Williams v. Invenergy, LLC et al
Filing
63
OPINION and ORDER - Defendants' Motion to Dismiss 19 Williams's claims for nuisance per se and statutory nuisance is GRANTED. FURTHER, Defendants' motion for summary judgment 19 on Williams's claim for injunctive relief is DENIED. Signed on 12/16/14 by Magistrate Judge John V. Acosta. (peg)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
Civ. No. 3:13-cv-01391-AC
DANIEL BRIAN WILLIAMS,
OPINION AND
ORDER
Plaintiff,
v.
INVENERGY, LLC, an Illinois corporation,
and WILLOW CREEK ENERGY, LLC, a
Delaware corporation,
Defendants.
ACOSTA, Magistrate Judge:
Introduction
Plaintiff Daniel Brian Williams ("Williams") brings claims for statutory nuisance, commonlaw nuisance, and trespass to land. Williams's claims center on Defendants Invenergy, LLC,
("Invenergy") and Willow Creek Energy, LLC ("Willow Creek") (collectively "Defendants"),
operating a forty-eight turbine wind farm (the "Wind Farm") near Williams's prope1ty.
Before the court is Defendant's motion to dismiss pursuant to Federal Rule of Civil
Procedure l 2(b)( 6) and motion for summary judgment, pursuant to Federal Rule of Civil Procedure
56. 1 Defendants assert Williams has failed to state a cognizable claim for statutory nuisance and
failed to allege facts sufficient to state a plausible claim for trespass, and they seek dismissal of those
claims. Defendants also assert Williams failed to exhaust his administrative remedies, and they seek
summary judgment on this basis. Williams opposes Defendants' motion and further asserts the
motion is untimely.
Defendants' motion is granted as to Williams's claims for nuisance per se, statutory nuisance,
and trespass.
Defendant's motion is denied as to Williams's alleged failure to exhaust his
administrative remedies. Plaintiffs request to deny Defendants' motion as untimely is denied.2
Background
On January 31, 2005, Morrow County granted Defendants conditional use approval to
construct and operate a seventy-two megawatt wind-powered electrical-generation facility. (Comp!.
~
8.) The Wind Farm consists of forty-eight wind turbines and is the first facility of its kind
permitted in Morrow County.
the permitting process.
(Comp!.~
(Comp!.~
8.) Williams did not participate in the public portions of
9.)
1
Defendants' motion will be treated as a motion for judgment on the pleadings pursuant to
FRCP 12(c) due to the case's posture as explained infi·a.
2
The parties have consented to jurisdiction by magistrate judge, pursuant to 28 U.S.C. § 686.
OPINION AND ORDER
2
During the summer of2008, Williams and other local property owners (collectively "Property
Owners") complained to Defendants about the potential adverse affects of the Wind Farm being
constructed near their property. (Comp!.
ii 10.)
David Iadarola, Defendants' project developer at
the time, met with the Property Owners at Williams's home on July 16, 2008, to address these
concerns. (Comp!. ii 10.) At the meeting, Mr. Iadarola informed the Property Owners that Morrow
County Ordinance No. MCC-5-96 governed the noise output of the Wind Farm. (Comp!. ii 10.) Mr.
Iadarola stated that ordinance allowed for the Wind Farm to make noise up to fifty-five decibels
("dB A") during the day and up to fifty dBAs at night. (Comp!. ii 10.) A second meeting was held
on August 13, 2008, at the Eaton residence. (Comp!. ii 10.) At that meeting, Mr. Eaton informed
Mr. Iadarola and Clint Brooks, Defendants's site manager, that statewide regulations controlled the
issue and that those regulations allowed the Wind Farm to make noise only up to thirty-six dBAs.
(Comp!. ii 10.)
On November 3, 2008, the Property Owners complained about the anticipated noise pollution
to Morrow County officials. (Comp!.
ii 13.)
As part of this complaint, the Property Owners claim
Defendants stated they could not comply with the thirty-six dBA standard and produced a computer
mapping showing expected noncompliance with that standard. (Comp!.
ii 13.)
On December 3,
2008, Defendants responded, asse11ing the thirty-six dBA standard would be met. (Comp!.
That assertion was later proven incorrect by Defendants' own testing. (Comp!.
ii 14.)
ii 14.)
Later that
month, the Wind Farm became operational, with each turbine coming online sequentially. (Comp!.
ii 15.)
On January 7, 2009, Williams and the other property owners complained to Morrow County
officials that noise from the Wind Farm exceeded thirty-six dBAs. (Comp!. ii 16.) Additionally, the
OPINION AND ORDER
3
Wind Farm was adversely affecting the health and sleep of the Property Owners in violation of the
first condition of Defendants' conditional use permit.
(Comp!.~
16.)
In response to this complaint, Defendants hired a wind energy consultant, Michael D.
Theriault Acoustics, Inc., to conduct noise studies. (Comp!. ~ 18.) On May 13, 2009, noise
monitoring systems were placed in Williams's home. (Comp!.~ 18.) The energy consultant issued
a report on June 19, 2009, registering the regular noise exceedances between forty-two and fortythree dBAs.
(Comp!.~
18.)
From June 2009 to the present, Defendants attempted to reduce the noise produced by the
Wind Farm. (Comp!.~ 19.) Defendants designed, tested, and are now implementing a system for
predicting when wind turbine noise adds more than ten dBAs to the background ambient noise,
which system is intended to bring the wind farm into compliance with the applicable standards.
(Comp!.~
19.) This system recognizes three conditions that, when present, require a shut down of
turbines in close proximity to Williams's property: 1) high wind speed atthe turbine hubs, 2) low
ground wind speed at Williams's residence, and 3) wind out of the southwest. (Comp!.~ 19.) This
system will not catch all exceedances at Williams's residence.
(Comp!.~
19.)
On May 25, 2010, the Morrow County Planning Commission ruled that Defendants were in
violation of the state-wide noise standards. (Comp!.~ 20.) For the following two years, Williams
and Defendants litigated the issue twice before the Morrow County Planning Commission, three
times before the Morrow County Court, and twice before the Land Use Board of Appeals ("LUBA").
(Comp!.
~
20.) While LUBA found exceedences at Williams's property, it declined to require
Morrow County enforce the ordinances because LUBA concluded it lacked that authority. (Comp!.
~20.)
OPINION AND ORDER
4
On June 29, 2012, Defendants set up acoustical measurement equipment on Williams's
property to collect data. (Comp!.
'if 21.)
Defendants used this data to design a system that would
cutoff turbine operations to eliminate noise exceeding ordinance limits. (Comp!. 'if 21.) In January
2013, Defendants began shutting down certain turbines if certain conditions were present to test the
relationship between weather conditions and noise in excess of ten dB As over the ambient noise at
Williams's property. (Comp!. 'if 21.) Predictive models show Defendants' current system will not
curtail all noise exceedences. (Comp!. 'if 22.) In addition, the system Defendants are developing will
go into action only after an exceedence takes place, instead of in anticipation of an exceedence.
(Comp!.
'if 23(d).)
Legal Standard
I. Motion to Dismiss for Failure to State a Claim Upon Which Relief Can be Granted.
On a motion to dismiss for failure to state a claim, the court must take as true all allegations
of material fact, construing them in the light most favorable to the nonmoving party. Am. Family
Ass 'n Inc. v. City & County of S. F., 277 F.3d 1114, 1120 (9th Cir. 2002). The court's review is
limited to the face of the complaint, any documents referenced in the complaint, and those matters
which the court may properly take judicial notice. Schwartz v. KPMG LLP, 476 F.3d 756, 763 (9th
Cir. 2007). Otherwise, as a general rule, a district court may not consider any material outside the
pleadings when ruling on a FRCP 12(b)(6) motion. Lee v. City ofL. A., 250 F.3d 668, 688 (9th Cir.
