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Yates v. United States Environmental Protection Agency

United States District Court, D. Oregon, Eugene Division

September 20, 2019


          OPINION & ORDER


         Plaintiff 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.


         The 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.

         The 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.


         When 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).


         Silverton 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.

         I. Pro Se Standard

         Plaintiff 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 proceedings.

         II. Silverton Land and Silverton Solar

         Silverton 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.

         Silverton 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.

         Plaintiff does not allege or provide evidence that either defendant took an action that directly caused either the alleged nuisance or the alleged trespass.[1] 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 built.[2]

         Generally, 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 workers' actions.

         Silverton 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 ยง838 (1979)). However, this rule is ...

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