December 11, 2017 04 55 PM

IN THE SUPREME COURT OF THE STATE OF

MARK KRAMER and TODD PRAGER,

Plaintiffs-Appellants, Petitioners on Review, v. Clackamas County Circuit Court No. CV12100913 CITY OF LAKE OSWEGO; and the STATE OF OREGON, by and through Appellate Court No. A156284 the State Land Board and the Department of State Lands, Supreme Court No. S065014

Defendants-Respondents, Respondents on Review, and

LAKE OSWEGO CORPORATION,

Intervenor-Respondent, Respondent on Review. —————————————————————————————————

AMICUS BRIEF OF THE ASSOCIATION OF STEELHEADERS, INC., an Oregon nonprofit corporation

—————————————————————————————————

Petition for Review of Decision of the Court of Appeals On Appeal from a Judgment of the Circuit Court for Clackamas County, Honorable Henry C. Breithaupt, Judge.

Opinion Filed: May 3, 2017 Author of Opinion: Armstrong, Presiding Judge Concurring Judges: Egan, Judge; Haselton, Senior Judge

(Counsel listed on following page) December 2017 Gregory M. Adams, OSB No. 101779 Kenneth Kaufmann, OSB No. 982672 [email protected] [email protected] Richardson Adams, PLLC 1785 Dr., Suite 5 515 N. 27th St. West Linn, OR 97068 Boise, ID 83702 503.230.7715 208.938.2236 503.972.2921 (facsimile) 208.938.7904 (facsimile) Attorney for Amicus Curiae Law Professors, Columbia Thane W. Tienson, OSB No. Riverkeeper, Human Access Project, 773741 Rogue Riverkeeper and Willamette [email protected] Riverkeeper Landye Bennett Blumstein LLP 1300 SW Fifth Avenue, Ste. 3500 Carson L. Whitehead, OSB No. , OR 97201 105404 503.224.4100 [email protected] 503.224.4133 (facsimile) Inge Wells, OSB No. 881137 Attorneys for Petitioners on [email protected] Review DOJ Appellate Division 1162 Court St. NE Karl G. Anuta, OSB No. 861423 Salem, OR 97301 [email protected] 503.378.4402 Law Office of Karl G Anuta, PC 503.378.6306 (facsimile) 735 SW First Ave, 2nd Floor Attorneys for Respondent on Review Portland OR 97204 State of Oregon 503.827.0320 503.228.6551 (facsimile) Paul W. Conable, OSB No. 975368 [email protected] Mike J. Sargetakis, OSB No. 174607 Robyn Ridler Aoyagi, OSB No 000168 [email protected] [email protected] 2302 SE 37th Ave, Tonkon Torp LLP Portland, OR 97214 888 SW 5th Avenue, Ste. 1600 Attorneys for Amicus Portland, OR 97204 Curiae Association of Northwest 503.221.1440 Steelheaders, Inc. 503.274.8779 (facsimile) Attorneys for Respondent on Review City of Lake Oswego

(Additional counsel listed on following page) Brad S. Daniels, OSB No. 025178 [email protected] Stoel Rives LLP 900 SW 5th Avenue, Ste. 2600 Portland, OR 97204 503.224.3380 503.220.2480 (facsimile) Attorney for Respondent on Review Lake Oswego Corporation Table of Contents

IDENTITY AND INTEREST OF AMICUS CURIAE ...... 1

FACTUAL AND PROCEDURAL BACKGROUND ...... 2

QUESTIONS PRESENTED AND PROPOSED RULES OF LAW ...... 3

BROADER ISSUES ADDRESSED BY AMICUS BRIEF ...... 3

SUMMARY OF THE ARGUMENT ...... 3

ARGUMENT ...... 5

I. The public has a right to use navigable waters ...... 5 II. Lake Oswego has no authority to limit who may use Oswego Lake, based solely on residency or membership in a private organization...... 8 III. The public policy implications of a local residency (or private organization) based entry limitation on state public waters are unprecedented...... 10 IV. An alleged failure to “design” for access does not preclude actual access, nor is there any actual invasive species issue on this lake that is different from any other navigable waterbody in Oregon...... 16 CONCLUSION ...... 24 Table of Authorities

