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Thursday, March 1, 2012

Lake O. access: See you in court

No surprise here: The City of Lake Oswego isn't going to open up the lake to the public voluntarily. But it's just a matter of time before those pesky environmentalists test out their "public trust" theories in court. Look what they did with the Portland sewer system. It will be a most interesting battle.

Comments (30)

Before they drained the lake to install the vast aeration system, the lake was home to both hog like large mouth bass and seem serious rainbow trout. I actually saw a hog pursue a baby duck and suck the poor little critter right off the surface. This of course was a Secret. As the folks living on the lake don't fish, I would love to have the opportunity to have a go at this stock...

Maybe this would be a good place for the Occupy folks to have some Summertime activity. Occupy Lake Oswego...literally.

Isn't the key question: Who owns the land under the lake?

Is it the public or is is owned by the surrounding land owners?


My Dad would drive me over from SE Ptld to fish there all the time when I was a kid. Great fishing (50 yrs ago anyway). We would walk along the RR tracks and toss our lines in along a big stretch of the lake. Now they have private security to patrol the lake, so I'm not so sure I would still be welcome to hike the shoreline. Interestingly, I think the Oregon State Marine Board contracts to law enforcement for at least occassional patrol the lake. This suggests public money is used there in some capacity.

The comments from the bluenoses are hilarious - the very idea that someone from Gresham, Clackamas, or heaven forfend, Arkansas, might have lake access.

This story makes me giggle. I say let them keep their private lake but force them to change the name of the town. Or at least drop the "Lake" part.

I have referred to it as "Oswego" since I got here, much to my GF's consternation. I tell her that there already is a Lake Oswego in New York state. And I can visit their lake anytime I feel like it!

If Jack is amenable, here's a different spin on the hearing, which I attended. Full disclosure, I am LOHS Class of '69, and my family--though not me--has lived in the community for 40 years.

tommyspoon wrote:
"I tell her that there already is a Lake Oswego in New York state. And I can visit their lake anytime I feel like it!"

Sorry, it's only Oswego, NY, and it is quite close to Lake Ontario, one of the Great Lakes.

However, Lake Oswego was named after the town by the early settlers here.

JK asks, "Isn't the key question: Who owns the land under the lake?"

The lake front property owners, as the Lake Oswego Corporation, own the land under the lake.
The Lake Oswego Corporation (LOC) is an organization of lake residents that manages the 415-acre Oswego Lake and its lakefront properties. The LOC is responsible for safety, water quality, maintenance, boat and operator licensing, lakefront building permits, and special events.

It seems to be the public ownership of the water is the reason some are seeking public access.

I'm betting the Lake Oswego property owners prevail.

In the end I think this will all revolve around an analysis of the historical data of whether "Sucker Lake" was a navigable waterway when Oregon became a state in 1857. All of the secondary source material I have seen so far indicates that the first dam was built in 1860. Essentially the lake went from being a swamp in the middle of nowhere to a lake when private property owners created it by building a dam after statehood. It seems that Professor Blumm is jumping to the conclusion that the lake is part of the public trust when the historical data points to the contrary. I have no dog in the fight, but it will be interesting to see how all of this plays out in the long run.

What Usual K said.

So if the water is in public trust, and anybody with an inner tube can use the water, then open up the hatches and let the Arkansas red necks in!!

Then the Lake Corp can (in spite) drain the swamp, I mean lake, and leave it as a mud bog. Better a mudpit that restricts access than a water-way for just-anybody that allows entry into the backyards of multi-million-aire homes.

Mark Ellios -

Interesting take by the nwfreepress.

I'm still trying to understand, though, how, unless its started to flow uphill, water from the Willamette fills Lake Big Ego. The water in the lake comes from the Tualatin, where a small dam backs up part of the Tualatin flow and is diverted east (?) or north (?) to fill in the old Sucker Lake swamp.

Michael Blumm, the law prof. from L&C, spoke at the planning commission public hearing on Monday. His example of the water being a resource where access is open to the public was a reservoir above a dam in a local river where people recreate. Much later in the evening (night) towards the end of the hearing, a citizen compared this example to water that was retained on a farmer's land in an irrigation reservoir, or a rural man-made trout pond, both big enough to float a canoe.

