Hale loses another appeal

Minot attorney and real estate developer Robert Hale lost his appeal to the North Dakota Supreme Court Tuesday. The court affirmed a summary judgment dismissing their public nuisance claim against Ward County and the City of Minot, the court opinion, written by Justice Lisa Fair McEvers.

The nuisance complaint is against the City of Minot and Ward County for their use of property in the Trestle Valley area west of Minot for the Ward County Law Enforcement Training Center. The property is located about one mile northwest of Hale’s property and Ward County Road 12 runs adjacent to the west side of the shooting range.

In the court opinion, the court references their affirmation of a Ward County Commission zoning decision that denied Minot resident David Gowan’s request to change the zoning of his property one-quarter mile downrange from the facility. He wanted to change from agricultural to residential zoning in order to create a residential subdivision. The county denied the change due to safety concerns related to the shooting range.

Robert and Susan Hale filed suit alleging that the shooting range “was a private and public nuisance” that “devalued their property, resulting in a governmental taking,” according to the court opinion. They also alleged that the range was a danger to their property and that of Gowan’s and other residents of the area.

The governmental organizations claimed that the property was a legal shooting range under North Dakota law and that it wasn’t a nuisance, calling for dismissal of Hale’s argument, which the district court granted in that 2012 case.

“Summary judgment is a procedural device for promptly resolving a controversy on the merits without a trial if there are no genuine issues of material fact or inferences that can reasonably be drawn from undisputed facts, or if resolving factual disputes will not alter the result,” McEvers explained in the opinion.

In this new case, the Hales argue that “they presented sufficient evidence the alleged public nuisance was specially injurious to Robert Hale to raise a genuine issue of material fact about their right as private persons to maintain an action for public nuissance” and that the presence of bullet holes in signs near Ward County Road 12, and their use of that road, “raise a genuine issue of material fact about whether the range was specially injurious to the Hales.”

The court described a private nuisance as one that affects only one or a few people from “enjoyment of some private right not common to the public” whereas a public nuisance “affects an entire community or neighborhood or any considerable number of persons.” The court upheld the dismissal of the private nuisance complaint once again, but did concede that “there were disputed issues of material fact.”

“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 … to entitle him, as a private person, to maintain an action for public nuisance,” the opinion said of the 2012 complaint.

The court maintains its 2012 affirmation of the dismissal.