Lake Affront

Oswego Lake’s big secret: It’s public and you can paddle it. In fact, I did.

(Kim Scafuro)

Carrying a big green kayak down the sidewalk in Lake Oswego gets attention.

"You know you can't just go in there?"

"They'll ding ya if they catch ya in there!"

To hear it described by townsfolk, dropping an unauthorized kayak into the "private" lake in the center of the city could lead to big problems. Perhaps even a dinging. Yet no one left a warming Frappuccino nor an unread USA Today to offer more than tepid caution.

Those nice people—and the signs on the ground claiming this is a private lake—are mistaken. You can't blame them for the confusion, born of an oft-repeated fiction that's kept Oswego Lake one of the largest "private" lakes in Oregon, even as the state says it's a public waterway. For 70 years the lake has been operated like a country club, patrolled by floating mall cops pretending to have the authority to keep people out.

In truth, anyone can access this waterway from public property. I parked legally on a public street, carried my kayak about 400 yards and plopped it into the lake from a concrete staircase leading down to the water at the city-owned Millennium Plaza Park. One good shove later, I was out on the lake.

And I didn't expect anyone to stop me.

Oswego Lake is a natural pool in the Tualatin River. Originally called Sucker Lake, it was surrounded by heavy industry before a clever developer built dams and surrounded the rising waters with ostentatious homes. The water is the backdrop for the wholesome chain shops that constitute downtown Lake Oswego.

The Lake Oswego Corporation—a glorified homeowners' association—owns the land underneath the lake, although the state owns the water. Under an arrangement everyone refers to as "the status quo," only people with homes on the shores of the 415-acre lake and up to 12,000 other easement holders with stickered watercraft are allowed on it. Even the people who own condos on the water have been told they're not welcome.

The Lake Oswego Corporation is a $2 million operation funded by yearly dues and employing at least six people full-time. (The corporation did not respond to multiple requests for comment over several days.) It takes its duties very seriously, only issuing stickers to boaters who sanitize their crafts, carry at least $500,000 in liability insurance and pass written and practical exams. I have done none of these things. State law requires only that I have a life jacket and a whistle.

I brought a Scotty 780—widely considered the world's best marine safety whistle.

Even though two-thirds of Lake Oswego can't access its defining feature, Mayor Jack Hoffman, surprisingly, says lake access "isn't a priority" for disenfranchised residents. He's also not sure what would happen if people started going on the lake without the corporation's permission. "If there was an Occupy Oswego Lake, what would happen?" he says. "I just don't know."

The big problem with paddling Oswego Lake is that getting your boat to the water from a public park is a hassle. A proper public boat ramp at one of the city parks would make things much easier. The Lake Corporation is, as you might expect, intensely opposed to the idea.

The public boat ramp idea popped up a few months ago as the city planning commission explored adding ramps to its onshore parks. Things got ugly fast. The controversy landed on The Oregonian's front page as the Lake Corporation packed several public meetings and sent city hall 700 signed form letters. Last week the bullied planning commission dropped the issue, recommending that the city "cooperate with the Lake Oswego Corporation."

Among those in support of the "status quo" was Lake Oswego School District superintendent Bill Korach, who used a public meeting to make an eloquent speech in favor of unequal rights for his students and two real-estate salespeople who complained the uncertainty was already scaring away buyers. Intel attorney Rose Deggendorf vowed to fight pro bono and offered a doomsday scenario: "Public means public.... It doesn't mean 'Lake Oswego public.' It means when the guy from Arkansas comes up and wants to have a kegger on the water."

In lonely opposition stood Michael Blumm, a Lewis & Clark law professor who tried to point out that arguments about water quality, overcrowding and property values are beside the point. Blumm says the city has a legal duty to pursue opening up the lake to its citizens. In response, he was "booed by 200 people" at the meeting.

"The lake is a publicly owned, public trust resource and there is public access to the lake from the shoreline around Oswego Lake," he said. "Lakebed ownership is irrelevant."

"Booooo," they said.

Blumm isn't floating any weird legal theories. In April 2005, Oregon's attorney general issued an opinion saying the lake was public. Last week, a spokesman for the office confirmed that the attorney general's "opinion has not changed."

According to Oregon's top court, a natural waterway is public so long as it has "the capacity, in terms of length, width and depth, to enable boats to make successful progress through its waters."

I have made successful progress through Oswego Lake, paddling across two bays in about a half-hour. I said hello to a woman eating her breakfast dockside and waved to a man in a sportcoat who did not wave back. I was otherwise alone—until I neared shore and a speeding white-and-black motorboat came up fast, making me wonder if someone at Starbucks called the Lake Patrol.

Martin Cizmar paddles on Oswego Lake. Video by Ruth Brown.

Fortunately, I knew the cops weren't driving the speedboat. A spokesman for the Lake Oswego city police says he can't recall the department ever issuing a citation to someone for being on the lake. Also, the police department doesn't have a boat.

The craft also wasn't the Clackamas County Sheriff's Office marine patrol, which has jurisdiction over the lake. The office has no intention of stopping anyone—except perhaps an overzealous private patroller.

"The water itself is a public waterway and at no point will the Clackamas County Sheriff's Office arrest, or charge someone with trespass, for being on a public waterway," says Sgt. James Rhodes. "The lake is not private property. And regardless of who calls or asks, no, we would not arrest someone for trespassing on the lake."

Maybe the boat belonged to the Lake Oswego Corporation patrol? I wasn't worried about that either, since I'd asked the sheriff's office what it would do if the patrol detained me.

"I would encourage them not to do that," Rhodes says. "They have no authority.... If they went out in the middle of the lake and stopped somebody for trespassing and called us, we would come settle the problem but it would not result in someone going to jail, unless it was perhaps somebody making an unlawful arrest."

As it turns out, it was just a family out for brunch. I told the driver he's the first person I've seen out on an unseasonably warm and sunny Sunday morning. Crazy, right?

“I know,” he yells over his idling motor. “They’re spoiled!”

WWeek 2015

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