2001).
A well-pleaded complaint must have "a short and plain statement of the claim showing that
the pleader is entitled to relief." FED. R. C1v. P. 8(a) (2014). A FRCP 12(b)(6) motion is granted
ifthe allegations in the complaint are insufficient to state a claim for relief. FED. R. Clv. P. 12(b)(6)
OPINION AND ORDER
5
(2014). In Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), the Court explained the necessity
of including sufficient facts in the pleading to give proper notice of the claim and its basis: "While
a complaint attacked by a Rule l 2(b )( 6) motion to dismiss does not need detailed factual allegations,
a plaintiffs obligation to provide the 'grounds' of his 'entitlement to relief' requires more than labels
and conclusions, and formulaic recitation of the elements ofa cause of action will not do." Id. at 555
(alteration omitted). With this in mind, the Court noted "a well-pleaded complaint may proceed even
if it strikes a savvy judge that actual proof of those facts is improbable, and 'that a recovery is very
remote and unlikely.'" Id. at 556 (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)).
Later, in Ashcroft v. Iqbal, 556 U.S. 662, 678-679 (2009), the Court illuminated two
principles underlying its decision in Twombly. First, that a court must accept as true all allegations
in a complaint does not require a court to accept as true legal conclusions in a pleading. Id. at 678.
Second, the complaint must contain a plausible, not merely possible, claim for relief. Id. at 679. The
Comt clarified that"[d]etermining whether a complaint states a plausible claim for relief will ... be
a context-specific task that requires the reviewing court to draw on its judicial experience and
common sense." Id. (citing Iqbal v. Hasty, 490 F.3d 143, 157-58 (2nd Cir. 2007)). Further, the
Court concluded "[w]hile legal conclusions can provide the framework ofa complaint, they must
be supported by factual allegations. When there are well-pleaded factual allegations, a court should
assume their veracity and then determine whether they plausibly give rise to entitlement to relief."
Id.
II. Motion for Judgment on the Pleadings.
A motion for judgment on the pleadings is governed by Rule 12(c), which states, "[a]fterthe
pleadings are closed - but early enough not to delay the trial - a party may move for judgment on
OPINION AND ORDER
6
the pleadings." FED. R. CIV. P. 12(c) (2013). The purpose ofa Rule 12(c) motion is to challenge
the sufficiency of the opposing party's pleadings, and the court applies the same standard as a motion
under Rule 12(b)(6). Chavezv. United States, 683 F.3d 1102, 1108-09 (9th Cir. 2012). Accordingly,
judgment on the pleadings is appropriate when, even if all material facts in the pleading under attack
are true, the moving party is entitled to judgment as a matter of law. Hal Roach Studios, Inc. v.
Richard Feiner & Co., Inc., 896 F.2d 1542, 1550 (9th Cir. 1989). If matters outside the pleadings
are considered, the motion shall be treated as one for summary judgment. FED. R. CIV. P. 12(d)
(2013).
III. Motion for Summaiy Judgment.
Summary judgment is appropriate where the "movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter oflaw." FED. R. CIV. P.
56(a) (2012). Summary judgment is not proper if material factual issues exist for trial. Warren v.
City of Carlsbad, 58 F.3d 439, 441 (9th Cir. 1995).
The moving party has the burden of establishing the absence of a genuine issue of material
fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party shows the absence of
a genuine issue of material fact, the nonmoving party must go beyond the pleadings and identify facts
which show a genuine issue for trial. Id. at 324. A nonmoving party cannot defeat summary
judgment by relying on the allegations in the complaint, or with unsupported conjecture or
conclusory statements. Hernandez v. Spacelabs Med., Inc., 343 F.3d 1107, 1112 (9th Cir. 2003).
Thus, summary judgment should be entered against "a party who fails to make a showing sufficient
to establish the existence of an element essential to that party's case, and on which that party will
bear the burden of proof at trial." Celotex, 477 U.S. at 322.
OPINION AND ORDER
7
The court must view the evidence in the light most favorable to the nonmoving party and
draw all reasonable inferences in that party's favor. Clicks Billiards Inc. v. Sixshooters, Inc., 251
F.3d 1252, 1257 (9th Cir. 2001). All reasonable doubt as to the existence ofa genuine issue of fact
should be resolved against the moving party. Hector v. Wiens, 533 F.2d 429, 432 (9th Cir. 1976).
Where different ultimate inferences may be drawn, summary judgment is inappropriate. Sankovich
v. Life Ins. Co. ofN. Am., 638 F.2d 136, 140 (9th Cir. 1981).
However, deference to the nonmoving party has limits. A party asserting that a fact cannot
be true or is genuinely disputed must support the assertion with admissible evidence. FED. R. CIV.
P. 56(c) (2012). The "mere existence ofa scintilla of evidence in support of the [party's] position
[is] insufficient." Anderson v. Liberty Lobby, Inc., 4 77 U.S. 24 2, 252 (1986). Therefore, where "the
record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there
is no genuine issue for trial." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Co1p., 475 U.S. 574,
587 (1986) (internal quotations marks omitted).
Discussion
Defendants assert four arguments. First, Defendants argue Oregon law does not recognize
nuisance per se as a cause of action. Second, Defendants contend that Williams is attempting to
transform a violation of noise ordinances into a common law claim for nuisance. Third, Defendants
argue Williams has failed to allege facts sufficient for a trespass claim. Fourth, Defendants contend
Williams failed to exhaust the administrative remedies available to him by failing to appeal LUBA's
adverse determinations. Williams asserts that Defendants' motion to dismiss is not timely and
should be dismissed on that ground. The court considers Williams's timeliness argument first, and
then each of Defendants' arguments in turn.
OPINION AND ORDER
8
I. Timing of Defendants' Motion to Dismiss
Williams' s untimeliness argument actually challenges the sequencing, not timeliness, of
Defendants' motion. Specifically, Williams contends Defendants' motion to dismiss for failure to
state a claim must be denied because Defendants filed their motion after, instead of before, they filed
their answer. Williams argues Defendants have thus relinquished the procedural right to attack his
complaint under Rule 12(b)(6) for failure to state a claim, and they now may proceed only by a
motion for judgment on the pleadings under Rule 12(c ). Williams asserts that because both Rule
12(c) and controlling case law require a motion for judgment on the pleadings be brought only after
the pleadings are closed, Defendants' motion is untimely as premature.
A Rule 12(b)(6) motion "must be made before the responsive pleading." Elvig v. Calvin
Presbyterian Church, 375 F.3d 951, 954 (9th Cir. 2004). When a 12(b)(6) motion is filed after the
answer, the motion should be treated as one for judgment on the pleadings. Elvig, 375 F.3d at 954.
See also Aldabe v. Aldabe, 616 F.2d 1089, 1093 (9th Cir. 1980) (holding that the "best approach"
is to treat a motion to dismiss filed after the answer as a motion for judgment on the pleadings).
Thus, the question here is whether the court may consider Defendants' motion now, or whether
Defendants must refile their motion once the pleadings are closed.
