Jury selection gets underway in Clackamas County on Tuesday for a trial that could determine whether the city of Lake Oswego can continue to restrict access to the city’s eponymous lake.
For more than a decade, the waters of Oswego Lake have been limited to wealthy property owners who surround the lake, as well as city residents who can access a seasonal swim park.
During the first part of a two-phase trial, a judge ruled the waters are subject to the state’s public trust doctrine, meaning the public must have access.
“Oswego Lake consists primarily of title-navigable waters,” Clackamas County Circuit Court Judge Ann Lininger stated in her April 2022 order. “Despite that, the lake has been functionally privatized.”
Lininger was ultimately removed from the case over a perceived conflict of interest, but her ruling stood.
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
The second phase of the trial will be overseen by Clackamas County Circuit Court Judge Kathie Steele. This phase will determine whether the city ordinance that prohibits access from public parks goes too far in blocking the public’s access to the water.
On April 3, 2012, the Lake Oswego City Council passed a resolution banning people from entering Oswego 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 challenged the city’s rules in a lawsuit. Under Oregon law, all navigable waterways are public and must be accessible from public land, they argued. To prevent that, they said, would set a dangerous precedent.
During this second phase of the trial, the plaintiffs want a judge to prevent “the city from enforcing its exclusionary lake use policies” and make the city “incorporate public access into the design and development or redevelopment of future lakefront facilities on publicly owned properties.”
For its part, the city says some restrictions should be allowed, noting the public has “visual access to the lake.”
“The City’s decision to prohibit physical entry into Lakewood Bay from its properties is objectively reasonable because the City designed and planned these Parks for uses, such as event and gathering spaces,” attorneys for the city of Lake Oswego wrote in their trial brief.
The trial is scheduled to last two weeks.