OREGON'S AMPHIBIOUS PUBLIC TRUST DOCTRINE: THE OSWEGO LAKE DECISION.

• Author: Blumm, Michael C.

1. INTRODUCTION 1229 II. THE LAKE AND THE MONOPOLY 1233 III. CHALLENGING THE CITY RULES 1237 A. The Trial Court's Rejection of the Plaintiffs' Claims 1237 B. The Affirmance of the Court of Appeals 1239 IV. THE SUPREME COURT'S OPINION 1240 A. Moving the Public Trust Doctrine Upland, Amphibiously 1243 B. Articulating Public Trust Duties 1246 C. Applying the Public Trust to Municipalities 1247 D. Distinguishing Between the Public Trust and Public Use Doctrines 1248 V. THE HISTORY OF PROPERTY TRANSACTIONS AFFECTING OSWEGO LAKE 1253 A. Anglo-American Settlement: Introducing Property Rights to Waluga 1253 B. The Commercialization of Sucker Lake 1255 C. The Decline of Industry and the Rise of Modern Oswego Lake 1256 D. The City's Efforts to Monopolize Oswego Lake 1258 VI. A PATH TOWARD LAKE ACCESS ON REMAND 1259 A. Is Oswego Lake a Traditionally Navigable Water? 1260 B. Public Rights on an Enlarged Waterbody 1264 C. The Presumption of Title-Navigability for Meandered Waterways 1266 D. Lake Corp's Claim of Riparian Rights 1268 E. Is the City's Public Access Prohibition "Objectively Reasonable"? 1271 VII. CONCLUSION 1272 VIII. APPENDICES 1278 APPENDIX A--RESPONSE TO DEAN HUFFMAN'S "MUDDY WATERS" COMMENT 1278 APPENDIX B--A PROPOSAL FOR AN OFFICE OF LEGAL GUARDIAN FOR FUTURE GENERATIONS 1284 I. INTRODUCTION

   Oswego Lake, a shimmering emerald perched above the Willamette River, is once again the focus of decades of contention between public access and privatization. This tension between private and public interests stems from the lake's popularity for water-borne recreation, boasting a surface area of 395 acres and nearly 11 miles of shoreline. (1) Private ownership of most of the shoreline restricts public access to three municipal waterfront parks and a swim park, all owned by the City of Lake Oswego. (2) The most recent conflict centers around the City of Lake Oswego's rules prohibiting access to the lake from four city-owned waterfront parklands. (3) In combination with private ownership over the rest of the lakeshore, these restrictions effectively established a monopoly for members of the Lake Oswego Corporation (Lake Corp), who enjoy exclusive access to recreate on the lake. (4)

   In 2012, two members of the public who wished to swim and kayak on the lake filed suit against the City, the State of Oregon, and Lake Corp. (5) They challenged the City's rules on the grounds the rules support Lake Corp's private monopoly in violation of the State's public trust doctrine and the Equal Privileges and Immunities Clause of the Oregon Constitution. (6) The public trust claim asserted sovereign governments like the State of Oregon and the City of Lake Oswego must hold publicly owned resources in trust, including navigable lakes like Oswego Lake. (7) As trustees of these resources, the City and the State have a fiduciary duty to protect them for the benefit of present and future generations of the public--not the adjacent landowners. (8) The plaintiffs also claimed the doctrine imposed affirmative obligations on those sovereigns to provide public access to, and prevent substantial impairment of, the lake. (9) Their constitutional claim asserted the rules created an impermissible monopoly under the Oregon Constitution. (10)

   The City defended its exclusionary rules on the ground it was within its police powers to protect public health and safety. (11) The State argued the public trust doctrine does not apply to uplands like the City's parks because it extends only to submersible and submerged lands and, in any event, imposes no affirmative obligations on the State. (12) The lower courts rejected virtually the entirety of the plaintiffs' claims. (13) But the Oregon Supreme Court, in a unanimous, lengthy, and confounding opinion, gave the plaintiffs much of what they sought--although not immediate access to the lake. (14) Instead, plaintiffs must await a trial to determine whether the lake is a navigable water under the federal test for title. (15)

   The Supreme Court's opinion broke significant new Oregon public trust ground by rejecting several narrow interpretations of the doctrine propounded by the State and the City. (16) With one significant exception, the State lost on all the public trust doctrine interpretations it advanced. (17) For example, over the State's objections, the court expanded the scope of the public trust doctrine to a waterway's adjacent public uplands, (18) included fish and wildlife within the trust, (19) and invoked private trust principles in articulating the State's affirmative duties, which the State had denied. (20) The court also rejected the City's claim it had no public trust obligations. (21) But the court restricted the scope of the public trust doctrine to waterways meeting the federal title test, under reasoning that is hard to understand. (22) The result, while disappointing to the plaintiffs (23)--who must endure more delays and marshal century-and-a-half-old evidence which may not exist (24)--promises to invigorate the State's venerable public trust doctrine in the future.

