HomeMy WebLinkAboutAgenda Item - 2025-03-31 - Number 5.1 - Resolution 25-16 and Resolution 25-18 5.1
COUNCIL REPORT
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Subject: Consideration of Resolution 25-16 (Lake Litigation Appeal Authorization) and
Resolution 25-18 (Initiate Lake Safety Planning)
Meeting Date: March 31, 2025 Staff Member: Ellen Osoinach, City Attorney
Martha Bennett, City Manager
Report Date: March 25, 2025
Department: Office of City Attorney & City Manager
Action Required Advisory Board/Commission Recommendation
❑X Motion ❑ Approval
❑ Public Hearing ❑ Denial
❑ Ordinance ❑ None Forwarded
❑X Resolution ❑X Not Applicable
❑ Information Only Comments:
❑ Council Direction
❑ Consent Agenda
Staff Recommendation: Take combined public comment on Resolutions 25-16 and 25-18.
Make separate seconded motions for each Resolution.
Recommended Language for Motion: Move to adopt Resolution 25-16 and Move to adopt
Resolution 25-18.
Project/ Issue Relates To: Responding to a judgment against the City in Kramer v. City of
Lake Oswego, State of Oregon, and Lake Corporation.
Issue before Council (Highlight Policy Question): Two considerations for Council:
• Whether to authorize the City Attorney to appeal a Clackamas County Circuit Court
judgment related to public lake access from city park property; and
• Whether to immediately implement City Park Rules and identify other actions
available to the State, County, City, and Lake Corporation in managing public access.
❑Council Goals/Priorities ❑Adopted Master Plan(s) ❑X Not Applicable
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ISSUES BEFORE COUNCIL
Whether to authorize the City Attorney to appeal a court judgment regarding public access to
Oswego Lake (Resolution 25-16) and to implement measures enhancing safety and water
quality (Resolution 25-18).
BACKGROUND AND DISCUSSION
Legal decisions in Kramer v. State of Oregon and City of Lake Oswego are reshaping how
Oswego Lake is managed and who has a say in its use.
In April 2022, the Clackamas County Circuit Court issued what has become known as the "Phase
One Order". This ruling affirmed that the State of Oregon is the legal trustee of the water in
Oswego Lake, responsible for maintaining water quality and ensuring its safe use for recreation
and fish habitat. While the state oversees the lake itself, the ruling also confirmed that the
privately-run Lake Oswego Corporation owns the beds and banks of Lakewood Bay, a portion of
the lake.
The decision also reinforced the authority of the Oregon State Marine Board, which has
regulated Oswego Lake's public use for decades. The board remains responsible for setting
water-use rules, while enforcement falls to the Oregon State Police and Clackamas County
Sheriff. Meanwhile, the Lake Oswego Corporation has long maintained and invested in the
lake's infrastructure and water quality.
More recently, another court ruling added a new layer to the conversation. On March 3, 2025,
the Clackamas County Circuit Court struck down a 2012 city rule that barred public access to
Lakewood Bay from Lower Millennium Plaza Park. Throughout the litigation, the City had raised
the consistent concern that entry to Oswego Lake from any of the City's three waterfront parks
created safety risks for the public. The advisory jury and the Court agreed that the City's ban on
public access from two of its three parks was reasonable. But they disagreed that safety risks
justified a ban on public access from Lower Millennium Plaza Park.
The judgment now requires the City of Lake Oswego to allow public access through the park,
even though the site was never designed for water entry. At the same time, the court
acknowledged that the city retains the authority to impose reasonable restrictions on how the
public can use this access point.
These legal shifts mean that managing Oswego Lake's water quality, safety, and public access
now requires greater coordination among the State of Oregon, Clackamas County, the City of
Lake Oswego, and the Lake Oswego Corporation. As public access increases, so does the need
for clear guidelines on recreation, safety enforcement, and environmental protection.
•
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Resolution 25-16: Appeal Authorization (Attachment 1)
Filing an appeal involves several steps, starting with a notice of appeal—which must be
filed by April 2. After that, the trial record is certified, a briefing schedule is ordered, and
a final decision is made—usually within 12-18 months. The judgment has raised
significant concerns regarding public safety, water quality, and long-term lake
maintenance. However, an appeal would only delay the judgment's implementation if
the Court of Appeals grants a "stay" while the case is being reviewed.
