Posted by: Patricia Salkin | August 17, 2014

ND Sup. Court Dismisses Public Nuisance and Takings Claims for Injury to Their Property Due to Gun Range

The Hales were owners of a house on agricultural land about one mile southeast of a shooting range in Ward County, used to train local, state, and federal law enforcement officers. Robert and Susan Hale appealed from a summary judgment dismissing their public nuisance claim against Ward County and the City of Minot. The court concluded that the Hales, as private persons, are not entitled to maintain a claim for a public nuisance under N.D.C.C. § 42–01–08, because they did not show the alleged public nuisance is specially injurious to them. The court also denied the Hales’ request to join additional neighbors as parties to their action.

As for the first claim, the Hales alleged that the law enforcement shooting range was a private and a public nuisance and that the shooting range devalued their property, resulting in a governmental taking. The Hales claimed the law enforcement shooting range posed a danger to their property, to Gowan’s property, to other neighbors’ property, and to the general public using County Road 12. Ward County and Minot County responded by claiming that the law enforcement shooting range was a sports range under N.D.C.C. § 42–01–01.1 and that the shooting range was not a public or a private nuisance, and the court agreed.

The court followed the well-established construction of language rule and similar to N.D.C.C. § 42–01–08 construed the “specially injurious” language of that statute to authorize a private person to maintain a public nuisance claim if the private person suffers harm of a kind different from that suffered by other members of the public and the injury was suffered while exercising a right common to the general public. The court held that evidence of bullet holes in signs near the shooting range and County Road 12 raised factual issues about whether the shooting range posed an unlawful danger and was a public nuisance. Robert Hale’s use of County Road 12 once or twice a month to visit friends does not demonstrate the range was specially injurious to him in a manner different from other members of the public under N.D.C.C. § 42–01–08 so as to entitle him, as a private person, to maintain an action for a public nuisance. The court held that this statute requires a private person bringing a public nuisance action to show a special injury to that person of harm different in kind from that suffered by other members of the public. Accordingly, the court affirmed the summary judgment dismissing his public nuisance claim.

Hale v Ward County, 848 N.W. 2d 245 (ND 6/24/2014)

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