UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Huntington Barclay, et al.,

Plaintiffs

v. Civil No. 06-cv-368-SM

Opinion No. 2008 DNH 037

The United States Army Corps

of Engineers; Lt. General Carl A.

Strock; Col. Curtis Phalken; and

Motorsports Holdings, LLC,

Defendants

O R D E R

Plaintiffs are owners of property in and around the town of

Tamworth, New Hampshire. They bring this action seeking a

judicial declaration that the U.S. Army Corps of Engineers (the

“Corps”) violated Section 404 of the Clean Water Act when it

granted Motorsports Holdings a permit to place fill material

within wetland areas on its land in Tamworth. Motorsports

Holdings sought the permit to disturb approximately 0.73 acres of

wetlands as part of its plan to construct a motorsports country

club with an associated 3.1 mile road course on a 251-acre site

in Tamworth. 

Interestingly, plaintiffs’ challenge is not related to any

potential adverse effects the proposed facility might have on

water quality in the area. Instead, plaintiffs complain that the

Case 1:06-cv-00368-SM Document 41 Filed 02/14/08 Page 1 of 22
2

Corps approved a noise limit on the project that was excessive

and at odds with the recommendations of the Corps’ own

consultant. Consequently, say plaintiffs, the decision amounted

to an abuse of discretion and renders the Corps’ issuance of the

permit arbitrary and capricious. 

Pending before the court are the parties’ cross-motions for

summary judgment. For the reasons set forth below, defendants’

motions are granted and plaintiffs’ motion is denied.

Standard of Review

I. Summary Judgment. 

When ruling on a party’s motion for summary judgment, the

court must “view the entire record in the light most hospitable

to the party opposing summary judgment, indulging all reasonable

inferences in that party’s favor.” Griggs-Ryan v. Smith, 904

F.2d 112, 115 (1st Cir. 1990). Summary judgment is appropriate

when the record reveals “no genuine issue as to any material fact

and . . . the moving party is entitled to a judgment as a matter

of law.” Fed. R. Civ. P. 56(c). In this context, “a fact is

‘material’ if it potentially affects the outcome of the suit and

a dispute over it is ‘genuine’ if the parties’ positions on the

issue are supported by conflicting evidence.” Int’l Ass’n of

Case 1:06-cv-00368-SM Document 41 Filed 02/14/08 Page 2 of 22
3

Machinists & Aerospace Workers v. Winship Green Nursing Ctr., 103

F.3d 196, 199-200 (1st Cir. 1996) (citations omitted). 

Here, the parties agree that there are no genuinely disputed

material facts. The sole question presented is a legal one:

Whether the Corps’ decision to issue Motorsports Holdings a

permit under the Clean Water Act was “arbitrary, capricious, an

abuse of discretion or otherwise not in accordance with

applicable law.” 5 U.S.C. § 706(2)(A). As the court of appeals

for this circuit has observed: 

the task of a court reviewing agency action under the

[Administrative Procedures Act’s] “arbitrary and

capricious” standard, 5 U.S.C. § 706(2), is to

determine whether the agency has considered the

relevant factors and articulated a rational connection

between the facts found and the choice made. If the

agency decision was based on a consideration of the

relevant factors and there has not been a clear error

of judgment, then the agency decision was not arbitrary

or capricious.

Dubois v. U.S. Dep’t of Agriculture, 102 F.3d 1273, 1284-85 (1st

Cir. 1996) (citations and internal punctuation omitted). The

“arbitrary and capricious” standard is, then, a highly

deferential one, and the Corps’ decision is entitled to a

“presumption of regularity.” Citizens to Preserve Overton Park,

Inc. v. Volpe, 401 U.S. 402, 416 (1971). See also Adams v.

United States EPA, 38 F.3d 43, 49 (1st Cir. 1994) (“Under the

Case 1:06-cv-00368-SM Document 41 Filed 02/14/08 Page 3 of 22
4

APA, the applicable standard of review is whether the EPA’s

action was ‘arbitrary, capricious, an abuse of discretion, or

otherwise not in accordance with law.’ A court should not set

aside agency actions as arbitrary and capricious unless the

actions lack a rational basis. The scope of review under the

‘arbitrary and capricious’ standard is therefore narrow, and a

court should not substitute its judgment for that of the

agency.”) (citations omitted).