Constitutional Provisions Article XI, section 2 ...... 8

Cases Alsos v. Kendall, 111 Or 359, 227 P 286 (1924) ...... 7, 11, 12, 14 Brusco Towboat Co. v. State, By & Through Straub, 284 Or 627, 589 P2d 712 (1978) ...... 6 Cole v. City of Seaside, 80 Or 73, 156 P 569 (1916) ...... 9, 10 Cook v. Dabney, 70 Or 529, 139 P 721 (1914)...... 6 Guilliams v. Beaver Lake Club, 90 Or 13, 175 P 437 (1918) ...... 6, 10 Gunderson, LLC v. City of Portland, 352 Or 648, 290 P3d 803 (2012)...... 8 Hume v. Rogue River Packing Co., 51 Or 237, 92 P 1065 (1907) ...... 8, 9 Hyland v. City of Eugene, 179 Or 567, 173 P2d 464 (1946) ...... 19 Kramer v. City of Lake Oswego, 285 Or App 181, 395 P3d 592 (2017). .. 4, 7, 10, 11 Luscher v. Reynolds, 153 Or 625, 56 P2d 1158 (1936) ...... 5, 6, 10, 19 Morse v. Oregon Division of State Lands, 285 Or 197, 590 P2d 709 (1979) ...... 6 Northwest Steelheaders Association, Inc. v. Simantel, 199 Or App 471, 112 P3d 383, rev. den. 339 Or 407 (2005), cert. den. 547 US 1003 (2006)...... 1 State v. Savage, 96 Or 53, 184 P 567 (1919)...... 9 Thornton v. Hay, 254 Or 584, 462 P2d 671 (1969) ...... 11 Weise v. Smith, 3 Or 445, 8 Am Rep 621 (1869) ...... 6, 9, 10 Willett v. City of West Linn, 142 Or 662, 19 P2d 1098 (1933) ...... 9

Statutes ORS 274.430 ...... 6 ORS 496.004 ...... 20 ORS 498.002 ...... 20 ORS 537.110 ...... 5 ORS 830.560-580 ...... 18

Regulations OAR 660-015-000(8)...... 22

Attorney General Opinions 29 Or Op Atty Gen 296 (1959)...... 10

Municipal Codes Lake Oswego Code 50.02.003 ...... 20, 21, 22 IDENTITY AND INTEREST OF AMICUS CURIAE

The Association of Northwest Steelheaders (hereafter “Steelheaders”) is one of the oldest and most active sport fishing advocacy organizations in the Pacific

Northwest. Steelheaders is a 501(c)(3) non-profit organization incorporated in

Oregon with 12 chapters and over 1,500 active members. Steelheaders was founded in 1960, and over its nearly sixty-year history has fought successfully to protect fish, fisheries, and public resources through litigation, collaborative processes, drafting legislation, and grassroots organizing.

Northwest Steelheaders has long been a leader in advocating for the public’s right to use the water, bed, and banks of rivers and lakes – below the high-water line, with or without a boat – for fishing, boating, and recreation on all Oregon waterways. Steelheaders has regularly fought to protect public access along the

Deschutes River, the Sandy River, and elsewhere in the state. Not long ago

Steelheaders prevailed in one of the most recent Oregon appellate cases to address the scope of the public’s right to use of the bed and banks of a navigable waterway, the John Day River. See Northwest Steelheaders Association, Inc. v. Simantel, 199

Or App 471, 112 P3d 383, rev. den. 339 Or 407 (2005), cert. den. 547 US 1003

(2006). Members of Steelheaders have also fished Oswego Lake, the water body at issue in this case, on and off for many decades.

1 FACTUAL AND PROCEDURAL BACKGROUND

We adopt the petitioners’ statements. To provide the court visual context to the Parks at issue, here is a picture of what Millennium Park looks like from

Oswego Lake:

TCF Dkt 81, ¶ 50, Ex 23

There are steps that were built to lead down into the lake. And here is what the lake looks like from the Park, including the City sign or plaque claiming that the lake is

“private:”

TCF Dkt 45, ¶ 17, Ex C. 2 QUESTIONS PRESENTED AND PROPOSED RULES OF LAW

We adopt the petitioners’ statements.

BROADER ISSUES ADDRESSED BY AMICUS BRIEF

1) Whether this Court should overrule a Court of Appeals opinion that creates serious statewide uncertainty about limits on public access, across public lands, to reach a public resource, specifically a navigable in-fact waterway. [ORAP 9.07(14)(a)]

2) Whether a local government such as a municipality may deny entry through a public park to a navigable-in-fact waterway, based on the residency or private group membership of the person trying to access the waterway through the park. [ORAP 9.07(3)]

SUMMARY OF THE ARGUMENT

The City of Lake Oswego (“Lake Oswego” or “the City”) has acted illegally by arbitrarily excluding the public from entering a navigable-in-fact water way, which is subject to the Public Trust Doctrine. The City does not have authority to sequester and monopolize for its own residents, the right to access – for fishing, wading, swimming, and boating – Oswego Lake. The Court of Appeals misread

Oregon law when it allowed a local municipality to block entry opportunities over land owned by the City and operated as public parks.

