Cheboygan Sportsman Club v. Cheboygan Cnty. Prosecuting Attorney

• Decision Date: 02 October 2014
• Docket Number: Docket No. 313902.
• Court: Court of Appeal of Michigan — District of US
• Parties: CHEBOYGAN SPORTSMAN CLUB v. CHEBOYGAN COUNTY PROSECUTING ATTORNEY.

307 Mich.App. 71

858 N.W.2d 751

CHEBOYGAN SPORTSMAN CLUB

v.CHEBOYGAN COUNTY PROSECUTING ATTORNEY.

Docket No. 313902.

Court of Appeals of Michigan.

Submitted March 12, 2014, at Lansing.

Decided Oct. 2, 2014, at 9:05 a.m.

Patrick, Kwiatkowski & Hesselink, PLLC, Cheboygan, (by Joseph P. Kwiatkowski ), for plaintiff.

Young, Graham, Elsenheimer & Wendling, PC, Bellaire (by Bryan E. Graham ), for defendant.

Michael T. Jean for the National Rifle Association of America.

Before: RONAYNE KRAUSE, P.J., and FITZGERALD and WHITBECK, JJ.

Opinion

RONAYNE KRAUSE, P.J.

Defendant, the Cheboygan County Prosecuting Attorney, appeals by right an order of declaratory judgment stating that the prohibition against discharging firearms within 150 yards of occupied residences in MCL 324.40111(6),¹ which is part of the Natural Resources and Environmental Protection Act (NREPA), MCL 324.101 et seq., is inapplicable to plaintiff's shooting range. We affirm, albeit on different grounds.

The underlying facts in this matter are not in any serious dispute. Plaintiff, the Cheboygan Sportsman Club, owns and operates a shooting range for both long guns and handguns, and it has done so since approximately 1952. At the time it commenced operations, no residences were located in its vicinity. Over the years, plaintiff has improved the range and received a safety certification from the National Rifle Association (NRA). According to the Michigan Department of Licensing and Regulatory Affairs, the “Sportsman Subdivision” was platted in 1974, due north of plaintiff's shooting range, in a fairly isolated wooded area near the shore of Lake Huron. At some point—the record does not disclose when, nor can we discover it from public information of which we may take judicial notice pursuant to MRE 201 —a residence was constructed on Lots 43 and 44 of the Sportsman Subdivision. That residence is within the 150–yard zone specified by MCL 324.40111(6). Only Lot 45 would have been closer to the shooting range. It appears that no other occupied structures are within 150 yards of the range.

That residence came to be owned by Roger Watts. We again do not know when, although the records available to us from the Cheboygan County Register of Deeds suggest that he may have acquired the property in 2004 or 2005. Watts was, in fact, formerly one of plaintiff's members. We note that plaintiff contends in its brief on appeal that Watts was “aware of the ranges and activities associated with the Club prior to moving to the area,” a fact not explicitly stated in the record insofar as we can find. Nonetheless, it would be absurd to contend that any individual purchasing Lots 43 and 44, or building on those lots, could possibly have been unaware of the existence and nature of the shooting range at the time. It is therefore unambiguous and not seriously disputable that Watts came to the vicinity of the range, rather than the opposite. However, Watts executed a handwritten statement contending, among other things, the more recent users of the shooting range appeared no longer to appreciate the need to use “lighter” shooting loads.

On June 19, 2012, Watts reported to the Cheboygan County Sheriff Department that he had found a bullet on his property that he believed had come from plaintiff's range. The investigating officer opined that it appeared to be a nine-millimeter bullet. Although Watts allowed the bullet to be photographed, he refused to turn it over. Watts noted that this was not the first time he had found a stray bullet on his property. Further investigation determined that only one person had been shooting a handgun on the range recently, and that had been a .22 caliber pistol that was being fired in an easterly direction and not toward Watts's property, which was located to the north. The matter was turned over to the prosecutor's office, which informed plaintiff that “any individual discharging a firearm within 150 yards of a residence should face criminal prosecution for violating MCL 324.40111.”

Plaintiff then commenced the instant litigation, seeking to preclude defendant from enforcing MCL 324.40111 against its members. Plaintiff asserted that, when read in context, MCL 324.40111 only prohibits a hunter from discharging a firearm within 150 yards of an occupied dwelling. The NRA, in an amicus brief, contended that even if MCL 324.40111 applied outside the context of hunting, the Cheboygan Sportsman Club was entitled to immunity from civil suit under the sport shooting ranges act, MCL 691.1541 et seq. The trial court agreed with the NRA's contention, ruling that the two statutes were incompatible and the latter, being the more specific, prevailed. The trial court concluded that, unless defendant could show that plaintiff did not comply with the sport shooting ranges act, defendant could not prosecute plaintiff's members. The trial court thus granted summary disposition in favor of plaintiff.

