Saturday, February 24, 2007

Bayview Freed

The following is the ruling by Judge Mitchell for the plaintiffs, C.A.R.E. and against the Idaho Fish & Game Department. As Sheryl Puckett, long time community activist put, it," Idaho Fish & Game have brought shame upon themselves", and my words, "local residents are out $15,000, thanks the the Gestapo tactics of F&G."

The members of CARE, and their contributors are to be congratulated on the victory over Government run amok. Special thanks go to Sheryl Puckett for the grueling task of cutting and pasting this so that our readers didn't have to wade through all of the precedents, etc. We hope that the essence of the case have been fairly presented here.

RULING

The Vargas Master Plan is inconsistent with the range design criteria
Vargas discussed in his 1996 Third Shooting Range Symposium.

The Court specifically finds IDF&G’s claim that “Since 1950, there has
been regular and substantial use of the range by both individuals and
organized groups” (Defendants’ Revised Findings of Fact and Conclusions
of Law, p. 2, ¶ 2), to be completely unsupported by the record. IDF&G
put on no evidence to support that claim.

The ordinance continues: “All facilities shall be designed and located
with full consideration to the safety factors involved in such a use.”
The Court finds the range as it presently exists, and as planned in the
Vargas Master Plan, fails this requirement. There is not a single
overhead baffle at present, and none upon the Court’s review of the
Vargas Master Plan. Even a solitary overhead baffle located just in
front and above all firing stations will drastically lower the chance
of a bullet escaping the range.

While Nightingale’s Farragut Shooting Range Noise Study was the first
shooting range noise evaluation and first outdoor environmental noise
study he had conducted (Plaintiffs’ Exhibit 16, 25), his credentials
are more than sufficient for the Court to recognize him as an expert.

Exhibit 16, p. 15, ¶ 2. Congruent with this, the Kootenai County
Special Use Ordinance limit of 75 dBA was violated at four of seven
private properties. Plaintiffs’ Exhibit 16.
Hansen admitted in his trial testimony that DNL would dilute or lower
the results on a shooting range if the area is fairly quiet at night.
30. The Court viewed the area. It is rural. During the day it
was completely quiet. There is no reason to believe nighttime would be
otherwise. The Court finds Nightingale credible that DNL should not be
used in measuring noise levels at a gun range. In the rural community
of Bayview, which has background ambient sound levels in the range of
25 dBA to 35 dBA, the acceptable sound pressure level at the private
property line should not exceed 55 dBA, as measured with a certified
sound measuring device with an IMPULSE filter.

The Court notes that regardless of the mode or the analogous standards,
the Farragut Range fails from a noise standpoint. The most significant
factor for the Court as far as noise and nuisance law is concerned is
not the mode in which one measures maximum sound pressure level
(whether measured by PEAK, FAST or IMPULSE), and it is not which noise
standards should apply (EPA, HUD, DoD, Kootenai County Industrial,
Illinois or Hawaii). The most significant factor for the Court is the
increase since 2002 in the amount of gunfire, the number of times such
gunfire occurs during the day and the number of rounds shot during the
day…all results of increased use of the range. Even more dramatic is
the increase in projected use of the range by IDF&G.

33. On behalf of plaintiffs, expert witness Roy Ruel testified as to the
likelihood of bullet escapement from the real property owned and
controlled by defendant IDF&G. Ruel’s testimony regarding the
likelihood of bullet escapement was not contradicted in any way by
defendant’s experts Clark Vargas or Edward Santos.

Will Collins, who lives at 1801 E. Perimeter Road, testified he has
heard the “crack” of a bullet overhead while standing on his property.
Collins next- door neighbor Dorothy Eldridge testified about two
occasions, one in 2000 where she heard a bullet hit a tree above where
she was standing on her deck, and another in 2001 where she heard a
bullet hit a rock and ricochet. The Court finds these witnesses
credible.

