I.
FINDINGS OF FACT
A.	Historical Facts - Sauvie Island
	1.	Sauvie Island is composed of approximately 24,000 acres of land and water. The island is 16 miles long and 4.5 miles at its widest point.
	2.	Approximately one half of Sauvie Island is either owned or managed by the ODFW. In 1974, the initial "Sauvie Island Wildlife Area Coordinated Resource Plan" was developed. In 1991, the Commission commenced a major revision to the 1974 Plan.
	3.	To create the Sauvie Island Wildlife Area, the Oregon Department of Fish and Wildlife (ODFW) began its initial acquisition of private property on Sauvie Island in 1947. Plaintiffs' Exhibit 1 Sauvie Island Wildlife Brochure.
	4.	Since the initial acquisition of private property in 1947, ODFW has continued to acquire private property to add to the wildlife area which now comprises over 12,000 acres. Plaintiffs' Exhibit 1.
	5.	Plaintiffs' property is located on the south end of Sauvie Island and is now surrounded on all four sides by lands owned and/or managed by Defendants. Plaintiffs' property has never been owned or managed by Defendants. Plaintiffs' Exhibit 1.
	6.	Along with Plaintiffs' private property, there are two other parcels of private property in the north end of the wildlife area.
	7.	When nudist activities first started in the wildlife area, only a small portion of the beach was used. Terry Dufour Deposition Exhibit 13 Ray Johnson letter.
	8.	By the early 1980's, public nudity had grown in numbers and spread along the length of the beach up to and including the northern most tip of the island. NAC affidavits; Terry Dufour Deposition Exhibit 13 Ray Johnson letter; affidavit of Don Anderson.
	9.	Prior to the adoption of the Sauvie Island Wildlife Area Beach Use Plan in 1993 ("Beach Use Plan"), there was no clearly defined area for public nudity by Defendants.
	10.	Between 1990 and the present, at least 1000,000 but as many as 344,844 user days per year have been recorded for the beaches along Reeder Road, including Walton Beach, Collins Beach and the North Unit Beach.
	11.	Users of the clothing optional beach include people of all ages, races, color, national origin and sexual orientation. Families and single people use the clothing optional beach. Users play volleyball, sunbathe, walk the beaches, and play in and around the water among other common beach recreational uses.
B.	Historical - Plaintiffs' Property
	12.	Plaintiffs purchased property described in Defendants' Exhibit 121 in February of 1990.
	13.	Plaintiffs first became aware of this property in 1989, and understood that a conditional use permit would be required in order to build on the property.
	14. 	Plaintiffs were aware of the Department's objection to building on the property. Those objections are set forth in Defendants' Exhibit 102. These objections included the problem of trespassing on plaintiffs' property by beach users.
	15.	At the time plaintiffs purchased the property, there were no legal restrictions that limited the presence of nude sunbathers in the area of the plaintiffs' property.
	16.	Plaintiffs contacted an Oregon real estate agent, Tom Goodwin, to obtain information about the property in the fall of 1989. Testimony of Teri Powers, affidavit of Tom Goodwin.
	17.	Tom Goodwin provided plaintiffs with a packet of information he had submitted to the Columbia County Planning Commission to obtain a conditional use permit to allow building a nonresource related dwelling on the property. Plaintiffs' Exhibit 13; testimony of Teri Powers.
	18.	Tom Goodwin's packet of information contained a letter Defendant ODFW had submitted to the Columbia County Planning Commission opposing the granting of the conditional use permit dated September 21, 1989. Nowhere in the letter does defendant ODFW inform the Columbia County Planning Commission there is a nude beach near or adjacent to the property. Plaintiffs' Exhibit 13.
	19.	In January 1990, Plaintiffs and Tom Goodwin inspected the property and did not see any naked individuals signs informing of a nude beach, or any other evidence that there was a nude beach near or adjacent to the property. Plaintiffs' Exhibh [sic] affidavit of Tom Goodwin; testimony of Teri Powers.
	20.	Plaintiffs' property extends toward the Columbia River tot he traditional high water line of the Columbia River. The land extending from the high water line of the Columbia River to the water is public property.
	21.	The use of the beaches adjacent to plaintiffs' property as a clothing optional beach pre-dates plaintiffs' purchase of their property. The public beaches have been used as clothing optional at least since the 1970s.
	22.	Prior to 1993, there were no regulations or plans specifically addressing or regulating public use of the beaches.
	23.	Plaintiff Glen Mark purchased the property at issue on the north end of Sauvie Island on February 5, 1990. Plaintiffs moved onto the property in June 1990. At the time they purchased the property, there was no residence on the property.
	24.	Plaintiffs' property is located at the end of Reeder Road on Sauvie Island. The road dead ends just north of plaintiffs' property. Plaintiffs' nearest neighbors include housing for the employees of the Oregon Department of Fish and Wildlife to the northwest.
	25.	Tom Goodwin never informed Plaintiffs that a nude beach was near or adjacent to the property. Plaintiffs' Exhibit affidavit of Tom Goodwin, testimony of Teri Powers.
	26.	Defendants own the wide strip of beach in front of Plaintiffs' property between the high and low water lines ("submersibles").
	27.	At the time Plaintiff purchased the property, Defendants had not posted signs anywhere on Sauvie Island indicating the presence and/or location of a nude beach nor had Defendant ODFW indicated in its public use brochure that a nude beach existed in the wildlife area.
	28. 	At the time of Glen Mark's purchase of the property, Both Plaintiffs were unaware of the existence of a nude beach in the wildlife area. Testimony of Teri Powers; testimony Bill Kinyoun; affidavit of Tom Goodwin.
	29.	Plaintiffs would not have purchased the property had they known public nudity was occurring on the beaches. Testimony of Teri Powers.
C.	Current Sauvie Island Wildlife Management Plan (hereinafter "The Plan")
	30.	In January of 1993, the Department, through its Director, Randy Fisher, adopted the current Plan. That plain is Plaintiffs' Exhibit 19. The plan recognized that "the beaches along the Columbia River have grown in popularity to include many uses that are not wildlife oriented recreation. The Department will search out ideas on how to regulate this use." Plaintiffs' Exhibit 19, page 4.
	31.	Traffic counters in 1991 recorded 750,000 visitor days in 1991; 65% of those "visitor days" were for recreational activities such as swimming, beach activities, and fishing. Plaintiffs' Exhibit 19, page 8.
	32.	The plan recognized that the Department needed to pursue a method to manage the beach use at a level compatible with the purpose of the wildlife area. 
	33.	Ultimately, the goal, as restated in The Plan, was to restrict non hunting uses (in other words, the 65% of the 750,000 user days) to not more than 200,000 user days per year. As part of this, the task that centered on beaches was to explore methods to control and regulate beach use, and to improve the beach use for family oriented recreation area. Plaintiffs' Exhibit 19, page 25.
D.	Beach Use Plan
	34.	In September 1993, after numerous public meetings involving users and residents of Sauvie Island's beaches, the ODFW issued its Sauvie Island Wildlife Area Beach Use Plan ("Beach Use Plan"). As a result of this plan, the north boundary of the Clothing Optional Beach moved from north of the Mark property to south of the Mark property. The Clothing Optional Beach was renamed Collins Beach, and the beach north of the Mark property was renamed North Unit Beach.
	35.	Pursuant to the directions provided in The Plan, the Sauvie Island Area Beach Use Plan (hereinafter "the Beach Plan") was adopted in September of 1993. The primary features of the Beach Plan, as it related to Plaintiffs' lawsuit, consisted of developing and implementing a "long range plan" that is outlined as follows:
Collins Beach (Clothing Optional Beach)
36.1	Boundary

