Court reverses gun club ruling

The Montana Supreme Court last week reversed and remanded back to Flathead County District Court an earlier decision to dismiss a lawsuit over a shooting range on Farm To Market Road.

The ruling allows the neighbors who sued Texas businessman Robert Hayes and the Eyrie Shotgun Ranch LLC gun club over noise and nuisance complaints to pursue a jury trial.

Eric Kaplan, the attorney for Tally Bissell Neighbors Inc., said he was 'very optimistic of our chances in District Court."

"The case is alive and well," he said. "The Supreme Court reversed on almost everything."

The gun club's attorney, Sean Frampton, said motions to dismiss lawsuits are rarely upheld on appeal because the court prefers people have the ability to present evidence. He said he expects to prevail.

"It doesn't mean we have a weak case," he said. "We have a very strong case still. It's just that we won at square one, and now we're back to square one."

District Judge Ted Lympus dismissed the neighbors' lawsuit in February 2009, siding with the gun club owners on all eight counts. The neighbors appealed, and the court reviewed the case de novo. Justice Brian Morris wrote the court's opinion, which reviewed six issues.

Lympus had dismissed the neighbors' public nuisance claim on the basis that state law specifically authorizes shooting ranges. But the neighbors argued that state law 'represents a general policy statement that does not expressly authorize all shooting ranges."

After reviewing state law, the court determined that nothing in the law "expressly immunizes shooting ranges from civil nuisance liability," and they reversed Lympus and remanded the case to District Court.

The Supreme Court also took a look at legislative proceedings in 1991 leading to House Bill 487, an act intended to protect "pre-existing" shooting ranges. The act exempted shooting ranges from definitions for community decay, litter and disorderly conduct and from criminal provision for public nuisances.

"The statute certainly evinces the requisite unequivocal legislative intent to protect shooting ranges from adverse local planning and zoning efforts," the court said. "We cannot discern a similar unequivocal intent, however, to exempt shooting ranges from civil nuisance liability."

In his dissent, Justice Jim Rice disagreed with this conclusion, noting that the same state law "also contains provisions barring the use of state and local laws or policies to 'prohibit the establishment of new shooting ranges.'"

Rice noted that state law states "'it is the policy of the state of Montana' to promote 'the safety and enjoyment of the shooting sports.'" He concluded that state law protecting shooting ranges should apply in the Eyrie Shotgun Ranch case because of "necessary implication."

"This court may not insert what has been omitted, or omit what has been inserted," the court said in response to Rice. "We cannot insert an inference in 'state law) by the Legislature to shield shooting ranges from civil nuisance liability."

Having dismissed the neighbors' public nuisance claim, Lympus had also dismissed private nuisance claims. But the Supreme Court ruled that noise from the Eyrie shooting range could create a private nuisance claim by the Triple D Game Farm, which supplies animals for still and cinema photography, and by Bob Rice, who operates a recording studio in his nearby home.

Lympus had dismissed the neighbors' trespass claim on the grounds that only a person or a tangible thing that enters another person's property can constitute a trespass. Noise was not a tangible thing, he said.

Citing various jurisdictions, the neighbors showed that noise, light, airborne gases and electromagnetic fields were intangible things that had supported a trespass claim. The Supreme Court took note of their argument but pointed out that in all those jurisdictions, a 'showing of actual physical damage" was required for intangible trespass, while it was not required in a traditional trespass action.

"The District Court failed to recognize that (the neighbors' may be able to establish actual damages in support of their intangible trespass claim," the court said.

The Supreme Court also looked at the neighbors' claim that the nearness of the Eyrie shooting range to young children at Bissell School created an attractive nuisance. While the defendant called for a showing of causation and damages, the court said the neighbors had provided all the necessary elements of attractive nuisance in their complaint.

Lympus, however, had denied the neighbors the opportunity to develop the facts of an actual threat of irreparable injury, the court said, "and acted too hastily in dismissing (the neighbors') attractive nuisance claim."

The Supreme Court agreed with Lympus' dismissal of two of the neighbors' constitutional claims, including Montanans' guarantee of "equal educational opportunity" in the matter of impacts to Bissell School.

But they overruled Lympus' dismissal of Robert Hayes as a defendant. Hayes had purchased the 60-acre property in 2006 and initiated construction of the shooting range before selling the property to Eyrie Shotgun Ranch.

The neighbors "cannot now enjoin Hayes from operating a shooting range that he no longer owns," the court said. The neighbors "can seek, however, to prove that they suffered damages as a result of Hayes' actions in creating the alleged disturbance from the shotgun blasts while he owned the property."