dissenting.
The majority holds that plaintiffs have properly pled a claim for nuisance against the defendant agencies but that the agencies are immune from liability for damages under ORS 30.265(3)(c). In the majority’s words, Fish and Wildlife’s “actions did not create any nuisance[,]” nor did Fish and Wildlife “have a particular relationship to plaintiffs that create[d] a duty to take some action to protect them.” 158 Or App at 367-68 (emphasis in original). It concludes:
“Even if Fish and Wildlife had created the nuisance, it would have discretion in deciding what steps to mitigate the effects of its actions and would be immune from liability for money damages if those steps were not fully effective. The mere existence of a common-law nuisance may be sufficient to support an injunction, because that does not involve a claim for monetary damages, but it does not in itself overcome discretionary immunity from such damages.” 158 Or App at 368 (footnotes omitted; citation omitted).
I disagree with the majority’s conclusion that ORS 30.265(3)(c) does not permit a damage claim for nuisance under the circumstances alleged in this case. According to plaintiffs’ pleadings, the agencies are liable for a nuisance by permitting activities that unreasonably and substantially interfere with plaintiffs’ use and enjoyment of their property on the government lands under their control. The majority’s assertion that the defendant agencies have no duty to take action to protect plaintiffs proves too much.1
*372Defendants are agencies of the State of Oregon that derive their authority and their exposure to liability from statutes. ORS 30.320 provides that an action may be maintained against the State of Oregon in the name of the appropriate state agency for liability in tort as provided in ORS 30.260 to 30.300.2 ORS 30.260 et seq. does not prohibit nuisance claims and expressly permits, under certain circumstances, claims for damages based on common-law tort theories. When those circumstances exist, the tort liability of an agency is no different from that of a private landowner under the common law. At common law, a civil division of a state that “in the exercise of its corporate powers, * * * ereate[d] or permitted] a nuisance by misfeasance or nonfeasance * * * [could be] liable in damages to any person suffering special injury therefrom” in the absence of a statute immunizing them from liability. Antin v. Union High School Dist. No. 2, 130 Or 461, 464-65, 280 P 664 (1929).3 The import of that observation is not to suggest that the legislature in enacting ORS 30.265 intended to adopt the common-law criteria for public body liability for a nuisance but to emphasize that the concept of such liability is not an unprecedented notion. To the extent that ORS 30.265 waives the sovereign immunity of the State of Oregon for liability for common-law torts, the agencies are liable for damages resulting from any nuisance that they have permitted to affect plaintiffs’ property.
ORS 30.265 provides, in part:
“(1) Subject to the limitations of ORS 30.260 to 30.300, every public body is subject to action or suit for its torts and those of its officers, employees and agents acting within the scope of their employment or duties, whether arising out of a governmental or proprietary function or while operating a motor vehicle in a ridesharing arrangement authorized under ORS 276.598. * * *
*373“ * * * * *
“(3) Every public body and its officers, employees and agents acting within the scope of their employment or duties * * * are immune from liability for:
“ * * * * *
“(c) Any claim based upon the performance of or the failure to exercise or perform a discretionary function or duty, whether or not the discretion is abused.”4
The inaction of a public body to prevent harm is not always immune from liability under ORS 30.265(3)(c). For instance, in Miller v. Grants Pass Irrigation, 297 Or 312, 686 P2d 324 (1984), the issue was whether an irrigation district’s failure to install a warning device for boaters regarding its dam on the Rogue River involved a discretionary function under the statute. The court indicated:
“If there is a legal duty to protect the public by warning of a danger or by taking prevent[ative] measures, or both, the choice of means may be discretionary, but the decision whether or not to do so at all is, by definition, not discretionary.” Id. at 320.
It concluded:
“Because ORS 30.265(3)(c) provides immunity for failure to exercise a discretionary function or duty but not for failure to undertake a nondiscretionary function or duty, it follows that the district would not be immune for wholly disregarding and declining to consider whatever duty it had under tort law.” Id. at 321.
Similarly, the court held in Stevenson v. State of Oregon, 290 Or 3, 619 P2d 247 (1980), that the failure to exercise discre*374tion to install adequate shields on traffic signals, so thatmotorists would not be misled regarding the governing signal, is not the kind of act that is an immune function within the meaning of the statute as a matter of law.
In my view, the duty of a state agency to exercise discretion to prevent harm to adjoining lands from activities on land under its control is nondiscretionary under the statute. It is like the duty of a public body to exercise discretion to prevent harm from a known dangerous condition such as the existence of a dam on a river typically used by boaters or the duty to exercise discretion to maintain traffic signals so that motorists will not be misled and injured when they use a public intersection. ORS 30.265(3)(c) affords no immunity from damages in this case for the same reason that it afforded no immunity in Stevenson and resulted in the reversal of summary judgment on the ground of immunity in Miller. Although the agencies have discretion about how to regulate the activities on their lands so as to prevent a nuisance, they do not have discretion to disregard and to decline to consider their duty to regulate in the face of obvious harm. The latter is the gravamen of plaintiffs’ pleadings.
The majority complains that to interpret the discretionary exception in the above manner would, in the words of the Miller court, “ ‘swallow up the concept of discretion.’ ” 158 Or App at 368 n 8 (quoting Miller, 297 Or at 320). Of course, the court in Miller held that in the event of the existence of a duty to warn of the danger or to prevent harm, the district’s failure to decide whether to exercise its discretion would not constitute the exercise of a discretionary function. As the court in Miller noted, the other extreme is to interpret the statute to permit the public body to ignore its duty by simply failing to exercise its discretion, and the legislature could not have intended that result. It belies common sense to believe that the legislature would have intended that state agencies permit nuisances originating on lands under their control to interfere with the use and enjoyment of adjoining properties without exercising their discretion to regulate the activities causing the nuisance. Plaintiffs’ allegations fall within the rule of law expressed in Miller and Stevenson that a public *375body cannot be immune under the statute by refusing to exercise its discretion in the face of a common-law duty to prevent harm.
For these reasons, I dissent.
Under the common law, governmental bodies like cities had “no more right than an individual to create and maintain a nuisance on its own property; and if it [did] so it [was] subject to the same liability as an individual.” Wilson v. City of Portland, 153 Or 679, 685, 58 P2d 257 (1936). See also Ulmen v. Town of Mt. Angel, *37257 Or 547, 551, 112 P 529 (1911) (holding that a municipal body is liable if it collects surface water and empties the water on the land of an adjoining landowner).
ORS 30.260(4)(a) defines a “public body” against whom a tort action can be maintained as “[t]he state and any department, agency, board or commission of the state.” (Emphasis added.)
Under Article IV, section 24, of the Oregon Constitution, the doctrine of sovereign immunity exists as to the liability of state agencies, except as authorized by the legislature. Vendrell v. School District No. 26C et al, 226 Or 263, 278, 360 P2d 282 (1961).
In Penland. v. Redwood Sanitary Sewer Service Dist., 327 Or 1, 956 P2d 964 (19981, the plaintiff property owners sought to enjoin the defendant District from composting sewage material at a neighboring sewage treatment plant on the ground that the activity created a nuisance. The District argued that its activity was immune under ORS 30.265(3)(c). The court held that the statute did not confer immunity from injunctive relief. Whether the plaintiff could have succeeded in a claim for damages based on nuisance was not before the court.