Defendants' motion is timely for two independent reasons. First, Defendants' motion is
consistent with Rule 12 (c)'s requirements. Federal Rule of Civil Procedure 12(c) directs that a
motion for judgment on the pleadings be filed "[a]fter the pleadings are closed[.]" The pleadings
are closed when all required or permitted pleadings, as defined in Rule 7(a), have been filed and
served. Norcal Gold, Inc., v. Laubly, 543 F. Supp. 1132, 1135 (E.D. Cal. 2008). See also In re
Villegas, 132 B.R. 742, 745 (9th Cir. BAP 1991) ("Pleadings are not closed until at least an answer
OPINION AND ORDER
9
has been filed . . . . Judgment on the pleadings may not be entered where no answer has been
filed."). Rule 7(a) defines pleadings as the complaint; answer to a complaint, counterclaim, or crossclaim; a third-party complaint; an answer to a third-party complaint; and a reply to an answer.
Williams filed his complaint on August 9, 2013, and Defendants filed their answer on
October 22, 2013. The case law makes clear that a motion for judgment on the pleadings may be
filed as early as after the answer is filed, but may not be filed before the answer is filed. Defendants
filed their motion to dismiss well after they filed their answer. Further, in the time since Williams
filed his complaint and Defendants filed their answer, neither party has filed or sought leave to file
additional pleadings, and neither party has suggested, directly or indirectly, that further pleadings are,
or might be, forthcoming. On this record, therefore, the pleadings in this case effectively are closed
and Defendants' motion thus is properly filed and considered as a motion for judgment on the
pleadings.
Second, Defendants' motion to dismiss is consistent with the court's December 2, 2013
scheduling order. At the Rule 16 conference held that date, the court directed Defendants to file any
motion to dismiss no later than February 3, 2014. The court's minute order confirmed this directive:
"Any motion regarding plaintiffs exhaustion of administrative remedies and/or failure to state a
claim are to be filed no later than February 3, 2014." (Dkt. No. 16.) By setting an early date for
Defendants to file all motions challenging the sufficiency of Williams's claims or the
appropriateness of Williams's claims being heard by this court, the coutt intended to resolve all
procedural issues that could affect the nature and scope of the parties' discovery efforts, and to focus
the legal issues to be decided.
OPINION AND ORDER
10
Thus, Defendants timely filed their motion to dismiss under rule l 2(b)( 6) consistent with the
court's scheduling order, which modified the rule's timing requirements. The court has the express
authority to do so. See FED. R C1v. P. I (the rules "should be construed and administered to secure
the just, speedy, and inexpensive determination of every action and proceeding"). See also FED. R
CIV. P. 16(a) (authorizing the court to set case schedules in part for the purposes of expediting case
disposition, managing case activities, and discouraging wasteful pretrial activities). For this
additional reason, Defendants' motion is timely filed.
The remaining question is whether the court should consider Defendants' motion under the
Rule l 2(b)(6) standard or the Rule 12(c) standard, because either standard could apply in light of the
procedural posture created by the filing sequence of answer, Rule 16 order, and motion to dismiss.
Ultimately, it makes little difference which standard is applied here because the two standards
essentially are the same: both Rule 12(b)(6) and Rule 12(c) require the court to accept as true the
allegations in the complaint in determining whether a complaint sufficiently states a claim upon
which relief may be granted. Compare, e.g., Fleming v. Pickard, 581 F.3d 922, 925 (9th Cir. 2009)
(applying Rule! 2(c), court "must accept all factual allegations in the complaint as true and construe
them in the light most favorable to the non-moving party"), with Barker v. Riverside County Office
ofEduc., 584 F.3d 821, 824 (9th Cir. 2009) (applying Rule 12(b)(6), the court must "accept as true
the facts alleged in the complaint" and must "draw inferences in the light most favorable to the
plaintiff'). While the two rules differ in some ways, those differences are not relevant here because
Defendants' challenges do not implicate factual disputes: defendants contend Williams's statutory
nuisance claim is not a cognizable legal theory, and argue his trespass claim fails to satisfy the
elements for such a claim even if all his allegations are true.
OPINION AND ORDER
11
The court will apply the Rule l 2(b )( 6) standard. The court specifically ordered Defendants
to file motions to dismiss by February 3, 2014, even though Defendants already had filed their
answer, under its authority to manage cases efficiently and expeditiously. Further, Rule l 2(h)(2)
makes clear that a challenge of failure to state a claim may be raised at anytime, including at trial,
notwithstanding the number or subpart of the rule used to invoke that challenge.
II. Nuisance Per Se and Statutory T01t
Defendants contend Oregon law does not recognize a "statutory nuisance" claim for the
violation of a statute or ordinance. Defendants cite Dept. Envtl. Quality v. Chem. Waste Storage &
Disposition, Inc., 19 Or. App. 712 (1974) ("DEQ") in support of their position, a case which
evaluated the circumstances under which violation of a statute constituted nuisance per se. Williams
responds first that ORS§ 467.010 and Oregon Administrative Rule ("OAR") 340-035-0035, et seq.
3
(together the "Provisions"), contemplate nuisance liability, and that violation of the Provisions
constitutes nuisance per se when Oregon principles of statutory construction are applied. Williams
alternatively argues the court should infer a statutory nuisance claim from the Provisions based on
the mandatory duty they impose, and he cites two cases that address statutory duty, Nearing v.
Weaver, 295 Or. 702 (1982), and Scovil v. City of Astoria, 324 Or. 159 (1996), to support his
alternative position.
A. Per Se and Statutory Tort Theories.
Properly analyzing Williams' s argument first requires distinguishing between a nuisance per
se theory and a statutory tort theory. The parties' respective briefing conflates the two theories and
3
In his brief, Williams cited OAR 345-035-0035, which does not exist. At hearing,
Williams clarified that OAR 340-035-0035 is the regulation he intended to cite.
OPINION AND ORDER
12
the elements of each to some extent, but Williams' s briefing makes clear he advances each of these
two theories as separate basis of Defendants' liability. Summarized succinctly, the difference
between the two theories is that under a negligence per se theory, a statute creates a standard of care,
but under a statutory duty theory, the statute imposes only a duty to act. See, e.g., Scovil, 324 Or.
at 173 ("ORS 426.460(1 ), as interpreted above, creates and imposes only a duty to act as it provides.
It does not create a standard of care and, therefore, plaintiffs negligence per se claim is without
foundation in that statute.") (footnote omitted). Thus, the differences between these two theories
first must be clarified before analyzing the question whether Williams may use the Provisions as the
basis for a civil cause of action against the Defendants.
Negligence per se is a doctrine which modifies an existing common law negligence action.
Caroline Porell, The Statutory Duty Action in Tort: A Statut01y/Common Law Hybrid, 23 IND. L.
REV. 781, 782 (1990), citing W. PROSSER & W. KEETON, On Torts 222 (5th ed. 1984). Under a
negligence per se theory, the statute establishes a standard of care against which the failure act in the
particular circumstances is to be measured in negligence. Scovil, 324 Or. at 173. In Safeco Ins. Co.
ofAm. v. Olstedt Cosntr., Inc., Case No. CV-02-1680-ST, 2004 WL 1050877 (D. Or. May?, 2004),
Judge Stewart of this court succinctly explained Oregon's negligence per se doctrine:
Negligence per se is a common-law doctrine. Traditional negligence per se actions
rest on the premise that a court has created, or should now be willing to create, a
common law negligence action for persons like the plaintiff. To be liable for
negligence per se in Oregon, the statute in question must be relevant. See Miller v.
City ofPortland, 288 Or. 271, 276, 604 P.2d 1261, 1264 (1980), overruled on other
grounds by Fulmer v. Timber Inn Restaurant and Lounge, Inc., 330 Or. 413, 9 P. 3d
710 (2000). The relevance test entails: "(1) [w]hether the injured person is a
member of the class intended to be protected, and (2)[w]hether the harm is of a kind
which the statute was intended to prevent." Id.