	Collins Beach extends from the above-described wingdike north to the private property.

36.2	Buffer South

	This buffer extends from the wingdike north 100 feet, and from the ordinary high water line inland to the Reeder Road right-of-way. Public use in the buffer is excluded from Memorial Day weekend through Labor Day inclusive.

	The buffer will be developed for wildlife habitat benefits by plantings of cottonwoods and shrubs.

	The buffer will be posted, "Closed to Entry from Memorial Day weekend through Labor Day, inclusive."

36.3	Buffer North

	This buffer extends from private property south 425 feet and from the ordinary high water line inland to the Reeder Road right-of-way.

	Public use in the buffer is excluded from Memorial Day weekend through Labor Day, inclusive.

	The buffer will be developed for wildlife habitat benefits by plantings of cottonwoods and shrubs.

	The buffer will be posted, "Closed to Entry from Memorial Day weekend through Labor Day, inclusive."

	37.	In addition, the areas and boundaries set forth in part two, quoted above, page 7 of the Beach Use Plan provided for a limitation on parking by use of designated parking areas with parking areas with parking permit requirements.

	37.1	Parking

	The beach parking sites described below are not reserved for beach users, but are shared by anglers, dog trainers, hikers, hunters, picnickers, clothed sunbathers, clothing-optional sunbathers, wildlife watchers, and others on a first-come, first-served basis without regard to whether users go to the beaches or the interior of the island. Any user may park in any designated parking site.

	38.	In addition to the parking limitations, the Department (page 9) sought to limit the beach access in the following ways:

	38.1	Maintain all existing paths from road to beach;

	38.2	Paths to Collins Beach shall be posted with back-to-back, "Entering Clothing-Optional Area," and "Leaving Clothing-Optional Area." Signs will be placed next to paths, back from the edge of the road.

	38.3	Back-to-back signs identical to those in paragraph 2.2 [sic] above will be placed at, and at intervals above, the ordinary high water line along the north and south boundaries of Collins Beach, as those boundaries are defined in paragraph 1.1 and 2.1 of section "A" of this Plan.

