On Wednesday, August 24, 2022, Lake Oswego Review reported that the state of Oregon and plaintiffs Mark Kramer and Todd Prager filed response briefs regarding the Lake Corporation’s motion to vacate Clackamas County Circuit Court Judge Ann Lininger’s April 19 ruling that Oswego Lake is subject to state’s public trust doctrine and public access right

In 2012, Lake Oswego passed the ordinance making it unlawful for anyone to launch any watercraft or access the lake on foot from any of the city’s three public lakeside parks. Later that year, Kramer and Prager filed a lawsuit against the state and the city.

On April 19, 2022, Judge Lininger ruled that the lake is subject to Oregon’s public trust doctrine, which holds that the state is obligated to preserve public access to waterways that were navigable when Oregon achieved statehood in 1859.

Judge Lininger wrote:

“Oswego Lake consists primarily of title-navigable waters. Despite that, the lake has been functionally privatized. After statehood, private parties artificially raised the lake level for private benefit… There is no meaningful way to segregate the public trust water from other water in the lake; it intermixes and flows together.”

In a July 19, 2022 hearing, attorneys for the city and the Lake Corporation, which represents the lake shareholders, called Judge Lininger’s impartiality into question because she failed to disclose a meeting with one of the plaintiffs eight years ago. Multnomah County Circuit Court Judge Tom Ryan agreed to disqualify Lininger, leading the city and corporation to file for the phase one ruling to be vacated.

Lake Oswego Review reported that:

“In its brief, the state argued that the reasoning for disqualification was unsubstantial, noting that Lininger was not issued a due process violation, that she had no financial interest in the outcome of the case, and that she was acting appropriately in her role at the time as a state legislator in discussing the plaintiffs’ concerns. Lininger had said she had chatted with representatives of both sides of the issue prior to the proceedings, but did not reveal the specifics of a meetup that emails indicated she’d had with Prager and Kramer regarding legislation they wanted her to pursue related to lake access in 2014.”

Lake Oswego Review also reported that:

“Further, the brief argued that vacating the phase one decision would amount to a significant injustice to the state, noting how labor intensive the first phase of the trial was due to the complexity of the case and historical underpinnings.”

The hearing on the motion to vacate will take place on September 18, 2022.

Source: Lake Oswego Review 


Full story here.