Mark v. St. Dep’t of Fish & Wildlife

The Marks (Plaintiffs) purchased land on Sauvie Island in 1990. Their land is surrounded by the Sauvie Island Wildlife Area, which is managed by the Oregon State Department of Fish and Wildlife (Defendant). The Wildlife Area includes several miles of beaches that are frequently (and lawfully) used for public nudity. Plaintiffs are routinely exposed to public nudity while at the residence located on their land, as well as public sexual activity, and claim that this is a nuisance. Defendant in 1993 adopted a plan to restrict public nudity in the Wildlife Area, but did not fully implement it. Plaintiffs then sued Defendant, seeking an injunction restraining it from allowing nudity in the Wildlife Area, as well as monetary damages for the effects of the nudity. They also claimed that Defendant’s failure to regulate nudity in the Wildlife Area was an inverse condemnation constituting a taking of their land. The trial court dismissed all claims, holding that Defendant could not be sued for failure to perform a discretionary function, and that Plaintiffs had failed to state a claim of inverse condemnation. Plaintiffs appealed the dismissal.