(concurring in part and dissenting in part).
I concur with the majority’s careful and complete analysis of the statute of limitations and trespass claims.
As respondent accurately put it, with respect to the trespass issue, there is nothing in the record to indicate that surrounding property owners consented to the deposit of ammunition on their property. To say that the stray ammunition creates safety concerns is an understatement.
I also concur in the analysis of the majority opinion rejecting the district court finding that respondents established a pri-ma facie MERA violation based on the potential harm that lead bullets pose to wildlife. There is not a shred of evidence in the record supporting any injury to wildlife and, as the majority opinion correctly notes, no soil testing for lead was done to determine lead concentrations.
I also concur that the findings of fact adopted by the district court establish that live ammunition continues to escape the gun club property, which forms the basis of the trespass claim, and which also supports a common-law nuisance claim.
*809But where I part company from the majority is the conclusion that respondents established a prima facie MERA violation based on the degradation of quietude caused by “impulsive sound” and that the noise levels are sufficient to establish a nuisance claim.
The district court’s conclusion that a MERA violation occurred as a result of noise levels was broad, sweeping, and could be applied to virtually every outdoor gun range. In fact, the analysis of the district court, affirmed in the majority opinion, leads to the conclusion that any nonconforming industrial use, noisy and unpleasant as such uses frequently are, would be a MERA violation. This is a troublesome expansion in the application of private causes of action under MERA.
Problems with the MERA analysis are twofold.
First, the supreme court has not announced a standard applicable to noise violations that makes any attempt to clearly delineate when an industrial use, or a gun club in this case, is exposed to a possible private cause of action by unhappy neighbors because their “quietude” was disturbed. Part of the problem here is that, despite the district court’s detailed findings, the reality is that there were no scientific measurements taken of sound levels and no expert witness testimony as to any objective noise limit standard.1 Without objective measurements, it is difficult to evaluate whether or not the conduct of the gun club materially adversely affected the environment. We do not know what the appropriate level of sound for the neighborhood should be, we do not know how much noise is presently created by the gun club, and we have no historical baseline against which to measure either of these variables. We do know, of course, and there is clear testimony in the record on this point, that firing ranges are noisy. That should not be the test for determining whether or not a MERA violation occurred, and it is my view that such was the test used here.
The second problem in the MERA analysis is that the principal case cited by all parties in this dispute, Minnesota Pub. Interest Research Group v. White Bear Rod & Gun Club, 257 N.W.2d 762 (Minn.1977), is not at all useful in analyzing the present circumstances. Among other differences, White Bear Rod & Gun Club concerned an attempt by a firing range to relocate, rather than a nonconforming, existing use, and there was also expert testimony in White Bear Rod & Gun Club that the projected site for. a gun club in that case was near one of the finest undeveloped waterfowl lakes in the Twin Cities area and was quite remote from developed areas. Id. at 765-67. None of that can be said in the present controversy.
There is a second problem with reliance on the White Bear Rod & Gun Club decision. Minn.Stat. § 116.07 subd. 2(a) (2000), requires that
[n]o standards adopted by any state agency for limiting levels of noise in terms of sound pressure which may occur in the outdoor atmosphere shall apply to * * ⅜ (4) skeet, trap or shooting sports clubs ⅜ * *.
Id. While the majority correctly notes that the legislative language, adopted after White Bear Rod & Gun was decided, does not specifically exempt gun clubs from *810MERA standards, that legislative decision ought to serve as a clear warning signal that care should be taken in judicial regulation of noise from gun clubs or similar activities.
I do not believe respondents have been able to carry their burden of establishing a prima facie case of pollution, impairment, or destruction of the environment in violation of Minn.Stat. § 116B (2000).
I would remand the permanent injunction to the district court with instructions that it be narrowed to deal solely with safety, trespass, and nuisance issues stemming from or related to firearm projectiles or gun shot escaping the perimeter of the gun club property.
. There was testimony from some witnesses about "decibel” levels. But those decibel measurements were taken by lay people with no apparent training, using inexpensively purchased meters, with a very significant error factor. Further, there was no evidence in the record that these meters were accurate or that they had ever been calibrated. In addition, respondents' witnesses measured the decibel levels according to a setting on the meter that does not really duplicate perceptions of the human ear, at least according to the only qualified expert to testify at trial, an engineer with work experience at the National Aeronautics and Space Administration, Lockheed Martin, and the Minnesota Pollution Control Agency. About all that can be said about these alleged "test” results is that they demonstrate that a firing range can be noisy, a fact disputed by no one.