The Oregon Supreme Court heard arguments Friday at a Washington County high school in the case of whether Lake Oswego can restrict access to the waters of Oswego Lake.
The plaintiffs in the case are an open water swimmer and a kayaker who want to use the lake. But there’s a problem.
Under current city rules the only people who can get on the lake are members of a nonprofit who live around and near it — as well as city residents, though they are limited to a small swim park.
The general public can look, but not touch. The plaintiffs argue that’s not legal.
“This case asks this court to declare the law with respect to Oregon citizens ability to access and use for recreation the public waters of Oregon’s navigable lakes, waters and streams," said Thane Tienson, the attorney for the kayaker and the swimmer.
He told Chief Justice Thomas Balmer that the public – not just city residents – should be able to access Oswego Lake from the city’s parks.
“We believe that all public parks that abut waterways should be allowed to provide access to those waterways by the recreating public, unless there are special narrow circumstances … which are not present here," Tienson said.
Balmer responded: "You say we should, subject to very narrow restrictions, overrule the local government’s decision, the land owner’s decision on that?”
“That’s correct," Tienson said.
The defendants are the city of Lake Oswego and the Lake Corporation, the nonprofit that manages the lake. Robert Koch, attorney for the city, told the Supreme Court that access is limited to the swim park because it’s small.
“The city just wants to ensure that those who actually pay for the park through its taxes and fees are actually able to use it," he said.
Justice Rives Kistler asked what that means for other local governments.
“If you’re right, could each city and county that has its own individual park exclude residents from every other city and county in Oregon?" Kistler asked.
“They might, your honor," Koch responded. "It would honestly depend on the specific facts.”
Justice Lynn Nakamoto then asked Koch about the public’s use of the water: "Does the city agree that the public had a right to use the waters of Oswego Lake?"
“Justice Nakamoto, the city takes no position with respect to the water," Koch said.
Koch said the city could have allowed broader access when it developed its parks. But decided not to for safety reasons and costs.
Chief Justice Balmer interrupted: "Doesn't the city have some signs up that say private lake?"
"Yes, your honor."
“But you’re saying you don’t think it’s a private lake, or you’re not taking a position on it even though you put up signs saying it is a private lake," Balmer said.
“That’s correct your honor. We’re not taking a position," Koch said. "That sign reflects the fact that this was the city’s understanding at the time they put the sign up, but with respect to the public/private nature of the lake, the city takes no position.”
During Tienson’s rebuttal, Chief Justice Balmer asked what prevents the city from making rules about safety.
"Why can't the state – or the city — say 'Look, we can't provide lifeguards, the water is polluted from time to time?' It's difficult to see how a court is going to come in there and review, unless we just get into a lot of fact finding and second guessing or give a lot of deference to what a city might do in those circumstances," he asked.
Tienson said the justice had raised a legitimate concern. But he noted that the city has not taken similar restrictive actions on other public parks along the Willamette River and elsewhere. He said the city's goal was to essentially create a private lake.
“This has to be looked at in context: There’s literally no other means of access by the public to these waters," Tienson said. "And that was the intended consequence."
The court will deliberate in private and rule in the coming months.