Council has already received confidential legal advice on the judgment, including the
chances of winning on appeal and whether the court would pause the ruling during the
appeal process. In other words, Council has a clear understanding of the legal risks and
strategies involved. But legal factors are only part of the decision to appeal. Public
opinion also matters, which is why Council is seeking community input.
Resolution 25-18: Lake Safety Planning (Attachment 2)
The immediate requirement for public access to Lakewood Bay has highlighted potential
risks both for people using the City's park and also for people who swim or boat from
Lower Millennium Plaza Park. The State, County, City, and Lake Corporation each have
responsibilities for a portion of the safety issues, but no one agency is responsible for all
of the potential risks or can manage them alone. The complexity of managing these
changes necessitates collaboration. The resolution seeks to mitigate these risks by
directing the City Manager to implement safety measures, reasonably regulate access,
and collaborate with our partners in safety.
Safety measures could include:
o Installing signage at Lower Millennium Plaza Park, notifying the public that water
entry is at their own risk.
o Adopting Park Rules regulating public water access hours, requiring boats to be a
certain size or smaller to reduce the risks of introducing invasive species into the
Lake, and prohibiting motorized watercraft.
o Directing the City Manager to collaborate with the State, County, City,
Departments and Lake Corporation to mitigate negative impacts on public safety
and water quality.
RECOMMENDATION Take combined public comment on Resolutions 25-16 and 25-18. Make
separate, seconded motions for each Resolution.
ATTACHMENTS
1. Draft Resolution 25-16
2. Draft Resolution 25-18
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ATTACHMENT 1
RESOLUTION 25-16
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF LAKE OSWEGO AUTHORIZING THE CITY
ATTORNEY TO APPEAL THE CLACKAMAS COUNTY CIRCUIT COURT JUDGMENT IN MARK
KRAMER AND TODD PRAGER v. CITY OF LAKE OSWEGO AND THE STATE OF OREGON, BY AND
THROUGH THE STATE LAND BOARD AND THE DEPARTMENT OF STATE LANDS AND LAKE
OSWEGO CORPORATION.
WHEREAS, in April 2024, the City went to trial in Mark Kramer and Todd Prager v. City of Lake
Oswego and the State of Oregon, by and through the State Land Board and the Department of
State Lands and Lake Oswego Corporation, Clackamas County Circuit Court case no.
CV12100913 in the Circuit Court for the State of Oregon, Clackamas County; and
WHEREAS, on March 3, 2025 the Clackamas County Circuit Court signed a judgment against the
City (the "Judgment");
WHEREAS the deadline for the City to file a notice of appeal with the Oregon Court of Appeals is
April 2, 2025;
NOW,THEREFORE, BE IT RESOLVED by the City Council of the City of Lake Oswego that:
Section 1. The City Attorney is authorized to take all steps necessary to appeal from the
trial court's Judgment and any related orders or judgments in Mark Kramer and Todd Prager v.
City of Lake Oswego; and the State of Oregon, by and through the State Land Board and the
Department of State Lands and Lake Oswego Corporation, Clackamas County Circuit Court case
no. CV12100913, to pursue the appeal to its conclusion in any higher court, and, in furtherance
of such appeal, to make any stipulation, agreement, or admission as in the City Attorney's
judgment may be in the interest of the City. The City Attorney is also authorized to dismiss the
appeal at a later stage after consultation in Executive Session with City Council.
Section 2. Effective Date. This Resolution shall take effect upon passage.
Considered and enacted at the regular meeting of the City Council of the City of Lake Oswego on
the 315t day of March, 2025.
AYES:
NOES:
EXCUSED:
ABSTAIN:
Joseph M. Buck, Mayor
Resolution 25-16
Page 1 of 2
ATTEST:
Kari Linder, City Recorder
APPROVED AS TO FORM:
Ellen Osoinach, City Attorney
Resolution 25-16
Page 2 of 2
ATTACHMENT 2
RESOLUTION 25-18
A RESOLUTION OF THE CITY COUNCIL OF LAKE OSWEGO RECOGNIZING STATE AND LOCAL
RESPONSIBILITIES REGARDING OSWEGO LAKE AND DIRECTING THE CITY MANAGER TO TAKE
ACTIONS TO ENSURE PUBLIC ACCESS AND SAFETY MANAGEMENT.