OPINION AND ORDER
13
A violation of a relevant statute does not make the defendant strictly liable as a
matter oflaw. Instead, the violation isprimafacie evidence of negligence, which can
be rebutted by evidence that the defendant's conduct was nevertheless reasonable
under the circumstances. Maquiel v. Adkins, 175 Or. App. 43, 50-51, 27 P.3d I 050,
1055 (2001), review denied, 333 Or. 73, 36 P.3d 974 (2001); Barnum v. Williams,
264 Or. 71, 78-79, 504 P.2d 122, 126 (1972).
Furthermore, even if a person violated a relevant statute in a manner that was not
reasonable under the circumstances, this conduct may be negligent per se, but it will
not result in liability unless it caused the harm.
Safeco Ins. Co. ofAm., 2004 WL I 050877, at *11.
Thus, negligence per se modifies the existing common law. A statute is deemed to establish
the standard of care if the legislature intended it to protect a class of persons and prevent a specific
type of harm. Violation of the statute creates rebuttable evidence of negligence, but if the conduct
is found to be negligent and to have caused plaintiffs injury, then the defendant will be liable.
A statutory tort creates new law from a statute that imposes a duty, but for which there is no
legislative intent to create a tort action. See, e.g., Scovil, 324 Or. at 172 ("[W]e have recognized
'statutory tort' duties in contexts where no common law duty exists but where a statute or ordinance
created a special duty owed by a defendant to a plaintiff, usually arising from the status of the parties
or the relationship between them.") (citation omitted). The statute must impose a special duty upon
a specific group of persons owed to a specific group of persons. Id. An example of such statutes
are "dram-shop acts,'' which impose duties upon servers of alcohol. Fore!!, The Statut01y Duty
Action, 23 IND. L. REV. at 783.
The question for a court addressing a statutory duty claim is whether, based on the statutory
duty, the court should exercise its common law powers and provide a new tort action based on the
statutory duty. Id. As the Scovil court noted:
OPINION AND ORDER
14
"When a legislative provision protects a class of persons by proscribing or requiring
certain conduct but does not provide a civil remedy for the violation, the court may,
if it determines that the remedy is appropriate in furtherance of the purpose of the
legislation and needed to assure the effectiveness of the provision, accord to an
injured member of the class a right of action, using a suitable existing tort action or
a new cause of action analogous to an existing tort action."
Scovil, 324 Or. at 171, quoting Bob Godfi·ey Pontiac v. Roloff, 291 Or. 318, 330 (1981). In deciding
whether to exercise its common law powers, the court must look at the purpose of the statute and
assess whether "a tort remedy is needed to enforce a statutory duty," taking into consideration
whether or not the statute provides "a specific remedy, such as a civil penalty". Scovil, 324 Or. at
171.
B. Nuisance Per Se
Oregon case law has specifically and clearly established the general rule in Oregon: the
existence ofa nuisance is determined on a case-by-case basis, depending on the facts of the condition
giving rise to the claim, unless a statute or regulation meets specific, narrow criteria which allow the
creation of a nuisance per se cause of action. The seminal Oregon case on point is Dept. Envtl.
Quality v. Chem. Waste Storage & Disposition, Inc., 19 Or. App. 712 (1974) ("DEQ"). There, the
defendant operated a waste disposal site in violation of various sections of Oregon's
Environmentally Hazardous Wastes Statutes, ORS 459.410 through ORS 459.690 ("the Statutes").
DEQ, 19 Or. App. at 713. The State of Oregon, through the Department of Environmental Quality
("State"), sued the defendant and alleged that the defendant's operation constituted a public
nuisance. Id.
Ill
OPINION AND ORDER
15
The comt first observed that existence of a nuisance under Oregon law generally is
detetmined based on the facts and circumstances of each case. Id. at 717-18. Oregon Supreme Court
cases on nuisance emphasize, for example, that"' [t]he law of nuisance affords no rigid rule to be
applied in all instances"' and that '"[w]hat is reasonable use and whether a particular use is a
nuisance ... depends upon the facts of each particular case[.]"' Id. The DEQ court then addressed
the State's contention that defendant's operation ofits facility in violation of the statutes constituted
a nuisance per se:
While, as we note below, defendant has been 'operating' the site in violation of the
Environmentally Hazardous Wastes Statutes from the time they became effective in
early 1972, that continuing violation does not require a finding that the site
constitutes a public nuisance. We find nothing in ORS 459.410 through 459.690
declaring such a site to be a nuisance per se. These statutes do direct tight control of
the operation or maintenance of such sites and provide sanctions to be imposed
where compliance is lacking; they do not, however, serve to make that a nuisance
which is not so in fact.
Id.at719.
Implicit in the DEQ comt' s interpretation of the Statutes is that a condition or activity which
violates a statute will not constitute nuisance per se unless the statute contains specific language that
so provides. Other Oregon statutes contain such language and make clear the legislature's intention
to create a nuisance per se remedy. For example, ORS § I 05.555, entitled "Places of prostitution,
unlawful gambling or controlled substances activities as nuisances," provides:
(1) The following are declared to be nuisances and shall be enjoined and abated as
provided in ORS 105.550 to 105.600:
(a) Any place that, as a regular course of business, is used for the purpose of
prostitution and any place where acts of prostitution or patronizing a
prostitute occur;
OPINION AND ORDER
16
(b) Any place that is used and maintained for profit and for the purpose of
gambling or a lottery, as defined in ORS 167.117, by any person, partnership
or corporation organized for profit and wherein take place any of the acts or
wherein are kept, stored or located any of the games, devices or things that
are forbidden by or made punishable by ORS 167.108 to 167.164;
(c) Any place that has been determined to be not fit for use under ORS
453.876 and that has not been decontaminated and certified as fit for use
under ORS 453.885 within 180 days after the determination under ORS
453.876; and
(d) Any place where activity involving the unauthorized delivery,
manufacture or possession of a controlled substance, as defined in ORS
475.005, occurs or any place wherein are kept, stored or located any of the
devices, equipment, things or substances used for unauthorized delivery,
manufacture or possession of a controlled substance. As used in this
paragraph, "devices, equipment, things" does not include hypodermic
syringes or needles. This paragraph does not apply to acts that constitute
violations under ORS 475.860 or 475.864.
See also OR. REV. STAT. ANN.§ 448.265 (1)(2014) (pollution of a water system); OR. REV. STAT.
ANN.§ 609.095 (1-3) (2014) (dogs as a public nuisance); and OR. REV. STAT. ANN.§ 196.855 (1)
(2014) (removal of material from the beds or banks or filling any of the waters of the state without
a permit). Also important to the analysis here is that these statutory schemes also expressly authorize
members of the public to file suit for injunctive or monetary relief, or that they otherwise mandate
the appropriate governmental authority to act on the nuisance. See, e.g., OR. REv. STAT. ANN. §
105.560(2014) (authorizing private cause ofactionforviolationofOR S § 105.555); OR.REV. STAT.
ANN. § 448.265 (2)(2014) ("Violation of subsection (1 )(a) or (b) of this section is a public nuisance
and may be abated as other nuisances under the laws of this state.''); OR. REV. STAT. ANN.§ 609.095
(4) (2014) ("Any person who has cause to believe a keeper is maintaining a dog that is a public
nuisance may complain, either orally or in writing, to the county or city."); OR. REv. STAT. ANN. §
196.870 (1) (2014) ("In addition to any enforcement action taken under ORS 196.860, civil
OPINION AND ORDER
17
proceedings to abate alleged public nuisances under ORS 196.855 may be instituted at law or in
'
equity, in the name of the State of Oregon, upon relation of the Director of the Department of State
Lands[,] or by any person in the person's name.").
