PLSO Oregon Surveyor Nov/Dec 2019

Professional Land Surveyors of Oregon | www.plso.org 19 genuine issues of material fact preclude a determination that the waterfront res- olution is a reasonable restriction on the public’s right of access. Thus the trial court erred in granting summary judg- ment to defendants … accordingly … that judgment is reversed and remanded for further proceedings.” Is a Judicial Navigability Declaration Now Inevitable? It may be well asked why there should be any difficulty in reaching a legally support- able navigability determination, accurately defining the navigability status of Oswego Lake, yet the very fact that all of the liti- gants on both sides have refrained from embracing that task, and have attempt- ed to prevail without directly addressing the lakebed navigability issue, holds the answer. As previously noted, the lake as we know it today is significantly different from the lake which was observed by early settlers and surveyors during the 1850s, having been dramatically altered by artificial means, in order to convert it into a commercially viable waterway. The lake which existed in 1859 is now en- tirely submerged and effectively capped by an artificially created body of water, which completely covers it, extending in numerous locations far beyond the lakebed that was outlined on surveys and maps when Oregon achieved statehood. Although the lake as we know it appears to be plainly navigable, and has in fact been navigated on countless occasions, using a wide variety of watercraft, over a period of many decades, if the lake in its natural state is to be the focal point of contention, success may yet elude the plaintiffs, even though the Court has opened a door of opportunity for them, as indicated above. It would appear that the plaintiffs and their supporters are not completely confident that they can prove that the lake was indeed legally naviga- ble in its unenhanced state, as they must now do, and not without good reason, since the very reason why enormous re- sources were invested in expanding the lake was because it was deemed unsuit- able for commercial travel in its natural condition. On the other hand however, it seems equally clear that the defendants are understandably reluctant to take the position that the original lake, as it stood prior to any artificial alteration, was not legally navigable, given the fact that Or- egon has already adopted an especially broad judicial view of title navigability, as illustrated by the outcome in the 2015 case of Hardy v State Land Board (360 P3d 647) in which the Rogue River was deemed navigable for bedland title pur- poses based primarily upon evidence that it was utilized by Native Americans pad- dling canoes. Additionally, cognizant that they are duty bound to defend rather than reject navigability as a matter of princi- ple, state personnel, as a consequence of their tenuous alliance with Lake Oswego on this particular issue, now find them- selves potentially compelled to play the distinctly incongruous role of navigability deniers. In summary, the long forgotten historical modification of the lake operates at a minimum to prevent the affirmative navigability determination, now being ardently sought by the plaintiffs as their key to victory, from qualifying as a slam dunk in the legal arena. So What Happens Next? Although the plaintiffs are probably feel- ing somewhat invigorated, while the defendants are perhaps more soberly mulling their options and retrenching, in the wake of the 2019 ruling discussed herein, a wide variety of outcomes are still possible: It’s possible that either the daunting evi- dentiary burden of proving that the lake was navigable when Oregon joined the Union, or a lack of resources, or both of those factors operating in combina- tion, could discourage the plaintiffs from proceeding, leading them to either drop their litigation or endeavor to negotiate a compromise. It’s also quite possible however, that the defendants will choose to cease their re- sistance and fold, should they become convinced that defeat is inevitable, or they might well elect to offer the plaintiffs a compromise of some kind, in exchange continues on page 20 T Featured Article Today’s Oswego Lake now extends far beyond the historically documented Sucker Lake footprint, reaching virtually all the way across Sections 8 and 10 and even into section 17. If the lake’s bed is judicially deemed to have been navigable for bedland title purposes in 1859, will Oregon’s bedland title be judicially identified as covering the entire area of submergence that exists today, or merely covering the bed of 1859, completely surrounded by submerged but privately held land?