	38.4	Signs will be user friendly and vandal resistant.

	39.	As a result of the Beach Use Plan, Collins Beach was specifically designated a clothing optional beach (page 17, section 6.2) and the Beach Use Plan made it clear that "clothing optional use outside Collins Beach will be discouraged." (Page 11, section 6.4 of The Plan).
	40.	After the Beach Use Plan was adopted, ODFW published a new wildlife area brochure that did not contain any information about a nude beach area on the wildlife area, did not show by means of a map where the nude beach was located on the wildlife area or otherwise advise visitors to the nude beach about Plaintiffs' adjacent private property or otherwise seek to discourage nudity outside the nude beach boundaries. Testimony Terry Dufour.
	41.	Defendant ODFW provided no means to enforce the nude beach boundaries and relied upon voluntary compliance. Beach Use Plan Section K 6.4
	42.	After adoption of the Beach Use Plan, Defendant ODFW's efforts to control nudity on the wildlife area have consisted of posting signs which over the years have proven insufficient. Testimony Teri Powers, testimony Toni Powers; testimony Bill Kinyoun; testimony Deputy Larry Weaver; affidavit James Beckham; affidavit Dean Shade; affidavit Bea Mark.
E.	Plaintiffs' Concerns
	43.	Since moving to the property, Plaintiffs and their friends and family have witnessed hundreds of nude adults on Defendants' lands from Plaintiffs' property. Plaintiffs and their friends and family witness nude individuals on Defendants' submersible portion of the beach in front of plaintiffs' property, and on Defendants' lands immediately north and south of Plaintiffs' property. Plaintiffs and their friends and family witness nudity in the "buffer zone" south of the Plaintiffs' property, on the submersible beach below high water line in the buffer zone, on Defendants' lands south of the buffer zone, and on Defendants' land north of Plaintiffs' property. Testimony Teri Powers; testimony Toni Powers.; affidavit Dean Shade; affidavit James Beckman; affidavit Bea Mark.
	44.	Signs immediately adjacent to plaintiffs' property have been vandalized and destroyed, and have been continually replaced by the Department.
	45.	The current signing, which consists of fiber signs with the legend "entering clothing optional beach" on one side, and "leaving clothing optional beach" on the other side can be observed when leaving the north end of the buffer zone. At least one of those signs has been vandalized.
	46.	on warm days, both in the summer and throughout the year, Plaintiffs routinely see nude adults from their property. In the warmer months, Plaintiffs are likely to witness on a daily basis, anywhere from a small number to a few dozen nude adults on Defendants' lands, from Plaintiffs' property. Testimony of Bill Kinyoun; testimony of Teri Powers; testimony Toni Powers; affidavit Karen Kinyoun.
	47.	In addition to seeing nude adults on Defendants' lands adjacent to their property, Plaintiffs regularly and consistently see nude adults trespassing on their property.
	48.	Since moving to the property, Plaintiffs and their friends and family, while on Plaintiffs' property, have witnessed numerous acts of sexual conduct occurring on Defendants' lands adjacent to the Plaintiffs' property. Plaintiffs and their friends and family have witnessed sexual acts on the submersible beach in front of Plaintiffs' property, on Defendants' lands both north and south of of Plaintiffs' property, and on Plaintiffs' property itself. Over the last eleven years, Plaintiffs together witnessed over a dozen sexual acts a year occurring on Defendants' lands. Sexual acts Plaintiffs and their friends and family have witnessed on Defendants' lands include couples touching each other's genitals and breasts, masturbation, oral sex and sexual intercourse. Testimony of Teri Powers; testimony of Bill Kinyoun; affidavits of Toni Powers, James Beckham and Nancy Wright.
	49.	In addition to these sexual acts, Plaintiffs have also witnessed men photographing other mens [sic] genitals, men photographing women's genitals, men walking on the submersible beach in front of Plaintiffs' property with erections, and on a few occasions in the winter months, clothed men walking on the submersible beach in front of Plaintiffs' property with their penises out of their pants. Testimony Teri Powers.
	50.	Plaintiffs have documented through reports of ODFW from the period of 1996 to 1997 seven reports of public indecency. These reports were generated by Bill Kinyoun (Plaintiffs' Exhibit 8). Additionally, in Plaintiff's Exhibit 5, a report (not duplicated in Plaintiff's Exhibit 8) of a "pornographic film" shot on the are north of the closed clothing optional beach, was entered. There is no evidence that plaintiffs observed the photographer or models involved in this pornographic film.
