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Kramer v. City of Lake Oswego

Court of Appeals of Oregon

May 3, 2017

Mark KRAMER and Todd Prager, Plaintiffs-Appellants,
v.
CITY OF LAKE OSWEGO; and the State of Oregon, by and through the State Land Board and the Department of State Lands, Defendants-Respondents, and LAKE OSWEGO CORPORATION, Intervenor-Respondent.

          Argued and Submitted May 18, 2015

         Clackamas County Circuit Court CV12100913; Henry C. Breithaupt, Judge pro tempore.

          Gregory M. Adams argued the cause for appellants. With him on the briefs were Richardson Adams, PLLC, Thane W. Tienson, P. C, and Landye Bennett Blumstein LLP.

          Paul W. Conable, argued the cause for respondent City of Lake Oswego. With him on the brief were Robyn Aoyagi, Steven D. Olson, and Tonkon Torp LLP.

          Carson L. Whitehead, Assistant Attorney General, argued the cause for respondent State of Oregon. With him on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

          Brad S. Daniels and Stoel Rives LLP filed the brief for respondent Lake Oswego Corporation.

          Kenneth Kaufmann filed the brief amicus curiae for Law Professors and Willamette Riverkeeper.

          Brian T. Hodges filed the brief amicus curiae for Pacific Legal Foundation.

          Before Armstrong, Presiding Judge, and Egan, Judge, and Haselton, Senior Judge.

         Case Summary:

         Plaintiffs appeal a judgment dismissing their action for declaratory and injunctive relief against the state, the City of Lake Oswego, and Lake Oswego Corporation, in which plaintiffs challenged a city ordinance prohibiting the public from entering Oswego Lake from three city parks and a rule restricting the use of a city-owned swim park to Lake Oswego residents. On cross-motions for summary judgment, the trial court ruled in favor of defendants and dismissed plaintiffs' complaint. Held: (1) Plaintiffs are not entitled to a partial declaration whether Oswego Lake is navigable and, thus, public. (2) Even assuming that the lake is navigable and that the public-trust doctrine applies to it, neither the state nor the city is obligated to provide public access to the lake over uplands that the state does not own. (3) Neither the ordinance nor the swim-park rule violates Article I, section 20, of the Oregon Constitution. Accordingly, the trial court correctly granted summary judgment to defendants on all of plaintiffs' claims for relief. However, the trial court erred in dismissing the case rather than entering a judgment declaring the parties' respective rights.

         Vacated and remanded.

          RMSTRONG, P.J.

         Plaintiffs appeal a judgment dismissing their amended complaint for declaratory and injunctive relief under the Uniform Declaratory Judgments Act, ORS 28.010 to 28.160, relating to public access to the waters of Oswego Lake and adjoining Lakewood Bay (collectively the lake) for recreation. The complaint-brought against the City of Lake Oswego (city), the State of Oregon (state), and Lake Oswego Corporation (LOC)[1]-challenged a city ordinance, Resolution 12-12, that prohibits the public from entering Lakewood Bay from three city parks located adjacent to the lake, as well as a city policy limiting use of a city-owned swim park on Oswego Lake to city residents (the swim-park rule). Plaintiffs alleged three claims for relief, requesting declarations that Resolution 12-12 and the swim-park rule are preempted by the public-use and public-trust doctrines (claims one and two) and that they violate Article I, section 20, of the Oregon Constitution (claim three). In connection with those claims, plaintiffs also requested declarations regarding ownership of the lake bed and the rights of the public and the obligations of the city and state regarding recreational use of the lake under the public-use and public-trust doctrines. They further sought to enjoin enforcement of Resolution 12-12 and the swim-park rule and to enjoin the city and the state to meet their public-trust obligations regarding public access to the lake.