Background

In October of 2003, Motorsports Holdings (“Motorsports”) met

with state and federal authorities to discuss its proposal to

build a motorsports facility, including a 3.1 mile European-style

road course, in Tamworth, New Hampshire. The site of the

proposed facility is “not in a populated residential area, but

rather along Rt. 25, a moderately heavily traveled state road by

commercial vehicles, logging trucks, etc.” Environmental

Assessment and Statement of Findings (the “EA/SOF”), Admin. Rec.,

vol. 1, page 131. Additionally, “the site abuts undeveloped

land, with the exception of the Lakes Region Fire Apparatus

Facility to the north and the local town’s transfer station to

the west. Other nearby commercial/industrial uses include: an

Case 1:06-cv-00368-SM Document 41 Filed 02/14/08 Page 4 of 22
5

oil storage depot, a private garage facility, on-going logging

operations and on-going gravel pit operations.” Id. 

Initially, Motorsports had hoped the Corps would consider

the project eligible for evaluation under the streamlined New

Hampshire State Programmatic General Permit (“NHSPGP”)

procedures, rather than the more comprehensive individual permit

process. But, in January of 2004, the Corps concluded that due

to potential impacts on local aquifers and in the public

interest, the project would not be considered under the NHSPGP. 

Instead, Motorsports would be required to submit an application

to the Corps for a permit under section 404 of the Clean Water

Act, authorizing it to discharge fill material into the 0.73

acres of wetlands located on the 251-acre property. 

As part of its application for a discharge permit under the

Clean Water Act, Motorsports outlined its proposed operating plan

for the facility. Under that plan, the facility would be open

approximately 200 days each year (April 15 to October 31), seven

days a week, from 8:00 a.m. to 7:00 p.m. On Sundays, however, no

vehicles would be permitted on the track until after 11:00 a.m. 

Among other things, Motorsports proposed to “follow the standards

and requirements as outlined in Section 11 - ‘Technical & Safety’

Case 1:06-cv-00368-SM Document 41 Filed 02/14/08 Page 5 of 22
6

and Section 12 - ‘Sound Control’ of the Sports Car Club of

America’s 2005 General Rules and Specifications.” Admin. Rec.,

vol. 6, page 10. As to noise emissions, however, Motorsports

proposed to enforce limits more strict than the 103 dBA Lmax

limit suggested by the guidelines of the Sports Car Club of

America. Specifically, Motorsports proposed the following limits

on noise generated at the facility: 

[T]he average sound generated during road course

sessions (i.e., when vehicles are driving on the road

course) will not exceed 92 dBA at 50 feet from the road

course. The 92 dBA average sound generated per driving

session is based upon the range of vehicles on the road

course with an Lmax value at 50 feet of 99 dBA (high

range), 92 dBA (mid range), and 85 dBA (low range)

respectively. 

In addition, the facility will not allow any road

course activity before 11:00 AM on Sundays. During

this mandatory “quiet time” vehicles will not be

allowed to rev their engines in the paddock or garage

area. The facility will generate no noise, over

background levels, before 11:00 AM on Sundays. 

Id. (emphasis in original). Additionally, Motorsports proposed

to monitor sound emissions at the facility and to implement a

“three strikes” policy, under which vehicles found to exceed the

noise limits would be removed from the track and directed to make

any changes necessary to comply with the noise limits. Any

vehicle that exceeded those limits after two opportunities to

Case 1:06-cv-00368-SM Document 41 Filed 02/14/08 Page 6 of 22
7

comply would be ordered off the course and exposed to possible

sanctions. 

