OREGON SUPREME COURT MUDDIES THE WATERS: KRAMER V. CITY OF LAKE OSWEGO.

Citation metadata

Date: Spring 2020
From: Environmental Law(Vol. 50, Issue 2)
Publisher: Lewis & Clark Northwestern School of Law
Document Type: Article
Length: 10,707 words
Lexile Measure: 1950L

Document controls

Main content

Abstract :

In Kramer v. City of Lake Oswego, the Oregon Supreme Court has turned what should have been a simple determination of rights of access to navigable waters from riparian lands into a confused treatise on the public trust doctrine and the unnecessary perpetuation of a public use doctrine. The court confuses the public interest and the associated police power with public rights. It erroneously attributes rights of access to waters from public lands to the navigability of those waters rather than to public ownership of riparian and submerged lands. It mistakenly grounds public rights in the use of navigable waters in state title to submerged and riparian lands, while perpetuating the mistaken concept of public ownership of state waters. It erroneously seeks to explain the public trust doctrine in terms of the law of trusts rather than as an easement or servitude on properties in submerged and riparian lands. Finally, the court embraces the implausible proposition that the rights of the people can be violated by actions taken by the representatives of the people. To its credit, the Kramer court does, at least for now, acknowledge the aquatic boundaries of the common law public trust doctrine. If on remand the trial court determines that Lake Oswego is navigable under the federal definition, the public will have a right of access to that lake. But if the trial court finds the lake non-navigable by the federal definition, the public will have no right of access under the court's public use doctrine, just as it has no right of access to waters "navigable in a qualified or limited sense" to which that peculiar doctrine applies. If the plaintiffs prevail on remand, it will be a slender victory.

Source Citation

Source Citation   

Gale Document Number: GALE|A630171985