Kramer v. City of Lake Oswego

691

On respondents on review’s petitions for reconsideration filed August 29;

considered and under advisement on October 16, petitions for reconsideration

are allowed, former opinion (365 Or 422, 446 P3d 1 (2019); on review from the

Court of Appeals, 285 Or App 181, 395 P3d 592 (2017)) is modified and adhered

to as modified 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) (SC S065014)

455 P3d 922

The City of Lake Oswego and Lake Oswego Corporation petitioned for recon-

sideration 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.

Brad S. Daniels, Stoel Rives LLP, Portland, filed 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, filed the peti-

tion for reconsideration for respondent on review City of

Lake Oswego. Also on the petition for reconsideration was

Paul Conable.

692 Kramer v. City of Lake Oswego

Thane W. Tienson, Landye Bennett Blumstein LLP,

Portland, filed 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.

Before Walters, Chief Justice, and Balmer, Nakamoto,

Flynn, Duncan, Nelson, and Garrett, Justices.*

FLYNN, J.

The petitions for reconsideration are allowed. The former

opinion is modified and adhered to as modified.

______________

* Kistler, J., retired December 31, 2018, and did not participate in the deci-

sion of this case.

Cite as 365 Or 691 (2019) 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 P3d 1 (2019). That

decision concluded that, “if Oswego Lake is among the nav-

igable waterways that the state holds in trust for the pub-

lic, 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 unreason-

ably 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 reconsid-

eration 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 incor-

rectly described the city’s position with respect to the ques-

tion whether the lake is subject to the public trust doctrine.

The city seeks reconsideration of our opinion and correction

of the following passage, which misstates its position:

“The list of pertinent material facts, of course, begins with

whether the city is correct that the lake is not among those

navigable waters for which the state holds title to the under-

lying land. If the city’s premise is incorrect, then additional

relevant circumstances include the extent to which the

denial of water access from the waterfront parks impairs

the public’s ability to use the public water and whether the

prohibition reasonably furthers the purpose of the trust in

other ways.”

Id. at 450 (emphases added).

We allow the city’s petition for reconsideration and

replace the passage quoted above with the following:

694 Kramer v. City of Lake Oswego

“The list of pertinent material facts, of course, begins with

whether the lake is among those waters for which the state

holds title to the underlying land. If so, then additional rel-

evant circumstances include the extent to which the denial

of water access from the waterfront parks impairs the pub-

lic’s ability to use the public water and whether the prohi-

bition reasonably furthers the purpose of the trust in other

ways.”

II. LAKE OSWEGO CORPORATION

PETITION FOR RECONSIDERATION

Lake Oswego Corporation contends that another

relevant circumstance is whether the city acquired ripar-

ian rights when it acquired the waterfront park properties.

The trial court had granted summary judgment without

reaching Lake Oswego Corporation’s argument that the city

failed to acquire riparian rights to the waterfront parks.

Lake Oswego Corporation wishes to argue on remand that

private ownership of the riparian rights would affect plain-

tiffs’ claim under the public trust doctrine, and it requests

reconsideration and clarification that our opinion did not

resolve the factual or legal arguments regarding riparian

rights. We allow the petition for reconsideration and add the

following footnote to page 450, at the conclusion of the new

passage quoted above:

“Lake Oswego Corporation argues that another relevant

circumstance is whether the city acquired riparian rights

to the waterfront park properties. Because ownership of

the riparian rights remains a circumstance in dispute, it

would be premature for us to resolve whether that circum-

stance has relevance to plaintiffs’ claim for relief. Although

we have agreed with the rationale underlying the holding

of the Montana Supreme Court in its Madison County deci-

sion, it is unnecessary to decide whether we also agree with

the Montana court’s conclusion that private ownership of

riparian rights does not limit the public’s right to enter the

public water from a public right-of-way. 365 Or at 445 (cit-

ing 373 Mont at 302).”

The petitions for reconsideration are allowed. The

former opinion is modified and adhered to as modified.