	51.	From 1993 through 1997. reports from Deputy Weaver indicate that on 18 occasions lewd or public indecency behavior was reported. Some of these incidents involve the same incident reported by ODFW employee Kinyoun.
	52.	Plaintiffs specifically identified at least six incidents of public indecency that were viewed from their property. Some of the incidents were reported to Kinyoun or Weaver, and are documented in their reports. Other acts of public indecency were viewed along Reeder Road near Walton and Collins Beach.
	53.	Plaintiffs have observed and documented through photos, nudity in the buffer zone, as well as the area between the high and low water marks immediately adjacent to their property, as well as nudity on the north beach.
	54.	Since moving to their property, Plaintiffs and their friends and family have regularly and consistently viewed nude adults along the side of Reeder Road, in the parking lots adjacent to the beach on Reeder Road, and crossing the road between the beach and the parking lot. Plaintiffs and their friends have also witnessed a significant amount of sexual activity on Reeder Road, including men masturbating, nude couples fondling each other, and nude men walking or standing along the road with erections. Testimony of Teri Powers, Bill Kinyoun, Toni Powers, Deputy Larry Weaver; affidavits of Karen Kinyoun, Nancy Wright, James Beckham, and Dean Shade.
	55.	The expected primary and best uses of Plaintiffs' waterfront residential property are outdoor, beach related activities such as swimming, barbequing [sic], and watching the ships and river. Testimony Teri Powers.
	56.	Plaintiffs' use and enjoyment of their property has been greatly restricted by the constant and routine exposure to public nudity, as well as sexual activity, occurring on Defendants' lands. Plaintiffs' use and enjoyment of their property is significantly reduced in the following particulars: 1) Plaintiffs avoid engaging in beach activities to avoid exposure to nudity which they find offensive; 2) Plaintiffs avoid the use of the beach to avoid confrontations with nude individuals when asked to return to the designated nude beach area; and 3) By the increasing reluctance and sometimes refusal of their friends and family to visit Plaintiffs on their property because of their desire to avoid exposure to unwanted and offensive adult nudity and sexual activity. Testimony Teri Powers; testimony Toni Powers; testimony bill Kinyoun; affidavit Karen Kinyoun; affidavit Dean Shade.
	57.	Deputy Weaver testified that the vast majority of illegal sexual activity that takes place on the wildlife are occurs on and around the nude beach. Testimony Deputy Weaver.
	58.	After adoption of the Beach Use Plan in 1993, there was a small reduction in the number of nude individuals outside the nude beach boundary and in front of or in view from Plaintiff's property in 1994. From 1995 until the present the numbers of nude individuals outside the nude beach boundary and in front of or in view from Plaintiffs' property have risen substantially and are now at least equal in number to before the adoption of the Beach Use Plan. Testimony Teri Power.
	59.	The 1993 Beach Use Plan provided that a long range plan for future control of public beach use would be developed by January 2994 and that plan has not bee developed by defendant ODFW. Beach Use Plan Section L.
	60.	The long range Beach Use Plan provided that, if necessary, ODFW was to develop appropriate Oregon Administrative Rules to implement selected elements of the Beach Use Plan. ODFW has not enacted an administrative rule that regulates public nudity on the wildlife area. Beach Use Plan Section L.8.
	62.	The Beach Use Plan provided that defendant ODFW would use leaflets, news releases and other media to inform beach users of potential changes and the reasons for them and ODFW never used any of these means to notify the general public that nudity on the wildlife [sic] was restricted to Collins Beach. Beach Use Plan Section I 1.1.
II.
CONCLUSIONS OF LAW
	1.	There is no law prohibiting public nudity, without a clear sexual component, on Sauvie Island.
	2.	The Defendants cannot be held liable for the trespassory invasions of Plaintiffs' property by third parties.
	3.	Neither Columbia County nor the State of Oregon have outlawed nudity, per se.
	4.	ORS 163.465 outlaws public indecency as follows:

