Lake Oswego has no good reason to stop the public from swimming, kayaking or just sticking a toe into the waters of its signature lake at a prime downtown park, a jury has found.
The Clackamas County Circuit Court jury’s advisory ruling shot down all arguments for banning public access at Millennium Park Plaza, where Oswego Lake laps paved stones just off North State Street.
But the jury found justified reasons to ban the public from entering the water on the park’s adjacent trail, the Headlee Walkway, as well as at the nearby Sundeleaf Plaza.
The jury’s decision Friday doesn’t have the force of law, though. Clackamas County Judge Kathie Steele is expected to take the jury’s ruling under advisement and issue her own verdict in the coming months.
Most of the lake is surrounded by private residences, except for the downtown plazas and a city-owned residents-only swim park.
Nadia Dahab — an attorney for kayaker Mark Kramer and swimmer Todd Prager, who first sued the city to gain lake access in 2012 — argued during the two-week trial that the city should open up access at the two plazas and along the trail.
“The waters of Oswego Lake are just like the beaches and the forests and other wilderness areas that we protect for public use,” Dahab said in an interview. “The city can’t restrict access without a good reason.”
The lawsuit has already traveled up to the Oregon Supreme Court and back without a definitive ruling. Clackamas County Circuit Judge Ann Lininger set the stage for the current advisory trial in 2022, ruling that the state’s public-access doctrine applied to Oswego Lake, even though the body of water was significantly widened and deepened compared with the original marsh.
Lininger was disqualified from the case later that year due to conflict of interest concerns from her days as a state lawmaker, but the ruling stood.
The city contends it has plenty of reasons to ban the general public from getting into the water at public access areas — including public safety, preventing the spread of invasive species and the specter of lawsuits.
The jury wasn’t asked about every one of the city’s justifications, but did find that the design of Sundeleaf Plaza and Headlee Walkway made banning access reasonable, among other reasons, according to Dahab. Sundeleaf Plaza ends in a seawall, while Headlee Walkway is separated from the shore by a metal fence.
Millennium Park, on the other hand, has no barriers between the waterfront and the lake.
Lake Oswego Mayor Joe Buck and Lake Oswego Corporation General Manager Jeff Ward both declined to comment, citing the ongoing litigation. The corporation owns the lakebed and is responsible for maintaining the body of water.
In a statement, city spokesperson Madison Thesing thanked the jury for its consideration.
“As a community, we value public input in shaping our decisions,” Thesing said. “We understand the jury had to consider difficult questions and their mixed verdict reflects that.”
But it’s likely no one will be splashing off Millennium Park Plaza anytime soon.
Dahab expects appeals after Steele eventually rules.
“It’s going to be a while,” she said.
—Zane Sparling covers breaking news and courts for The Oregonian/OregonLive. Reach him at 503-319-7083, zsparling@oregonian.com or @pdxzane.
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