The opinion of the Court of Appeals leads to an absurd result that is contrary to public policy, and it creates a great deal of uncertainty around the future of access to public waterways throughout Oregon. Allowing a local government such as a city to block the public from entering – through a public park – an abutting

3 public waterway, based on residency or on membership in a private club or corporation, is contrary to the law of this state. If the lower court opinions are upheld, local governments throughout the state may impose residency requirements on entry/access to navigable waters, which would be anathema to this

Courts long recognized doctrine of upholding the public’s rights to use such waters.

The Court of Appeals erred when it held that there is no presumed right for the general public to enter the water, even where access is through a public park abutting those waters. Kramer v. City of Lake Oswego, 285 Or App 181, 212, 395

P3d 592 (2017). The City’s rules allow only residents of the city to enter the lake at a swim park. They disallow any others from using the swim park or any other public park on the lake for reasonable access to swim or fish or float on the lake, where Lake Corporation members are already allowed to engage in those same activities. If a municipality is allowed to decide who may enter state public trust assets, despite the local government holding title to and designating the abutting land as open to the public as a park, an unprecedented amount of public trust

4 waterways could potentially have access cut off or unreasonably limited.1

The City of Lake Oswego has articulated no rational basis for disallowing

public access to Oswego Lake from its public parks, where the public is seeking to

engage in the very same activities that local residents already are allowed to

engage in on that very same lake. The City’s allegations of health and safety issues

ring hollow. They amount to merely a thin veneer applied to a blatant effort to

allow the continued “privatization” or “monopolization” of public waters –

something this court long ago held was improper. See Luscher v. Reynolds, 153 Or

625, 634-635, 56 P2d 1158 (1936) (holding that there is a “public…easement for

the purposes of navigation” even on a lake where the underlying land is privately

owned).

ARGUMENT

I. The public has a right to use navigable waters

“All waters within the state from all sources of water supply belongs to the

public.” ORS 537.110. Likewise any “meandered lakes” are by law “declared to

1 For example, nothing would stand in the way of the City of Salem blocking people who happen to live in Portland or in Medford from entering the to fish, or swim, or paddle at Riverfront City Park; or the City of Grants Pass from blocking entry to the Rogue River through Baker Park- for anyone who did not happen to live in Grants Pass; or for that matter the City of Maupin from prohibiting anyone who lived somewhere other than that particular small town from fishing from, or swimming at, or launching a float tube or kayak from Maupin City Park on the Deschutes River.

5 be navigable and public waters.” ORS 274.430. Moreover, this Court has long held that the public has a right to use navigable waterways. See, e.g., Weise v.

Smith, 3 Or 445, 450, 8 Am Rep 621 (1869) (“Every person has an undoubted right to use a public highway, whether upon land or water, for all legitimate purposes of trade and transportation.”).

This right is traceable to Section 2 of Oregon’s Statehood Act, which has been construed to “’…prevent any exclusive use of the navigable waters of the state[, such as] a possible farming out of the privilege of navigating them to particular individuals, classes, or corporations.’” Brusco Towboat Co. v. State, By

& Through Straub, 284 Or 627, 647, 589 P2d 712 (1978) (quoting Huse v. Glover,

119 U.S. 543, 548 (1886) interpreting identical language from the California

Admissions Act).

Since at least 1914, this Court has recognized that fishing is a use incorporated into the right of navigation. Cook v. Dabney, 70 Or 529, 532, 139 P

721 (1914). Navigation has also long been understood to include recreation, including wading and swimming. Morse v. Oregon Division of State Lands, 285 Or

197, 207, 590 P2d 709 (1979). This Court has long held that the public’s right overrides even the private property right to exclude the public from access to public resources. See Guilliams v. Beaver Lake Club, 90 Or 13, 26, 175 P 437

(1918), (“Whatever may be the title to the bed of such streams or bodies of water

… they do not own the water itself”); and Luscher v. Reynolds, 153 Or at 634-635 6 (“The public has an easement for the purposes of navigation… although the title to the soil constituting their bed remains in the adjacent owner, subject to the superior right of the public to use the water [of Blue Lake]”).