         The trial court granted defendants' motions for summary judgment and denied plaintiffs' motion for partial summary judgment and defendant LOC's motion to dismiss. It then entered judgment for defendants on all claims and dismissed plaintiffs' claims with prejudice. In their first and second assignments of error on appeal, plaintiffs challenge those rulings, raising a variety of arguments. As explained below, we generally reject plaintiffs' challenges; however, because the trial court erred in dismissing the case rather than entering a declaration as to the parties' rights, we vacate and remand for the court to enter a declaratory judgment. We reject plaintiffs' third assignment of error without discussion.[2]

         I. FACTS AND PROCEDURAL HISTORY

         Although most of the property surrounding the lake is privately owned, the city, a home-rule municipality, owns or has an easement interest in four properties located adjacent to the lake. Three of those properties are adjacent to Lakewood Bay-Millennium Plaza Park, Sundeleaf Plaza, and the Headlee Walkway. In 2012, based on public safety, environmental, and liability concerns, the city adopted Resolution 12-12, prohibiting entry to the lake from those three city properties. Specifically, Resolution 12-12 amended the city's "Policies Governing the Use of City Owned Park and Recreation Facilities" to add the following new subsections:

"19. Entering Oswego Lake from Millennium Plaza Park, Sundeleaf Plaza or the Headlee Walkway
"It is prohibited for any person to enter Oswego Lake from Millennium Plaza Park, Sundeleaf Plaza or the Headlee Walkway by any means or method, including, without limitation, by wading or swimming, or by using water vessels or other floatation devices.
"20. Leaving the Pathway Portion of the Headlee Walkway
"It is prohibited for any person to leave the pathway portion of the Headlee Walkway when using that facility, or to climb, traverse or occupy the fencing or the planted areas adjacent to the path."

(Underscoring in original.) The city also constructed physical barriers to water entry at Millennium Plaza Park and the Headlee Walkway and erected a sign at Millennium Plaza Park saying "Private Lake" and instructing people to stay on the land.

         The fourth property is a small swim park located on Oswego Lake.[3] The city acquired title to the park in the 1930s from The Oregon Iron & Steel Company (Oregon Iron & Steel), LOC's predecessor, subject to certain covenants and restrictions. One of those covenants provided that the property was to "be used and enjoyed by the resident children of the City of Oswego for recreational purposes and for no other purpose." A reversionary clause in the deed provides that, if the city fails to comply with the deed restrictions, the title "shall revert" to Oregon Iron & Steel. The city's swim-park rules provide, among other things, that the swim park is open only to city residents.

         Oregon Iron & Steel created the residential development around the lake, reserving the riparian rights and privileges relating to water access from the upland parcels that it sold. It transferred those reserved riparian rights and privileges to LOC in 1942. LOC has managed all access, safety, and other private regulations associated with the lake since that time, and it is responsible for the physical management of the lake. LOC is "owned" by its shareholders-consisting of approximately 700 waterfront property owners and 20 easement associations of about 3, 415 upland property owners throughout the city. LOC shareholders and easement owners contribute annual dues to support the lake's management and maintenance. In exchange, they are provided limited access to the lake; they are also subject to LOC's bylaws, rules, and regulations.

         Plaintiffs filed the present action challenging Resolution 12-12 and the swim-park rule. Plaintiff Kramer, who is not a resident of the city, had kayaked on the lake up until the adoption of Resolution 12-12 by entering the lake from city-owned property. Plaintiff Prager, who is a resident of the city, had swum in the open waters of the lake but had discontinued doing that after the passage of Resolution 12-12. Their operative complaint-the second amended complaint-purportedly asserts three claims for relief.[4] In their first claim, labeled "Floatage Easement - Public Use Doctrine - Preemption of Municipal Ordinances and Policies" (boldface and italics omitted), plaintiffs contend that, because the lake is "navigable-in-fact" and was meandered, Resolution 12-12 is "preempted by the Public Trust and/or Public Use Doctrine, " regardless of who owns the underlying lake beds.[5] On that claim for relief, they request in their prayer a judgment

"declaring that the Lake is navigable-in-fact, and that, regardless of any title interest or other interest that the City, State, LOC, or other persons may have in the soil underlying the Lake, there exists a right of the public of access to the waters of the Lake, and that the waters of the Lake are owned by the State of Oregon and are held in trust for the preservation of the public right of recreation, including paddling, canoeing, boating, and swimming, and other public rights which all citizens enjoy in such waters under common law."