   This Article examines the Oregon Supreme Court's Kramer v. City of Lake Oswego (25) decision and its ramifications for the public trust doctrine in Oregon. Part I explains the monopoly of lake access the City endorsed in its rules that prompted the suit. Part II briefly discusses the lower court decisions, where the Oregon circuit court summarily rejected the plaintiff's claims, and the Oregon Court of Appeals affirmation. Part III examines the Oregon Supreme Court's Oswego Lake decision, where the plaintiffs succeeded in many of their arguments: applying the public trust doctrine to uplands, fish, and wildlife and confirming the State's affirmative trust obligations and the City's duty to implement those obligations. (26) Part IV turns to issues the circuit court must address on remand, beginning with an explanation of the chain of title to some of the properties surrounding Oswego Lake. The title chains appear to show the State, not Lake Corp, owns the lakebed of Oswego Lake. Part V then explores the specific issues the plaintiffs must address to show the public trust doctrine applies to Oswego Lake under the Supreme Court's new test. If they succeed, the public will have a right to access Oswego Lake from the surrounding public parklands, as the plaintiffs have asserted for years.

   We maintain that, although the Oswego Lake opinion gives the public a path forward for lake access, it relied on an unsatisfactory, antiquated test for determining title-navigability to control public access from public lands to waterways in the state. Why public access from public lands to public waters should depend upon how a waterway was used in 1859 lacks any appreciable policy justification, especially in light of century-old precedent that recognizes the public's right to recreate on all waterways suitable for recreational watercraft. (27) Moreover, the opinion undermines the State by infusing a federal navigability test into century-old state property law. (28) It is far from clear why public access to Oregon's public waters should depend on a federal navigability test the State rejected as unnecessary for public access a century ago. Despite these jurisprudential shortcomings, there is no question the public gained significant public trust rights in the Oswego Lake case.

2. THE LAKE AND THE MONOPOLY

   Monopoly control of Oswego Lake began about eighty years ago. (29) Until roughly around 1960, the public could access the lake. (30) By then, Lake Corp, acting in concert with the City of Lake Oswego on many occasions, had nearly accomplished its goal of restricting access to neighboring residents who were dues-paying members of the corporation. (31) The corporation's authority to restrict access has never been apparent, (32) resulting in considerable conflicts over the years. (33) These conflicts commonly arose when Lake Corp asserted regulatory authority to control use of, and access to, the lake, maintaining neither the State nor the federal government had regulatory roles due to the uniquely private nature of Oswego Lake. (34)

   Lake Corp's actions were not without support. U.S. Congressmen, Senators, influential attorneys, historians, and businessmen have all endorsed Lake Corp's goal to privatize the lake. (35) Their skill, clout, and perseverance were essential in rewriting the history of Oswego Lake, helping legitimize Lake Corp's ownership claim. (36)

   In 1959, Lake Corp and the state government had one of their more notable clashes when the State rejected Lake Corp's claim to control the use of recreational watercraft. (37) Lake Corp's defeat came at the hands of the state attorney general, who concluded in a formal opinion the State Marine Board had regulatory jurisdiction over all public use of boats on Oswego Lake. (38) The attorney general cited the Oregon Supreme Court's decision in Guilliams v. Beaver Lake Club (39) in deciding the public had a navigational easement to use the lake since it was (at least) navigable-infact. (40) Consequently, the public had a navigational easement over the lake, regardless of who owned title to the lakebed. (41)

   That same year, Circuit Court Judge Ralph Holman enjoined filling of the lake adjacent to a landowner's property in the Lakewood Bay area by a construction company. (42) Judge Holman initially declared the lakebed was state-owned, thus open to the public. (43) He later withdrew the decree to allow a so-called future "test case" to determine public access to the lake. (44) That case would not emerge until plaintiffs filed suit over a half-century later.

   Twenty years after the run-in with the State Marine Board and Judge Holman's opinion, Lake Corp again made news attempting to evade federal licensing for its small 500-kilowatt hydroelectric generator. (45) In a 1982 oversight hearing of the House Energy Subcommittee, Senator Hatfield claimed the Federal Energy Regulatory...