A grant or denial of summary disposition is reviewed de novo on the basis of the entire record to determine if the moving party is entitled to judgment as a matter of law. Maiden v. Rozwood, 461 Mich. 109, 118, 597 N.W.2d 817 (1999). This Court likewise reviews de novo questions of statutory construction, with the fundamental goal of giving effect to the intent of the Legislature. Weakland v. Toledo Engineering Co., Inc., 467 Mich. 344, 347, 656 N.W.2d 175, amended on other grounds 468 Mich. 1216, 656 N.W.2d 175 (2003). The goal of statutory interpretation is to determine and give effect to the intent of the Legislature, with the presumption that unambiguous language should be enforced as written. Gladych v. New Family Homes, Inc.,

468 Mich. 594, 597, 664 N.W.2d 705 (2003). If the language is unambiguous, “the proper role of a court is simply to apply the terms of the statute to the circumstances in a particular case.” Veenstra v. Washtenaw Country Club, 466 Mich. 155, 160, 645 N.W.2d 643 (2002). However, “the provisions of a statute should be read reasonably and in context.” McCahan v. Brennan, 492 Mich. 730, 739, 822 N.W.2d 747 (2012). Even if a trial court fails to address an issue, it is preserved for appeal and thus proper for this Court to consider if it was raised before the trial court and is pursued on appeal. Peterman v. Dep't of Natural Resources, 446 Mich. 177, 183, 521 N.W.2d 499 (1994).

We first conclude that the trial court erred by applying the sport shooting ranges act. It is inapposite not because it is more or less specific, but because it simply has no relevance to the facts at issue in this case. The act gives shooting ranges that “conform[ ] to generally accepted operation practices” several immunities. MCL 691.1542(1). In ostensibly relevant part, under MCL 691.1542, such ranges are immune to “civil liability or criminal prosecution in any matter relating to noise or noise pollution,” “an action for nuisance,” and an injunction against “the use or operation of a range on the basis of noise or noise pollution” if those ranges were in compliance with “any noise control laws or ordinances” to which they were subject when they commenced operation. The threatened criminal liability in the instant matter has nothing to do with noise or nuisance. Under MCL 691.1542a, such ranges are immune, under certain circumstances, to violations of ordinances. The threatened criminal liability in the instant matter involves violations of a statute, not an ordinance. In any event, plaintiff itself is not being threatened with any criminal liability; rather, the threat of prosecution is to any individuals who discharge firearms there. The sport shooting ranges act does not confer upon plaintiff any immunity relevant to this matter.

Plaintiff and amicus contend in the alternative that MCL 324.40111(6) was never intended to apply to shooting ranges, but rather to hunters.² There is a considerable amount of evidentiary support for this contention in the history and context of the statute.

The first predecessor statute, MCL 312.10b, was enacted by 1968 PA 61, which amended what was then the Game Law of 1929, and it read as follows:

(1) For the purpose of this section, “safety zone” means any area within 150 yards of any occupied dwelling house, residence, or any other building, cabin, camp or cottage when occupied by human beings or any barn or other building used in connection therewith.

(2) No person, other than the owner, tenant or occupant, shall shoot or discharge any firearm or other dangerous weapon, or hunt for or shoot any wild bird or wild animal while it is within such safety zone, without the specific permission of the owner, tenant or occupant thereof.

(3) The provisions of this section shall not apply to any landowner, tenant or occupant thereof or their invited guest while hunting on their own property, or to any riparian owner or their tenant or guest while shooting waterfowl lakeward over water from their upland [sic] or lakeward from a boat or blind over their submerged soil.

MCL 312.10b has only been mentioned once in any published opinion that we can find, and in that case this Court only observed what is obvious, that “the statute is intended to protect the occupants of, or animals housed in, certain structures....” Holliday v. McKeiver, 156 Mich.App. 214, 217, 401 N.W.2d 278 (1986).

However, then Michigan Attorney General Frank J. Kelley issued an opinion interpreting MCL 312.10b and concluded, in relevant part, that the Game Law was intended by the Legislature to regulate hunting and that MCL 312.10b in particular was intended to regulate “the control and limitation of the discharge of weapons in the hunting and taking of wild birds and wild game and not the discharge of weapons in target practice activities.” OAG, 1981–1982, No. 5960, p. 322 (August 18, 1981). Consequently, the 150–yard “safety zone” was inapplicable to landowners engaging in target practice on their own property. Id.³ The statute explicitly exempted hunting activities on the landowner's own property.

Former ...