         In their second claim, entitled "Public Trust Doctrine -Title Navigability - Preemption of Municipal Ordinances and Policies" (boldface and italics omitted), plaintiffs request a declaration that "the submerged and submersible lands below the ordinary high water mark of the Lake have been and are owned by the State of Oregon and held in trust for the public since the time of statehood"-that is, that the lake is "title navigable"-and that Resolution 12-12 and the swim-park rule are likewise "preempted by the Public Trust Doctrine and/or Public Use Doctrine." On that claim, they ask for a judgment

"declaring that title to the navigable waters of the Lake as it existed at statehood and its submerged and submersible lands are held by the State of Oregon and impressed in trust for the preservation of the public right of recreational use and other public rights which all citizens enjoy."

         In their third claim for relief, against the city only, plaintiffs contend that the city's adoption and enforcement of Resolution 12-12 and the swim-park rule violate Article I, section 20, of the Oregon Constitution (the "Privileges and Immunities Clause"); they seek a judgment

"declaring that the defendant City, through its adoption, implementation, and enforcement of Resolution 12-12, has violated Or. Const, art, I, § 20, by effectively granting a small class of Oregon citizens monopolistic, privileged access to, and use of, the waters of the Lake that do not belong upon the same terms to all citizens, and declaration that Resolution 12-12 is therefore void."[6]

         With respect to all claims for relief, plaintiffs also sought injunctive relief, specifically a judgment enjoining defendants from enforcing Resolution 12-12 and the swim-park rule; from "limiting access from City-owned properties to classes of individuals limited to residents of the City and/or members or guests of LOC and easement association members who enjoy access to the Lake"; and from erecting or maintaining fences, boulders, signs, or other obstacles designed to prevent or discourage the public from exercising its rights to reasonable access to the lake. They further sought to enjoin defendants to "protect and preserve the enjoyment of those rights by the entire public, including the preservation and protection of all rights incident to reasonable public use of the Lake, " and "to remove or otherwise be prevented from enforcing any deed restrictions on City-owned properties that interfere with or discourage the public's right of reasonable access to and use of the Lake" or from converting or transferring title of any of those properties in a way that would interfere with or frustrate those public rights.[7]

         Plaintiffs moved for partial summary judgment on their first claim for relief, arguing that

"there is no material disputed issue of fact that, regardless of title navigability and ownership of the beds of the Lake, the Lake is navigable-in-fact under Oregon law and the public therefore has a right of recreational use of the Lake's waters and a right of public access as a necessary incident of that right. Therefore, plaintiffs are entitled to a declaration that the Lake's waters are held in trust for use and enjoyment by the entire public, and that Resolution 12-12, to the extent it forecloses all public access to the waters of the Lake, is contrary to state law."

         Defendants opposed plaintiffs' motion and individually responded with their own cross-motions for summary judgment. Specifically, the city moved for summary judgment on all claims, arguing that Resolution 12-12 is a proper exercise of the city's governmental authority because it is narrowly drawn and "rationally related to the purposes for which the City enacted it." It also contended that neither the public-use doctrine nor the public-trust doctrine (or any other provision of law) requires the city to provide access to the lake "simply because it happens to own property adjacent to water." With respect to the swim-park rule, the city contended that the rule does not violate Article I, section 20, because the city had rational bases for opening the swim park to city residents only, including avoiding the risk of losing ownership of the swim park due to the deed restrictions and preserving limited city resources for the benefit of city taxpayers. It also contended that plaintiffs lacked standing to challenge the swim-park rule because plaintiff Kramer, the noncity resident, did not allege that he would otherwise use the swim park.

         The state moved for summary judgment on the two claims that plaintiffs asserted against it (the first and second claims) on the grounds that (1) the claims are not justiciable against the state because plaintiffs do not allege any adverse action against them by the state and do not seek relief against the state, and (2) as a matter of law, the public-use and public-trust doctrines do not include affirmative state obligations or duties.[8]

         LOC moved both to dismiss plaintiffs' first and second claims for relief for lack of subject matter jurisdiction under the Uniform Declaratory Judgments Act and for summary judgment on those claims. As to the latter, LOC argued that it was entitled to judgment as a matter of law that the city's Resolution 12-12 was a "valid, enforceable ordinance, " and that plaintiffs do not have lawful access to the lake and "that a 'floatage easement' does not apply to [the lake]."

