Friday, September 21, 2012

Farragut Firing Range Appeal

The other day I received three e-mails informing me of the Idaho Supreme Court hearing on the Idaho department of Fish &  Game loss in Mitchell's court. Judge Mitchell had essentially sunk the ill advised attempt by F&G to reestablish a World War 11 Training range that was never permitted for civilian use after the war.

This case was supposed to have been heard at 10:00 am last Wednesday. Now suddenly the sound of silence.Can anyone tell me what did or didn't happen in this case? Please comment.

***Reply from Sheryl Puckett:

Case was heard, packed courtroom, only four judges attended the fifth will listen to the tapes, Harvey did a great job, they have no time limits as to when they render a decision, could be two weeks, two months, or maybe a lot longer. We now wait.

Reply from Jeanne Holder:

Very sorry that I haven't followed through with an update regarding the Farragut hearing. I assumed that you saw the CDA Press article and I'm not sure I could top that. See below: Except for the interesting fact that IDFG Trever daringly used a statement out of the 2007 order (and restated in the CDA Press article) which during trial , Trever made the same argument, out of context, and it inflamed Judge Mitchell so much that he threatened to sanction her, not only in Court but also in his dated Aug. 25, 2011. I will send that to you in my next email to keep this from being so wordy.

" The 2007 order on the case, Trever added, described that "except for the absence of baffles, the range is relatively safe."

Alicia is not completely correct when she states " Three incidents of bullets escaping the range resulted in a group of Bayview residents suing Fish and Game". CARE sued IDFG because there was a substantial change of usage which created a nuisance and under Idaho law at the time, citizens were allowed to sue for nuisance if they can prove there has been a substantial change of use and they bring forth their suit within three years of the substantial change. We won on the noise issue and IDFG did not appeal, instead they created legislation that allowed for a louder range then we have ever heard. Judge Mitchell found this legislation unconstitutional and IDFG appealed to the Supreme Court, along with the safety issue.


More from Jeanne:

Trevor again stated this comment to the Supremes (trying to convince that Judge Mitchell considered the range safe except for not having a baffle.)- "However, the Court found the Range relatively safe for use up to 500
shooters "[e]xcept for the fact that the existing range contains no baffle."

Below is what Mitchell said about it in his order.

IDFG supports its claim that "As a fundamental matter, the mere identification of

ricochet 'hazards' on the Range does not demonstrate harm to the Plaintiffs", with the

following convoluted reasoning:

In 2006, the Plaintiffs had the burden of showing clear endangerment to those outside the area
owned and controlled by IDFG. However, the Court found the Range relatively safe for use up to 500
shooters "[e]xcept for the fact that the existing range contains no baffle. 2007 Order at 46.

Id., p. 13. Because of the words IDFG omitted from this portion of this Court's prior decision,
IDFG's claim is completely false and intentionally misleading. Here is what the Court wrote, in
context and in its entirety:
The Court finds this remedy [closing Farragut range to everyone] is not
warranted. Except for the fact that the existing range contains no baffle,
Page 22
the range is relatively safe as to its level of use up to and including 2002.

February 23, 2007, Findings of Fact, Conclusions of Law and Order, p. 46. AS found by this Court
the level of use in 2002 was 176 shooters for that entire year. Id., p. 4. This Court found that
as of the 2006 trial, the level of use "has expanded significantly since 2002." Id. Thus, for
IDFG to make the claim "However, the Court found the Range relatively safe for use up to 500
shooters "[e]xcept for the fact that the existing range contains no baffle", and cite this Court's
February 23, 2007, opinion as authority
is simply disingenuous. IDFG's making that false claim by using an incomplete quote of the Court,
can only be construed by this Court as an intentional act by counsel, an act that may warrant a
sanction. The issue of a sanction will be left for another day, and counsel's misconduct will not
be held against IDFG. What is pertinent today is that this Court has never held all that was
needed to make the range safe for up to 500 shooters was the installation of a baffle.
What the Court did hold was: "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." While the Court did not mention "ricochets" in so holding, neither did the Court
mention "direct fire". A review of this Court's notes from the December 11, 12, 14, 14, 2006,
trial shows "ricochet" was only mentioned once, in passing, by IDFG's expert Roy Ruel, when he
mentioned a ricochet can occur off the ground or floor of the range. If a shooter, intentionally
or accidentally, shoots
into the floor, and doing so causes a good likelihood of that bullet travelling over the berm
behind the target, then the requirement that the shooter "cannot fire his or her weapon above the
berm behind the target", has not been met.

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The above attachemts are very long and consist of the original ruling by Judge Mitchell. If anyone wants it they can e-mail a request to me and I'll send them to you.
P.S. I don't read the Coeur d'Alene Press

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