LO is the lake it is today because of the private ownership and investment in the land under the lake and the intake and outflow dams that bring the water in and hold it onsite. The Lake Corp owns the water rights to the water too. Mr. Blumm is floating a theory that does not make good law, and I trust that the number of lawyers in the room on Monday night might know something about that also.

Yes, it would be an interesting but ultimately wasteful fight. I don't want to see a cent of public money spent on it - the Lake Corp will win, as it should.

Perhaps not so wasteful to the environmental advocates. As I say, they'll see you in court.

Nolo, was there any discussion about the impact of the recent U.S. Supreme Ct. decision posted on this blog several weeks ago? I'm definitely not a property law expert but I read the summary and it appears to support the Lake Corp's position.

Who would want to swim in that cesspool? I just don't want to pay for the rich folks terrible environmental stewardship of the lake. I say stop the lake from polluting the Tualitan and force them to clean up their act.

It's doubtful that environmentalist or Lewis and Clark lawyers would win if they go forth. But if it looked likely, here's what I'd propose.

The LO Corporation should drain the lake and develop the 415 acres.

Using METRO's dictates of 8 lots per acre, subtracting 10% for new skinny streets, again dictated by METRO and migrated Planners from CoP who believe it makes for "safety", that would equal 375 developable acres. That equals 3000 lots. At $200,000 per lot that would make the LO residents of the Corp. exactly $600 Million.

Just maybe that might cover the attorney costs in defending their interests, and maybe enough to counter-sue this frivolous legal endeavor on the part of these pseudo environmentalists.

To help clarify several of the posts here that are misinformed about the geographics of the lake.

The Tualatin river, at the point water is drawn, is higher in elevation than the lake. The lake doesn't flow to the Tualatin where it might pollute it. It's the other way around Besides the Tualatin is already polluted. The Tualatin flows into the Willamette upstream, south of West Linn proper in the suburb of Willamette. That's about 5 navigable miles upstream.

The lake is higher in elevation than the Willamette, which the lake flows to over a small dam on the east end of the lake through Rogers Park.

Besides Tualatin river water flowing into the lake there are several natural terrain drainage systems flowing to the lake besides all the natural water runoff from nearby terrain and development.

Sorry Lee, just canoe by the Lake O dam in the summer and smell the stench coming off it. Part of the Tualitan's problem is slow moving water, including diversions like the Lake. Just keep your disgusting Lake to yourself without our water and we'll all be good. Don't the rich deserve three eyed fish, after all?

Nonny Mouse, I stand corrected by Lee on exact source of the water in the lake. Thank you.

Chris -- I searched the blog for a Supreme Court case that had relationship to the situation in LO. Can you give me a hint?

Jack -- I am always curious about where the enviros get the money to pursue their causes, especially if this involves court cases. If this were a local or Oregon matter, I doubt there would be the interest in what happens to Oswego Lake. There are a zillion NGOs relating to social, economic and environmental "justice" and I have no idea how they all survive.

There is a trend to disinvest some people of their assets if they are thought to have too much or have what others want. The right to private property seems to be giving way to something very ugly and people use "sustainability" this and "pubic" that to mask what is really happening. It sure does get the masses riled up though. Kind of like a mob with pitchforks and torches.

I am sure a lot of the comments on the blogs are just poking fun at the LO situation, but I also sense a lot of distaste for people with money and it looks and it smells like prejudice to me. I think everyone ought to be very careful about where this is heading and where it might end.

Thanks Chris, now I remember. Navagability at time of statehood is the criteria the SC used to determine state ownership of riverbeds.

“Those rivers must be regarded as public navigable rivers in law which are navigable in fact. And they are navigable in fact when they are used, or are sus­ ceptible of being used, in their ordinary condition, as highways for commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water.” Id., at 563.

The original Sucker was about 1/3 the size of today's Oswego Lake. There was a ferry that took passengers from the Willamette to the West end of the lake because there were no good roads and the ferry was faster. This is what Blumm uses to find OL public. But the lake has been expanded, a canal dug out to bring more water in, a higher dam built, and water rights purchased for Tualatin R water.