(1)	A person commits the crime of public indecency if while in, or in view of a public place the person performs:
	(a) an act of sexual intercourse; or
	(b) an act of deviate sexual intercourse; or
	(c) an act of exposing the genitals of the person with the intent of arousing the sexual desire of the person or another person.
(2)	Public indecency is a Class A misdemeanor.

	5.	Defendants have knowingly allowed and/or permitted the use of their lands for public nudity.
	6.	Defendant ODFW has failed to exercise reasonable control over the nude activities on its lands.
	7.	This failure of Defendant ODFW to exercise reasonable control over the nude activities has allowed a private nuisance to develop and exist.
	8.	Defendant ODFW is aware of the use of their lands for significant unlawful sexual activity.
	9.	Defendant ODFW has not taken reasonable steps to eliminate or control unlawful sexual activity on its property.
	10.	This failure of defendant to regulate or otherwise exercise control over the nude activities on their land is the direct cause of a nuisance developing immediately adjacent to plaintiffs' private property.
	11.	Plaintiffs have proved a substantial interference with the use and enjoyment of their property as a result of their proximity to uncontrolled and intrusive nude activities on Defendants [sic] lands.
	12.	Plaintiffs have proved a substantial interference with the use and enjoyment of their property as a result of their proximity tot the sexual activities occurring on Defendants [sic] lands. 
	13.	The failure of Defendants to regulate or otherwise exercise control over the nude activities occurring on their lands s the direct cause of the interference with the use and enjoyment of Plaintiff's property.
	14.	Plaintiffs have proved facts sufficient to establish a private nuisance.
	15.	Plaintiffs are entitled to injunctive relief.
	DATED this   30th   day of   March  , 2001.


//signed                                                        
Ted E. Grove
Circuit Court Judge