The rights held by the public under the Public Trust Doctrine include the

“paramount right” of the use of navigable waterways owned by all of the people of

Oregon. Alsos v. Kendall, 111 Or 359, 371, 227 P 286 (1924). Those rights are not limited to just those Oregonians who have been able to purchase land within the city limits of Lake Oswego or a membership in the Lake Corporation. In the opinion below, the Court of Appeals ignored this statewide right, despite over 100 years of jurisprudence from this Court pointing to the opposite direction.

The common thread in this Court’s Public Trust Doctrine interpretations is the emphasis on the right of the people to the use of navigable waters held in trust by the state. In this case, the access Petitioners seek involves merely stepping into or placing a kayak or float tube onto the water of a navigable-in-fact lake, after walking through public land held open to the public at large and designated as a public park. The public nature of the lands at issue should make this a simple case.

However, the Court of Appeals misunderstood the Petitioners’ position below, claiming that Petitioners sought a guarantee of the public’s access to the lake from

“all uplands—whether publicly or privately owned.” Kramer, 285 Or App at 206.

Access and entry to navigable waters, over public lands, has been

commonly treated as a right across the state of Oregon since before statehood. This 7 case presents the opportunity – indeed the need – for this Court to draw a bright line stating that is the law, and clarifying that local municipalities are without authority to declare otherwise.

II. Lake Oswego has no authority to limit who may use Oswego Lake, based solely on residency or membership in a private organization.

Without access and entry, there can be no use. Access is essential to the use

of navigable waters, and under the Statehood Act should continue to be treated as a

right when one does not have to trespass to reach the water.2 The City’s effort to create the concept of “visual access” only, while denying entry, is an absurd hairsplitting to try to justify an otherwise unlawful overreaching limitation on public use of public trust resources.

Although Article XI, section 2 of the Oregon Constitution allows home-rule municipalities “to enact policies, even in areas also regulated by state law,” those policies must be compatible with state law. Gunderson, LLC v. City of Portland,

352 Or 648, 659, 290 P3d 803 (2012). A local municipal government has no right to limit access over public lands, to a navigable waterway – based on residency3 –

2 See Hume v. Rogue River Packing Co., 51 Or 237, 246, 92 P 1065 (1907) (holding that a river or lake “it is a public highway, where all the people of common right may go, and prima facie have a common right to fish.”).

3 There are, conceivably, legitimate reasons for a local government to limit all access to a water body, such as designation of that water body as a drinking water source. However, if some citizens are allowed entry – which is the case with Oswego Lake – then all citizens should be allowed entry through public parkland properties. 8 any more than it can limit access to or exercise control over a public road.4 By prohibiting non-residents or non-Lake Corporation Members from fishing in or boating on Oswego Lake, the City has used the law to grant its residents a special privilege, one that should belong equally to all citizens. See State v. Savage, 96 Or

53, 62, 184 P 567 (1919) (“[T]he law, when impartially applied, shall operate equally and uniformly upon all persons in similar circumstances”).

This Court answered the question of whether a municipality may control a highway it does not own in the negative over a century ago. In Cole v. City of

Seaside, 80 Or 73, 156 P 569 (1916) this Court examined the legitimacy of the City of Seaside’s attempted assumption of control over a public road. This Court held that:

“until by its own action it surrenders its authority over the roads and highways, the state’s power is paramount over any of its subordinate arms of government. If state control is to be given up to any subservient municipality, the initiative must come from the legislative department of the state, and not from the lawmaking power of the locality. The creature cannot control the creator.”

Id at 84–85 (emphasis added). See also Willett v. City of West Linn, 142 Or 662,

664-665, 19 P2d 1098 (1933) (citing Cole for the proposition that West Linn could

not levy an assessment for a sidewalk along a highway it did not own, even though

West Linn constructed the sidewalk).

The state of Oregon has not surrendered its authority over navigable waters

4 Navigable waterways are to be open to all as “a public highway.” Weise, 3 Or at 450; Hume, 51 Or at 246. 9 such as Oswego Lake. See 29 Or Op Atty Gen 296, 297 (1959) (“Lake Oswego

Corporation can enact no rules and regulations governing the public use of boats on Oswego Lake”). As in Cole, the City of Lake Oswego is attempting to assert control over a state resource or highway that the state has not placed under its legal control. As in Cole, the City lacks the power to do so. This Court should, as it did in Cole, hold that the local government has no right to exercise control over a public road/highway (albeit on the waters of the state rather than the land), nor to exclude non-residents (or non-Lake Corporation members) from entering and using those waters through the abutting public parkland.

