PLSO Oregon Surveyor Nov/Dec 2019

16 The Oregon Surveyor | Vol. 42, No. 6 Featured Article U nless you happen to own proper- ty that fronts upon Oswego Lake, you probably have no problem with the ruling handed down by the Supreme Court of Oregon on the first day of August 2019. Two fundamentally opposed views, public and private, have long pertained however, to the body of water now known as Oswego Lake, and judicial verification of its navigability sta- tus, which lies at the heart of Oregon’s most recent major riparian litigation, re- mains elusive. Historical Context – Nutshell Version Oswego lake existed when GLO surveyors established theWillamette Stone, and that lake was meandered and initially platted by the GLO in 1852, then 10 years later another GLO township plat was approved and published, depicting Donation Land Claims abutting upon portions of what was then known as Sucker Lake, both fed and drained by Sucker Creek. At that time however, Township 2 South, Range 1 East, was comprised primarily of coun- tryside, a fair distance from the focal points of the earliest commercial activi- ty along the lower Willamette River, yet that condition was not bound to endure long beyond the arrival of statehood. Con- tention generated by manufacturing and shipping interests, involving the nearby Falls of the Willamette, the Tualatin River, and Sucker Creek as well, raged through- out the latter portion of the Nineteenth Century and into the early Twentieth Will the Oswego Lake Access Controversy Lead to a Long Overdue Judicial Navigability Determination? By Featured Conference Speaker Brian Portwood, PLS Lectures: Wednesday, Jan 22 at 3:30 PM & Thursday, Jan 23 at 3:30 PM Century, repeatedly producing both lit- igation and legislation. Eventually, all of the land surrounding Sucker Lake came under the ownership of a manufacturing firm, and in the absence of any efforts to thwart such private control over the subject area, the lake was dammed and the flow of water into the lake from the Tualatin River was artificially augmented. That series of events substantially raised the lake’s surface elevation, while broad- ening its footprint as well of course, all to improve its originally questionable capacity to support commercial ship- ping. Although such manipulation of naturally flowing water would obvious- ly receive intense scrutiny today, it was heartily embraced in that earlier day, broadly supported by Oregon legisla- tors and most state leaders. Well over a century ago, given the lake’s stabilization at a substantially higher level than that of the 1850s, its prominence as a highly desirable residential locality began to in- crease, while its commercial usefulness waned, and by the late Twentieth Centu- ry the lake had been transformed into an attractive asset of the Lake Oswego com- munity, privately controlled for the most part by those who acquired the numer- ous properties fronting upon its shores. Origin and Progress of the Present Controversy Difficulty was destined to arise in this seemingly idyllic location however, in the absence of any legally conclusive naviga- bility verification, due to the presence of public parks along the lakeshore, and the seeds of the present litigation were plant- ed in 2012, when Lake Oswego adopted a resolution and posted signs, instructing park users not to enter the water. Kramer, a kayaker, and Prager, a swimmer, both objected to the elimination of their abil- ity to utilize the lake for what they saw as entirely legitimate recreational pur- poses, so they filed a legal action against both the city and the state, challenging the authority of the city to adopt and en- force such a resolution, while seeking to compel the state to take charge of the matter, by clarifying that the lake rep- resents a fundamentally public space, on the grounds that it constitutes a legally navigable body of water, which the pub- lic cannot be arbitrarily prevented from enjoying. After their case was summarily dismissed by a trial court judge, numerous ancillary parties not surprisingly joined the fray, as a broad array of well known groups, along with various scholars, all ardent supporters of public land rights, stepped forward to help the vanquished plaintiffs gain legal traction, while the corporation which represents the op- posing side of that equation, embodied in the privately held riparian properties around the lake, intervened as an addi- tional defendant, focused like the city upon protecting the lake from potentially excessive or abusive usage. In 2015, the matter was placed before the Court of Appeals of Oregon, and in 2017 the de- fendants prevailed once again, as the appellate panel agreed that the city had the authority to enact and carry out the