The Public Trust Doctrine and Public Access to an Allegedly Private Navigable Lake: A Law Professors' Amicus Brief

Abstract

Oswego Lake, the namesake of one of Portland, Oregon's most affluent suburbs, has been managed by a private corporation comprised of adjacent landowners for generations. The corporation has excluded the public, claiming the lake is privately owned, even though it easily satisfies the state's definition of a navigable-in-fact waterway, as the lake is frequently used by recreational watercraft. Recently, the city of Lake Oswego enacted an ordinance supporting the corporation's policy of exclusion by banning lake access to the lake from adjacent municipally-owned parklands. Two residents who attempted to access the lake for recreational purposes filed suit, challenging the city's ordinance as a violation of the state's public trust doctrine. But a lower court upheld the ordinance, in significant part because the state refused to acknowledge that it had public trust obligations to protect public access. An appeal to the Oregon Court of Appeals ensued, and 36 law professors filed this brief in support of the recreationalists' appeal.The brief claims that the city and the corporation have wrongfully excluded the public from recreating on Oswego Lake, a navigable-in-fact waterbody. The brief also maintains that the state's unwillingness to take action to vindicate the public rights in the lake is also unlawful, a violation of the state's public trust doctrine. The professors claim that the doctrine does not give the state the discretion to sanction monopolization of a trust resource, as in this case. The brief contends that the state's public trust doctrine has existed at least since statehood and is codified in the 1859 Oregon Statehood Act's promise that "all the navigable waters [of the state] shall be common highways and forever free."