As part of its application, Motorsports submitted a study

conducted by its expert, Tech Environmental, on the expected

sound impacts from the road course. That report concluded that

the facility would be operated consistent with the standards set

by the Sports Car Club of America and, generally speaking, would

not create sound levels greater than those currently occurring on

Route 25 and local roads adjacent to the facility. Accordingly,

Tech Environmental opined that, under the sound restrictions

proposed by Motorsports, changes to daytime sound levels in the

neighboring community would be minimal. Admin. Rec., vol. 6,

pages 148-49. See also Id. at pages 42, 48. 

In response to that report, a group opposed to the project,

FOCUS Tamworth, submitted its own expert report prepared by sound

consultant HMMH. That report concluded that noise limits more

strict than those proposed by Motorsports would be necessary in

order to prevent noise from the facility from adversely affecting

the public. Accordingly, HMMH proposed the following

restrictions:

Case 1:06-cv-00368-SM Document 41 Filed 02/14/08 Page 7 of 22
8

Sound generated by the racetrack shall not exceed 89

dBA as measured fifty (50) feet from any point on the

racetrack for any one vehicle on the racetrack and 69

dBA at any point on the property line of the racetrack. 

Both maximum values are instantaneous maximums as

measured with sound level meter slow response. 

Admin. Rec., vol. 6, page 137. 

Presented with two expert reports that reached quite

different conclusions and recommendations, the Corps hired its

own consultant, Acentech. James Cowan of Acentech toured the

site of the proposed facility and surrounding community. He also

reviewed the two expert reports submitted to the Corps, as well

as the underlying data that formed the basis of the conclusions

and recommendations contained in those reports. Among other

things, Mr. Cowan observed:

Racetracks around the country have adopted a variety of

limitations to peacefully coexist with nearby

residential communities. These limitations have

typically taken one of two forms - either the racetrack

controls the noise of its participants by enforcing a

drive-by sound level limit (typically at a distance of

50 or 100 feet from passing vehicles) in the facility

or the communities enforce the racetrack noise limits

by instituting a noise ordinance limit outside the

facility. Reasonable sound limits would consider what

has worked for other communities while not overly

restricting the operations of the racing facility. 

When asked about a comparable facility to the one being

proposed here, the developer referenced the Lime Rock

Park facility in Lakeville, CT. The residential

communities near Lime Rock Park reached an agreement

Case 1:06-cv-00368-SM Document 41 Filed 02/14/08 Page 8 of 22
9

with that facility in which a drive-by limit of 89 dBA

(at 50 feet) is enforced by the facility. This limit

is strictly enforced and the facility peacefully

coexists with the community.

Admin. Rec., vol. 6, page 69. Mr. Cowan then concluded by

opining that, “[g]iven the information discussed above,

instituting a track-side noise limit that is at least as

restrictive as that used at the Lime Rock Park facility is a

practical compromise to have the proposed facility peacefully

coexist with the Tamworth residential community.” Id. at 70. 

The facility at Lime Rock operates from mid-March through

Mid-November each year (approximately 205 days per season). The

facility is not open on Sundays. On Tuesdays from noon to 6:00

p.m., it operates without any sound restrictions. Likewise, on

an additional 30 days during the season - Memorial Day, the

Fourth of July, Labor Day, and numerous Saturdays - there are no

sound restrictions. So, unlike the proposal submitted by

Motorsports (which provides that there would be no days on which

the facility would operate without noise restrictions), the

facility at Lime Rock operates without any sound restrictions

nearly one-third of the time (i.e., approximately 65 days out of

205). On days when sound restrictions are in place at Lime Rock,

there is a drive-by limit of 89 dBA Lmax (at 50 feet). 

Case 1:06-cv-00368-SM Document 41 Filed 02/14/08 Page 9 of 22
1 The referenced pages summarize noise abatement

practices and noise level restrictions at GingerMan Raceway in

New Haven, Michigan; AutoBahn Country Club, in Joliet, Illinois;

Virginia International Raceway, in Alton, Virginia; BeaveRun

Motorsports Complex, in Big Beaver, Pennsylvania; Summit Point

Raceway, in Summit Point, West Virginia; and New Hampshire Motor

Speedway (Club events only; not NASCAR events), in Loudon, New

Hampshire. 

