3 Rivers Logistics, Inc. v. Brown-Wright Post No. 158 of the Am. Legion
| Decision Date | 15 March 2018 |
| Docket Number | No. CV–17–435,CV–17–435 |
| Citation | 548 S.W.3d 137 |
| Parties | 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 |
| Court | Arkansas Supreme Court |
Brett D. Watson, Attorney at Law, PLLC, by: Brett D. Watson, for appellants.
Berry Law Firm, P.A., Stuttgart, by: Russell D. Berry, De Witt and Michelle L. Jacobs, for appellee.
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 , 273 Ga. 439, 542 S.E.2d 503 (2001), and Sara Realty, LLC v. Country Pond Fish & Game Club, Inc. , 158 N.H. 578, 972 A.2d 1038 (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:
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 plain and unambiguous, this court determines legislative intent from the ordinary meaning of the language used. Foster v. Foster , 2016 Ark. 456, 506 S.W.3d 808.
Applying the principles set forth above, we conclude that the language of the statute clearly expresses the General Assembly's intent to give a shooting range immunity from noise-based lawsuits if it is not in violation of local noise ordinances at the time it was constructed and began operation. If there are no ordinances regulating noise, the range is in compliance and the immunity statute applies. We find support for our conclusion not only in the language of our statute, but also from the Georgia Supreme Court's construction of a similar immunity statute.3 Georgia's statute, like ours, provided shooting ranges with immunity from noise-based lawsuits when they complied with local noise ordinances. The Georgia statute, OCGA § 41–1–9(c) provided, in pertinent part:
No sport shooting range ... shall be subject to any action for civil or criminal liability, damages, abatement, or injunctive relief resulting from or relating to noise generated by the operation of the range if the range remains in compliance with noise control or nuisance abatement rules, regulations, statutes, or ordinances applicable to the range on the date on which it commenced operation.
Although another court's construction of a statute that is similar to ours is not binding, it may be persuasive. Jones v. Brinkman , 200 Ark. 583, 139 S.W.2d 686 (1940). The Georgia Supreme Court applied a statutory-construction rule much like ours and concluded:
Ascribing ordinary signification to the words of this statute, as we are bound to do, OCGA § 1–3–1, we think its plain, commonsense meaning is as defendants suggest: A sporting clay course cannot be deemed a sound generating nuisance if it does not run afoul of local noise control ordinances (or ordinances aimed at the regulation of a sport shooting range).
Jenkins, 542 S.E.2d at 503. In reversing the judgment against the owners of the shooting range, the Georgia Supreme Court stated:
Jenkins County has not enacted an ordinance pertaining to noise control in general, or sport shooting ranges in particular. Thus, it cannot be said that defendants' sporting clay course failed to comply with noise control ordinances on the date on which it commenced operation. It follows that defendants' course could not be enjoined as a noise generating nuisance, and that the trial court erred in ruling otherwise.
Id. Similarly, the people of Arkansas County have chosen not to enact a noise-control ordinance.
The Indiana Court of Appeals decision in Yates also lends support to our conclusion.
There, the Indiana immunity statute specifically required an existing local noise-control law or ordinance for immunity to apply:
A person who owns, operates, or uses a shooting range is not liable in any civil or criminal matter relating to noise or noise pollution that results from the normal operation or use of the shooting range if the shooting range complies with a law or an ordinance that applied to the shooting range and its operation at the time of the construction or initial operation of the shooting range, if such a law or ordinance was in existence at the time of the construction or initial operation of the shooting range.
Indiana Code § 14–22–31.5–6 (1996) (emphasis added). In keeping with the Indiana statute, the ...
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