Todd Prager just wanted to swim. Instead, he's headed to the state Supreme Court.
Prager is one of the parties to a lawsuit seeking to overturn a Lake Oswego ordinance that bans using a public stairway in a public park to access a public lake. Prager fell in love with open-water swimming while living in San Francisco, where he swam in the Bay. When he moved to the Portland area, he started swimming in the Willamette River using a wetsuit. Then he noticed the 415-acre lake in the middle of the suburb where he lived and served on the planning commission: Oswego Lake, the jewel of Oregon's wealthiest city, Lake Oswego.
Despite the plaques onshore that say it's a "private" lake, it's not—Oswego Lake is a natural pool in the Tualatin River, dammed by a clever developer who surrounded the expanded pool with ostentatious homes. The people who live in those homes organized an HOA-type organization called the Lake Corporation, which owns the land under the public water and sends rent-a-cops to patrol the lake. Under a system referred to as "the status quo" in Oregon's wealthiest city, those who live on the shores can use the lake, as can people who buy properties with deeded easements to use the lake. To use their easement, they must pay a $5,000 fee to the Lake Corp. when they buy the property, plus an annual upkeep fee.
In April 2005, Oregon's attorney general issued an opinion saying the lake was public. A series of newspaper articles seven years later reignited interest in the public using it. Open-space activists and curious kayakers (including me) used the public parks around the lake to access it.
On April 3, 2012, Lake Oswego's city council, under pressure from the Lake Corp., voted to prohibit people from swimming or launching boats from three city parks along the lake. In response, Prager and local attorney filed suit against the city of Lake Oswego. The state's attorney general has supported the city in court. This means somewhere around 13,000 residents can access the lake through a complex system of easements, while the other 23,000 residents, and the rest of the state, are beached.
Prager has lost at the first two levels, but are now appealing to have the case heard by the Oregon Supreme Court. The city, according to its own calculations, has spent $238,167 defending its ban on using a public park to access a public lake. Prager, meanwhile, was ousted from Lake Oswego's planning commission and faced hostility from people in his community who are squatting on the lake and stand by "the status quo." We talked to Prager and law professor Michael Blumm of Lewis & Clark College, an advisor to the suit, about the future of Oswego Lake.
WW: You've lost at the first two levels. Why? It's a public lake; it seems like a slam-dunk case to say the city can't prohibit using the public steps in a public park to access a public lake.
Prager: The defendants—the city of Lake Oswego, in particular—have tried to really narrowly frame this as their right to enact rules at local parks and completely ignore any other history about them trying to keep the lake private, their own policies, even the plaques on the steps that go into the lake that say it's a private lake. They're saying it's strictly a public safety issue and their right to regulate what goes on in their parks. So far, the courts have been convinced by that argument, very narrowly framed, and are not looking at anything other than "Does a city have a right to make rules for their parks?"
When I kayaked on that lake, before they passed the law banning people from using the stairs to go into the lake, I never could have imagined this fight would still be going on five years later. Is this what you expected?
Prager: I was not aware of how long the legal process takes. Even my father-in-law—he's a very conservative Republican, generally pro-property rights—can't understand how this isn't an open-and-shut case. He's like, "It's a public park and a public lake. How is this still a fight?" I think a lot of it is politics.
Blumm: The state has sided with the city [with its interpretation of public trust doctrine] and, incidentally, with the Lake Corp. Both the lower courts put great weight on the state's position, and the state's position is an embarrassment. They've created a legal doctrine out of whole cloth that is part of the public trust doctrine, but according to the public trust doctrine, it's the part that doesn't require them to do anything. They say it doesn't apply to park lands, for one thing, and for another thing, that even if there are public rights to use the lake, the state is not responsible for upholding those rights. That is nauseating. We have an attorney general, and attorney general's office, that doesn't want to do what they should be doing to defend public rights. [Editor's note: Attorney General Ellen Rosenblum is married to WW co-owner Richard Meeker.] The attorney general doesn't want to do anything, which is extremely disappointing.
Why do the majority of people in Lake Oswego vote for city leaders who deny them the right to use their own parks to get onto their lake?
Prager: This is a small, tight-knit community, and you can really easily step on toes. Even though only a third of the people have access, and less than 10 percent live on the lake, you're stepping on toes, and maybe even being seen as impolite to raise this issue. And it can come back and bite you, as it has for me.
So most of the people in the city are supporting people who oppose their own right to use a natural jewel in the middle of their own city. Has anybody run for city council on the platform of "I'm going to free the lake"?
Prager: No, nobody's done that.
Blumm: As far as I know, there certainly isn't any support on the city council for access.
Prager: I've talked to some of the people on the city council individually, and there is some private support, but people are afraid to come out publicly and make a stand. We tell our kids: It's like the bully, where everybody is afraid to stand up to the bully, and you're giving them the power by letting them boss everybody else around. So it takes some people to stand up and say what they believe in. So there is some support on the city council, and in the community.
