concurring and dissenting.
¶56 I would affirm the District Court’s dismissal of the nuisance claims. I concur with the Court’s resolution of all other issues.
¶57 The Court correctly follows Barnes’ instruction to make a “threshold” determination of whether the act alleged to be a nuisance is authorized “either by the express terms of the authorizing statute or by necessary implication therefrom.” Opinion, ¶ 23. However, I disagree with the threshold determination the Court has made.
*400¶58 The Court offers from the legislative history of § 76-9-101, MCA, that the statute was adopted “with the purpose to protect pre-existing shooting ranges from community encroachment” and notes that “[t]he Legislature chose not to exempt shooting ranges from the specific civil provisions regarding civil public nuisance.” Opinion, ¶¶ 24, 26. From this, the Court concludes that there is no “unequivocal intent ... to exempt shooting ranges from civil nuisance liability.” Opinion, ¶ 28. ¶59 First, I disagree with the Court’s assumption that the statute was meant to protect only pre-existing ranges. While parts of the statute are indeed directed toward protection of “established shooting range[s],” § 76-9-105(1), MCA, the statute also contains provisions barring the use of state and local laws or policies to “prohibit the establishment of new shooting ranges,” §§ 76-9-103(2), -104(2), MCA (emphasis added). Thus, the statute has the purpose of protecting the future development of shooting ranges as well.
¶60 To determine whether a statute “authorizes]” the offending act, either by “express” authorization or by “necessary implication,” Barnes explains that the issue is whether it “can be fairly stated that the legislature contemplated the doing of the very act which occasions the injury.” Barnes, ¶ 20 (quoting Hassell v. San Francisco, 78 P.2d 1021, 1022-23 (Cal. 1938)). We labeled this the “Hassell test of statutory authorization.” Barnes, ¶ 21. Under this test, I believe it can be “fairly stated” that the Legislature intended “the doing of the very act” which is alleged to cause the injury here, that being the operation of a shooting range. Section 76-9-101, MCA, states that “[i]t is the policy of the state of Montana” to promote “the safety and enjoyment of the shooting sports” and, more specifically, to protect “the locations of and investment in shooting ranges for shotgun, archery, rifle, and pistol shooting.” Thus, I would conclude that the statute authorizes the act in question here by “necessary implication.”
¶61 We further explained in Barnes that, while “a statutorily authorized activity or facility cannot constitute an absolute nuisance as a matter of law,... nonetheless, [it] may become aqualified nuisance in fact “by reason of the improper or negligent manner in which it is conducted.’ ” Barnes, ¶ 23 (emphasis added, citation omitted). Thus, even though the act in question cannot be challenged by way of an absolute nuisance claim, it can be challenged as a qualified nuisance claim based upon improper or negligent operation.
¶62 However, Neighbors admit they have pursued only absolute nuisance claims, for both their public and private claims, acknowledging in their briefing that “[flor the record, the Neighbors *401have not made a qualified nuisance claim.” The parties’ arguments about the private nuisance claim are largely about whether the private claims have been separately pled from the public nuisance claim. However, the statutory authorization analysis set forth above applies equally to either a public or private nuisance claim.
¶63 The Court states that the statute here does not evince an “unequivocal [legislative] intent... to exempt shooting ranges from civil nuisance liability.” Opinion, ¶ 28. However, the test is not whether the authorizing statute unequivocally exempts the activity from nuisance liability. Indeed, the statute at issue in Barnes simply authorized the city to establish a storm or sanitary sewerage system, and said nothing whatsoever about nuisance liability, nor contained anything like the devices which protect shooting ranges within the statute at issue here. Nonetheless, we held the actions of the City were not “wholly outside of its statutory authority.” Barnes, ¶ 28. “Since Thompson Falls’ storm drain system was constructed and is maintained under the express authority of § 7-13-4301(l)(a), MCA, Barnes could only prevail on her nuisance claim by proving that Thompson Falls was negligent ....” Barnes, ¶ 28. The same result should be reached here. The test asks only whether the questioned activity is “wholly outside of its statutory authority.” Barnes, ¶ 25. If it is not, then a claim for absolute liability cannot be brought.
¶64 Consequently, I believe both the public and private nuisance claims fail, and I would affirm the District Court’s dismissal of those claims.