10

Although not referenced in Mr. Cowan’s report, the Corps

also had before it information relating to the operations and

noise level restrictions at several other racetrack facilities in

the United States which were identified as being similar to the

proposed facility in Tamworth. See, e.g., Admin. Rec., vol. 6,

pages 12-16.1 Of those six racetrack facilities, only one

(BeaveRun) is subject to noise restrictions more strict than

those Motorsports proposed to implement at its facility in

Tamworth. Two of those facilities (Virginia International

Raceway and GingerMan Raceway) operate without any noise

restrictions at all, and one of them - GingerMan - is located

within 1,000 yards of four churches and several private

residences. Admin. Rec., vol. 6, page 12. Two other facilities

(Autobahn Country Club and Summit Point) have noise limits

(measured at 50 feet from the source) above 100 dBA (i.e., 105

and 103 dBA, respectively). And, finally, New Hampshire Motor

Speedway (formerly known as the New Hampshire International

Speedway or NHIS) enforces a 99 dBA Lmax at 50 feet from the

Case 1:06-cv-00368-SM Document 41 Filed 02/14/08 Page 10 of 22
11

source for all club events - the same limit proposed by

Motorsports for its Tamworth facility. 

After considering all the evidence before it, the Corps

concluded that Motorsports’ proposed noise limits (i.e., a

maximum sound limit of 99 dBA at 50 feet from the source,

resulting in an average sound limit of 92 dBA at 50 feet from the

source) were acceptable. It then determined that, “[a]fter

weighing favorable and unfavorable effects as discussed in this

document, [the Corps’ finds] that this project is not contrary to

the public interest and that a Department of the Army permit

should be issued.” EA/SOF at 25, Admin. Rec., vol. 1, page 151. 

Plaintiffs challenge that portion of the Corps’

Environmental Assessment and Statement of Findings which

addresses noise emissions, asserting that the “decision to adopt

the noise restriction proposed by the applicant [Motorsports],

which was directly at odds with the conclusion of the [Corps’]

own expert, constituted an abuse of discretion and rendered the

[Corps’] decision arbitrary and capricious.” Amended complaint

(document no. 18) at para. 63. Specifically, plaintiffs assert

that “(1) the [Corps’] explanation for adopting that restriction

‘runs counter to the evidence before the agency’; (2) the

Case 1:06-cv-00368-SM Document 41 Filed 02/14/08 Page 11 of 22
12

[Corps’] decision is not based upon ‘a reasoned evaluation of the

relevant factors’; and (3) fundamentally, the [Corps’] decision

does not ‘make sense.’” Plaintiffs’ memorandum (document no 29-

2) at 19-20. 

Discussion

Section 404 of the Clean Water Act, and the related federal

regulations, authorize the Secretary of the Army, acting through

the Corps of Engineers, to regulate the discharge of fill

material into wetland areas through the issuance of permits,

after notice and opportunity for public comment. When a party

challenges the issuance of such a permit, the governing standard

of review is, as noted above, highly deferential of the Corps’

decision. That decision may be set aside only if the reviewing

court concludes that it was “arbitrary and capricious,” or

amounted to an abuse of discretion, or was contrary to applicable

law. Given that highly deferential standard of review, the

Corps’ decision to issue Motorsports a permit under Section 404

of the Clean Water Act is entitled to a “presumption of

regularity,” Citizens to Preserve Overton Park, 401 U.S. at 416,

and may be vacated only if “lack[s] a rational basis,” Adams, 38

F.3d at 49, or is the product of a “clear error of judgment,”

Dubois, 102 F.3d at 1285. Here, the court cannot conclude that

Case 1:06-cv-00368-SM Document 41 Filed 02/14/08 Page 12 of 22
13

the Corps acted outside the scope of its wide discretion in

issuing the permit. 

The administrative record in this case consists of more than

4,500 pages, divided into nine volumes. Plaintiffs do not assert

(nor is there any suggestion in the record that) the Corps’

failed to consider all the evidence presented to it. Rather,

plaintiffs claim the Corps reached an unwarranted and

unjustifiable conclusion when, after evaluating that evidence, it

determined that operation of the Motorsports’ facility subject to

the proposed noise limits would not have “an unacceptable adverse

effect on municipal water supplies, . . . wildlife, or

recreational areas.” 33 U.S.C. § 1344(c). See also EA/SOF at

25, Admin. Rec., vol. 1, page 151. 