By failing to distinguish public parks from private property, (Kramer, 285

Or App at 198) and failing to hold that public property provides even more access rights than private property, the Court of Appeals in this case erred fundamentally.

It deviated from this Court’s clear precedent in Weise, Guilliams, and Luscher. In doing so, the Court of Appeals did significant damage to that long-standing precedent, and it created widespread uncertainty for both the users of navigable waterways and for local governments– as to who has what rights to control and access.

III. The public policy implications of a local residency (or private organization) based entry limitation on state public waters are unprecedented.

This Court’s history of upholding the significance of the right to navigation

has produced very practical results. The general public – including anglers, 10 recreational swimmers, paddlers, and other river users – has come to depend on the hundreds of points of access to public trust waters that abut public land, but not state-owned land. Many who recreate on state public trust waters use land owned by local governments for access to those waters. Steelheaders’ members, donors, volunteers, and Board depend on those lands that are generally held open to the public to access the water which they have a “paramount right” to use for navigation, recreation, fishing, and wading. See Alsos, supra. The same is true for all Oregonians.

The Court of Appeals opinion can be read to create a presumption against access to state waterways, even when a person is attempting to enter them through a public Park, if the Park happens to be owned by a local government rather than the State. If left in place, the Court of Appeals opinion creates a new and complicated layer for deciphering when one may access public trust waters from public property. Sadly, that is what follows if the Court of Appeals is correct in positing that if there were a right to enter the water, “it could conceivably extend only to state-owned uplands.” Kramer 285 Or App 209.5 The uncertainty created by the Court of Appeals will do harm to all those who enjoy access to state waters, from public lands owned and managed by local governments. This Court should

5 This holding appears to be directly at odds with this Court’s holding in Thornton v. Hay, 254 Or 584, 601, 462 P2d 671 (1969) (holding that there is a public access easement on beaches next to state tidelands), which made no distinction between local government owned and state owned lands. 11 clarify that local governments cannot limit entry to navigable waters through public parks, based on suspect criteria– such as residency or membership in private organizations.

If the lower opinion stands, a City can – with full force of the law – ban persons from entering any navigable river or lake simply because the person seeking access does not happen to live in that City. Although a state may limit fishing access to all its residents,6 a city does not have the authority to limit fishing access to just those who live within its limits - and why should it? A city should not be able to selectively restrict access to state-owned public trust resources.7 This crucial distinction was ignored by the Court of Appeals.

The Oregon Marine Board lists 891 points of access to navigable waterways.8 Here is what the State Marine Board Map, with public land access points marked in blue, looks like for the north western corner of Oregon:

6 Alsos, 111 Or at 371. (“the state… may, through its legislative power, lawfully limit and restrict the right to fish to its own citizens, and may prohibit citizens of other states from exercising the right to fish.”).

7 For instance, a city may have has a rational basis in stopping all persons from entering its drinking water reservoirs to protect water quality, or stopping all persons from entering water that is unsafe for human contact. Those reasons are clearly different than a city stopping individuals from entering public water based solely on their residency or membership in an exclusive private club.

8 152 of those access points are owned or operated by the State of Oregon. 253 are owned or operated by federal agencies. Private landowners own 114 of the listed points.

12

372 of these points of access are owned and operated by cities, or other forms of local government. If the Court of Appeals opinion is not overruled, most, if not all, of those access points would be susceptible to residency based restrictions.

The Marine Board’s list only covers places with boat ramps. It doesn’t include the many hundreds of other access points through public parks that are feasible –and even popular – for fishing access throughout Oregon, that do not happen to have constructed boating facilities. Many of these sites are not expressly designed or constructed for access to water, yet they nevertheless provide excellent access for fishing, floating, wading, and swimming.9 Allowing a city to exclude the general public from entering state public trust waters, simply because the person wanting access has an address from another part of the state is unlawful, and frankly unconscionable. This Court should not allow Lake Oswego – or any other

City – to do that.