Here, neither ORS § 467.010 nor OAR 340-035-0035, et seq., explicitly identify a nuisance
or contain language creating a cause of action if a nuisance is found to exist. ORS § 467.010,
entitled "Policy and legislative findings," states:
The Legislative Assembly finds that the increasing incidence of noise emissions in
this state at unreasonable levels is as much a threat to the environmental quality of
life in this state and the health, safety and welfare of the people of this state as is
pollution of the air and waters of this state. To provide protection of the health,
safety and welfare of Oregon citizens from the hazards and deterioration of the
quality of life imposed by excessive noise emissions, it is hereby declared that the
State of Oregon has an interest in the control of such pollution, and that a program
of protection should be initiated. To carry out this purpose, it is desirable to
centralize in the Environmental Quality Commission the authority to adopt
reasonable statewide standards for noise emissions permitted within this state and to
implement and enforce compliance with such standards.
Similarly, OAR 340-035-0035, entitled "Noise Control Regulations for Industry and Commerce,"
states in relevant part:
(1) Standards and Regulations:
(a) Existing Noise Sources. No person owning or controlling an existing industrial
or commercial noise source shall cause or permit the operation of that noise source
if the statistical noise levels generated by that source and measured at an appropriate
measurement point, specified in subsection (3)(b) of this rule, exceed the levels
specified in Table 7, except as otherwise provided in these rules.
The Provisions lack the clear and express language the DEQ court required to find a nuisance per
se remedy.
Williams's reliance on ORS§ 467.131, ORS§ 467.133, and§ 7 of the Morrow County Code
Enforcement Ordinance to assert the Oregon legislature had nuisance liability in mind when enacting
OPINION AND ORDER
18
the Provisions is unpersuasive. ORS§ 467.131 and ORS§ 467.133 insulate operators of gun firing
ranges from nuisance liability if the firing range's operation complies with specified conditions.
Williams infers from these statutes that "[t]he legislature clearly contemplated that its noise statutes
could result in actions alleging nuisance violations" (Plaintiffs Memorandum in Opposition to
Defendant's Motion to Dismiss at 5), but this inference is contrary to Oregon law, as summarized
by the DEQ court: a legal nuisance must be based on the specific facts at issue unless a statute
clearly and precisely sets out the conditions which will constitute a nuisance. By their plain text,
ORS § 467.131 and ORS § 467.133 provide no such clarity or precision; at most, they allow
common-law nuisance claims involving gun firing ranges, but give no support to finding a nuisance
per se action based on the Provisions.
Nor does Section 7 of the Morrow County Code Enforcement Ordinance support Williams's
negligence per se argument. That section (which since has been repealed), provided three avenues
for Morrow County to enforce OAR 340-35-0035: citations, an injunction pursuant to ORS 30.315,
or by the terms of a permit if one was issued for the use. The language of§ 7 provides a method for
Morrow County to enforce OAR 340-035-0035, but does not provide that a violation of that OAR
constitutes a nuisance per se. Furthermore, § Ts text provides that any nuisance that exists in
violation of the section is actionable only by an incorporated city or county; nothing authorizes an
action by an individual.
C. Statutory Duty.
Williams alternatively argues that this court should infer a cause of action from ORS §
467.010, ORS§ 467.020, ORS§ 467.030, and OAR 340-035-0035. Those laws provide in relevant
part:
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19
§ 467.010 - Legislative findings and policy
The Legislative Assembly finds that the increasing incidence of noise emissions in
this state at umeasonable levels is as much a threat to the environmental quality of
life in this state and the health, safety and welfare of the people of this state as is
pollution of the air and waters of this state. To provide protection of the health,
safety and welfare of Oregon citizens from the hazards and deterioration of the
quality of life imposed by excessive noise emissions, it is hereby declared that the
State of Oregon has an interest in the control of such pollution, and that a program
of protection should be initiated. To carry out this purpose, it is desirable to
centralize in the Environmental Quality Commission the authority to adopt
reasonable statewide standards for noise emissions permitted within this state and to
implement and enforce compliance with such standards.
§ 467.020 - Prohibition on emission of noise in excess of prescribed levels
Except as provided in ORS 467 .131 (Exemption from civil or criminal liability based
on noise or noise pollution from shooting range) and 467.133 (Exemption from
action for nuisance on basis of noise caused by shooting range), no person may emit,
cause the emission of, or permit the emission of noise in excess of the levels fixed
therefor by the Environmental Quality Commission pursuant to ORS 467.030
(Adoption of noise control rules, levels and standards).
§ 467.030 - Adoption of noise control rules, levels and standards
(1) In accordance with the applicable provisions of ORS chapter 183, .the
Environmental Quality Commission shall adopt rules relating to the control oflevels
of noise emitted into the environment of this state[.]
****
(2) The Environmental Quality Commission shall investigate and, after appropriate
public notice and hearing, shall establish maximum permissible levels of noise
emission for each category established, as well as the method of measurement of the
levels of noise emission.
(3) The Environmental Quality Commission shall adopt, after appropriate public
notice and hearing, standards for the control of noise emissions which shall be
enforceable by order of the commission.
(4) In adopting noise control rules, levels and standards under this section, the
Environmental Quality Commission shall not adopt any rule that would impose
liability for any activity for which immunity from civil and criminal liability is
OPINION AND ORDER
20
granted or for which an action for nuisance is prohibited under ORS 467.131
(Exemption from civil or criminal liability based on noise or noise pollution from
shooting range) and 467 .133 (Exemption from action for nuisance on basis of noise
caused by shooting range).
OAR 340-035-0035 - Noise Control Regulations for Industry and Commerce
(1) Standards and Regulations:
(a) Existing Noise Sources. No person owning or controlling an existing industrial
or commercial noise source shall cause or permit the operation of that noise source
if the statistical noise levels generated by that source and measured at an appropriate
measurement point, specified in subsection (3)(b) of this rule, exceed the levels
specified in Table 7, except as otherwise provided in these rules.
(b) New Noise Sources:
(A) New Sources Located on Previously Used Sites. No person owning or
controlling a new industrial or commercial noise source located on a previously used
industrial or commercial site shall cause or permit the operation of that noise source
if the statistical noise levels generated by that new source and measured at an
appropriate measurement point, specified in subsection (3)(b) of this rule, exceed the
levels specified in Table 8, except as otherwise provided in these rules. For noise
levels generated by a wind energy facility including wind turbines of any size and any
associated equipment or machinery, subparagraph (l)(b)(B)(iii) applies.
(B) New Sources Located on Previously Unused Site:
(i) No person owning or controlling a new industrial or commercial noise source
located on a previously unused industrial or commercial site shall cause or permit the
operation of that noise source if the noise levels generated or indirectly caused by that
noise source increase the ambient statistical noise levels, Ll 0 or L50, by more than
10 dBA in any one hour, or exceed the levels specified in Table 8, as measured at an
appropriate measurement point, as specified in subsection (3)(b) of this rule, except
as specified in subparagraph (1 )(b)(B)(iii).
Williams cites Nearing v. Weaver, 295 Or 702 (1982), and Scovil v. City ofAstoria, 324 Or
159 (1996), to support his contention that these three statutes and the regulation impose a duty on
Defendants, violation of which is actionable. Williams argues that under these cases, ORS §
467.030(4)'s express exclusion of gun ranges from noise nuisance liability suggests a legislative
OPINION AND ORDER
21
intent to allow noise nuisance liability for other violations of these laws. Therefore, Williams
concludes, the court should recognize a civil claim for relief based upon them.