Although plaintiffs concede that the Corps was not bound by

the recommendations made by Mr. Cowan of Acentech, see

plaintiffs’ memorandum (document no. 29-2) at 20, they assert

that the Corps essentially ignored those recommendations and, in

so doing, failed to adequately explain its reasons for reaching

the conclusions it did. Plaintiffs suggest that, had the Corps

simply adopted Mr. Cowan’s suggestion and required Motorsports to

adhere to sound limitations “at least as restrictive” as those

Case 1:06-cv-00368-SM Document 41 Filed 02/14/08 Page 13 of 22
2 It appears Mr. Cowan was not aware that the facility at

Lime Rock operates without any noise restrictions for

approximately one-third of its season. See, e.g., Admin. Rec.,

vol. 6, page 69 (“The residential communities near Lime Rock Park

reached an agreement with that facility in which a drive-by limit

of 89 dBA (at 50 feet) is enforced by the facility. This limit

is strictly enforced . . ..”). 

14

imposed on the facility at Lime Rock, its decision would not be

subject to attack. Importantly, however, Mr. Cowan’s report

fails to acknowledge the fact that the facility at Lime Rock

operates nearly one-third of the time with no sound restrictions

whatsoever.2 

Plainly, the sound restrictions applicable at Lime Rock were

the product of substantial negotiation and compromise (and

litigation) between the facility’s owner and the community and

they represent a careful balancing of the needs/desires of the

owner and those of local residents. So, for plaintiffs (and Mr.

Cowan) to suggest that the Corps should have required Motorsports

to adopt the most restrictive elements of those sound controls,

without also allowing it the benefit of the more lenient

elements, is not terribly persuasive. It probably also bears

noting that Motorsports never proposed, nor does it appear that

plaintiffs would have accepted as reasonable, sound restrictions

precisely in line with those adopted at Lime Rock (i.e.,

substantial periods of time without any sound restrictions at

Case 1:06-cv-00368-SM Document 41 Filed 02/14/08 Page 14 of 22
15

all). It is, then, somewhat perplexing that plaintiffs

continuously suggest that the Corps could have (and probably

should have) required Motorsports to operate its facility subject

to noise restrictions “at least as restrictive” as those

applicable to Lime Rock. See, e.g., Plaintiffs’ memorandum at

20. The proposal advocated by plaintiffs is far more restrictive

than the noise limits governing the facility at Lime Rock, and

one might suspect plaintiffs would be far less content with a

change from the regimen the Corps actually approved to that which

Lime Rock imposes. 

Rather than focusing exclusively on Mr. Cowan’s suggestion

that the Corps require Motorsports to operate its facility

subject to the 89 dBA limit applicable (sometimes) at Lime Rock,

the Corps plainly reviewed and considered all of the evidence

before it - including evidence relating to the noise restrictions

imposed at other, similar facilities. The proposal submitted by

Motorsports and accepted by the Corps provides that the maximum

sound generated at the facility (measured at 50 feet from the

source) would be 99 dBA and, on average, the sound produced at

the facility during operating times would be 92 dBA (again, at 50

feet from the source). That proposed operating plan not only

provides more substantial limits on sound emissions than those

Case 1:06-cv-00368-SM Document 41 Filed 02/14/08 Page 15 of 22
3 That calculation has assumed that, because Lime Rock

operates without sound restrictions for approximately one-third

of its season, it would, on average, produce sound emissions on

operating days at approximately 101 dBA, measured at 50 feet from

the source. See Admin. Rec., vol. 6, page 16. 

16

recommended by the Sports Car Association of America, see Admin.