WHEREAS, in April 2022, the Clackamas County Circuit Court entered an order in Kramer v State of
Oregon and City of Lake Oswego, Case No. CV 12-10-0913 (the "Phase One Order") declaring the
State of Oregon trustee of the water in Oswego Lake; and
WHEREAS, as trustee, the State is legally responsible for ensuring water quality and the safety of
Oswego Lake for recreation, fish habitat, and other uses; and
WHEREAS, the Phase One Order requires the State, through its Department of State Lands, to
manage the submerged and submersible lands (i.e. beds and banks) of Oswego Lake while also
declaring the Lake Oswego Corporation as the private owner of the beds and banks of Lakewood
Bay; and
WHEREAS, the Oregon State Marine Board holds exclusive authority to adopt rules regulating the
public's use of Oswego Lake and has maintained such rules since the 1970s; and
WHEREAS, the Lake Corporation has also adopted guidelines for its members regarding about safe
swimming and boating on Oswego Lake; and
WHEREAS, any individual or entity may apply to the State Marine Board to propose new or modified
rules governing the public's use of Oswego Lake; and
WHEREAS, the enforcement of State Marine Board Rules is the responsibility of the Oregon State
Police and the Clackamas County Sheriff; and
WHEREAS, as a result of the Phase One Order, primary authority for the regulation and enforcement
of public safety and water quality in Oswego Lake rests with the State of Oregon, acting through its
Department of State Lands, Marine Board, and State Police; and
WHEREAS, the Lake Corporation and its members have historically maintained and invested in the
lake's infrastructure and water quality; and
WHEREAS, maintaining water quality in Oswego Lake is a matter of public interest, with its
significance heightened by increased public access; and
WHEREAS, on March 3, 2025 the Clackamas County Circuit Court entered a judgment (the
"Judgment") invalidating a 2012 City rule that prohibited public access to Lakewood Bay from Lower
Millennium Plaza Park; and
Resolution 25-18
Page 1 of 3
WHEREAS,the Judgment requires the City to immediately allow public access via Lower Millennium
Plaza Park, an area that was not originally designed or constructed for water access; and
WHEREAS, the Judgment further acknowledges the City's authority to impose reasonable
restrictions on the public's use of Lower Millennium Plaza Park for access to Lakewood Bay; and
WHEREAS, effectively managing the changes resulting from the Phase One Order and Judgment
requires coordinated efforts among State agencies,Clackamas County,the City of Lake Oswego,and
the Lake Oswego Corporation.
NOW,THEREFORE, BE IT RESOLVED by the City Council of the City of Lake Oswego that:
Section 1. As soon as practical, but no later than April 15, 2025,the City Manager is directed
to adopt reasonable park rules regulating:
• the hours the public may use Lower Millennium Plaza park for entry into the water;
• the type and size of watercraft that may be launched from Lower Millennium Plaza Park
• Any other reasonable regulations to increase the safety of people who are entering
Oswego Lake from Lower Millennium Plaza Park.
Section 2. The City Manager is directed to install signage at a visible location at Lower
Millennium Plaza park notifying the public of the new park rules, of applicable Marine Board
Regulations, and of best practices on Oswego Lake. The public should also be notified that they
enter Oswego Lake from City park property at their own risk.
Section 3. The City Manager may adjust time limits for parking on City streets and in City
owned parking lots as needed to mitigate the impact of the new use of Lower Millennium Plaza
Park.
Section 4. The City Manager is directed to work collaboratively with the State of Oregon,
Clackamas County, and the Lake Oswego Corporation to establish a framework for the safe,
responsible, and environmentally sound management of public access to Oswego Lake, while
ensuring compliance with all applicable laws and regulations. City Manager should provide a
report to Council no later than September 30, 2025 about these discussions.
Section 5. Effective Date. This Resolution shall take effect upon passage.
Considered and adopted at the regular meeting of the City Council of the City of Lake Oswego on
the 315t day of March, 2025.
AYES:
NOES:
EXCUSED:
Resolution 25-18
Page 2 of 3
ABSTAIN:
Joseph M. Buck, Mayor
ATTEST:
Kari Linder, City Recorder
APPROVED AS TO FORM:
Ellen Osoinach, City Attorney
Resolution 25-18
Page 3 of 3