Williams' s argument is unavailing for three reasons. First, he asks this court, a federal court
sitting in diversity, to create a new cause of action under state law, and there is no convincing
evidence in the record to support the conclusion that the Oregon Supreme Court would create this
new cause of action. Second, the laws on which he relies do not impose a duty on these Defendants.
Third, the laws on which Williams relies do not support applying a statutory duty theory to create
a civil cause of action based on those laws.
First, when this court sits in diversity it must follow state law as it exists. On matters of state
law, federal courts interpreting and applying that state's law are bound by the decisions of the state's
highest comt or, if no decision exists, then it must apply the law as it believes the state's highest
court would apply it. See Ryman v. Sears, Roebuck and Co., 505 F.3d 993, 994 (9th Cir. 2007)
("Today we reiterate the rule that when (1) a federal court is required to apply state law, and (2) there
is no relevant precedent from the state's highest court, but (3) there is relevant precedent from the
state's intermediate appellate court, the federal comt must follow the state intermediate appellate
court decision unless the federal court finds convincing evidence that the state's supreme court likely
would not follow it."). See also Vestar Development IL LLC v. General Dynamics, 249 F.3d 958,
960 (9th Cir. 2001) (holding that "where there is no convincing evidence that the state supreme court
would decide differently, a federal comt is obligated to follow the decisions of the state's
intermediate appellate courts."). "Convincing evidence" includes "intermediate appellate court
decisions, decisions from other jurisdictions, statutes, treatises, and restatements[.]" Id. at 960,
quoting Lewis v. Telephone Employees Credit Union, 87 F.3d 1537, 1545 (9th Cir. 1996). The
OPINION AND ORDER
22
decisions of other judges in the same federal district on the same issue, however, do not constitute
"convincing evidence." Ryman, 505 F.3d at 995 n. l.
Here, the record contains convincing evidence that the Oregon Supreme Court would not
infer a civil cause of action for nuisance from these statutes and the regulation based on a statutory
duty theory. There is no case from either the Oregon Supreme Court or the Oregon Comt of Appeals
on the precise point Williams raises, but the decisions of both courts on nuisance per se causes of
action evince a clear mandate for judicial restraint in this area. The Oregon appellate courts have
stated clearly that the circumstances of each case are key to determining nuisance, and that finding
a nuisance per se cause of action from a statute should occur only where a statute specifically and
clearly provides a cause of action. Those nuisance per se decisions evince a judicial policy of
restraint when considering whether a statute may be the basis of a civil action for nuisance. The
reasons for this policy apply with equal logic to nuisance claims based on a ,statutory duty theory,
and particularly here where a common law claim for nuisance already exists, and the statute and
regulations upon which Williams relies create neither a special relationship between Williams and
the Defendants or impose special duty on Defendants. Thus, the court concludes that the Oregon
Supreme Court would not recognize a civil claim for nuisance under a statutory duty theory based
on the statutes and regulation Williams cites.
Second, the statutes and regulation Williams cites impose a duty on the Oregon's
Environmental Quality Commission ("EQC"), not persons or entities such as the Defendants. The
interest ORS§ 467.010 expressly creates the State of Oregon's in controlling noise pollution, and
to protect that interest the statute gives EQC authority to establish and enforce statewide standards.
Williams, however, is not suing EQC or the State of Oregon; he is not, as did the plaintiffs in
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23
Nearing and Scovil, seeking to impose civil liability on governmental agency upon which the statute
imposed a duty. Put simply, he asserts his statutory duty argument against the wrong defendant.
Third, the laws Williams cites do not meet the criteria articulated Nearing and Scovil for
creating a civil cause of action under a statutory duty theory. In Nearing, the plaintiff brought a
claim for negligent infliction of emotional distress against the police department for failing to arrest
her husband pursuant to ORS § 133.310(3), which directed that "[a] peace officer shall arrest and
take into custody" a person whom the officer has probable cause to believe is subject to a domestic
relations restraining order and has violated that order. Nearing, 295 Or. at 704. The plaintiff alleged
the police failed to comply with the statute after she made multiple reports that her husband
repeatedly violated a valid restraining order. Id. at 705. The defendant argued that Oregon law did
not recognize a claim for negligent infliction of emotional distress under these circumstances;
plaintiff responded that such a claim is actionable when the conduct at issue "infringes some legal
right of the plaintiff independent of an ordinary tort claim for negligence." Id. at 706.
Phrasing the question as whether plaintiff pleaded violation "of a legal right independently
of the ordinary tort elements of a negligence action," the court found that plaintiff did so. Id. at 707.
The court stated:
The complaint alleges facts that, if proved, obliged the St. Helens police officers to
respond to plaintiffs' call for protection against the exact kind of harassment by the
[husband] that is said to have occurred, and it alleges that the officers refused to
enforce the restraining order in the manner prescribed by law. The duty defendants
are alleged to have neglected therefore is not an ordinary common law duty of due
care to avoid predictable harm to another. It is a specific duty imposed by statute for
the benefit of individuals previously identified by a judicial order.
Id. The court observed that where a person's legal interest is established by statute or court order
and the statute is designed to protect the person from infringement of that legal interest or a specific
OPINION AND ORDER
24
form of harm, a statutory duty is created. Id. at 707-08. The court found ORS§ 133.310(3) implied
a duty which the police officers were required to fulfill: "In this case a duty specifically towards
these plaintiffs arises from the statute coupled with the court order." Nearing, 295 Or at 708. The
Nearing court explained:
The statutes in this case, ORS 133.310(3), and its companion, ORS 133.055, are
unique among statutory arrest provisions because the legislature chose mandatory
arrest as the best means to reduce recurring domestic violence. They identify with
precision when, to whom, and under what circumstances police protection must be
afforded. The legislative purpose in requiring the police to enforce individual
restraining orders clearly is to protect the named persons for whose protection the
order is issued, not to protect the community at large by general law enforcement
activity.
Id. at 712.
In Scovil, the Oregon Supreme Court addressed a similar statutory duty argument. There,
plaintiff sued the City of Astoria because city police officers released plaintiff decedent from custody
while the decedent was intoxicated, almost immediately after which release decedent walked into
the street against a red light and was struck by a car and killed. 324 Or. at 162. Plaintiff relied in
part on ORS 426.460(1) (later renumbered ORS 430.399), which provided:
"Any person who is intoxicated or under the influence of controlled substances in a
public place may be taken or sent home or to a treatment facility by the police.
However, if the person is incapacitated, the health of the person appears to be in
immediate danger, or the police have reasonable cause to believe the person is
dangerous to self or to any other person, the person shall be taken by the police to an
appropriate treatment facility. A person shall be deemed incapacitated when in the
opinion of the police officer or director of the treatment facility the person is unable
to make a rational decision as to acceptance of assistance."
Scovil, 324 Or. at 162. A second statute, ORS§ 426.470 (renumbered ORS§ 430.401), enacted with
ORS § 426.460, provided in relevant part that "[n]o peace officer ... shall be held criminally or
OPINION AND ORDER
25
civilly liable for actions pursuant to ORS 426.450 to 426.470 ... provided the actions are in good
faith, on probable cause and without malice." Scovil, 324 Or. at 162.
