Mark v. Oregon State Department of Fish and Wildlife

Glen Mark and Teri Powers (plaintiffs) acquired property that adjoined a state-owned beach. The beach was open to the public and was managed by the Oregon Department of Fish and Wildlife (department) (defendant). Because the beach was a popular location for nude sunbathers, there were frequent displays of nudity on the beach. The nudity was visible from Mark and Powers’s property. Mark and Powers consciously avoided the portion of their property adjoining the beach in order to limit viewing the nudity. Moreover, friends and family were unwilling to visit Mark and Powers’s property due to the nudity. Mark and Powers complained to the department, such that the department was aware of the nudity. The department created a 425-foot buffer zone between Mark and Powers’s property and the beach. The beachgoers were prohibited from occupying the buffer zone during the summertime. However, the department failed to enforce compliance with the buffer zone. Additionally, the department failed to plant vegetation in the buffer zone that would have shielded Mark and Powers’s property from the beach. Subsequently, Mark and Powers brought suit, contending that the nudity on the beach constituted a nuisance and that the department was liable for the nuisance. The trial court ruled in favor of Mark and Powers. Specifically, the trial court issued a permanent injunction requiring the department to enforce compliance with the buffer zone and plant vegetation in the buffer zone. The department appealed.