Portland NLG member attorney helps open Oswego Lake to the public

Years of legal efforts by a local National Lawyers Guild member attorney have resulted in another victory for Oregon residents and their public access rights.

UPDATE: On Monday, March 3, Clackamas County Judge Steele ordered that Oswego Lake be opened immediately to the public. Five days later, on Saturday March 8, plaintiffs Kramer and Prager were joined by other community members as they enjoyed a day in the lake for the first time in years. The City of Lake Oswego and the Lake Oswego Corporation are expected to again appeal.

In November, Clackamas County Circuit Court Judge Kathie F. Steele declared that the City of Lake Oswego and associated entities have violated constitutionally protected access to Oswego Lake.

The legal battle kicked off in 2012 when kayaker Mark Kramer and open-water swimmer Todd Prager challenged the ban on public access recently passed by the Lake Oswego City Council. Kramer—a member of the NLG Portland Chapter who practices family, personal injury, and civil rights law—sued the city.

In recent proceedings, the city argued that both safety and private property considerations placed an undue burden on the municipality that it shouldn’t be expected to enforce. While Judge Steele agreed that restrictions on a few key locations were reasonable, the blanket ban on public access to the lake was impermissible.

Moreover, in her introductory remarks to her decision [PDF], Judge Steele compared the blanket restriction to other forms of civil rights restrictions based on race or gender which have been similarly overturned. In this case, the general public has had its rights unduly restricted since the City Council voted to ban access in 2012.

This decision recognized an earlier Clackamas County jury verdict from April 2024. The jury found that the city had placed an unreasonable restriction on the public by prohibiting access at Millennium Plaza Park, located on the northeast corner of the lake in Lakewood Bay. The jury decision was advisory, however. Judge Steele’s decision is binding.

The county jury trial was itself a second phase of a two-stage trial process. In April 2022, Clackamas County Circuit Court Judge Ann Lininger ruled that Oswego Lake was subject to the Oregon state public trust doctrine. This decision was upheld by a second county judge in 2023 after the Lake Oswego Corporation and the city managed to have Judge Lininger removed from the case.

The city had won before the county court and the Oregon Court of Appeals in 2014 and 2017, respectively. But in 2019, the Oregon Supreme Court remanded the decision to the county again, this time to determine whether Oswego Lake was in fact subject to Oregon public trust doctrine. This led to the 2022 decision by Judge Lininger.

While the decision has been affirmed by Judge Steele, both the city and the Lake Oswego Corporation are expected to appeal the decision, so as of yet, the lake is not officially opened to the public.

The Lake Oswego Corporation is a nonprofit organization made up of a few thousand residents on or near the lake and presents itself as the steward of the state-owned body of water. The nonprofit has championed the ban and intervened in the suit on behalf of the defendant, arguing that the city should have the right to fully determine access policy.

The city also holds this position, with former City Manager Scott Lazenby quoted by OPB in 2018 saying that where Oswego Lake is concerned, the public “can enjoy it from a distance.”