Judge paves way for greater public access to Oswego Lake

By Conrad Wilson (OPB)
April 21, 2022 1:18 a.m.

Clackamas County Circuit Court Judge Ann Lininger rules lake is subject to state’s public trust doctrine and public access right.

The waters of Oswego Lake are restricted to property owners that surround the lake and, to a lesser extent, residents of Lake Oswego.

But a ruling Tuesday by Clackamas County Circuit Court Judge Ann Lininger could pave the way for greater public access to the lake from several waterfront parks, which the wealthy Portland suburb has restricted since 2012.

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Following a five-day trial in March, Lininger ruled the waters are subject to the state’s public trust doctrine. Along with that comes a public right of access. At statehood, Oregon acquired most navigable waterways.

Access to Oswego Lake is limited to Lake Oswego residents. There’s a city-owned swim park for residents. All other access is restricted to members of the Lake Oswego Corporation, a nonprofit made up of the roughly 3,500 homeowners who live around and near the lake.

Access to Oswego Lake is limited to Lake Oswego residents. There’s a city-owned swim park for residents. All other access is restricted to members of the Lake Oswego Corporation, a nonprofit made up of the roughly 3,500 homeowners who live around and near the lake.

Conrad Wilson / OPB

“Oswego Lake consists primarily of title-navigable waters,” Lininger wrote. “Despite that, the lake has been functionally privatized.”

The finding doesn’t immediately change access to the lake.

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On April 3, 2012, the Lake Oswego City Council passed a resolution banning people from entering the lake from three waterfront parks along Lakewood Bay. City staff posted signs prohibiting access from Millennium Park Plaza, Sundeleaf Plaza and Headlee Walkway.

In 2012, open water swimmer Todd Prager and kayaker Mark Kramer filed a lawsuit challenging the city’s rules. They argued that under Oregon law, all navigable waterways are public and must be accessible from public land. To prevent that, they argued, would set a dangerous precedent.

In 2019, the Oregon Supreme Court heard the case, but it remanded it, ruling that lower courts never developed a complete factual record.

The justices wrote the lower court needed to answer “the preliminary question of whether the lake is subject to the public trust doctrine and, if the lake is subject to that trust … (and) 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.”

Small metal signs adorn steps leading down to Oswego Lake's shore in a public park read: “Private Lake – Please stay on the steps.” Access to Oswego Lake is restricted to city residents only.

Small metal signs adorn steps leading down to Oswego Lake's shore in a public park read: “Private Lake – Please stay on the steps.” Access to Oswego Lake is restricted to city residents only.

Conrad Wilson / OPB

Lininger’s ruling Tuesday answers the first part of that question. A second trial in July will address how much the city can limit public access.

Jeff Ward, general manager of the Lake Oswego Corporation, which manages the lake, said they “strongly disagree with the findings” made by the judge. “This hasn’t changed any of the city’s park rules at this point.”

Nadia Dahab, an attorney for Prager and Kramer, said they’re pleased with Lininger’s findings.

“This ruling recognizes that the waters of the lake are within the public trust and there’s a public right of access that attaches to them.”

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