Opinion: The decade-long fight for public access to Oswego Lake

Michael C. Blumm

Blumm is Jeffrey Bain College Scholar and a legislation professor at Lewis and Clark Regulation College. He lives in Lake Oswego.

For near 60 years, rich householders residing alongside Oswego Lake have been capable of block the general public’s entry to a lot of the 400-acre lake, treating it as an alternative as a non-public leisure useful resource for themselves. Which will quickly change due to a circuit court judge’s ruling last month establishing that the lake is a state asset meant to serve the general public.

Nonetheless unresolved is whether or not the town of Lake Oswego and the state will proceed siding with the householders or will lastly embrace their accountability to the on a regular basis Oregonians they’re alleged to signify.

The authorized dispute dates again to 2012 when Lake Oswego Company, an entity made up of property house owners round Oswego Lake, satisfied the town council to go a decision barring individuals from accessing the lake through three adjoining parks. Two people, a swimmer and a kayaker, sued, arguing Oswego Lake was a useful resource held by the state of Oregon as a “public belief,” and subsequently needs to be accessible by the general public.

After a circuitous route as much as the Oregon Supreme Court and back, the query went earlier than Clackamas Circuit Court docket Choose Ann Lininger. She agreed with the swimmer and kayaker in a choice final month, deciding that the lake’s waters had been navigable when the lake was transferred from federal possession to state possession. Consequently, beneath the Oregon Supreme Court docket’s 2019 Kramer v. Metropolis of Lake Oswego choice, they had been topic to a conditional proper of public entry to the lake.

However that’s solely a part of the method for unlocking the door to public use of the lake. In July, in part two of the case, the town will try to point out that its ban on public use is an “objectively affordable” technique of managing the lake’s assets. Which will show to be a formidable process. The decide, quoting from an earlier opinion about public entry to waterways, has already mentioned that handing over “this treasured public asset to non-public management at a time when recent water is more and more scarce and beneficial ‘can be a terrific flawed upon the general public forever, the extent of which can not, maybe, be now even anticipated.’”

The decide additionally rejected the state’s argument that it had no obligation to make the lake accessible to the general public, deciding that the state “should . . . stop the non-public interruption and encroachment of the general public’s use of its belief assets.” Solely “objectively affordable” restrictions in gentle of the aim of the general public belief and the circumstances of the case are permissible. How the town’s safety of a non-public monopoly of a public useful resource is affordable could also be troublesome for the town to point out.

Even when the plaintiffs prevail in July, the case will nearly certainly be appealed by Lake Corp, whose members profit from delay and who’re represented by a Portland legislation agency usually employed by Fortune 500 firms whereas the plaintiffs have three professional bono legal professionals. The case is really a David vs. Goliath confrontation.

What isn’t so clear is whether or not the state will attraction the decide’s ruling that it holds public belief duties for Oswego Lake, together with making certain public entry. from public lands. Much more curious is the place of the town, which now should defend its exclusionary ordinance.

Provided that the town has spent an estimated $1 million defending the exclusion of two-thirds of its personal residents, it’s honest to ask: for what? To perpetuate monopoly use of the town’s signature useful resource? It could be time for a majority of the town’s residents to object to continued authorized expenditures to learn a privileged minority.

Over a decade into this litigation, the arc of justice could also be bending extraordinarily slowly, nevertheless it’s additionally elevating some fundamental questions on democratic choice making in an unique Portland suburb.