Robert Hale, individually and State of North Dakota ex rel., Robert Hale, and Susan Hale, Plaintiffs and Appellants
Ward County, City of Minot, and Bea Shaw, Defendants and Appellees
Appeal from the District Court of Ward County, Northwest Judicial District, the Honorable David W. Nelson, Judge.
Lynn M. Boughey, Bismarck, N.D., for plaintiffs and appellants.
Bradley N. Wiederholt (argued) and Randall J. Bakke (on brief), Bismarck, N.D., for defendants and appellees.
Lisa Fair McEvers, Carol Ronning Kapsner, Dale V. Sandstrom, Daniel J. Crothers, Gerald W. VandeWalle, C.J. Opinion of the Court by McEvers, Justice.
[¶1] Robert Hale, individually and on behalf of the State of North Dakota, and Susan Hale appeal from a summary judgment dismissing their public nuisance claim against Ward County and the City of Minot. We conclude 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. We affirm.
[¶2] The Hales have a house on agricultural land about one mile southeast of a shooting range in Ward County, which is used to train local, state, and federal law enforcement officers. Several other farms and homes are located near the Hales' property and the law enforcement shooting range, and County Road 12 runs adjacent to the west side of that shooting range.
[¶3] In Gowan v. Ward Cnty. Comm., 2009 ND 72, ¶ ¶ 1-2, 764 N.W.2d 425, this Court affirmed a Ward County Commission zoning decision denying David Gowan's application to rezone his land, which is about one-quarter mile downrange from the law enforcement shooting range, from agricultural to residential for construction of a residential subdivision. The Ward County Commission denied Gowan's application, citing safety concerns resulting from the proximity of his land to the law enforcement shooting range, and this Court held the Commission's decision was supported by substantial evidence and was not arbitrary, capricious, or unreasonable. Id. at ¶ ¶ 2, 9.
[¶4] In an amended complaint, the Hales sued Ward County and Minot, alleging 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. The Hales claimed this Court's decision in Gowan conclusively established their claim and sought to enjoin and to abate the use of the property as a law enforcement shooting range. Ward County and Minot answered, 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. The district court granted summary judgment dismissing the Hales' action.
[¶5] In Hale v. Ward Cnty., 2012 ND 144, ¶ ¶ 1, 28, 30, 818 N.W.2d 697, this Court affirmed the summary judgment in part, reversed in part, and remanded for further proceedings on the Hales' public nuisance claim. This Court discussed the differences between a private and a public nuisance and explained different evidence was relevant to the Hales' claims for a private and a public nuisance. Id. at ¶ ¶ 22-23, 26. This Court affirmed the summary judgment dismissing the Hales' private nuisance claim, concluding they failed to present competent evidence supporting their claim the law enforcement shooting range posed a danger to their property. Id. at ¶ 25. This Court concluded that to the extent the Hales claimed a public nuisance for injury to their neighbors' property, their failure to establish injury sufficient to sustain their private nuisance claim for danger to their property necessarily meant they could not show a special injury required to represent the entire community or neighborhood of persons harmed by the alleged public nuisance. Id. at ¶ 26. This Court concluded, however, there were disputed issues of fact about the Hales' claim that the law enforcement shooting range was a public nuisance for users of County Road 12 because of the proximity of County Road 12 to the shooting range. Id. at ¶ ¶ 26-28. This Court reversed the summary judgment on the Hales' public nuisance claim about use of County Road 12 and remanded for further proceedings on that claim. Id. at ¶ ¶ 28, 30. This Court recognized, however, that Ward County and Minot had not argued the Hales failed to meet the " specially injurious" requirement for a public nuisance claim under N.D.C.C. § 42-01-08, and neither the parties nor the district court had addressed the propriety of the Hales bringing an action to abate the law enforcement shooting range under N.D.C.C. ch. 42-02.
Hale, at ¶ 26. This Court expressed no position whether the Hales' use of County Road 12 qualified them to maintain their public nuisance claim. Id.
[¶6] On remand, the district court concluded " private citizens can bring an action
'ex rel.', but as a threshold matter, such citizens must first satisfy the special injury showing of N.D.C.C. § 42-01-08 or their public nuisance claim must be dismissed." The court granted Ward County and Minot summary judgment on the remanded claim for public nuisance regarding the Hales' use of County Road 12, concluding as a matter of law they failed to meet the " specially injurious" requirement for a private person to maintain a public nuisance claim under N.D.C.C. § ...