Judge dismisses gun club law suit
By RICHARD HANNERS
Whitefish Pilot
A lawsuit brought by neighbors of a shooting range on Farm To Market Road was dismissed by Flathead County District Court Judge Ted Lympus after he shot down all eight counts argued by their attorney.
Bob Hayes, a Texas auto dealer and well-known local philanthropist with a home in the Iron Horse subdivision, purchased the 60-acre former ranch near Tally Lake Road in 2006.
Construction of the shooting range began in spring 2007. Neighbors adopted zoning aimed at stopping shooting ranges in the area that same year. They filed suit against the gun club owners in February 2008.
The club is organized under the name Eyrie Shotgun Ranch LLC. Lympus ruled that Hayes’ name should be dropped from the lawsuit because the shooting didn’t start until after Eyrie took over the site.
Calling some of the plaintiffs’ claims “theory,” Lympus said noise from a shotgun cannot trespass on a neighbors’ property because it isn’t a “tangible” thing.
The 1925 case cited in the lawsuit, Herrin v. Sutherland, involved a shotgun that was fired over a neighbor’s property and so did not involve simply sound, Lympus noted.
Most significantly, several state statutes clearly protect shooting ranges. One states that noises from a shooting range during regular hours “are not considered a public nuisance.”
The plaintiffs had argued that shooting took place at the Eyrie Shotgun Ranch at different hours and so constituted a public nuisance, but Lympus noted that the statutes do not set regular hours.
Lympus also dismissed the plaintiffs’ private nuisance claim, because the noise affects an entire community or neighborhood, and their attractive nuisance claim, calling it a “tort theory” that requires causation and damages, not “anticipatory danger.”
As to the plaintiffs’ claim to a constitutional guarantee of a clean and healthful environment, Lympus said the Montana Supreme Court has ruled that a private cause of action cannot be brought under that claim. The plaintiffs should seek an alternative remedy under common law, he ruled.
Lympus also ruled against the plaintiffs’ claim to “education rights,” who said noise from the shooting range could disturb students and staff at Bissell School. Lympus said it’s the state’s responsibility to provide education, and the plaintiffs’ case “is not a recognized theory.”
The same state statutes that protect shooting ranges provide a “remedy” for local governments, Lympus said, but not private individuals. Local governments could close or relocate a shooting range under some circumstances, but the shooting range owner must be compensated.
Lympus said he “carefully examined the entire legislative history” of the statutes, which date to 1991. He said the statutes express “policy” and were intended to protect shooting ranges. Any private remedy “would not be at all compatible with the plain language of the statutes,” he said.
Eric Kaplan, the plaintiffs’ attorney, said the neighbors haven’t decided whether they would appeal Lympus’ ruling.
“We’re considering all of our options,” he said last week. “We have 30 days from the filing of a Notice of Entry of Judgment, which hasn’t yet been filed, to appeal. I’m very disappointed in the ruling. I believe strongly the case shouldn’t have been dismissed.”