Ruel testified that unless the range owner controls all land down
range, a range needs to be built so no bullet escapes. Ruel testified
that as this range is situated adjacent to residences and the Perimeter
Road, 100% bullet containment is required. Ruel testified that
baffling can reduce bullet escapement. Ruel testified no baffling
exists at the range today, and no baffling is called for in the Vargas
Master Plan. This is true even though Clark Vargas stated at a
national symposium in 1999: “If you build in a populated area, your
range must be totally baffled so that the range owner can demonstrate
to a judge that a round cannot escape.” Clark Vargas testified that
his Vargas Master Plan has side walls in place to contain cross fire
and trellis baffles to reduce the angle of escape, but Vargas did not
testify about any overhead baffles to prevent or even reduce a bullet
escaping from his proposed improved range. Ruel testified that a
“Hazard Assessment” is appropriate whenever there is a pubic safety
concern, and that Vargas had performed no hazard assessment. Ruel
testified that as planned under the Vargas Master Plan, the safety
factor is reduced as compared to the existing range due to the vast
increase in the number of people expected to use this range after the
Vargas Master Plan is implemented. Ruel testified that at present the
families down range are at risk of bullet escapement from the range
onto their property, and under the Vargas Master Plan they are at an
increased risk of bullet escapement onto their property.

36. The Surface Danger Zone from the Farragut Shooting Range firing
line encompasses a large area of private and public property and
extends beyond and down range from the real property owned and
controlled by IDF&G anywhere from one to two miles. Plaintiffs’
Exhibit 1, G-5 and Exhibit 2, figure 2; Exhibit 13, 14, 15; Exhibit 16,
figure 10; Exhibit 20. The Farragut Shooting Range is not large enough
to contain bullets fired from guns at the firing line within the fenced
boundaries of the range.


Most notably, as mentioned above, Clark Vargas stated in his “Design
Criteria for Shooting Ranges” given at the Third National Shooting
Range Symposium in 1996: “If you build in a populated area, your range
must be totally baffled so that the range owner can demonstrate to a
judge that a round cannot escape. Ranges are very expensive to
construct.” Exhibit 2, p. 5 under “Site Selection”.

47. The testimony of David Leptich and Randall Butt that adequate range
supervision had been regularly provided was not supported by their
admission that personnel from both departments were on the shooting
range for only one hour per week. The testimony of defendants'
witnesses that there has been adequate supervision is not credible nor
is it supported by the record.

Santos’ opinion that the Farragut Range need not be attended is
contradictory to the NRA Range Source Book, Exhibit 3. Again, Santos
supplied no factual foundation for his opinion.
Finally, Santos lacks credibility. Santos testified that the NRA
contacted Edward Santos to review the existing range and review the
Vargas Master Plan. However, Santos’ report (Exhibit G) states that
“This evaluation was conducted at the request of the Idaho Fish and
Game Department…” Exhibit G, p. 2.
49.The Vargas Master Plan does not meet and, in numerous
instances, is deficient and falls short of the requirements recommended
by Clark Vargas in his "Design Criteria for Shooting Ranges" presented
to the Third National Shooting Range Symposium sponsored by the
National Rifle Association in 1996 and in the Illinois Department of
Natural Resources Shooting Range Safety Plan, rules prepared by Clark
Vargas, Plaintiffs’ Exhibits 2 and 43.

However, Vargas in his “Design Criteria for Shooting Ranges” states in
unequivocal and mandatory language: “If you build in a populated area,
your range must be totally baffled so that the range owner can
demonstrate to a judge that a round cannot escape.

The Court finds Vargas to be the preeminent expert in his field.
However, much of his Vargas Master Plan and many of his opinions
expressed for purposes of this litigation conflict with his “Design
Criteria for Shooting Ranges”, which was not prepared for litigation
purposes. To the extent Vargas’ opinions and the Vargas Master Plan
conflict with his “Design Criteria for Shooting Ranges”, the Court
finds the opinions expressed in his “Design Criteria for Shooting
Ranges” to be more credible and better reasoned.


From the plaintiffs’ standpoint, if a baffle is placed above and in
front of each firing position, the chance of bullet escapement from the
existing range is significantly reduced. If such a baffle is place
above and in front of each firing position, and the range is operated
at no more than 500 shooters per year, the range need not be
supervised.

