Locking Up Oswego Lake

All of Oregon's navigable waterways are public, but some are more public than others.

Or so it goes in Lake Oswego, where the city council has taken extraordinary steps to prevent the public from using a public park to access a public lake.

The Lake Oswego City Council, governing the state's wealthiest city, appears to be dancing on strings held by the Lake Oswego Corp., a private homeowners group that owns most of the shore and lake bed and wants to keep outsiders off the lake. 

Further proof came April 3, when the city council, under pressure from the lake corporation, voted to make it illegal for people to swim or launch a boat from three city parks along the lake.

The council took the action in response to a WW story that demonstrated the public could access the lake even as the Lake Oswego Corp. has tried to close off access to all except dues-paying property owners (see "Lake Affront," WW, March 7, 2012).

Which raises a powerful legal question: How can a private corporation and a city council work together to block access from a public park to a public lake?

We may soon find out. Two groups told WW they're considering lawsuits against the city or the Lake Oswego Corp. to win access to the lake.

If a lawsuit goes forward, you can expect to hear some surprising facts about Oswego Lake.

In the meantime, here are a few things the people trying to cordon off Oswego Lake may not want you to know.

The state of Oregon ruled Oswego Lake a public waterway 53 years ago.
Former Oregon Attorney General Robert Thornton said so in a 1959 opinion. "The Lake Oswego Corporation," he wrote then, "can enact no rules and regulations governing the public use of boats on Oswego Lake.” 

His legal opinion still stands today. The Oregon Marine Board holds jurisdiction over the public lake, setting the speed limit, for example, and banning on-boat toilets.

The lake corporation owns much of the land under the lake, but courts have said that doesn't trump the public's rights. The corporation has a security force, but it has no authority to chase anyone off the water.

The ring around the lake to keep the public out may not be ironclad.
Yes, the City of Lake Oswego has helped the lake corporation cut you off from the lake. But the lake belongs to you. How does this square?

Case law, dating to 1869, says the public has a right to "incidental" use of private lands to access public waterways, such as Oswego Lake.

A 2005 Willamette Law Review article by Jas. Jeffrey Adams and Cody Winterton says the interpretation of that legal precedent is wide open.

"Oregon courts have not yet defined whether 'incidental use' includes the right to anchor or wade on the bed of the waterway," they wrote in the article, "or stand on the banks below the high water mark, in order to fish, portage a watercraft, or engage in other recreational use."

Adams, an attorney for the Oregon Department of Justice, declined to comment further.

Going into the public lake from a public park could now cost you $1,000.
The state Marine Board's authority ends at the shore. The city's new ordinance means you may be asked to pay a fine if you launch your boat from a public park, such as the stairs in Millennium Plaza Park, to the public lake.

As with traffic tickets, there's a sliding scale of fines. They start at $145 but top out at $1,000. "That's up to the court," says Lake Oswego city attorney David Powell. "It would have to be pretty aggravated."

A $1,000 fine would be more than the Lake Oswego Corp. pays in property taxes a year for the lake bed.
The lake corporation last year paid $784.38 on the 404 acres that make up the majority of the lake bed, according to Bob Vroman, Clackamas County assessor. Vroman says it's a "very unique property," adding that the presence of the lake does increase property values for homeowners (and corporation members) along the lake.

Don't expect the City of Lake Oswego to fight for your public rights.
City attorney Powell says Lake Oswego's government has no obligation to guarantee anyone access to the lake. 

The city's police work to guarantee private access. After an "Occupy Oswego Lake" protest was planned last month, the city's police chief, Don Johnson, coordinated with the lake corporation in preparation for the demonstration, according to email obtained by WW through a public-records request.

"I've had a couple different people tell me there may be an individual or individuals who want to make a point by accessing the lake without being members," Johnson wrote to the head of the lake corporation's security force. "At some point it might be good to get together to [take] a look at possible launch sites so that we are somewhat prepared or to just go for [a] boat ride and enjoy a sunny afternoon.” 

WWeek 2015