395 P.3d 592
Or. Ct. App.2017Background
- Plaintiffs (nonresident kayaker Kramer and resident swimmer Prager) challenged City of Lake Oswego Resolution 12‑12 (prohibiting entry to Oswego Lake from three city parks bordering Lakewood Bay) and a city swim‑park rule limiting use to city residents. They sued the city, the State of Oregon, and Lake Oswego Corporation (LOC) seeking declaratory and injunctive relief under the Uniform Declaratory Judgments Act, asserting public‑use and public‑trust preemption and an Article I, §20 privileges‑and‑immunities claim.
- The city enacted Resolution 12‑12 for safety, environmental, and liability reasons and placed physical barriers and signage; the swim park is subject to deed restrictions limiting recreational use to city residents and is open only seasonally.
- LOC is a private corporation managing lake access for waterfront property owners who pay dues; LOC controls most upland riparian access for members.
- Plaintiffs sought declarations that the lake is navigable (navigable‑in‑fact and/or title‑navigable), that the waters are public and held in trust for recreation, that the ordinance and swim‑park rule are preempted, and injunctive relief to restore public access.
- The trial court granted summary judgment to defendants, holding (1) even assuming navigability and state ownership of bed, neither public‑trust nor public‑use doctrines impose an affirmative duty on the state or city to provide upland access; (2) Resolution 12‑12 and the swim‑park rule do not violate Article I, §20. The appellate court affirmed the rulings on the merits but vacated the dismissal and remanded to enter a declaratory judgment of parties’ rights.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiffs were entitled to a partial declaration that the entire lake is public (navigable‑in‑fact) regardless of remedial relief | Plaintiffs: court must declare navigability/public character as a standalone matter under ORS 28.010 and Chernaik | Defendants: court may decline a partial declaration when it would not terminate the controversy; factual disputes exist | Court: no entitlement to the partial declaration here; court properly exercised discretion because declaration alone would not resolve plaintiffs’ requested relief |
| Whether the public‑trust (or public‑use) doctrine requires the state or city to provide access across uplands the state does not own | Plaintiffs: public‑trust/public‑use protect recreational use of navigable waters and entail access across uplands (especially public uplands); meandered lake statute makes lake public | Defendants: public‑trust protects submerged/submersible lands and limits state alienation but does not create affirmative duty to provide upland access; public‑use (floatage easement) does not create permanent easement across uplands | Court: even assuming lake public, neither public‑trust nor public‑use doctrines obligate state or city to provide access across uplands they do not own; summary judgment for defendants affirmed |
| Whether Weise and related Oregon cases establish a permanent public right to cross uplands to reach navigable water | Plaintiffs: Weise and early cases imply an ‘‘absolute right’’ to land when necessary for navigation, supporting upland access | Defendants: Weise recognized only temporary, incidental upland intrusions necessary for navigation (not permanent easements) | Court: Weise limited to temporary/incidental access; Oregon precedents (Lebanon Lumber, Guilliams, Luscher) reject a general upland easement; plaintiffs’ reading rejected |
| Whether Resolution 12‑12 or the swim‑park rule violates Article I, §20 (Privileges and Immunities) | Plaintiffs: rules effectively grant LOC or city residents monopolistic privileges to use the lake, disadvantaging others | Defendants: Resolution 12‑12 is a neutral prohibition applying to all; swim‑park residency restriction has rational bases (deed restriction, preserve limited municipal resource) | Court: Resolution 12‑12 confers no privilege and does not discriminate under §20; swim‑park rule rationally related to legitimate ends; §20 challenge fails |
Key Cases Cited
- Illinois Central R. Co. v. Illinois, 146 U.S. 387 (U.S. 1892) (state’s title to submerged lands is held in trust for public and state cannot abdicate that trust where public interest would be substantially impaired)
- Shively v. Bowlby, 152 U.S. 1 (U.S. 1894) (reaffirming that state holds title to beds of navigable waters in trust for public uses such as navigation and fishing)
- Weise v. Smith, 3 Or. 445 (Or. 1869) (public navigation may justify temporary, incidental use of upland without constituting actionable trespass)
- Guilliams v. Beaver Lake Club, 90 Or. 13 (Or. 1918) (distinguishes classes of waterways; public easement for navigation does not give riparian landowners’ uplands to public use)
- Luscher v. Reynolds, 153 Or. 625 (Or. 1936) (recognizes public right to use waters navigable in fact but does not create general upland access easement)
- PPL Montana, LLC v. Montana, 565 U.S. 576 (U.S. 2012) (public‑trust doctrine is state law matter distinct from federal equal‑footing title‑navigability rules)
- Morse v. Oregon Div. of State Lands, 34 Or. App. 853 (Or. Ct. App. 1978) (public‑trust doctrine does not categorically restrict non‑water‑related disposals where public interest not substantially impaired)
- Lebanon Lumber Co. v. Leonard, 68 Or. 147 (Or. 1913) (navigability does not give navigators a right of way over upland owned by riparian owner; upland access limited to incidental necessities)
- Darling v. Christensen, 166 Or. 17 (Or. 1941) (in plat dedications, attempts to reserve public streets or parks to adjoining lot owners inconsistent with dedication; does not create broad rule that public uplands generally permit access to water)
- Chernaik v. Kitzhaber, 263 Or. App. 463 (Or. Ct. App. 2014) (declaratory relief concerning public‑trust resources can be justiciable and courts may declare state fiduciary obligations under the public trust)