A city cannot monopolize access to state-held fisheries, as “these remain under the exclusive control of the state.” Alsos, 111 Or at 372. Yet Resolution

12-12 (and the City signs and rules implementing it) clearly purports to restrict

9 For instance, Cross Park and High Rocks Park are waterfront city parks in Gladstone, Oregon that provide excellent points of access, for both angling and swimming along the Clackamas River. There are no facilities at these parks “designed” for access. Yet on any given summer day there are dozens of people jumping into the river, and when salmon and steelhead are running, just as many people can be seen casting lures into the deep Clackamas River pools in these parks. 14 access to a waterbody that by statute is navigable and contains a state owned fishery resource. By forbidding individuals from entering the water to catch fish, or even casting a line from dry land in a public Park (TCF Dkt 45, ¶ 56, Ex V) the

City of Lake Oswego has acted beyond its authority and contrary to the law.

If the Court of Appeals holding stands, the City of Grants Pass, for example,

could bar non-residents from entering the Rogue River at Baker Park – merely by

erecting a plaque or a sign memorializing the City’s mistaken belief that section of

the Rogue was a “private river.” People from all over Oregon have used the public

park for generations to swim, fish, boat, and otherwise recreate.

Similarly, Salem could

suddenly close off access to the

Willamette River from Riverfront

City Park, citing a lack of lifeguards

to supervise users, or some other

unsubstantiated worry over invasive 15

species. Likewise, the City of

Maupin could restrict access at the

banks of the Deschutes River in

Maupin City Park, claiming entry

to the Deschutes from that beloved

Park was limited only to residents

or Deschutes Club members.

Lake Oswego’s rules are little more than a bald-faced attempt to allow a private corporation to monopolize a public resource. This Court should take this opportunity to clearly articulate the limits on a local government’s ability to block access to navigable-in-fact waters of the state, through public parkland, based on such suspect criteria.

Lake Oswego’s attempted justifications for denying entry to Oswego Lake do not withstand close scrutiny. The City cannot lawfully monopolize entry to

Oswego Lake by limiting entry to only residents or private club members based on sham “concerns.”

IV. An alleged failure to “design” for access does not preclude actual access, nor is there any actual invasive species issue on this lake that is different from any other navigable waterbody in Oregon.

The reality is, Resolution 12-12 was designed to guard the pseudo-private status quo that the Lake Corporation has attempted to maintain over Oswego Lake at varying levels for generations. The City basically admits this in its planning 16 documents. TCF Dkt 10 ¶ 3, Ex 1 (“It has been suggested by some that there is a right to use the waters of Oswego Lake…prohibiting entry to the lake is a legitimate administrative directive.”). The rationale presented by the Resolution does not in any way protect the public or public resources. If the City had legitimate concerns related to public health, safety, and welfare, those concerns would apply to residents and non-residents alike.

Lake Oswego allows residents or Lake Corporation members to enter into

and boat on, and fish in, the lake. It also provides residents of the City with access

through the City swim park. This shows that the “concerns” articulated for the

selective admission policy under Resolution 12-12 make no sense.

Those concerns are:

“ None of the facilities has been designed or constructed for safe access for swimming, wading, or boat launching;

The City lacks the resources to reconstruct the facilities or to staff or supervise lake-related activities from these locations;

Providing entry to the lake from these facilities and resources to monitor or inspect whether vessels entering the lake from these locations have been through appropriate invasive species eradication processes, potentially affecting water quality and putting in-lake structures at risk, including the buoyant Lake Oswego Interceptor Sewer”

TCF Dkt 8, ¶ 3, Ex 1, 3. The first two points amount to little more than

misdirection. There are many public parks, including many of the places listed by

the State Marine Board that are not “designed or constructed for safe access for

17 swimming, wading” or fishing. Those on the Marine Board list happen to have boat launching facilities, but almost none of the access points to public water provide “supervise[d]” fishing or boat launching. There is no need for such supervision. Even without supervision, or “designed” access, the public parks or similar public spaces used by Steelheaders and other Oregonians are absolutely feasible for boating or fishing access.

The same is clearly true of Millennium Park, which has steps leading into the water, and which one of the Petitioners easily kayaked from. TCF Dkt 43, ¶

6-7. Regardless of the alleged “design” intent, the reality is that the conditions at

Millennium Park clearly pose no issue for the actual launching of float tubes or other hand powered craft.

