Mark v. STATE, DEPT. OF FISH AND WILDLIFE
158 Or. App. 355, 974 P.2d 716, 1999 Ore. App. LEXIS 210 (1999)
Rule of Law:
While state agencies can be held responsible for allowing third-party activities on their land to create a nuisance, they are immune from monetary damages under the Oregon Tort Claims Act's discretionary function exception when decisions regarding how to manage or prevent the nuisance involve independent policy judgment, but they are not immune from injunctive relief or liable for inverse condemnation unless the nuisance deprives a landowner of all feasible private uses of their property.
Facts:
- Plaintiffs have lived on Sauvie Island since June 1990, having purchased their land in February 1990.
- Plaintiffs' land is surrounded by the Sauvie Island Wildlife Area, which is owned by defendant Division of State Lands and leased to defendant Department of Fish and Wildlife.
- A portion of the wildlife area near plaintiffs' home is a popular location for public nudity, attracting thousands of yearly visits for that purpose.
- Many nude users parade naked throughout the year across the wildlife area, including roads and bushes, and in view of plaintiffs' and other private residences.
- Plaintiffs and their family, friends, and guests have been exposed to continuous and oftentimes daily adult nudity and 'repeated acts of depravity, illegality and lewdness.'
- Plaintiffs have reported these facts and the resulting harm to defendants, which include restrictions on their use of property, fear for their safety, embarrassment, and diminished property value.
- Defendants adopted a management plan in 1993 to regulate nudity in the wildlife area, distinguishing between 'clothing optional' and 'clothed' areas, providing buffer zones, and setting out provisions to discourage nudity outside designated areas.
Procedural Posture:
- Plaintiffs filed an original complaint in trial court asserting claims for private and public nuisance, seeking damages and an injunction.
- The original complaint also included claims for inverse condemnation under state and federal constitutions, seeking damages.
- Defendants filed motions to dismiss the original complaint under ORCP 21 A(8).
- The trial court dismissed the original complaint in its entirety, finding defendants immune from liability under the Oregon Tort Claims Act's discretionary function exception and that plaintiffs had not stated a claim for inverse condemnation.
- Plaintiffs filed an amended complaint, limited to claims for private and public nuisance, focusing on defendants' alleged failure to adequately implement a management plan to control nudity.
- The trial court granted defendants' motion to dismiss the amended complaint.
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Issue:
Is a state agency immune from claims for damages and injunctive relief for private and public nuisance, and from claims for inverse condemnation, when public nudity and sexual activity on state-controlled land, which the agency has authority to regulate, allegedly interfere with the use and enjoyment and diminish the value of adjacent private property?
Opinions:
Majority - Warren, P. J.
No, a state agency is not immune from claims for injunctive relief for private and public nuisance, but it is immune from claims for monetary damages for nuisance and from claims for inverse condemnation, when public nudity and sexual activity on state-controlled land allegedly interfere with adjacent private property. The court reversed the dismissal of the nuisance claims for injunctive relief, clarifying that the discretionary function immunity under ORS 30.265(3)(c) does not apply to actions seeking equitable remedies, as established in Penland v. Redwood Sanitary Sewer Service Dist. (1998). The allegations of uncontrolled and intrusive nudity and public sexual activity in proximity to plaintiffs' property, causing distinct injury, were sufficient to plead both a public nuisance (citing Blagen v. Smith) and a private nuisance. Furthermore, the complaint sufficiently alleged that defendants could be held responsible for third-party actions under Restatement (Second) of Torts § 838, given their knowledge of the activity and failure to exercise reasonable care to prevent it. However, the court affirmed the dismissal of nuisance claims seeking monetary damages, holding that defendants' actions (or inactions) were immune under the discretionary function exception. ORS 496.138 and 496.012, which outline the State Fish and Wildlife Commission's responsibilities to manage wildlife and provide recreational benefits, grant discretion in deciding what subjects to regulate and how, requiring independent policy judgment rather than simply detailing a prescribed policy. Finally, the court affirmed the dismissal of the inverse condemnation claims, reiterating that a taking under the Oregon Constitution requires a 'deprivation of all feasible private uses of the property or of some specific right in the property,' citing cases like Thornburg v. Port of Portland (as interpreted by later cases). Plaintiffs' allegations, while indicating diminished property value and restricted use, did not assert that their land had become unusable or valueless, thus failing to meet the high threshold for a compensable taking.
Dissenting - Edmonds, J.
No, a state agency is not immune from claims for monetary damages for nuisance under the Oregon Tort Claims Act's discretionary function exception when public nudity and sexual activity on state-controlled land unreasonably interfere with adjacent private property. Justice Edmonds disagreed with the majority's application of the discretionary function exception to nuisance claims for damages. Citing Miller v. Grants Pass Irrigation and Stevenson v. State of Oregon, the dissent argued that while the choice of means to prevent harm might be discretionary, the decision whether or not to act at all in the face of a legal duty is not a discretionary function that grants immunity. The dissent contended that the duty of a state agency to exercise discretion to prevent harm to adjoining lands from activities on its controlled land is nondiscretionary. Justice Edmonds found it contrary to common sense to believe the legislature intended to allow state agencies to permit nuisances on their lands to interfere with adjoining properties without exercising their discretion to regulate and without incurring liability for damages caused by their refusal to act.
Analysis:
This case significantly clarifies the scope of discretionary function immunity under the Oregon Tort Claims Act, particularly by distinguishing between claims for monetary damages and those for injunctive relief. It establishes that while state agencies may be compelled to mitigate nuisances on public land through injunctive orders, they retain immunity from monetary liability if their decisions or non-decisions regarding management involve policy judgments. Furthermore, the ruling reinforces the high burden for inverse condemnation claims, requiring a complete deprivation of feasible private uses, not merely a reduction in property value due to a nuisance. This decision highlights the ongoing tension between public access to recreational areas and the protection of adjacent private property rights, offering a roadmap for future litigants in similar disputes regarding governmental liability for third-party conduct.