Plaintiff alleged three claims against defendant: one claim for common law negligence, a
second claim based on a statutory tort theory for the failure to perform a duty imposed by the statute
to protect the plaintiffs decedent by taking her to a detoxification facility, and a third claim based
on a negligence per se theory for failure to exercise the standard of care allegedly established by the
statute. Id. at 163. The trial court dismissed plaintiff's statutory tort and negligence per se claims
before trial, and submitted the common law negligence claim to the jury. Id. After a verdict for
defendant, the plaintiff appealed. Id. at 163-64. The court of appeals reversed the trial court's
dismissal of plaintiff's statutory tort and negligence per se claims, and defendant filed a petition for
review in the supreme court. Id. at 164.
The supreme court agreed with the court of appeals that plaintiff stated a claim for relief
based on defendant's violation of a statutory duty by failing to comply with ORS § 426.460, but
disagreed that plaintiff stated a claim for negligence per se. Scovil, 324 Or. at 164. The court
examined the ORS §§ 426.460 and .470 to determine whether they either "(1) create a duty, the
breach of which could be tortious to one harmed as a result of that breach, or (2) enacts a standard
of care, violation of which would constitute negligence per se." Scovil, 324 Or. at 166. The court
observed that "[w]hether a statute creates a duty, or enacts a standard of care, is determined by
discerning what the legislature intended." Id.
Turning to the statutory duty claim, the court observed that the statutes created a mandatory
duty which, if violated, would result in consequences to the arresting officers unless they acted in
good faith, with probable cause, and without malice. Id. at 167-68. The court concluded that by so
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26
providing in the statute, the legislature contemplated "that there could be liability in connection with
the authority and duty to take the actions referred to in [the statutes]." Id. at 169-71. After fi.uther
analyzing the language of the two statutes and other statutes contained in the act which included
ORS§§ 426.460 and .470, the court concluded that both the text itself and the context of ORS§§
426.460(1) and ORS 426.470 "disclose a legislative intent to impose on the police a statutory duty
to act on behalf of a publicly intoxicated person who is a danger to self and further disclose that
failure to act as mandated was contemplated by the legislature to give rise to a potential liability in
tort in circumstances in which the limitations stated in ORS 426.470 do not apply." Scovil, 324 Or.
at 166-69.
In reaching its conclusion, the supreme court expressly rejected defendant's argument that
no statutory duty could arise unless the court found the legislature expressly intended a tort remedy
would arise from breach of the duty the statute imposed. Id. at 169. The court noted that whether
"a statute that imposes a duty also gives rise to a tort claim for breach of that duty is generally a ·
matter for court decision." Id. at 170. The court quoted Restatement (Second) of Torts§ 874A
(1979), which states:
"When a legislative provision protects a class of persons by proscribing or requiring
certain conduct but does not provide a civil remedy for the violation, the court may,
if it determines that the remedy is appropriate in fmtherance of the purpose of the
legislation and needed to assure the effectiveness of the provision, accord to an
injured member of the class a right of action, using a suitable existing tort action or
a new cause of action analogous to an existing tort action."
Scovil, 324 Or. at 171. The court's decision whether to fashion a remedy"is governed by the weight
that a court finds reasonable to give to the protective purpose spelled out in the legislation." Id.
Applying these principles, the supreme comt found that "[p]ermitting a tort action in the
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27
circumstances alleged in this case is consistent with and serves to enforce the legislated duty
imposed by ORS 426.460(1 ), which does not specify other means for its enforcement," and noted
further that its conclusion regarding ORS § 426.460(1) found support in Oregon cases addressing
other statutes that"impose[d] a duty to protect a specified group of persons." Scovil, 324 Or. at 17273.
The court then addressed the plaintiffs third claim, also based on the statute but asserting
negligence per se, which "posits that the statute establishes a standard of care against which failure
of the police to act in these circumstances is to be measured in negligence." Id. at 173. The court
held that "ORS 426.460(1), as interpreted above, creates and imposes only a duty to act as it
provides. It does not create a standard of care and, therefore, plaintiff's negligence per se claim is
without foundation in that statute." Scovil, 324 Or. at 173 (footnote omitted).
The statutes and regulation Williams cites do not meet Oregon's requirements for creating
a civil cause of action under a statutory duty theory. First, under Oregon law the question whether
these laws impose a duty that also gives rise to a tort claim for breach of that duty is for the court to
decide. The court finds it unnecessary to create a tmt claim here. The laws Williams cites contain
adequate enforcement mechanisms for their violation, and he points to no circumstances which
would prove a civil cause of action is needed to ensure the laws are enforced as intended. Second,
the laws' language does not clearly create a specific duty for the benefit of a defined group of persons
as did the laws at issue in Nearing and Scovil. Instead, these laws give the state a legal interest in
controlling noise pollution and the enforcement power to protect its interest from infringement.
Third, the laws are generally phrased and not specifically focuses. For example, ORS § 467.020
does not create a "duty specifically towards" Williams or others by identifying with precision "when,
OPINION AND ORDER
28
to whom, and under what circumstances" one must refrain from creating excess noise. Instead, the
statute creates a general prohibition on noise pollution. Fourth, nothing in these statutes or
regulation suggest a legislative intent to allow civil liability under the statute for their violation.
Williams argues the exception for liability of gun range owners suggests by omission the legislature
intended to allow civil liability of others, but the legislature just as reasonably could have concluded
that common-law claims for nuisance adequately addressed those other situations.
III. Trespass.
Williams brings a claim for trespass based allegations the Wind Farm invaded Williams 's
property by emitting low-frequency sound waves, vibrations, a flicker or strobe effect as the turbines'
blades rotate; glare, and flashing red lights at night. Defendants argue this claim should be dismissed
because Williams simply restates a complaint for nuisance and has failed to allege Defendants
interfered with Williams 's exclusive possession of the property. Williams responds that trespass
does not require a physical entry into the property and can be found for intrusions like vibrations,
odors, fumes, and gasses.
Oregon law is clear that nuisance and trespass concern the invasion of two distinct legal
interests:
Trespass and private nuisance are separate fields of tort liability relating to actionable
interference with the possession of land. They may be distinguished by comparing
the interest invaded; an actionable invasion of a possessor's interest in the exclusive
possession ofland is a trespass; an actionable invasion of a possessor's interest in the
use and enjoyment of his land is a nuisance.
Martin et ux v. Reynolds Metal Co., 221 Or. 86, 90 (1960). The Oregon Court of Appeals has also
decided a case with a nearly identical factual basis to the instant case. Frady v. Portland Gen. Elec.
Co., 55 Or. App. 334 (1981 ).
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29
In Frady, plaintiffs brought both nuisance and trespass claims stemming from damage
defendant's wind farm caused by emitting vibrations and low frequency sound waves. Id at 346.
Several of the complaints contained allegations that the sound waves damaged their homes. Id The
Frady court overruled the dismissal of plaintiffs' nuisance claims but affirmed the dismissal of their
trespass claims. Id at 349-50. The Frady court reasoned:
Plaintiffs' trespass counts are merely restatements oftheir nuisance counts. Plaintiffs
have failed to allege any conduct on the part of defendant which would constitute a
trespass as defined above. They allege no substantial interference with their
possessory interest as distinct from their interest in the use and enjoyment of their
property to warrant protection under the law of trespass.
Id. at 350 (citing Martin, 221 Or. at 96). Therefore, this issue turns on whether or not Williams's
complaint alleges facts that support a substantial interference with his possess01y interest in his
property distinct from his interest in the use and enjoyment of his property.