51. As presently operated and funded, IDF&G has no plans for nor
financial support to employ professional or trained range managers.
David Leptich testified IDF&G has had six volunteer “Range Hosts”
recently, but they require no firearms familiarity or any requirement
that they be able bodied. Clark Vargas testified he could not remember
if he looked at the supervision of the range, but expressed the opinion
that a full-time supervisor would not be required for civilian ranges.
The Court finds that to be inconsistent with his opinions expressed in
his "Design Criteria for Shooting Ranges" presented to the Third
National Shooting Range Symposium sponsored by the National Rifle
Association in 1996.

Exhibit 2, p. 1, 2 and 8. Roy Ruel testified
that at least two people should be working at the range as supervisors.
Otherwise, range rules do not get enforced. The Court finds Ruel’s
testimony to be more credible and consistent with Vargas’ opinions in
his “Design Criteria for Shooting Ranges.” However, if zero bullet
escapement is achieved in the range as constructed, supervision is not
required as supervision in that situation only inures to the benefit of
the shooters.

59. Because property owners are located within the Surface Danger Zone
and individual members of the public can walk or ride within the area
where bullets from the firing lines could land with lethal force, the
applicable safety standards require that the range be baffled
completely from the firing line to the target line. Plaintiffs’
Exhibits 2, 3, 6 and 38.

61. The Farragut Shooting Range as presently exists and as proposed for
expansion in the Vargas Master Plan must, for the safety of all persons
within the Surface Danger Zone, be subject to the "No Blue Sky" rule.
Plaintiffs’ Exhibits 2, 6, 38 and 43.
63.David Leptich is the Regional Habitat Biologist for IDF&G and
is the IDF&G’s lead individual regarding the range improvement project.
At trial, Leptich testified that in his opinion baffling is not
necessary at present and is not included in the Vargas Master Plan.
Leptich admitted this is in part due to cost, but added “Economics
isn’t the only issue.” In an earlier deposition, Leptich testified
that “economics” is a “secondary consideration” in choosing not to
incorporate baffles. Lepteich deposition, p. 146. At trial, Leptich
testified IDF&G would consider baffling but it “Depends on if more
people move in down range”, because then “The risk changes”. Leptich
acknowledged that the more shooters, the more rounds you will have, and
that in turn increases the chances for bullet escapement. Leptich was
asked: “If the number of shooters increases but the population down
range remains the same, then the cost benefit analysis gravitates
toward baffling?” To which Leptich responded “absolutely”. Leptich
admitted he wants to turn this into a first-class regional shooting
range and bring in more shooters. However, Leptich testified: “I
definitely don’t consider a change in patronage a change in use.”

The Court finds Leptich’s inconsistent testimony not credible. However,
Leptich’s testimony shows that as IDF&G’s representative in charge of
the range project, he is wearing blinders as he proceeds forward with
this project.

Further evidence of such is Leptich’s response to Clark
Vargas’ statement: “If you build in a populated area it must be
totally baffled so the range owner can demonstrate to a judge that a
round cannot escape”. Exhibit 2, p. 5. Leptich said he interpreted
that rather clear language to mean “highly populated areas”. Further
evidence of wearing blinders is the fact that Leptich testified that
even though Clark Vargas (designer of the very plan Leptich is
following) has the opinion that site selection is the most important
criteria (“The most important decision in range design is site
selection with safety in mind”, Exhibit 2, p. 8).

IDF&G has never even considered the fact that the site itself may be inappropriate. Leptich was asked: “If the site selection back in 1950 was a mistake, you are
not prepared to correct that mistake?”, to which Leptich responded: “I
would say that’s correct, we’re not approaching it from that
direction.” Leptich admitted: “Clark Vargas was not tasked to examine
the appropriateness of the site.” Toward the end of his testimony
Leptich stated: “If this range is improved, the local public benefits
because it is a safer, quieter range.” Neither the claim of increased
safety nor the range being quieter is supported by the evidence.

