Judge dismisses shooting-range lawsuit
By LYNNETTE HINTZE/The Daily Inter Lake
Published: Monday, February 23, 2009
A lawsuit filed by a group of neighbors west of Whitefish against the owner of a shooting range has been thrown out of court.
Flathead District Judge Ted Lympus last week dismissed the lawsuit, siding with the defendant on all eight counts.
Tally Bissell Neighbors Inc. sued Texas businessman Robert Hayes a year ago, alleging the loud shotgun blasts emanating from the shooting range are a public nuisance and violate constitutional guarantees.
Hayes initiated construction of the private, noncommercial shooting range, which now is owned by Eyrie Shotgun Ranch, a limited liability corporation. The facility is located at the former Sundance Farms site near the intersection of Farm-to-Market and Tally Lake roads.
The lawsuit alleged 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. The suit also alleged the shooting range poses an "attractive nuisance" because it's 1,900 feet from Bissell School.
Columbia Falls attorney Eric Kaplan, who represented the neighbors, met with his clients Monday and said they're "looking at all options." They have about 30 days to decide whether to appeal the decision.
The neighbors maintain that Hayes and the Eyrie Shotgun Ranch are liable for trespass because they intentionally cause sounds to enter the neighbors' land.
But Hayes' attorney, Sean Frampton, told the judge at a November 2008 court hearing that there's nothing in state law to support it.
Lympus agreed, saying the definition of trespass requires a person or thing to enter the property of another. Sound is not a tangible thing, he said.
State law is on the side of the shooting-range owner in other ways, too. It promotes the safety and enjoyment of shooting sports by protecting the locations and investment in shooting ranges for shotgun, archery, rifle and pistol shooting. Another state policy notes that if shooting ranges are used during posted hours, they don't constitute a public nuisance.
Even if the neighbors could have proven that shooting occurred outside of designated hours, state law doesn't require shooting ranges to operate during certain hours.
"Therefore, even taking all the allegations as true ... 'state law] acts as an insuperable bar to relief for the plaintiffs on the basis of the public nuisance allegations," Lympus wrote in his order to dismiss the lawsuit.
As for the "attractive nuisance" claim involving the nearby school, Lympus said that an attractive nuisance must apply only to injuries that already have occurred.
The neighbors' final claim — seeking relocation or closure of the shooting range — was dismissed because Lympus said state law is vague and doesn't provide details about what procedures to use to close or relocate a shooting range.
"As a general rule, when a statue is silent regarding private enforcement, a court may recognize a private right only when it is necessary to carry out the policy of the statute," Lympus said.
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.
But from a legal prospective, Frampton argued early on that Hayes' rights were vested because there was no zoning in place when the shooting range was built.