         As noted, the trial court ruled in favor of defendants. The court held that the city was authorized under its charter to adopt Resolution 12-12 and that plaintiffs had identified no valid limitation on that authority. The court assumed without deciding both that the state owns the subsurface of the lake and that the waters of the lake are navigable and concluded that there is no basis under either the public-trust doctrine or the public-use doctrine to impose against the city or the state a duty to ensure that plaintiffs and the public have access to the lake. The court reasoned that the state, not the city, is the only trustee that has trust obligations under the public-trust doctrine and, therefore, the doctrine could not, as plaintiffs contended, render the city's action in adopting Resolution 12-12 invalid. And, as to the state, the court could not impose on the state an affirmative duty to take action in respect to upland property that it did not own. Nor, the trial court held, could the public-use doctrine provide a basis to challenge the city's actions, because, "[a]lthough the doctrine may allow temporary touching or access to uplands where necessity requires it, the doctrine cannot serve as a basis for preventing upland owners from restricting access to the water." The court also concluded that neither Resolution 12-12 nor the swim-park rule violated Article I, section 20. Accordingly, the trial court granted defendants' motions for summary judgment and denied plaintiffs' motion for partial summary judgment and entered a judgment dismissing plaintiffs' claims with prejudice.[9] Plaintiffs appeal that judgment.

         II. ANALYSIS

         Plaintiffs assign error to the denial of their motion for partial summary judgment and the grant of defendants' motions for summary judgment. Both rulings are reviewable. See, e.g., Eden Gate. Inc. v. D&L Excavating & Trucking. Inc.. 178 Or.App. 610, 622, 37 P.3d 233 (2002). Summary judgment is appropriate only if there is no genuine issue of material fact and the moving party is entitled to prevail as a matter of law. Hamlin v. Wilderville Cemetery Association. 259 Or.App. 161, 163, 313 P.3d 360 (2013) (citing ORCP 47 C). Here, as explained below, the issues ultimately reduce to legal questions.

         Plaintiffs raise three primary arguments on appeal.[10]First, they contend that, under Chernaik v. Kitzhaber. 263 Or.App. 463, 328 P.3d 799 (2014), the trial court "erred not to grant declaratory relief in Plaintiffs' favor on the First Claim that the entire Lake is public, regardless of the outcome on the remaining issues, " that is, that the court erred in denying declaratory relief on that point regardless of whether plaintiffs are entitled to declarations regarding the public's right of access to the lake, the validity of Resolution 12-12, or the related injunctive relief that they requested in their complaint. Second, plaintiffs contend that the court erred because, regardless of the ownership of the lake bed, they are entitled under their first claim for relief to a declaration "that the entire Lake, as a navigable water under state law, is subject to public use" under Oregon's public-trust doctrine. In their view, under that doctrine, the public's "right of navigation necessarily includes the right to cross from the public park to the public water, subject only to reasonable regulations on use, " which Resolution 12-12 is not. Finally, plaintiffs contend that the trial court erred in concluding, as to their third claim for relief, that neither Resolution 12-12 nor the swim-park rule violates Article I, section 20. We consider each argument in turn.

         A. Entitlement to Partial Declaration

         We first address plaintiffs' contention that they were entitled under their first claim for relief to a "partial" declaration that the entire lake is "public" (because it is navigable in fact) regardless of their requests for other declarations regarding the right of access to the lake and related injunctive relief.[11] In their view, the court was required to declare the answer to that predicate factual question (navigability), regardless of its resolution of the ultimate legal questions (regarding defendants' obligations under the public-trust doctrine to ensure access to the lake).