The Court finds Leptich’s inconsistent testimony not credible. However,
Leptich’s testimony shows that as IDF&G’s representative in charge of
the range project, he is wearing blinders as he proceeds forward with
this project.

Toward the end of his testimony Leptich stated: “If this range is
improved, the local public benefits because it is a safer, quieter
range.” Neither the claim of increased safety nor the range being
quieter is supported by the evidence.

The increased noise from the firing of rifles and pistols on the
Farragut Shooting Range in the time period of three years prior to the
filing of this lawsuit has been stressful to plaintiffs, offensive to
their senses and an obstruction of their free use of property so as to
interfere with their comfortable enjoyment of their lives and their
property, constituting a nuisance as defined in Idaho Code § 52-101.

6. The present operation of the Farragut Shooting Range, which allows
escapement of bullets beyond Farragut State Park/IDF&G boundaries into
the Surface Danger Zone encompassing plaintiffs’ private property and
Farragut State Park property open to members of the public, constitutes
a clear and present danger to the safety and health of plaintiffs and
other persons in the area.

The IDF&G is free to construct the baffles from any material it
chooses, but it must maintain those baffles. Once the IDF&G installs
those baffles at each firing station, it is free to operate the range
up to 500 shooters per year.

As authorized specifically by Idaho Code §52-111 and, in general, by
the duty of the courts to protect members of the public from known and
controllable dangers, plaintiffs are entitled to an injunction ordering
defendants Idaho Department of Fish and Game and Director Steven M.
Huffaker to close the Farragut Wildlife Management Area to all persons
with pistols, rifles and firearms using or intending to use live
ammunition, until a baffle is installed over every firing position.
Once baffles are installed, and the Court has lifted that injunction,
IDF&G may operate that range in the same manner in which it
historically has (ie., without any on site supervision), up to 500
shooters per year. Once IDF&G has realized that number in a given
year, it must close the range for the remainder of that calendar year.
Idaho Department of Fish and Game is limited to 500 shooters per year
because the Court finds such number to be a significant change in use
compared to 2002.

The Farragut State Park shooter sign-up sheets produced by IDF&G show 182 shooters (including counting numbers within groups) for 2002. Given the fact that those records are incomplete, the Court gives IDF&G the benefit of the doubt that perhaps up to 250 shooters actually used the range in 2002.

Doubling that amount to 500 Shooters per year is a significant increase in the number of shooters per year, but acceptable. The doubling of use compared to 2002 seems
to have been the significant increase that area residents found the
start of becoming a nuisance, and use continued to increase even
further. The doubling of use compared to 2002 is a significant
increase, but the Court finds is not likely to be a nuisance.

Idaho Department of Fish and Game cannot ignore Vargas’ opinions either
as to safe range design or as to site selection. While IDF&G has a
range, it is a range that has been used by less than one shooter per
day. Idaho Department of Fish and Game now desires to expand the use
of that range three thousand times, yet refuses to consider the
appropriateness (as defined by their own range designer, Clark Vargas)
of such an expanded range in its present community.


However, use levels will remain capped at 500 shooters per year unless
these two concerns have been addressed: 1) include safety measures
adequate to prevent bullet escapement beyond the boundaries owned and
controlled by IDF&G, and 2) include noise abatement measures to reduce
noise to a decibel level agreed upon by the parties in the first
instance, or, if the parties are unable to agree, to be set by the
Court following further evidence.

Even if the solution to these two concerns are agreed upon by the parties, in order to close this case IDF&G will need to obtain an order from the Court to exceed 500
shooters per year. The first concern (safety) is satisfied only by the
“No Blue Sky” rule, or “totally baffled…so that a round cannot escape”,
as espoused by the nation’s preeminent authority on range design and
designer of the Vargas Master Plan, Clark Vargas.

The testimony is uncontroverted that due to significant increase in
range use since 2002, from a noise standpoint alone, plaintiffs have
experienced a degradation in living on their own property. Dorothy
Eldridge testified the noise shakes her windows, that they no longer
ride horses due to the horses spooking from the noise, that the noise
causes her migraines to become symptomatic.

