Mark v. State Department Of Fish And Wildlife

974 P.2d 716 (1999)

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Nature of the Case

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Facts

Ps have lived on Sauvie Island since June 1990. Their land is surrounded by the Sauvie Island Wildlife Area. The wildlife area near where they live is a popular location for public nudity. Many of those users 'parade naked throughout the year all over the wildlife area, including the roads and bushes, and on, around and in view of plaintiffs' and other's private residences.' Ps and their family, friends, and guests have been forced to witness adult nudity and 'repeated acts of depravity, illegality, and lewdness' because of their location adjacent to Ds’ lands. Ps claim that such nudity is both a private and a public nuisance. P asserts that D's actions constitute both a private (first claim) and a public (second claim) nuisance. P seeks damages and an injunction prohibiting Ds from allowing the use of the wildlife area for public nudity. In their third and fourth claims, they alleged that Ds' actions so reduced the value of their property that it constituted a taking for public use, thus entitling them to damages for inverse condemnation under the state (third claim) and federal (fourth claim) constitutions. P seeks compensation for the effects of the nudity on their land and an injunction restraining Ds from allowing public nudity in the wildlife area. They also claim inverse condemnation on the ground that the effect of the nudity on the value of their land constitutes a taking for which they are entitled to just compensation. The trial court determined that Ds are immune from liability under the Oregon Tort Claims Act because they were exercising a discretionary function and that Ps had not stated a claim for inverse condemnation. Ps suit was dismissed, and P appealed.