Mark v. DDFW

• Decision Date: 28 January 2004
• Citation: 84 P.3d 155,191 Or. App. 563
• Parties: Glen D. MARK and Teri L. Powers, Respondents, v. STATE of Oregon, on behalf of the DEPARTMENT OF FISH AND WILDLIFE; and State of Oregon, on behalf of the Division of State Lands, Appellants, and Naturist Action Committee, a National Association, Intervenor-Below.
• Court: Oregon Court of Appeals

84 P.3d 155

191 Or. App. 563

Glen D. MARK and Teri L. Powers, Respondents, v. STATE of Oregon, on behalf of the DEPARTMENT OF FISH AND WILDLIFE; and State of Oregon, on behalf of the Division of State Lands, Appellants, and Naturist Action Committee, a National Association, Intervenor-Below.

96-2019; A114713.

Court of Appeals of Oregon.

Argued and Submitted September 25, 2003.

Decided January 28, 2004.

Jas. Jeffrey Adams, Assistant Attorney General, argued the cause for appellants. With him on the opening brief were Hardy Myers, Attorney General, and Michael D. Reynolds. With him on the reply brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

Glen D. Mark argued the cause for respondents. On the brief were Teri L. Powers and Powers & Mark.

Before HASELTON, Presiding Judge, and WOLLHEIM and BREWER, Judges.

HASELTON, P.J.

Defendants, the State of Oregon Department of Fish and Wildlife (ODFW) and Division of State Lands (DSL), appeal from a judgment issuing a permanent injunction in an action for a nuisance. DSL owns, and ODFW leases and manages, property including a public beach adjacent to plaintiffs' property on Sauvie Island. The trial court (1) determined that the intrusive presence and behavior of nude sunbathers using the public beach and ODFW's failure to "regulate or otherwise exercise control" over certain aspects of that use constituted a private nuisance; and (2) issued a permanent injunction requiring ODFW to abate the nuisance. On appeal, defendants challenge both the trial court's finding of a private nuisance and the scope and content of the injunction. We review de novo, ORS 19.415(3), and affirm.

We find the material facts to be as follows: Sauvie Island, which consists of approximately 24,000 acres of land and lakes, is located at the confluence of the Willamette and Columbia Rivers.¹ While the southern half of the island is privately owned, the northern half of the island consists almost exclusively of the 12,000-acre Sauvie Island Wildlife Area (wildlife area), which is owned by DSL and leased and managed by ODFW. On the entire northern half of the island, there are only three privately owned beach-front parcels, including plaintiffs' property. Plaintiffs' 10-acre parcel, which is located approximately three-and-one-half miles south of the northern tip of the island, is surrounded by the wildlife area.

Since the 1970s, beach areas on the eastern shore of Sauvie Island have been used for nude sunbathing. As that use gained popularity in the 1980s, use by nude sunbathers spread along the length of the beach, including to that portion of the beach that is adjacent to plaintiffs' property.

Plaintiffs' predecessor in interest was Al Havlik. Although the record is unclear as to the precise timing, it appears that in the late 1980s Thomas Goodwin, a real estate agent acting on Havlik's behalf, unsuccessfully negotiated with ODFW about the state's possible acquisition of Havlik's property for inclusion in the wildlife area.² During the course of those discussions, Goodwin spoke with Ray Johnson, ODFW's wildlife area manager. Goodwin was unaware that nude sunbathers used the beach and wildlife area property adjacent to the Havlik property, and Johnson, who was aware of that use, did not mention it. In 1989, Goodwin, on behalf of Havlik, submitted an application to the Columbia County Planning Commission for a conditional-use permit that would allow a house to be built on the Havlik property. ODFW opposed that application and expressed its opposition in a letter dated September 21, 1989, that was written by Johnson and signed by his regional supervisor. That letter read, in pertinent part, as follows:

"Since we have a large wildlife management area on adjacent lands, we have some concerns with allowing a conditional use permit that could lead to residential development on this tax lot. These concerns follow:

"1. The parcel is surrounded by land owned by either our Department or the Division of State Lands and the beach areas fronting the Columbia River are heavily used by recreationists, particularly during the summer months. If the property were developed for residential use, we are convinced the residents would be severely harassed by trespassers. The ODFW does not have the ability to strictly enforce trespass laws. Should development proceed on this tax lot, all trespass concerns will have to be referred to the Columbia county sheriff for resolution.

