## Facts

- Glen D. Mark and Teri L. Powers owned a 10-acre parcel on Sauvie Island adjacent to a state-owned public beach within the Sauvie Island Wildlife Area.
- The wildlife area was owned by the Division of State Lands (DSL) and leased/managed by the Oregon Department of Fish and Wildlife (ODFW).
- Since the 1970s, and increasingly in the 1980s, the beach near plaintiffs’ property was used for nude sunbathing, including in the area directly adjacent to plaintiffs’ land.
- Plaintiffs alleged that the visible presence and conduct of nude beachgoers substantially interfered with their use and enjoyment of their property, including discouraging use of the beach-adjoining portion and deterring family and guests.
- ODFW established a 425-foot buffer zone intended to separate nude use from plaintiffs’ property and represented it would plant vegetation to screen views.
- The trial court found ODFW failed to enforce the buffer and failed to plant the promised screening vegetation, and that the interference continued.
- After an earlier appeal narrowed the case to equitable relief, the trial court found a private nuisance and issued a permanent injunction requiring ODFW to abate it by enforcing the buffer and implementing screening measures.

## Issues

1. Whether ODFW’s management (including failure to regulate or control) public beach use that involved nudity near plaintiffs’ property constituted a private nuisance by substantially and unreasonably interfering with plaintiffs’ use and enjoyment of land.
2. Whether the permanent injunction compelling enforcement of the buffer zone and screening measures was improper or overly broad as equitable relief.

## Decision

- The Oregon Court of Appeals affirmed the judgment after de novo review.
- The court held that the intrusive presence and conduct of nude sunbathers, combined with ODFW’s failure to regulate or exercise control over that use, constituted a private nuisance as to plaintiffs.
- The court held the permanent injunction was within the trial court’s equitable authority and was not improper in scope, including requirements to enforce the buffer zone and implement screening vegetation.

## Legal Principles

- A private nuisance is a substantial and unreasonable interference with the use and enjoyment of land, assessed by the extent and character of the interference as experienced by an ordinary reasonable person in the plaintiff’s position.
- A governmental landowner/manager may be subject to equitable nuisance relief when it maintains or permits conditions on public land that unreasonably interfere with neighboring private property, particularly where it has knowledge and control over the source of interference.
- Courts may issue mandatory injunctions tailored to abate an ongoing nuisance by requiring reasonable, specific management actions within the defendant’s control.
- Statutory immunity from damages does not necessarily bar injunctive relief aimed at stopping continuing nuisance-type interference.

## Conclusion

The court affirmed a permanent injunction requiring the state wildlife agency to take concrete, enforceable steps to abate a private nuisance caused by unmanaged nude beach use adjacent to plaintiffs’ property, treating the state’s control and failure to mitigate as sufficient for equitable relief.


Mark v. Or. State Dep’t of Fish & Wildlife, 84 P.3d 155 (Or. Ct. App. 2004)