Judge rules public access must be granted for Oswego Lake, but Lake Oswego Corporation says it will appeal

Todd Prager was a planning commissioner for the city of Lake Oswego in 2011 when he discovered that the body of water that defined their community was in fact not a private lake, but rather a navigable public waterway. He says no one seemed to want to act on this information. The city went in the opposite direction, passing an ordinance in 2012 that barred the public from “trespassing” to the water from the three lakeside public parks. That’s when he decided to file a lawsuit. He and co-plaintiff Mark Kramer said that the lake should be accessible, just like other navigable bodies of water in the state.

After more than a decade in and out of five different courts, a Clackamas County circuit judge ruled that Prager and Kramer were correct, and ordered the city to provide access to the lakeshore at Millennium Plaza Park. The Lake Oswego Corporation, which represents the interests of many owners of high-value homes has said it will appeal the decision granting access. For its part, the city of Lake Oswego has said it will take a “deliberate and thoughtful approach in assessing next steps” and will hold a meeting to gather public comment on March 31 at 6 p.m.

Prager joins us to tell us why he’s persisted in this legal battle for so many years. We’ll also hear from Jeff Ward, general manager for the Lake Oswego Corporation, about what he thinks is at stake in the case and why the company is appealing.

Note: The following transcript was transcribed digitally and validated for accuracy, readability and formatting by an OPB volunteer.

Dave Miller: This is Think Out Loud on OPB. I’m Dave Miller. A judge in Clackamas County ruled this month that the city of Lake Oswego cannot prevent the general public from accessing Oswego Lake. She said the city has to remove “no trespassing” signs within one month and some physical barriers within about four months. Jubilant plaintiffs who brought their legal challenge nearly 13 years ago did not wait. Five days after the order, they celebrated the ruling on the lake with kayaks, canoes and a paddle board. But the legal saga is not done yet. Lake Oswego Corporation, which is made up of more than 4,000 local homeowners, has begun the process to appeal the new ruling. We’ll hear from a representative of the corporation in a few minutes.

We start right now with Todd Prager, who has been pushing for public access since 2011. It’s good to have you here.

Todd Prager: Thanks for having me.

Miller: So after that legal win, you were on hand when some folks went paddling on the lake. What was that day like?

Prager: It was a really exciting day. We had a group of kayakers come down to the lake, including my co-plaintiff. And hearing their gratitude, appreciation and the importance of this victory to them was really heartening. And watching them enjoy the lake was just a surreal moment.

Miller: Let’s go back in time a bit. When did you first start paying attention to and start caring about this issue?

Prager: It was soon after I moved to Lake Oswego. I’ve always been interested in open waters and recreation. Growing up on the East Coast, Chesapeake Bay. My wife and I swam in the San Francisco Bay, we’re part of a swim club there. And moving to Lake Oswego, we came to find out that the lake was somehow private, you couldn’t access it. And it just never seemed right.

Miller: You say “you” couldn’t access it … but you could, as a resident of Lake Oswego?

Prager: I could in a very limited area, smaller than the size of an Olympic size swimming pool. A cordoned off portion of the lake.

Miller: Even as a Lake Oswego resident, because you weren’t close enough to get access to a fuller part of the lake?

Prager: Yeah, that’s right. And our access was only open for July and August, and the rest of the year there’s no meaningful access.

So I did some research on the issue, came to find out from the state of Oregon that actually the lake is state-owned.

Miller: The water is state-owned, but what about the land beneath it?

Prager: The original lakebed is also owned by the state. The natural size of the lake, it’s been expanded, but the entire water surface and all of the water in the lake is owned by the state as well.

Miller: And that’s something that now judges have agreed to. What has it been like to fight this for more than 12 years?

Prager: We knew this was going to be a marathon when we started. It has had waves of being a lot of waiting, then there’s been a lot of vitriol and hate on the issue. I’ve had a lot of appreciation and understanding of our legal team who has been doing this work pro bono. And it’s been fascinating to watch because it folds in so many aspects of what it means to be an Oregonian, what it means to be a Lake Oswegan, and cuts through so many issues in our community and in our state.

Miller: When you say hate and vitriol, what do you mean?

Prager: People making threats to me personally, my profession, my business. And just the way that people communicate about this issue in the community. The roots of a lot of this is rooted in racism and exclusion, deed restrictions that restrict People of Color from owning property. And that thread has come through today with fears of outsiders, crime, violence, even from people having access to the lake. It’s a common thread of fear mongering that people use to justify exclusion.

Miller: Jeff Ward is the general manager of the corporation. He joins us as well. It’s good to have you on the show.

Jeff Ward: Thanks, Dave.

Miller: What’s wrong with having the general public have access to this lake?

Ward: I don’t know that having the general public have some sort of controlled access is wrong. But the devil’s in the details, so I don’t get to decide the matter of that nature. But the court’s decision ignores matters of safety, lake rules. This lake is a very densely populated urban lake that has certain lake safety rules. And ironically, on the celebratory day of kayaking, the kayakers actually violated the safety rules. Now, I’m sure that it was not on purpose, it was probably because they weren’t familiar with the safety rules that have been adopted into the Oregon administrative rules for Oswego Lake, as far as staying inside the buoy line, not going down the middle of the lake. We see those being violated on a daily basis.

And the lake is heavily, heavily used once the late spring gets here. There’s 800-900 power boats registered on the lake. There are thousands of canoes, kayaks, paddleboards registered on the lake. So safety is a key concern for us.

Miller: What is the thrust of the appeal that you’re going to be putting forward? If I understand you correctly, it seems like you’re no longer going to be fighting the question of whether or not the public has access, you just want more clarity about what the rules are going to be? Or did I misread you?

