Neighbors challenge noise from shooting range
Published: Friday, November 7, 2008
Judge considers motion to dismiss legal action
By LYNNETTE HINTZE/Daily Inter Lake
Flathead District Judge Ted Lympus will decide whether to dismiss a lawsuit filed by a group of neighbors west of Whitefish against the owner of a shooting range.
Tally Bissell Neighbors Inc. sued Texas businessman Robert Hayes in February, alleging the loud shotgun blasts emanating from the shooting range are a public nuisance and violation of constitutional guarantees.
Hayes initiated construction of the private, noncommercial shooting range, which now is owned by Eyrie Shotgun Ranch, a limited liability corporation.
Hayes' lawyer, Sean Frampton, asked the court to dismiss the lawsuit and on Wednesday, Frampton made his case for dismissal, while Eric Kaplan, the neighbors' attorney, argued to allow the lawsuit to move forward. Lympus took the motion to dismiss under advisement.
The lawsuit alleges the noise from the shooting range has prevented the sale of surrounding properties, startled animals and people, interfered with and prevented the carrying on of businesses in the area and prevented the neighborhood from being enjoyed.
Frampton pointed to a policy in state law that promotes the safety and enjoyment of shooting sports by protecting the locations of and investment in shooting ranges for shotgun, archery, rifle and pistol shooting. He cited another state policy that says if shooting ranges are used during posted hours, they don't constitute a public nuisance.
Prior to construction of the shooting range, Hayes told neighbors that he and his friends intended to use the facility about two hours a day, seven days a week, from June through October.
Frampton further argued that allegations of a private nuisance by two sets of neighbors -- John and Susan Klassen and Rob and Wendi Rice -- shouldn't be considered because under Montana law there's no authority for both public and private nuisances to co-exist.
The Klassens for 17 years have leased their property to Triple "D" Game Farm, which supplies animals for photography on the Klassen property. They allege shooting-range activities have obstructed the use of their property for that purpose.
The Rices operate a recording studio in their home and maintain the shotgun noise likewise has affected their business.
The lawsuit also alleges the shooting range poses an "attractive" nuisance because it's 1,900 feet from Bissell School.
"The shooting range is an artificial condition ... in a place where defendants know or should know that children are likely to trespass," the complaint states.
But Frampton said there's also no standing for that allegation because it alleges only anticipated danger, not that any children have been affected by the shooting range.
The neighbors believe Hayes and the Eyrie Shotgun Ranch are liable for trespass because they intentionally cause sounds to enter the neighbors' land. Frampton argued against this allegation, too, saying there's nothing in state law to support it.
If sound is a "thing" that can trespass, then "everyone in Whitefish would sue the railroad every time they heard the trains passing through."
Kaplan said questions of policy and legislative intent aren't relevant to the motion to dismiss the case.
"The court cannot engage in fact-finding" in a motion to dismiss, Kaplan maintained. "Now is not the time to consider statutes that grant immunity, policies" and so on.
Kaplan said after the court hearing that he's confident the judge will rule to continue the case. If not, Kaplan said he could "massage" the complaint and refile the lawsuit or appeal the decision.
After the shooting range was proposed in early 2007, neighbors banded together to create a neighborhood plan for the Tally Lake and Farm to Market Road area. The plan was approved by the county commissioners and established SAG-10 zoning in the 980-acre district, with a 10-acre minimum lot size.