Professor Michael Blumm is a noted scholar and professor at Lewis & Clark Law School. I had the privilege of attending more than one of his classes during my time there. Therefore, I was somewhat surprised when I read his guest editorial in the Oregonian and letter to the Oswego Lake Work Group regarding public access to Oswego Lake. Links to the documents are provided here:
http://www.oregonlive.com/opinion/index.ssf/2012/01/public_access_struggle_citizen.html
http://welovelakeoswego.com/wp-content/uploads/2012/01/Michael-Blumm-Letter_01.01.12.pdf
As a fly fisherman, the public’s use of navigable waterways has always been an area of special interest to me. More access equates to more fish. To me, an analysis of the public’s right of access to Oswego Lake is far more complex than Professor Blumm indicates.
First, there is a difference between a) the public’s right of navigation and b) the public’s right to cross private land for purpose of reaching navigable water. While the Oregon Admission Act of 1859 does in fact state that “all the navigable waters of said State, shall be common highways and forever free,” the Act makes no mention of a citizen’s entitlement to cross private land for purposes of reaching navigable waters.
In his January 3, 2012 comments, Professor Blumm points to an 1869 case, Weise v. Smith to suggest that such a right does in fact exist. There, the Supreme Court condoned the use of private uplands to construct booms necessary to move logs downstream through a navigable waterway. Professor Blumm omits reference, however, to subsequent cases that refute his bold conclusions. For example, in Lebanon Lumber Co. v. Leonard (1913), the Court determined that “[w]here the bed and banks of the stream are owned by the riparian proprietor, the navigability of the stream does not give to the navigator a right of way on the land.” Moreover, in Guilliams Et Al. v. Beaver Lake (1918), one of the very cases relied upon by Professor Blumm, the Supreme Court refused to find that the right of navigation carries a concomitant right of egress across adjacent private lands.
Second, Professor Blumm’s editorial characterizes access to Cannon Beach as a similar example of how the public holds access rights to publically held resources such as Oswego Lake. I find use of the Cannon Beach analogy troubling. I suspect Professor Blumm is referring to the Supreme Court’s landmark decision in State ex rel. Thornton v. Hay (1969). There, the court determined that the public enjoys a right of access across privately owned “dry sand” portions of the beach. To arrive at this conclusion, the Supreme Court reasoned that the legal doctrine of “custom” was applicable due to the public’s time immemorial use of the dry-sand area to reach the ocean – a use dating back to aboriginal natives. Notably, the Supreme Court in Thornton declined the opportunity to base its ruling upon navigability doctrines. In the case of Oswego Lake, the Thornton legal analysis seems completely inapplicable given the lake’s history and artificial traits.
Third, it is my understanding that substantial water is retained in Oswego Lake by virtue of dam. Professor Blumm’s conclusions therefore presume that a servitude, in the public’s favor, has silently arisen over these private lands by virtue of the water’s artificial placement there. While the question has been litigated elsewhere with varying results, I am unaware of any cases in Oregon that support an unqualified public right of navigation over private lands underlying artificially impounded water. Therefore, Professor Blumm’s conclusions appear to overlook a legal question that must first be reconciled prior to opining on public access to Oswego Lake.
Finally, it seems that Professor Blumm’s position would be substantially bolstered if the City of Lake Oswego owns unencumbered land abutting Oswego Lake. If so, a publicly owned right of way might then exist over uplands for purposes of reaching the surface water of the Lake. Because this consideration is so critical – and because Professor Blumm fails to address it – I suspect public access to certain areas of Oswego Lake is enjoyed pursuant to a limited easement rather than fee title ownership of land abutting or underlying the lake. If true, the City would be constrained from enlarging the scope of its swimming easement to include, for example, a boat launch.