Ward: Well, you misread me. I’m speaking for myself and the corporation right now. But we consider all matters in the case up for question. We’re going to discuss, and our briefs will speak for which matters we are appealing. But the court’s expansion of the public trust doctrine to include where the water is connected, not where the upland property meets the bed and banks that are owned by the state, we feel like that that’s wrong, like they got it wrong. The court’s stripping the city of their right to manage and regulate the use of their own property. And the ruling had very little detail about the safety of all the lake users.

Miller: Todd Prager, on the question of safety, how do you think about this?

Prager: Well, I think that’s kind of a red herring. It’s not a legitimate concern, that a handful of kayakers is all of a sudden going to make the lake completely unsafe. In fact, I had a conversation with the Oregon State Marine Board yesterday, their safety manager. They are confident that the lake is completely safe, it can be completely safe with public access. They have offered to make signage to explain what the rules are in the lake and what the OARs are in the lake and provide that to the cities. And today, the city has done nothing to provide any signage, any educational awareness of what the rules are. Some simple things can occur to educate the public about what the rules are: wear a life jacket, bring a whistle, bring a light if you are out there at night, and stay between the buoy line and the shore. It’s pretty simple.

Miller: Are you expecting a big increase in lake usage as a result of this ruling?

Prager: I am not expecting there to be a huge increase. You go out there on any day … I would challenge anyone to go out today and count how many boats you see, probably two or three.

Miller: Well, OK, but it’s the middle of March right now. What about if we were talking in July?

Prager: In July, it is a heavily used waterway. Mostly, the safety issues are created by power boats that are out there. The kayakers and canoers are not the safety issue. It is the power boats.

And how many people would go out there? I would invite the city, the Lake Corporation and ourselves to meet with the Oregon State Marine Board and talk about these concerns. And in my conversation yesterday, they said this lake is no different than all the other lakes that they regulate in the state, and they have ways to address all of these issues.

Miller: Jeff Ward, I want to give you a chance to respond to something else that Todd mentioned earlier. It’s something I’ve seen in other places – the way that this has been framed in a lot of media is that this is a bunch of rich people trying to wall off their water in a way that’s in line with the city’s exclusionary history. How do you respond to that narrative?

Ward: This lake access lawsuit was never about race. It never was. Yes, there are old deed restrictions in some properties in Lake Oswego that prohibit Black people and Asian Americans from buying property. Those exist all over Oregon. The entire state of Oregon has very racist roots from at the very beginning. In 1948, the Supreme Court nullified race restrictions. The U.S. Congress later legislated them away in 1968, so those can be changed. Our covenants, codes and restrictions for the lake were restated in the ‘80s, and these affect our rim front property all the way around the lake. And they do not refer to race. This is not about race at all. So putting the entire state’s racist history on the back of Lake Oswego, I think is a little bit of a misnomer.

Miller: Todd, when you say that this is about race now, what do you mean?

Prager: Well, I mean, it is absolutely about race, partially. We tried to bring in the deed restrictions in our court lawsuit, and Lake Corporation, the city fought vehemently to have all that excluded, which it was. So we weren’t allowed to argue that aspect of it.

But if you look around the country, exclusions to water is always tied to race: access to swimming pools, access to beaches, access to waterways, there’s a racial component to it. It’s well known, it’s well studied. There’s a professor, Andrew Kahrl, at University of Virginia [who] has expertise. This is one of his main areas of study – the racial, blue exclusion laws to water.

Miller: Jeff, The Oregonian has done some reporting in recent weeks and the large number of emails to the city since the ruling. And I should say that they’re going to be having a public meeting about this at the end of the month. We don’t yet know if they’re going to challenge the ruling. A lot of folks in Lake Oswego, based on these emails, do want the city to challenge it though. One person suggested that the city sell the bank of water at Millennium Plaza Park to the Lake Oswego Corporation, to your corporation. She wrote: “Then, while the lake remains ‘public,’ people would have to trespass private property to access it.” Is that actually under consideration right now?

Ward: I don’t know. That would be up to the city to talk about that. This is not something that is under discussion right now. The reason many of those emails went to the city is because usually calls, complaints, questions all come to me for folks who are easement members or shareholders. And we got comments from city officials who said, “Hey, we’re not getting any comments from people who want us to go ahead and appeal this thing.” So we said, “Send your emails to them, not to us then,” because we’ve been sort of both defending this together at this point.

Miller: Todd, the city of Lake Oswego has spent around a million dollars in legal costs to try to prevent public access to the lake. As a Lake Oswego resident, this is your taxpayer money. How do you feel about that expenditure of public money?

Prager: Well, the city has decided to continue their exclusionary practices and continue arm in arm with the Lake Corporation throughout this whole process. That was their choice and they decided to spend the money on that lawsuit. It makes no sense because they should allow the Lake Corporation to fight this on their own. They claim that it’s their lake, it’s their issues, their safety, why is the city participating in this?

And I do want to respond to one thing. It’s interesting that the city reached out to the Lake Corporation to solicit public comments about this appeal. So the city is asking the Lake Corporation, “Send in comments so we can justify spending more money on an appeal.” So this is the city’s choice to do this.

Miller: Todd Prager and Jeff Ward, thanks very much.

Prager: Thank you.

Ward: Thank you, Dave.

Miller: Todd Prager is one of the plaintiffs who has been suing for public access to Oswego Lake in the city of Lake Oswego for more than a dozen years now. Jeff Ward is the general manager of the Lake Oswego Corporation. That is made up of about 4,000 local homeowners. They filed a notice last week, saying that they are going to appeal a recent ruling by a judge saying that the public does have access to the lake.

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