Williams cites Bedell et uxv. Goulter et al., 199 Or. 344, 361 (1953), forthe proposition that
trespass can be caused by vibrations of the soil and concussions of the air resulting from blasting,
but his reliance on this case is misplaced. Bedell did in fact expanded Oregon's common law to
allow for a trespass action from vibrations and concussions of the air, but only in a specific and
narrow context: the court's decision extended the previous rule that "irrespective of negligence one
lawfully engaged in blasting operations is liable for property damage sustained as a result of casting
rocks or other debris on adjoining or neighboring premises," to include those circumstances in which
the force of the explosion itself caused actual damage. Id at 347. The court analogized the end
result of the vibrations and the concussions, the shattering of the plaintiffs dwelling, to that of an
explosion which hurled rocks or other projectiles onto a property and accomplished the same result.
Id at 361. The court determined that defendant was liable for trespass because the end result of the
OPINION AND ORDER
30
vibrations and air concussions was as if physical material had been spewed on plaintiff's property.
Id. Bedell does not stand for the proposition that vibrations alone can constitute an actionable
trespass, but instead the narrower proposition that those who conduct ultra-hazardous activities, such
as exploding dynamite, are liable for the resulting damages whether caused by projectiles or
vibrations.
Williams's reliance on Davis v. Georgia-Pac. Corp., 251 Or. 239 (1968), for the proposition
that vibrations, odors, fumes, gasses, and smoke entering property are sufficient under Oregon law
to constitute an interference with a property owner's possessory right, is similarly unavailing. In
Davis, the plaintiffs alleged trespass because defendant's paper mill operation caused the intrusion
of fumes, gases, and odors upon plaintiff's property. Id. at 242. Defendant argued "such intrusions
constitute a nuisance rather than a trespass because there was no direct physical invasion of the
property." Id. The Davis court acknowledged that Oregon law no longer required the intrusion of
a visible and tangible object as a precondition to trespass. Id. at 243. Rather, trespass constituted
"any intrusion which invades the possessor's protected interest in exclusive possession, whether that
intrusion is by visible or invisible pieces of matter or by energy which can be measured only by the
mathematical language of the physicist." Id. at 243 (quoting Martin, 221 Or. at 94).
Although Oregon trespass law no longer requires a physical object intrude on a person's
property, it still requires a physical consequence to the property to support a trespass claim. In
Davis, the plaintiffs alleged "the premises [were] rendered uninhabitable by the operation of
defendant's plant because of the emanation therefrom of vibrations, offensive odors, fumes, gases,
smoke and particulates which damage[d] the residence and plant life." Id. at 242. Williams alleges
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31
no physical consequence to his property, instead asserting that the Wind Farm's vibration, lights, and
noise affected his personal comfort and convenience.
The absence of a physical consequence to Williams's property is what distinguishes
Williams's circumstances from the Davis plaintiffs', and what deprives Williams of a cognizable
claim for trespass here. As the Oregon Supreme Court has observed: "The mere suggestion that the
casting oflight upon the premises of a plaintiff would render a defendant liable without proof of any
actual damage, carries its own refutation." Amphitheaters, Inc. v. Portland Meadows, 184 Or. 336,
343 (1948). There, the court, after looking at relevant precedent, determined the intrusion of light
onto plaintiffs property was regulated by the law of nuisance, not trespass. Id. at 345.
Williams does not allege facts that substantiate an intrusion on his right of exclusive
possession which are distinct from his claims for nuisance. Therefore, Defendants' motion to
dismiss Williams' s second claim for relief should be granted.
Ill. Failure to Exhaust Administrative Remedies
Defendants originally moved for leave to reserve for a later date their argument that Williams
failed to exhaust his administrative remedies. The court chose to treat it as a motion for summary
judgment on Williams's claimfor injunctive relief. However, Defendants contend Williams's failure
to exhaust his administrative remedies is relevant only to foreclose injunctive relief on his claim for
nuisance per se. They do not move to prevent Williams from seeking injunctive relief pursuant to
his common law nuisance claim. As the court has already discussed, Williams fails to state a claim
for nuisance per se or statutory nuisance. Because Williams could still pursue injunctive relief
whether or not the court grants this portion ofDefendants' motion, the court cannot grant Defendants
OPINION AND ORDER
32
the relief they seek. Therefore, Defendants' motion for summary judgment on Williams' claim for
injunctive relief is moot.
Even if Defendants' request was not moot, the court would deny it on the merits. "[T]he
doctrine of exhaustion applies when a party, without conforming to the applicable statute or mies,
seeks judicial determination of a matter that was or should have been in front submitted to an
administrative agency for decision." Outdoor Media Dimensions v. State, 331 Or. 634, 661-662
(2001). ORS§ 197.850 provides that parties to an action before LUBA may seek judicial review
of that body's final order by appealing to the Oregon Court of Appeals. OR. REV. STAT. §
197.850(1 )-(3). However, the requirementofadministrative exhaustion in LUBA cases applies only
when LUBA has exclusive original jurisdiction over the subject matter in question. Mar-Dene Corp.
v. City of Woodburn, 149 Or. App. 509, 515 (1997)
LUBA promulgated two opinions in this case. In the first ("Mingo I"), it was unquestioned
LUBA had exclusive jurisdiction over the land-use matters involved therein. However, the second
LUBA case ("Mingo If') involved the County's decision to not enforce certain provisions of the
CUP. LUBA recognized the subject matter of that case may strip it of jurisdiction, and engaged in
a lengthy analysis ofLUBAjurisdiction law. It concluded the facts were similar to those of MarDene Corp. v. City of Woodburn, 149 Or. App. at 511. There, the plaintiff took issue with the
Woodburn planning board's decision to not revoke a business's operating permit after the business
violated terms of the CUP. Id. at 512. LUBA dismissed the claim for lack of jurisdiction, and the
Oregon Court of Appeals affirmed. Id. at 516. After a careful review of the relevant statutes and
regulations, the court of appeals determined that where a city decides to not apply its own rules,
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33
regulations, and permit conditions, it is not a "land use decision" as defined by relevant statutes. Id.
at 516.
The issues before the court in Mar-Dene were nearly identical to those before LUBA in
Mingo II. After the first LUBA decision, the county determined that, although the Wind Farm
exceeded noise levels articulated in the CUP, the noise exceedances were de minimis. Thus, the
county would not revoke the CUP and order Defendants to cease operations. In Mingo II, LUBA
recognized the unique factual context in which the case was brought, and concluded:
[i]t appears to us to be beyond question that under [governing statutes and
regulations] petitioners as affected land owners and county could have elected to
proceed directly to circuit court to make their case that the Willow Creek Energy
Facility is violating the noise standards and to ask the circuit court for one or more
of the remedies specified by the statutes to compel Invenergy to comply with the
noise standard.
(Pl.'s Resp. Ex 3 at 8.)
As LUBA made clear in Mingo II, Williams could have brought his claim for injunctive relief
in a court oflaw at the outset. Because Williams could have originally brought his claim in Oregon
state court, the obligation to exhaust administrative remedies never arose. Moreover, Defendants
do not identify authority for the proposition that, when Williams nonetheless pursued his claims
through LUBA, a renewed obligation arose to exhaust his administrative remedies. Therefore,
Williams was not required to exhaust his administrative remedies before filing suit in a court oflaw,
and Defendants are not entitled to summary judgment on Williams's claim for injunctive relief.
Ill
Ill
Ill
OPINION AND ORDER
34
Conclusion
For the aforementioned reasons, Defendants' Motion to Dismiss (Dkt. No. 19) Williams's
claims for nuisance per se and statutory nuisance is GRANTED. Fm1her, Defendants' motion for
summary judgment (Dkt. No. 19) on Williams's claim for injunctive relief is DENIED.
IT IS SO ORDERED
DATED this 16th day of December, 2014.
(ic1.0J,--@i-IN V. ACOSTA
United States Magistrate Judge
OPINION AND ORDER
35
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