This page contains a single entry from the blog posted on October 13, 2012 8:43 AM. The previous post in this blog was Jail Duck chronicles, cont'd. The next post in this blog is Finding Nutsy's victim. Many more can be found on the main index page or by looking through the archives.

E-mail, Feeds, 'n' Stuff

Saturday, October 13, 2012

Strike 1 for Oswego Lake access lawsuit

The troublemakers trying to get the courts to open Oswego Lake to the public have been thrown out of federal court. Judge Haggerty there has determined that he doesn't have to take the case, and he doesn't want to. Off to state court they go.

Comments (8)

Could see that coming -- http://bojack.org/2012/05/oswego_lake_access_lawsuit_fil.html

Another reason this year's Oregon Supreme Court race is interesting.

"Oregon Supreme Court race: Campaign heats up between Judge Richard Baldwin and attorney Nena Cook"

Trouble makers? They have a strong case and will likey win. Flotage easement in the state of Oregon will rule.

Mike, they really don't have a "strong case".

The "lake" itself was originally a channel of the Tualatin River, which subsequently changed course. As a consequence, the channel was abandoned by the river, and the remnant lake was not navigable.
The primary source of water feeding into the lake was via Springbrook Creek (also non-navigable), the outflow was via Sucker Creek (now Oswego Creek, and also non-navigable).

That changed in the late 1800s, when a canal connecting it to the Tualatin River was completed. Oregon Iron Works built a wooden dam at the entrance to Sucker Creek some years earlier, to provide power to their nearby smelter operations, but it kept washing out due to floods. In the early 1900s, a cement dam was installed at the site, which formed the current lake.

The area has been privately owned for years, although public access is afforded for swimmers at around two locations. There are a couple of items that favor the owners: first, it's an artificial reservoir under their direct control, and second, the lake itself is classed as "non-navigable water".

The litigants might just as well claim that the waters of the reservoirs in Washington Park and at Mount Tabor - as well as the waters of Bull Run - should be accessible to the public for purposes of recreation. It's worth noting that at no time were public resources committed to the construction or maintenance of the canal or the dam, and both projects were permitted at the time of development.

In brief, Mike, your friends have an uphill battle, and it is unlikely that they will prevail.




The concept of private property really irritates some people.

The bill that Hatfield got passed that said Lake Oswego was not navigable was only for the purposes relating to the FERC and the Army corp of engineers. There is a hydroelectric facilty at the dam powerhouse. You are wrong about the part where you said that no public funds have been used. LO Corp just got a FEMA grant to change the dam to allow more water over the dam. The work has just been completed. Even so that is not relevant to the law. Oregon's flotage easement would apply if they can get access to the lake per the Oregon Attorneys generals office written opinion. Google it if you want to read it. No time to post a link.

Here is the link to the attorneys general's opinion http://www.doj.state.or.us/agoffice/agopinions/op8281.pdf

Even if the bed of a waterway is privately owned, the waterway may be used by the public for certain purposes if it meets the state test of navigable-for-public-use (the “public use doctrine.”) A waterway is navigable-for-public-use if it has the capacity, in terms of length,
HARDY MYERS Attorney General
Deputy Attorney General
width and depth, to enable boats to make successful progress through its waters. If a privately
owned waterway meets this test, the lawful public uses generally include navigation, commerce
or recreation. Recreation in this case includes use of small boats for pleasure and fishing, as well
as swimming. The public may use the land adjacent to a waterway that is navigable-for-publicuse
as long as the use of the adjacent land is “necessary” to the lawful use of the waterway

Max, I have never heard the claim that the LO watercourse (Sucker Creek or any other name)was once "a channel of the Tualatin River". Where can that be confirmed? Do geologists confirm that? Maybe if you go back 100,000, 59,000 years, maybe that is the answer?

Clicky Web Analytics