## Facts

- Homeowners on Sauvie Island owned residential property surrounded by a state-owned wildlife area managed by the Oregon Department of Fish and Wildlife.
- The nearby wildlife area included beaches and undeveloped areas attracting public use unrelated to wildlife purposes.
- The homeowners alleged the area had become a popular location for public nudity, with thousands of annual visits for that purpose.
- They alleged frequent, year-round nudity occurred on roads and in areas visible from private residences, causing continuous exposure that interfered with residential use and enjoyment.
- They asserted that public nudity was outside the wildlife area’s statutory purposes (wildlife management, wildlife-oriented recreation, and public hunting).
- They sought (1) injunctions to abate alleged public and private nuisances and (2) money damages, including inverse condemnation based on diminished property value and interference with use.

## Issues

1. Whether discretionary-function immunity under the Oregon Tort Claims Act bars claims seeking injunctive relief to abate alleged public and private nuisance on adjacent public land.
2. Whether allegations that the state failed to prevent third-party public nudity on public land state a claim for inverse condemnation (a compensable taking).

## Decision

- The Court of Appeals reversed the dismissal of the nuisance-based claims to the extent they sought injunctive relief and remanded for further proceedings.
- The court affirmed dismissal of the claims seeking money damages in tort on discretionary-function immunity grounds.
- The court affirmed dismissal of the inverse condemnation claim for failure to allege government conduct amounting to a taking.

## Legal Principles

- Discretionary-function immunity under the Oregon Tort Claims Act bars monetary liability for governmental decisions involving policy and planning, including resource allocation and land-management choices.
- Discretionary-function immunity does not necessarily preclude equitable relief; a plaintiff may seek an injunction to abate an alleged nuisance on public land even when damages are unavailable.
- Oregon inverse condemnation requires governmental action that intentionally or directly invades, appropriates, or imposes a functional equivalent of eminent domain on private property; failure to prevent third-party conduct on public land, without a direct government invasion or appropriation, does not state a takings claim.

## Conclusion

The court allowed the homeowners to pursue injunctions to abate alleged nuisance conditions in the wildlife area but held that discretionary-function immunity barred damages and that the state’s alleged failure to stop third-party nudity on public land did not constitute a compensable taking.


Mark v. State Dep't of Fish & Wildlife, 158 Or. App. 355, 974 P.2d 716 (Or. Ct. App. 1999)