"2. Establishment of residences within areas of wildlife habitat invariably leads to conflict. These conflicts take the form of livestock escaping and damaging waterfowl [and] food crops and dogs or other pets harassing, chasing, and sometimes killing wildlife on the management area.

"3. We provide public hunting on wildlife area lands near this tax lot. Potential residents should be alerted to the fact that they may see hunters and hear the discharge of shotguns through much of the fall and winter during authorized hunting seasons. Experience has shown that this can be annoying to some nearby residents."

ODFW's letter did not include any mention of public nudity, nude sunbathing, or any other nudist-related activities on the public land surrounding the Havlik parcel.

Thereafter, in late 1989, plaintiffs, who were living in Alaska, contacted Goodwin and expressed interest in purchasing the land. Goodwin mailed them maps of Sauvie Island, the approved conditional-use permit, and a copy of the ODFW letter in opposition. Plaintiffs were concerned about the ODFW letter and, consequently, plaintiff Teri Powers questioned Goodwin about the popularity of the beach and the potential problem of trespassers. Goodwin suggested that, although the beach was popular in the summer months, a fence would keep trespassers out. Powers also contacted Johnson and spoke directly with him about ODFW's concerns. Johnson told Powers that the beach in front of the property was a popular recreation spot and that he believed that they would be harassed by people cutting through the property and parking cars in the surrounding area. Johnson did not mention nudity to Powers, much less describe the nature and extent of the use of the adjacent beach and wildlife area by nude adults.³

In the winter of 1989-1990, plaintiffs flew to Oregon to visit the property with Goodwin. During that visit, and while on the property and beach adjacent to the property, plaintiffs did not see any nude people, any signs that indicated that nude activity was permitted on the beach, or any other evidence of such use. In February 1990, plaintiffs purchased the property. Plaintiffs would not have acquired the property if they had known that public nudity was permitted and pervasive on the adjacent beach.

In June 1990, plaintiffs moved to the island. They planned to live on the property in a camper, initially, and to spend that summer relaxing on the beach. The day after plaintiffs arrived, they were shocked to find nude sunbathers on the beach in front of their property. That was just the beginning. In the weeks that followed, a large number of beach users—both clothed and naked— crossed plaintiffs' property, parked on and around their property, and walked along the road leading to plaintiffs' property in various stages of dress and undress. In addition, some beach users engaged in explicit sexual conduct in plaintiffs' visual presence. Plaintiffs spent much of that first summer asking beach users to wear clothing while in front of their property, posting "no trespassing" signs, and cautioning people not to cross their land or block their driveway.

Despite plaintiffs' efforts, the problems did not abate. Over the next decade, plaintiffs and their guests, family, and friends saw and encountered hundreds—and perhaps thousands—of nude adults around their property. During the warmer months, as many as a hundred nude adults could be seen each day. Aside from that pervasive and intrusive nudity, plaintiffs and their guests also witnessed many instances of explicit sexual conduct on and around their property. Specifically, they saw adults engaged in sexual intercourse, oral sex, the touching of genitals and breasts, men masturbating individually and in groups, men walking on the beach and on the road with erections, and individuals photographing others' genitals. Those incidents occurred at least a dozen times a year—totaling more than a hundred times over the decade.

Plaintiffs attempted to use a variety of means to eliminate those problems. The response by beach users was generally uncooperative, and sometimes overtly hostile. Most nude people that plaintiffs encountered on their property, the beach, or the road, refused to put on clothing. Plaintiffs' property and the signs that they hung were repeatedly vandalized. One person told plaintiffs that the beach users were organized and militant, and threatened plaintiffs if they continued to try to make nude beach users go around their property. Plaintiffs complained to Johnson, but he was unresponsive.

In January 1993, three years after plaintiffs purchased the property, ODFW adopted the Sauvie Island Wildlife Area Management Plan (management plan). That management plan defines the "mission and purpose" of the wildlife area as being "to provide suitable habitat for waterfowl." The management plan also recognizes that "[t]he beaches along the Columbia River have grown in popularity to include many uses that are not wildlife oriented recreation" and directs ODFW to "search out ideas on how to regulate this use," including the discouragement or elimination of "incompatible recreational activity." As part of an effort to implement the directives of the management plan, in September 1993, ODFW adopted the Sauvie Island Wildlife Area Beach Use Plan (beach use plan).

The beach use plan, for the first time, separated Sauvie Island's eastern (Columbia River) beach into distinct, separately named beaches. The only...