3 RIVERS LOGISTICS, INC.; HEATH HOLBERT; AMY HOLBERT; GARY MOSS; RENEE MOSS; JUDY MCSWAIN; RICHARD F. ALLEN, JR., AND JUDY ALLEN, AS TRUSTEES OF THE 2013 ALLEN FAMILY REVOCABLE TRUST; AND RICHARD F. ALLEN, JR. APPELLANTS
BROWN-WRIGHT POST NO. 158 OF THE AMERICAN LEGION, DEPARTMENT OF ARKANSAS, INC. APPELLEE
FROM THE ARKANSAS COUNTY CIRCUIT COURT [NO. CV-16-071]
HONORABLE DAVID G. HENRY, JUDGE
D. Watson, Attorney at Law, PLLC, by: Brett D. Watson, for
Law Firm, P.A., by: Russell D. Berry and Michelle L. Jacobs,
and Wynne, JJ., join.
COURTNEY HUDSON GOODSON, Associate Justice
3 Rivers Logistics, Inc.; Heath Holbert; Amy Holbert; Gary
Moss; Renee Moss; Judy McSwain; Richard F. Allen, Jr., and
Judy Allen, as Trustees of the 2013 Allen Family Revocable
Trust; and Richard F. Allen, Jr., appeal the dismissal of
their nuisance lawsuit against appellee Brown-Wright Post No.
158 of the American Legion, Department of Arkansas, Inc. (the
Legion). For reversal, appellants argue that the circuit
court relied on an inapplicable statute to find that the
Legion enjoyed immunity from appellants' lawsuit and
erred in not finding the immunity statute unconstitutional.
Legion is a charitable organization that owns forty acres
located approximately five miles south of DeWitt in rural
Arkansas County. Appellant 3 Rivers Logistics, Inc., is a
trucking-logistics business operating on a tract of land
adjacent to, and to the east of, the Legion property.
Appellants Gary Moss and Renee Moss own land adjoining the
Legion land to the north. Appellants Heath Holbert and Amy
Holbert own a house and land to the north of the Moss
property. Appellant Judy McSwain lives in a house on property
across a roadway to the west of the range. Appellant Richard
F. Allen owns and operates an outboard motor-repair shop on
the same tract of land as the McSwain house. Appellants
Richard F. Allen and Judy Allen, as trustees of the 2013
Allen Family Revocable Trust, own land to the north of the
Legion began building a shooting range that included areas
designated for the use of pistols, rifles, and
shotguns. On November 2, 2016, after shooting began
at the range, appellants filed a complaint alleging that the
noise from the range activities interfered with the use and
enjoyment of their land and constituted a nuisance.
Appellants sought a preliminary injunction preventing the
Legion from using the range, and additionally, or
alternatively, damages for the decrease in the value of their
land. In response, the Legion filed a motion to dismiss. The
Legion argued that appellants' complaint should be
dismissed because it was based only on noise, and Arkansas
Code Annotated § 16-105-502 (Repl. 2016) grants shooting
ranges immunity for noise-based lawsuits if the range is in
compliance with local noise-control ordinances.
circuit court held a hearing on January 11, 2017, to consider
the Legion's motion to dismiss. The parties agreed that
no local governmental unit had enacted a noise-control
ordinance when the Legion began constructing and operating
the range. Appellants argued that the Legion was not entitled
to immunity because no local noise ordinance existed.
Appellants cited Yates v. Kemp, 979 N.E.2d 678 (Ind.
App. 2012), in support of their argument that the Legion was
entitled to immunity only if it complied with a local noise
ordinance in existence. The Legion argued that Jenkins v.
Clayton, 542 S.E.2d 503 (Ga. 2001), and Sara Realty
v. Country Pond Fish & Game Club, Inc., 972 A.2d
1038 (N.H. 2009), offer guidance because the courts in those
cases found immunity for shooting ranges pursuant to statutes
like ours, even in the absence of a local noise-control
ordinance. The circuit court determined that the Arkansas
immunity statute was similar to the Georgia and New Hampshire
statutes, and not like the Indiana statute, which
affirmatively required the existence of a local noise
ordinance. The circuit court therefore granted the
Legion's motion to dismiss. Appellants filed a timely
first argue that Arkansas Code Annotated § 16-105-502
(Repl. 2016) does not apply in this instance because the
language of the statute requires the existence of a local
noise ordinance with which to comply. The Legion argues that
the plain language of the statute demonstrates that a
shooting range is entitled to immunity from noise-based
lawsuits as long as it is not in violation of any local noise
ordinances. Because this is an issue of statutory
interpretation, our review is de novo. DeSoto Gathering
Co., LLC v. Hill, 2017 Ark. 326, 531 S.W.3d
396. However, this court will accept a circuit court's
interpretation of the law unless it is shown that the
court's interpretation was in error. Cockrell v.
Union Planters Bank, 359 Ark. 8, 194 S.W.3d 178 (2004).
relevant part, Arkansas Code Annotated § 16-105-502
(a) Notwithstanding any other provision of law to the
contrary, a person who operates or uses a sport shooting
range in this state shall not be subject to civil liability
or criminal prosecution for noise or noise pollution
resulting from the operation or use of the sport shooting
range if the sport shooting range is in compliance with noise
control ordinances of local units of government that applied
to the sport shooting range and its operation at the time the
sport shooting range was constructed and began operation.
(b) A person who operates or uses a sport shooting range is
not subject to an action for nuisance, and no court of the
state may enjoin the use or operation of a sport shooting
range on the basis of noise or noise pollution, if the sport
shooting range is in compliance with noise control ordinances
of units of local government that applied to the sport
shooting range and its operation at the time the sport
shooting range was constructed and began operation.
begin our analysis by applying the basic rules of statutory
construction. The primary rule of statutory construction is
to give effect to the intent of the legislature. Ark.
Dep't of Corr. v. Shults, 2017 Ark. 300, 529
S.W.3d 628. We construe the statute just as it reads, giving
the words their ordinary and usually accepted meaning in
common language. Id. We reconcile statutory
provisions in order to make them consistent, harmonious, and
sensible and to give effect to every part. Keep Our
Dollars in Independence Cty. v. Mitchell, 2017 Ark. 154,
518 S.W.3d 64. When the language of a statute is ...