Nor has Lake Oswego made an adequate showing that the aquatic invasive species permit system that is in use in the rest of the state (ORS 830.560-580), is somehow inadequate to protect this lake. Even if, for the sake of argument, there was such an issue, why would it only be non-residents’ boats that posed such a risk?10 Moreover, the City has, unsurprisingly, failed to explain why it has selectively manifested these concerns over its parks along Oswego Lake - but not on its multiple parks along the Willamette and Tualatin Rivers. The City of Lake

Oswego has no right to create and enforce its own exclusive use zone on waters

10 Lake Corporation members can launch unwashed or potentially contaminated boats from the docks or their own homes at any time. 18 that are navigable-in-fact and, as this court has previously recognized, publicly owned. Luscher, supra. By attempting to impose such limits, the City has exceeded its authority and jurisdiction.

Unlike the swim parks, which were acquired through private dedication,

Lake Oswego purchased Millennium Park, Sundeleaf Plaza, and Headlee Walkway using public funds, and it designated them as public parks. Parks are places “set apart for the recreation of the public and to promote its health and enjoyment. The word ‘park,’ on a plat of land dedicated to the public, signifies a place open to everyone, and it carries no idea of restriction to any part of the public.” Hyland v. City of Eugene, 179 Or 567, 572, 173 P2d 464 (1946) (emphasis added)

(internal citations omitted). The City made representations in its planning documents and its adopted Comprehensive Plan regarding the public character of

these places, and the City should be held to those representations.

The City of Lake Oswego’s planning documents for Millennium Park

present a different story than the City presents in Resolution 12-12. Throughout the

planning process, the Lake Oswego Redevelopment Agency described a “shoreline

trail” with “shoreline access.” See TCF Dkt 45 ¶13, Ex B. In the context of a public

Park along a lake, this can only be reasonably read to mean that there would in fact

be access to the abutting water. Given that there are actual steps that lead into the

lake at Millennium Park, the City’s argument that access is precluded “for lack of

design for access” is absurd. TCF Dkt 45, ¶ 17, Ex C. 19 Even if one were to buy the bizarre argument that steps leading into a lake

are somehow not “designed for access,” it bears repeating that regardless of the

alleged intent of the design, it is completely feasible for a person to walk down the

steps or over the landscaped area, place a kayak or a float tube in the water, and

paddle away - without disturbing any landscaping or non-durable surface at

Millennium Park.11 Likewise, it is completely possible for someone to stand on the stairs, or in the water at the foot of the stairs, cast a lure or a line, and catch one of the state owned fish12 living in the lake, without creating any negative impact whatsoever to Lake Oswego’s assets.13

Likewise, the City of Lake Oswego Zoning Code lays out the purpose of its

parks. Millennium Plaza and the Swim Park are zoned as PNA (“Public Natural

Area”). See Appendix 1, Lake Oswego Zoning Map, and the Lake Oswego Code

50.02.003, also available at: http://www.codepublishing.com/or/lakeoswego. A close up of the Zoning Map of that area, with Millennium Park and the Swim Park circled, looks like this:

11 The Record reflects that one of the plaintiffs has at times done exactly that. TCF Dkt 45, ¶ 18. 12 Fish are defined as “wildlife” under ORS 496.004(18) and “Wildlife is the property of the state.” ORS 498.002(1) 13 In fact, Steelheader members have historically used area along the railroad tracks (now Headlee Walkway) adjacent to Oswego Lake to fish. They did so until, and even after, Lake Oswego banned the practice. Public walkways along lakes are often not “designed” for angling access, but such access points are frequently used by people to fish a lake. 20 The zoning at the Millennium Park looks like this:

Clearly there is public property touching and a public area adjacent to the lake at 21 Millennium Park.14 Paradoxically, the swim park is zoned as a public natural area:

However, it is managed exclusively for private uses:

(TCF Dkt 127, ¶4, Ex 1.)

Under section 3(a)(ii) of the City Zoning Code, the City codified its desire to

14 Indeed, the “Key” published by the City on the Zoning Map (an enlarged excerpt of which is attached as Appendix 2), specifies that the PNA areas are available for “Public Use.” Curiously, the City’s adopted and published Zoning Map and key make no mention of the limits that the Resolution attempts to set, restricting use of Oswego Lake only to residents or Lake Corporation members.

22 “permit a wide range of passive and active recreational uses” in the PNA zone.

Under the same section, the City cites its fundamental purpose as implementation of Statewide Planning Goal 8. Id. Also available at: http://www.oregon.gov/LCD/ docs/goals/goal8.pdf The published guidelines of Goal 8 specify that

Comprehensive Plans that are “designed to give a high priority to enhancing recreation opportunities on the public waters and shorelands of the state.” See OAR

660-015-000(8). The City of Lake Oswego’s efforts to exclude non-residents (or non-Lake Corporation members) is clearly contrary to Goal 8’s purposes, and by incorporation, to the City’s own Municipal Zoning Code.

