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Kramer v. City of Lake Oswego

Supreme Court of Oregon

November 15, 2019

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, and LAKE OSWEGO CORPORATION, Respondent on Review.

          (CV12100913) (CA A156284)

         On respondents on review's petitions for reconsideration fled August 29, 2019; considered and under advisement on October 16, 2019.[*]

          Brad S. Daniels, Stoel Rives LLP, Portland, fled 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, fled 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, fled 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.

         [365 Or. 692] Before Walters, Chief Justice, and Balmer, Nakamoto, Flynn, Duncan, Nelson, and Garrett, Justices. [**]

         Case Summary:

         The City of Lake Oswego and Lake Oswego Corporation petitioned for reconsideration seeking clarification of minor details in the Court's opinion. The city contended that the Court mischaracterized its position as to whether Oswego Lake is subject to the public trust doctrine. Lake Oswego Corporation sought clarification that the opinion did not resolve factual and legal arguments related to riparian rights to the waterfront parks. Held: the city's request is allowed, and the Court modified the opinion to remove those portions of the opinion where it mischaracterized the city's position. Lake Oswego Corporation's request is also allowed, and the Court added a footnote to the opinion related to the clarification it sought.

         The petitions for reconsideration are allowed. The former opinion is modified and adhered to as modified.

         [365 Or. 693] 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. 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. 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 ...


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