She testified there is no way to avoid the noise from the range as it
is still annoying inside the house with the windows closed and the
television on. Her husband Ron Eldridge testified he is considering
selling their property because twelve years ago they bought in that
location for the quiet.

Jeanne Hom is considering selling her property and taking a loss on the sale because “it is impossible to live there”.

Marcelle Richman no longer takes 4H children on horse rides in the
area due to safety concerns with bullets and the noise spooking horses.

These are examples of “great” injury.

In addition to the noise there are personal safety concerns. Granted,
no one has been hit by a bullet yet, but Will Collins testified that he
has heard the sound of a bullet “crack” as it went over his head while
standing on his property. Dorothy Eldridge has had two experiences of
bullets hitting or going over her property. While the mathematical
probability of a bullet hitting a person are slight, if that event
happens, the harm will be great. In addition to being “great” injury,
the injury is also “irreparable” for the same reasons noted above.
There can be no more “irreparable” injury than death or injury from a
bullet.

Plaintiffs have proven the sound from rifle fire at the range,
increased in frequency since 2002, “endangers the health and comfort”
of themselves and their family members.
CONCLUSION AND ORDER.

IT IS HEREBY ORDERED plaintiffs are entitled to an injunction ordering
defendants Idaho Department of Fish and Game and Director Steven M.
Huffaker to close the Farragut Wildlife Management Area to all persons
with pistols, rifles and firearms using or intending to use live
ammunition until a baffle is installed over every firing position. The
baffle must be placed and be of sufficient size that the shooter, in
any position (standing, kneeling, prone), cannot fire his or her weapon
above the berm behind the target. Once baffles are installed and
either 1) plaintiffs agree that the shooter in any position cannot fire
a round above the berm behind the target, or 2) if the plaintiffs
cannot agree, the Court so finds after a view of the premises, the
injunction will be lifted, and IDF&G may operate that range in the same
manner in which it historically has (ie., without any on site
supervision), up to 500 shooters per year. Once IDF&G has realized
that number in a given year, it must close the range for the remainder
of that calendar year.

IT IS FURTHER ORDERED the Idaho Department of Fish and Game is free to
seek any funding it wishes. The Idaho Department of Fish and Game is
free to build any improvements upon its property. However, use levels
will remain capped at 500 shooters per year unless the following two
concerns have been adequately addressed: 1) Safety: include safety
measures adequate to prevent bullet escapement beyond the boundaries
owned and controlled by IDF&G, and 2) Noise: include noise abatement
measures to reduce noise to a decibel level agreed upon by the parties
in the first instance, or, if the parties are unable to agree, to be
set by the Court following further evidence.

Even if the solution to these two concerns are agreed upon by the parties, in order to close this case IDF&G will need to obtain an order from the Court to exceed
500 shooters per year. The first concern (safety) can be satisfied
only by the “No Blue Sky” rule, or “totally baffled…so that a round
cannot escape”, as espoused by the nation’s preeminent authority on
range design and designer of the Vargas Master Plan, Clark Vargas.
Exhibit 2, p. 5. Once bullet containment is achieved, it matters not
for purposes of this litigation if the range is supervised (with bullet
containment, supervision would only inure to the benefit of the
participants, an important consideration, but not the subject of this
lawsuit).

The second concern (noise) is a function of the number of
shooters (per year or per day) and peak decibel level. For example, it
may be that 500 shooters per year in an unmitigated range producing 65
decibels is less desirable than 50,000 shooters per year from a range
that only produces 30 decibels. It would seem logical for the parties
to agree as to noise levels and shooter numbers in advance of any
construction, but it is not the Court’s place to force such agreement
in advance.

If the parties in the future cannot agree as to noise
levels and maximum shooter numbers, the Court will make that
determination with additional evidence. If IDF&G makes improvements
but does not successfully address safety and noise concerns, IDF&G will
not be allowed to exceed 500 shooters per year.

1 comment:

stebbijo said...

Does this mean those signs will come down?