Kramer v. City of Lake Oswego

365 Or. 691

455 P.3d 922

Mark KRAMER and Todd Prager, Petitioners on Review,

v. CITY OF LAKE OSWEGO; and the State of Oregon, by and through the State Land Board and the Department of State Lands, Respondents on Review,andLake Oswego Corporation, Respondent on Review.

SC S065014

Supreme Court of Oregon.

November 15, 2019

Brad S. Daniels, Stoel Rives LLP, Portland, filed the petition for reconsideration for respondent on review Lake Oswego Corporation. Also on the petition for reconsideration was Crystal S. Chase.

Robert Koch, Tonkon Torp LLP, Portland, filed the petition for reconsideration for respondent on review City of Lake Oswego. Also on the petition for reconsideration was Paul Conable.

Thane W. Tienson, Landye Bennett Blumstein LLP, Portland, filed the response to the petition for reconsideration for petitioners on review Mark Kramer and Todd Prager. Also on the response was Gregory M. Adams, Richardson Adams PLLC, Boise, Idaho.

No appearance by the State of Oregon.

Before Walters, Chief Justice, and Balmer, Nakamoto, Flynn, Duncan, Nelson, and Garrett, Justices.^**

FLYNN, J.

Two of the defendants-respondents on review have petitioned for reconsideration of our decision in Kramer v. City of Lake Oswego , 365 Or. 422, 446 P.3d 1 (2019). That decision concluded that, "if Oswego Lake is among the navigable waterways that the state holds in trust for the public, then neither the state nor the city may unreasonably interfere with the public’s right to enter the water from the abutting waterfront parks." Id . at 425, 446 P.3d 1. We reversed the trial court’s grant of summary judgment for the defendants and remanded the case for the trial court to resolve "whether the lake is subject to the public trust doctrine," and, if the public trust doctrine applies, then "whether the city’s restriction on entering the lake from the waterfront parks unreasonably interferes with the public’s right to enter the lake from the abutting waterfront parks." Id . at 426, 446 P.3d 1. Both the City of Lake Oswego and Lake Oswego Corporation seek reconsideration of minor details set out in our opinion. We grant both petitions for reconsideration and amend our opinion in two ways.

I. CITY OF LAKE OSWEGO PETITION FOR RECONSIDERATION

In setting out the issues of material fact, we incorrectly described the city’s position with respect to the question whether the lake is subject to the public trust doctrine. The city seeks reconsideration of our opinion and correction of the following passage, which misstates its position:

"The list of pertinent material facts, of course, begins with whether the city is correct that the lake is not among those navigable waters for which the state holds title to the underlying land. If the city’s premise is incorrect, then additional relevant circumstances include the extent to which the denial of water access from the waterfront parks impairs the public’s ability to use the public water and whether the prohibition reasonably furthers the purpose of the trust in other ways."

Id . at 450, 446 P.3d 1 (emphases added).

We allow the city’s petition for reconsideration and replace the passage quoted above with the following:

"The list of pertinent material facts, of course, begins with whether the lake is among those waters for which the state holds title to the underlying land. If so, then additional relevant circumstances include the extent to which the denial of water access from the waterfront parks impairs the public’s ability to use the public water and whether the prohibition reasonably furthers the purpose of the trust in other ways."

II. LAKE OSWEGO CORPORATION PETITION FOR RECONSIDERATION

Lake Oswego Corporation contends that another relevant circumstance is whether the city acquired riparian rights when it acquired the waterfront park...