Kramer v. City of Lake Oswego , 365 Or. 691 ( 2019 )

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.