People like to go to lakes. Lakes are nice. Especially in the summer. Especially Oswego Lake, Oregon (former name “Sucker Lake” — not an auspicious start). Problem is, most of the land surrounding the lake is private property. Some is owned by the municipality, but it limits access to residents of the municipality. 

So like in a similar New York case, a recreational kayaker who does not reside in the City sued, asserting that because the Lake is navigable, the public is allowed to access it. The lower courts agreed with the City and the owners that the general public does not have a right under either the public trust or public use doctrines to access. 

In Kramer v. City of Lake Oswego, No. CV12100913 (Aug. 1, 2019), the Oregon Supreme Court mostly agreed. But not entirely. It concluded that “neither the public trust nor the public use doctrine grants plaintiffs a right to enter the [City’s] swim park property, and that the public use doctrine does not grant plaintiffs a right to access the water from the [City’s] waterfront parks. But we conclude that, if Oswego Lake is among the navigable waterways the state holds in trust for the public, then neither the state nor the city may unreasonably interfere with the public’s right to enter the water from the abutting waterfront parks.” Slip op. at 425.

For those of you interested in such subjects — and how state courts, with Oregon at the forefront have led the way enlarging the Roman and English concept of public trust — you probably should read the entire opinion. And the public trust can be a background principle of a state’s property law. Takings mavens know as a consequence, the public trust is often seen as a safety valve for takings claims, and a way to avoid liability. If the owner never really owned something, voila! no taking. For an example of how state courts like Oregon have judicially expanded the doctrine, look no further than footnote 12 on page 425, which begins, “Water is not the only resource that the state holds in trust.”   

Here, the court recognized that, if proven, the public trust might be a limitation on the city’s and the riparian owners’ rights to exclude. 

Plaintiffs contend that the “public trust doctrine” imposes obligations on the state that would preclude it from enacting the type of restrictions on access to public water that the city has adopted. As we will explain, we agree with that proposition. We pause to emphasize, however, that the doctrine of public ownership of the beds and banks of navigable waters and the so-called “public trust” doctrine are independent doctrines, as the Supreme Court cautioned in PPL Montana, 565 US at 603-04. Federal law determines whether a body of water is “navigable” and, thus, one for which Oregon acquired title to the underlying land at statehood, but state law primarily determines what the “public trust” doctrine means for those waters. Id.

Thus, we must determine as a matter of state law whether the public’s rights with respect to publicly-owned waters includes a right to enter the water from public land.

Slip op. at 437 (footnotes omitted). 

The court concluded that “[w]e agree with the rationale that underlies the decisions in all three states: The public’s ability to use the water for purposes expressly protected under the public trust doctrine may “require means of public access” to that water.” Slip op. at 445. 

But, as noted above, the court concluded the record didn’t have the necessary evidence on which to grant summary judgment about whether the plaintiffs win or lose about whether the exclusion of the kayaker was an unreasonable restriction of the public’s right to access the lake.

Thus, although the question of general public access to Sucker Lake is still unresolved, one thing is certain: the Oregon Supreme Court just threw open the courthouse doors to claims that the water is fine in nearly all waterbodies in the state under the public trust, and that the public can claim to come on in.   

Kramer v. City of Lake Oswego, No. CV12100913 (Or. Aug. 1, 2019)