolution and the city’s resident-only policy for the swim park are invalid. Plaintiffs’ amended complaint asserts three bases on which they contend that the restrictions are invalid.

In their first claim, plaintiffs allege that, even if the beds of Oswego Lake are privately owned, 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[.]"

Thus, plaintiffs allege, the resolution and residents-only swim park rule are unlawful and preempted by the "Public Trust Doctrine and/or Public Use Doctrine."

In their second claim for relief, plaintiffs similarly allege that the resolution and swim park rule are unlawful and preempted by the "Public Trust Doctrine and/or Public Use Doctrine." But on this claim, 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[.]"

Finally, in their third claim for relief, plaintiffs allege that both the waterfront-parks resolution and the swim-park rule violate Article I, section 20, of the Oregon Constitution, by effectively "granting to a small class of citizens monopolistic privileges of access to the waters of the Lake, which upon the same terms, did not equally belong to all citizens."

Plaintiffs filed a motion for partial summary judgment on their first claim, contending that the public has a right to use the lake as a matter of law, regardless of ownership, and defendants each filed cross-motions for summary judgment. In resolving the motions against plaintiffs’ first two claims, the trial court assumed that the public has a right to use the lake under the "public trust" and "public use" doctrines, but the court determined that neither doctrine gave the public a right to use the city’s land to reach the water. Thus, the trial court granted defendants’ motions against plaintiffs’ common-law claims and declined to resolve the preliminary question of whether the public has a right to use the lake under either the "public trust" or "public use" doctrine. The trial court also determined that the city’s policies did not violate Article I, section 20, and, therefore, granted defendants’ summary judgment on the third claim for relief as...

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5 cases
  • Chernaik v. Brown
    • United States
    • Oregon Supreme Court
    • 22 Octubre 2020
    ...to "the lands underlying all bodies of water within the state that meet the federal test for navigability."4 Kramer v. City of Lake Oswego , 365 Or. 422, 438, 446 P.3d 1, adh'd to as modified on recons. , 365 Or. 691, 455 P.3d 922 (2019) . Although title passed to the state "by virtue of i......
  • City of Corvallis, an Or. Mun. Corp. v. State
    • United States
    • Oregon Court of Appeals
    • 13 Mayo 2020
    ...on the merits. Kramer v. City of Lake Oswego , 285 Or. App. 181, 215-16, 395 P.3d 592 (2017), aff'd in part and rev'd in part , 365 Or. 422, 446 P.3d 1, adh'd to as modified on recons , 365 Or. 691, 455 P.3d 922 (2019) ; see also Doe v. Medford School Dist. 549C , 232 Or. App. 38, 46, 221 P......
  • McCormick v. State
    • United States
    • Oregon Supreme Court
    • 21 Mayo 2020
    ...Second, even if the state could not prohibit recreational use, it could restrict it. As this court observed in Kramer v. City of Lake Oswego , 365 Or. 422, 446, 446 P.3d 1 (2019), the public's right to use public trust waters "is not absolute."Holding, as plaintiff argues, that an owner can......
  • City of Portland v. Bldg. Codes Div.
    • United States
    • Oregon Court of Appeals
    • 8 Julio 2021
    ...is authorized by the local charter or by a statute, and second, on whether it contravenes state or federal law." Kramer v. City of Lake Oswego , 365 Or. 422, 448, 446 P.3d 1, opinion adh'd to as modified on recons. , 365 Or. 691, 455 P.3d 922 (2019) (internal citation and quotation marks om......
  • Request a trial to view additional results
2 books & journal articles
  • The Local Public Trust Doctrine
    • United States
    • Georgetown Environmental Law Review No. 34-1, July 2021
    • 1 Julio 2021
    ...levels of government derive constitutional duties and obligations with respect to the people.”); see also Kramer v. City of Lake Oswego, 446 P.3d 1, 19 (Or. 2019) (“Because the state’s authority to enact restrictions on the public’s access to publicly-owned waters is limited [by the public ......
  • OREGON'S AMPHIBIOUS PUBLIC TRUST DOCTRINE: THE OSWEGO LAKE DECISION.
    • United States
    • 22 Diciembre 2020
    ...rules don't allow people to get into the lake from public parks that touch the lake."). (3) Kramer v. City of Lake Oswego (Kramer II), 446 P.3d 1, 5-7 (Or. 2019); On the history of conflicts over the lake, see infra notes 37-48 and accompanying text. See also Everton Bailey, Jr., Locals, Cr......

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