United States District Court, D. Oregon, Eugene Division
KRISTINE K. YATES, Plaintiff,
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY; et al., Defendants.
OPINION & ORDER
AIKEN UNITED STATES DISTRICT JUDGE
Kristine Yates asserts that defendants have violated her
rights by constructing a solar energy array on the property
next to her home. Defendants Silverton Land Co., LLC;
Silverton Solar, LLC; and Dick Anderson Construction Company
have filed motions for summary judgment (docs. 120, 145,
112). Silverton Land also filed a motion to strike (doc.
142). For the reasons set forth below, defendants'
summary judgment motions are granted and Silverton Land's
motion to strike is denied in part and granted in part.
following facts are undisputed. Plaintiff lives in Silverton,
Oregon on Exclusive Farm Use zoned ("EFU") land. In
the summer of 2017, a solar array was built on an adjacent
property to the north, Plaintiff alleges that construction
interfered with her use and enjoyment of her property and
caused flooding on her property. Plaintiff first filed a
complaint in November 2017, alleging damages incurred from
the construction of the solar array.
Court has previously dismissed the other defendants for lack
of jurisdiction or failure to state a claim leaving only
Silverton Land, Silverton Solar, Dick Anderson Construction
Company ("DA Construction"), and the Marion County
Planning Department. (Docs. 56, 110). This Court also
dismissed plaintiffs claims for Equal Protection Clause
violations, fraud, and civil conspiracy. Id. The
remaining claims include nuisance, trespass, and Fourteenth
Amendment violations under 42 U.S.C. § 1983.
considering a motion for summary judgment, "[t]he
inquiry performed is the threshold inquiry of determining
whether there is the need for a trial- whether, in other
words, there are any genuine factual issues that properly can
be resolved only by a finder of fact because they may
reasonably be resolved in favor of either party."
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250
(1986). A motion for summary judgment is properly granted
"if the movant shows that there is no genuine dispute as
to any material fact and the movant is entitled to judgment
as a matter of law." Fed.R.Civ.P. 56(a). The moving
party has the burden of establishing the absence of a genuine
issue of material fact. Id.; 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. Celotex,
477 U.S. at 324. "Summary judgment is inappropriate if
reasonable jurors, drawing all inferences in favor of the
nonmoving party, could return a verdict in the nonmoving
party's favor." Diaz u. Eagle Produce Ltd.
P'ship, 521 F.3d 1201, 1207 (9th Cir. 2008).
Land, Silverton Solar, and DA Construction now move for
summary judgment on plaintiffs trespass and nuisance claims.
Marion County's motion for summary judgment on plaintiffs
due process claim will be addressed in a separate opinion.
The motions for summary judgment assert that plaintiff has
failed to offer evidence to show a genuine issvie of material
fact for both her nuisance and trespass claims.
Pro Se Standard
argues, in part, that it would be inappropriate to grant
defendants' motions in light of her pro se status.
Because pro se plaintiffs do not have the benefit of legal
counsel, their initial pleadings are "held to less
stringent standards" than those drafted by lawyers.
Florer v. Congregation Pidyon Sheuuyim, N.A., 639
F.3d 916, 923 n. 4 (9th Cir.2011). But at summary judgment,
the elements a plaintiff must prove, and a plaintiffs burden
of proof, are not relaxed simply because she is appearing pro
se. Jacobsen v. Filler, 790 F.2d 1362, 1364-65 (9th
Cir. 1986); see also Thomas v. Ponder, 611 F.3d
1144, 1150 (9th Cir. 2010) ("an ordinary pro se
litigant, like other litigants, must comply strictly with the
summary judgment rules"). As such, plaintiff is not
entitled to preferred treatment at this stage in the
Silverton Land and Silverton Solar
Land owns the property on which the solar array was
installed. Silverton Solar owns and holds the conditional use
permit for the solar array. Both defendants argue that they
are entitled to summary judgment because plaintiff has no
evidence that they committed the alleged trespass or nuisance
or that they were responsible for the construction activities
that plaintiff alleges caused the torts.
Land asserts that it leased the property before construction
began. Under the terms of the lease, Silverton Land
transferred all its "rights, interests, estates, and
appurtenances" in the land, all rights in any
improvements on the land, and all rights in any adjacent
streets and road, all rights in any easements, and any
"vehicular and heavy equipment access" to the land.
Leibach Decl. Ex. 1 at 1, Jan, 25, 2019. Both defendants
provided evidence that they did not perform construction work
on the property and that they did not have management control
or responsibility over the construction and installation of
the solar array.
does not allege or provide evidence that either defendant
took an action that directly caused either the alleged
nuisance or the alleged trespass. Instead, she argues that
Silverton Land is liable for torts allegedly committed on its
land, regardless of its lessor status. Similarly, plaintiff
argues that Silverton Solar is liable because it obtained the
permit that allowed the solar array to be
nuisance and trespass require an action by the defendant, or
at least actions by a party that defendant is responsible
for. See Martin v. Union Pac. R, Co., 256 Or. 563,
565 (1970) (explaining that a trespass requires an intrusion
caused by a defendant's "intentional, negligent,
reckless or ultrahazardous conduct"); Mark v. State
(Mark II), 191 Or.App. 563, 573 (2004) (explaining that
a private nuisance is a defendant's "unreasonable
non-trespassory interference with another's private use
and enjoyment of land"); Restatement (Second),
Torts §§ 834-840A (1965) (describing persons
liable for nuisance). Plaintiff has not provided evidence to
show that Silverton Land is responsible for the actions of
construction workers on the property. Similarly, the fact
that Silverton Solar obtained the permit that ultimately
allowed construction to happen does not show that it had any
control over or responsibility for the construction
Land acknowledges that landowners who do not themselves
engage in activity constituting a nuisance may nevertheless
be liable for the acts of third parties that create a
nuisance on their land if they "both (1) know that the
activity is being carried on and will involve an unreasonable
risk of causing the nuisance and (2) consent to the activity
or fail to exercise reasonable care to prevent it."
Mark v. State Dep't of Fish & Wildlife (Mark
I),158 Or.App. 355, 362-63 (1999) (citing
Restatement (Second), Torts §838 (1979)).
However, this rule is ...