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Inc. v. Brown-Wright Post No. CV-17-435 of American Legion

Supreme Court of Arkansas

March 15, 2018

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
v.
BROWN-WRIGHT POST NO. 158 OF THE AMERICAN LEGION, DEPARTMENT OF ARKANSAS, INC. APPELLEE

         APPEAL FROM THE ARKANSAS COUNTY CIRCUIT COURT [NO. CV-16-071] HONORABLE DAVID G. HENRY, JUDGE

          Brett D. Watson, Attorney at Law, PLLC, by: Brett D. Watson, for appellants.

          Berry Law Firm, P.A., by: Russell D. Berry and Michelle L. Jacobs, for appellee.

          Baker and Wynne, JJ., join.

          COURTNEY HUDSON GOODSON, Associate Justice

         Appellants 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. We affirm.

          The 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 outboard-repair business.

         The Legion began building a shooting range that included areas designated for the use of pistols, rifles, and shotguns.[1] 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.

         The 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.[2] The circuit court therefore granted the Legion's motion to dismiss. Appellants filed a timely appeal.

         Appellants 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).

         In relevant part, Arkansas Code Annotated § 16-105-502 provides:

(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.

         We 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 ...


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