         The state responds that, because the trial court correctly decided that neither the state nor the city has an affirmative duty to provide public access to the lake under the public-use or public-trust doctrines, the court's decision properly disposed of the controversy, and the court was not required under the Uniform Declaratory Judgments Act or Chernaik to issue a declaration regarding whether the lake is navigable in fact.[12] For its part, LOC contends that plaintiffs did not seek the "limited" and "abstract" declaration that plaintiffs now contend that the trial court failed to issue, but, even if plaintiffs had sought such a declaration, the court properly declined to issue it because it "would not have addressed the core of Plaintiffs' claims-to declare Resolution 12-12 invalid and to enjoin the City and the State to ensure general public access to the Lake." In LOC's view, because there are factual and legal disputes over whether and what portions of the lake are navigable in fact, and over the scope and application of the public-use and public-trust doctrines, the trial court properly exercised its discretion under the Uniform Declaratory Judgments Act to evaluate plaintiffs' claims by assuming the applicability of the doctrines.

         We conclude that the trial court did not err in taking the approach that it did. First, we tend to agree with LOC that plaintiffs' summary judgment motion did not clearly present to the trial court an asserted entitlement to a partial declaration.[13] In their memorandum of law supporting their motion, plaintiffs described the motion as "request[ing] a declaration that, under their First Claim for Relief, pursuant to Oregon's Public Floatage Easement or Public Use Doctrine, [the lake] is subject to use by the entire public, including plaintiffs, for recreational swimming and paddling, and defendants [state and city] should be enjoined to enforce those public uses by ensuring a right of access to the [L]ake for the recreating public." (Emphasis added.) Read as a whole, the motion sought judgment as a matter of law on plaintiffs' first claim for relief on the theory that Resolution 12-12 was "preempted" by the public-trust doctrine because it infringed on the public's asserted right of access to the lake. It was not until their reply and response to defendants' motions for summary judgment that plaintiffs briefly touched on the issue, stating that, even if the court declined to issue injunctive relief, it still should declare that "the waters of the entire Lake are public not private." In short, we are not convinced that plaintiffs properly raised before the trial court the issue of their entitlement to a partial declaration that the lake is public. See, e.g., Two Two v. Fujitec America. Inc.. 355 Or 319, 326, 325 P.3d 707 (2014) ("Parties seeking summary judgment must raise by motion the issues on which they contend they are entitled to prevail as a matter of law."); id. at 325 (issue raised in reply memorandum is not raised in the motion).

         But, even assuming that the issue was properly before the trial court, neither the Uniform Declaratory Judgments Act nor Chernaik compels the conclusion that plaintiffs were entitled to such a declaration simply because they requested it.

         Plaintiffs point to ORS 28.010, which states, in part, "Courts of record within their respective jurisdictions shall have power to declare rights, status, and other legal relations, whether or not further relief is or could be claimed." (Emphasis added.) Plaintiffs are thus correct that ORS 28.010 authorizes a court to grant partial declaratory relief. And, in some circumstances, it may be error for a court to refuse to do that. See, e.g., Pendleton School Dist. v. State of Oregon. 345 Or 596, 610-11, 200 P.3d 133 (2009) (trial court should have granted partial summary judgment to plaintiffs as to one part of their declaratory judgment claim, although plaintiffs were not entitled, on the merits, to another declaration or the injunctive relief they sought); see also Brown v. Oregon State Bar, 293 Or 446, 451, 648 P.2d 1289 (1982) (trial court erred in refusing to issue declaration concerning plaintiff Attorney General's statutory duties, although another declaration sought by plaintiff did not present a justiciable controversy).

         However, contrary to plaintiffs' contentions, neither the statute nor the cited cases stand for the proposition that a trial court is required to issue a declaration in the circumstances here-that is, where the controversy between the parties can be resolved without issuing such a partial declaration. Indeed, ORS 28.060 contemplates some discretion on the part of a trial court in deciding whether to issue a declaration. It provides, "The court may refuse to render or enter a declaratory judgment where such judgment, if rendered or entered, would not terminate the uncertainty or controversy giving rise to the proceeding." See also ORS 28.050 (stating that statutory enumeration of circumstances in which court may issue declaratory judgment "does not limit or restrict ...


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