LOC has had title to the submerged land, improvements and water rights for about 100 of the approx. 150 years Oregon has been a state. Besides the ideal of claiming something public just because you can, the practical matters of maintenance, safety, supervision, toilets, parking, who gets to pay the huge cost of taking care of the lake water and monitoring marine construction, policing for theft and marine rules, making sure all boats (even kayaks) are certified clean before being allowed on the water, controlling for congestion on busy days, educating newcomers as to lake boating directions, bouys and wake rules...

If you aren't familiar with Oswego Lake you might not know how much of a commitment and money the Lake Corp members put into the lake. Outsiders take it for granted that it is pretty, but it's not yor average lake in the woods. Without the LOC looking after it, the lake would be a mess in no time. It's The Tragedy Of The Commons. If everybody owns something, no one takes responsibility for it. But if someone owns the thing, self interest will motivate him to care for it.

Whatever the law is, there are some things best left alone rather ruin them to prove a point. The lake owners know what they are talking about and the city is listening. Everyone else should too.

My last post on the subject. Something I forgot. The Lake Corp shareholders all have an encumbrance on their deeds that restrict how their properties can be used which includes getting approval for marine structures and, more importantly here, access to the lake. While the City of Lake Oswego owns a few lots around the lake for park land, this land too comes with the same encumbrances. Public access under these restrictions would be impossible. On another note, I read in another blog that Prof. Blumm is known for testing his theories of law in court and losing. His ideas are theory only at this point, but given his track record....

The people who want to increase the number of people using boats on the lake are not "environmentalists." The lake now has a lot of wild life, including osprey, heron, cormorants, ducks, and sometimes eagles. The human use is very low, which is good for the birds and fish. Those who want to increase human use will just hurt the wild life. Those people are "envyists," but not "environmentalists."

Here's a 2005 Oregon AG opinion about the subject in general:

As Lee noted, the intake near Lake Grove from the Tualatin River is higher in elevation than Sucker Lake itself, and the lake is gravity-fed by a publicly-accessible canal, together with some relatively insignificant natural drainages. Outflow from the lake occurs at a small dam near the bridge which crosses toward West Linn, and proceeds down the natural waterway (Sucker Creek) into the Willamette.

Contrary to the assertion of Andrew S., the Tualatin's water quality is affected less by its rate of flow or diversions than by development along the midsection; runoff incorporating fertilizers from homes in Beaverton, Tigard, and Tualatin, together with agricultural runoff, produce algal blooms which, in addition to smelling bad, lowers the dissolved oxygen content in the waterway. Portland also contributes to degradation through their management of the headwaters and many tributaries of Fanno Creek (see BES Fanno Creek pumping station, Multnomah Boulevard sewer lines, etc.).

Despite these issues, the creek appears to retain small populations of cutthroat trout, and evidence persists that even other stray salmonids find their way into the watershed.

The diversion near Lake Grove actually improves localized aeration, contrary to Andrew's assertion; the lower elevation of the canal and associated structures results in localized flow rate enhancement, though it's insufficient to exert widespread effects upon the larger river itself.

The existence of the diversion and the lake in no way harms the river and, as noted above, affords extremely localized mitigation. Efforts to control fertilizer runoff have been underway for several years, along with streamside restorations, and river conditions are already showing some signs of improvement.

What is wrong with following Oregon law on the public floatage easement? It doesn't matter is the lake bed is private or not. If this went to court the Lake Corporation would lose.If I lived in LO I would grab a kayak and head out on the lake.If arrested take it to court.You'd win.

LO Corp may own the land under the lake but the canals and lake are open to the public as defined in the 1859 Statehood Act.:

SEC. 2. And. be it further enacted, That the said State of Oregon shall have concurrent jurisdiction on the Columbia and all other rivers and waters bordering on (lie said Stare of Oregon so far as the same shall form a common boundary to said State, and any other State or States now or hereafter to be formed or bounded by the same; and said rivers and waters, and all the navigable waters of said State, shall be common highways and forever free, as to the inhabitants of said State as to all other citizens of the United States, without any tax, duty, impost, or toll therefor.

It may be their land but its our water.


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In Vino Veritas

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