The inclusion of terms like “passive recreation” in the Zoning Code and planning documents also evidence an intent to allow recreation other than the highly-supervised and organized swimming activities. That is certainly what goes on at other nearby City of Lake Oswego Parks on the Willamette and Tualatin

Rivers. Given that, it makes no sense to eliminate public entry to Oswego Lake at

Millennium Park, simply because the City perceives a unique need to supervise the public exercising its right to fish in, float on, and recreate in Oswego Lake. The

City simply does not have, and should not be given, the authority to limit entry to

23 Oswego Lake, based solely on the fortuity of residency.15

CONCLUSION

For the foregoing reasons, the City of Lake Oswego does not have, and

should not be given, the authority to limit entry to Oswego Lake through public

parks - based on residency or private organization membership. This Court should

overrule the Court of Appeals opinion, and either itself issue – or remand the

matter for a lower court to issue – some or all of the requested Declaratory

Rulings. This Court should create a bright line rule, in favor of public access,

through public Parks, to enter and use the public navigable in fact waters of this

state.

Dated: December 11, 2017.

By: s/ Karl G. Anuta Karl G. Anuta, OSB No. 861423 Law Office of Karl G. Anuta Mike Sargetakis, OSB No. 174607 Of Attorneys for Amicus Curiae Northwest Association of Steelheaders, Inc.

15 Moreover, the City of Lake Oswego’s efforts to exclude non-residents reek of its history of also excluding based on race. Indeed, the record shows that racial covenants were included alongside the residential access restrictions on the Swim Park.TCF Dkt 80 ¶ 30, Ex 8. At the time those restrictions were included, residency in this City was really not much different than a form of defacto racial covenant. This Court should declare those residency restrictions void, the same way and for the same reasons, that express racial covenants of this type are void. 24 CERTIFICATE OF COMPLIANCE WITH BRIEF LENGTH AND TYPE SIZE REQUIREMENTS

Brief length

I certify that this brief complies with the word-count limitation of 14,000 words in ORAP 5.05(2)(b), and the word count of this brief (as described in ORAP 5.05(2)(a)) is 6,029 words.

Type Size

I certify that the size of the type in this brief is not smaller than 14 point for both the text of the brief and footnotes as required by ORAP 5.05(4)(f).

Dated: December 11, 2017.

s/ Karl G. Anuta Karl G. Anuta, OSBar No. 861423 Law Office of Karl G. Anuta Attorney for Amicus Curiae Northwest Association of Steelheaders, Inc. CERTIFICATE OF FILING

I hereby certify that on this date I filed this Brief on the Merits for

Amicus Curiae Northwest Association of Steelheaders, Inc. with the

Appellate Court Administrator by electronic filing pursuant to ORAP 16.25.

DATED: December 11, 2017.

s/ Karl G. Anuta Karl G. Anuta, OSBar No. 861423 Law Office of Karl G. Anuta Attorney for Amicus Curiae Northwest Association of Steelheaders, Inc.

CERTIFICATE OF SERVICE

I certify that service of a copy of this Brief on the Merits for Amicus

Curiae Northwest Association of Steelheaders, Inc. will be accomplished on the following participants in this case, who are registered users the appellate courts’ eFiling system, by the appellate courts’ eFiling system at the participants’ email address as recorded this date in the appellate eFiling system: Gregory M. Adams, OSB No. 101779 and Thane W. Tienson, OSB

No. 77374, Attorneys for Petitioners on Review; Carson L. Whitehead, OSB

No. 105404 and Inge Wells, OSB No. 881137, Attorneys for Respondent on Review State of Oregon; Brad S. Daniels, OSB No. 025178, Attorney for

Respondent on Review Lake Oswego Corporation; Kenneth Kaufmann,

OSB No. 982672, Attorney for Amicus Curiae Law Professors, Columbia

Riverkeeper, Human Access Project, Rogue Riverkeeper, and Willamette

Riverkeeper; and, Paul W. Conable, OSB No. 975368, Tonkon Torp LLP,

888 SW 5th Avenue, Ste. 1600, Portland, OR 97204, Attorney for

Respondent on Review City of Lake Oswego.

DATED December 11, 2017.

s/ Karl G. Anuta Karl G. Anuta, OSBar No. 861423 Law Office of Karl G. Anuta Attorney for Amicus Curiae Northwest Association of Steelheaders, Inc.