Blumm: If you put this for a vote on a referendum, they'd lose if we could get enough money to publicize what the positions were. But they don't have to do that. It's shocking, frankly, that there is not one voice for public access, and Todd's voice was silenced [by his ouster from the planning board].
If the state Supreme Court won't hear your case, have you considered just running for city council with a couple people and freeing the lake?
Prager: I've thought about doing that, and I think there would be a lot of support for it. But, at the same time, I was on the planning commission, and that was a tremendous amount of time. City council would be at least double that amount of time. Just right now, I don't have the time to commit to being on city council, but I've thought about it.
So, if I understand this, based on what the city of Lake Oswego and the Oregon attorney general are saying right now, cities could close their parks' access to rivers, lakes or the Pacific. Theoretically, Cannon Beach could close off the stairways that lead to the beach and effectively make it a private beach.
Blumm: That would be an implication, yes. The public access rights are below the vegetation line, and getting to those public access rights requires a different type of access that is not from custom. If the public parks in Lake Oswego can be closed off from public waters, then I don't see why it wouldn't apply to ocean beaches as well.
Tell me why Portlanders should care specifically about this lake.
Prager: It's over 400 acres. That's at least twice the size of Blue Lake, maybe even three times the size. It has a lot of interesting shoreline. It's not just like a bathtub. It has a meandering shoreline. It has canals that kind of wind through. You can really spend a lot of fun time exploring it. Plus, there's a lot of architecture to see—interesting houses along the lake and historic houses. The fishing, I've heard, is really good. It's just another opportunity to access nature right here in the metro area.
Blumm: It seems like it's larger than it is because, as Todd said, it's linear. It's 400 acres, but it seems bigger because it's not just a round lake. Lots of coves, and places kayakers can explore.
Can you make a case why even the people who live on the lake should want this?
Blumm: I remember one city council hearing where they had the school board president there who said that if the public can access this lake, property values will go down and they won't be able to do things like have as many AP classes at the high school. Then they had these real estate people come in and say, "Well, the property values will go down." All of that is complete nonsense, as far as I'm concerned. There can't be any lost property values from having a couple kayakers out there.
You'd think that if you opened this to the rest of the city, so the other 70 percent of the city could use this lake, the overall property values in Lake Oswego would go up and the school district would be getting more money, right?
Prager: They're still going to have enhanced property value from being situated on the lake just like the riverfront people have enhanced property value from being on the river. Most people have access to the lake through easements. Those are private easements and would stay private, and that would still be an enhanced value thing—they would have a little private beach where they could hang out.
Blumm: Property values in recent years have skyrocketed, so it's a hollow kind of complaint. I'd bet you some of the property values are twice as much in the last five or 10 years. There are no property values that are going down around the lake.
Prager: The people who live on the lake are Oregonians, too. To imperil access to Cannon Beach or the Willamette River—opening up privatization across the state, is, I think, a foolish idea that the city is fighting for just in this one case. You're imperiling access to public areas across the state just to protect this one area that wouldn't have that big of an impact. The people who live on the lake like enjoying waterways across the state.
Could having a natural attraction in the middle of the city also help you get more amenities in Lake Oswego? For the amount of wealth Lake Oswego has, it doesn't have many nice places downtown. I'd imagine people who lived there would want to have decent food and drink, and to keep their movie theater?
Prager: I wouldn't envision it as something somebody from Portland is going to want to go to every weekend. But it could be an outing. You have people visiting from out of town, and it's like, "Let's go check out this neat little town, paddle around the lake and maybe get dinner." It would enhance the character of downtown and make it a more vibrant place. If you have a public waterway, you could envision a whole little economy popping up based on that—maybe rentals or outdoor drinks near the park. You see this in cities all over the U.S.; when they enhance their waterfront, lots of good stuff happens.
Blumm: The other thing that people in Portland need to realize is that, depending on what happens here, if the Supreme Court doesn't take this case, one of the implications is for municipalities that want to create monopolies for other treasured places. Maybe one of the unintended consequences is to send signals to cities that they could close off access to all public water bodies to all but the local residents.
Or, like Forest Park in Portland. It's not too hard to imagine some of the people who live around it in the West Hills saying there's too much riffraff and they want to close the trailheads so you can't legally walk into the public park and only the people who live around the park can use it.
Prager: It's not just theoretical. Talking to riverkeeper groups around the state, it's becoming a real problem. People who live near these public access points are pushing to have them closed down so they can have them to themselves and not have to deal with the riffraff. As the population of Oregon increases, there's going to me more and more pressure on these public access points and more advocacy from private landowners saying, "Hey, we don't want all these people coming and dropping boats in these spots."
Note: This story originally misstated the parties to the lawsuit. Blumm is an advisor, not a party.