Rec., vol. 6, pages 48-50, but it also provides more substantial

limits than most of the other facilities described in the record

before the Corps. According to documentation submitted to the

Corps, only one of seven track facilities that were identified as

being comparable to Motorsports’ proposed facility (i.e.,

BeaveRun) was subject to more stringent sound limitations.3 

In light of the record evidence on sound restrictions at

similar facilities, and the various expert opinions relating to

sound generation at Motorsports’ facility itself (including Mr.

Cowan’s suggestions), it was not unreasonable, nor was it an

abuse of discretion, for the Corps to conclude that Motorsports’

proposed operating plan was acceptable. And, the Corps more than

adequately explained the basis for that conclusion, stating: 

The applicants’ proposed Operating Plan outlining the

hours of operation, sound limits at the facility and

monitoring/enforcement policy appears to be acceptable

when compared to the recommendations of Acentech. A

difference of 3 dBA (approximately a 3.4% dBA increase

above the recommended 89 dBA allowable sound limit)

would not be an unreasonable increase in sound impact

when weighed against the practicability of the

Case 1:06-cv-00368-SM Document 41 Filed 02/14/08 Page 16 of 22
17

applicant’s ability to accomplish his project purpose

of operating a profitable and sustainable motorsports

operation by attracting willing clientele. 

Furthermore, the allowable maximum sound limit value of

99 dBA does not appear to be unreasonable when

considering that all sounds are actually an

instantaneous average of high and low sound

fluctuations (in this case an 85 dBA expected low

operational value averaged against an expected 99 dBA

high operational value to arrive at a target average

mid-range operational value of 92 dBA). The hours of

operation will coincide with the town’s interest of

peace and quiet where vehicle track operation is

limited between 8:00 AM - after the majority of people

are out of bed - and 7:00 PM - before most people

retire for the night and before many relax for the

evening. The mandatory “quiet time” on Sunday morning

will ensure that sound from the facility will have no

impact to church services in town. The applicant’s

monitoring/ enforcement policy, if implemented

diligently, will ensure that the above sound criteria

are strictly adhered to by the users of the facility

and track. The shutting down of the track operation

during the winter months will further diminish the

potential for the generation of sound where tree leaf

cover is not present to attenuate sound effects. The

town will have an active role in reviewing sound

reports from the facility and bringing to the attention

of the applicant of any infractions to the sound

limits. The applicant’s “three-strike policy” should

be able to discourage any user from deviating from the

applicant’s sound limit since the users have a vested

interest in utilizing their vehicles at the track after

making a substantial commitment in money, time and

travel to the facility for that specific purpose. The

applicant appears to be committed to adhering to the

sound management provisions outlined in the Operating

Plan and mitigating any deviations thereof. 

Additionally, the Operating Plan will be submitted to

the town to provide a level of certainty associated

with the operation of the facility and will outline the

parameters and rules for the day-to-day operation of

the facility. The Operating Plan of the applicant

pertaining to the generation and management of sound

impacts due to the proposed project does not present

any significant impacts to the public interest based on

Case 1:06-cv-00368-SM Document 41 Filed 02/14/08 Page 17 of 22
18

the best information available on the proposed sound

impacts. 

EA/SOF at 13-14, Admin. Rec., vol. 1, pages 139-40. Accordingly,

the Corps concluded that: 

The project does not present a significant impact to

the aquatic environment, and but for the issue of noise

generation on site, the project would have been

eligible for review under the New Hampshire Special

General Programmatic Permit program. Noise and all

relevant public interest factors were carefully

evaluated. The proposed alternative represents the

least damaging practicable alternative [and] any

unavoidable impacts to the aquatic resources will be

adequately compensated for. The Federal resource

agencies have no objections to permit issuance and

there are no unresolved issues. 

Id. at 151. 

Finally, it is, perhaps, appropriate to address plaintiffs’

contention that the Corps cited “absolutely no support for its

conclusion that imposing a limit of 89 dBA would render

impracticable ‘the applicant’s ability to accomplish his project

purpose of operating a profitable and sustained motorsports

operation by attracting willing clientele.’” Plaintiffs’

memorandum (document no. 29-2) at 25 (quoting EA/SOF at 13-14,

Admin. Rec., vol. 1, pages 139-40). Contrary to plaintiffs’

suggestion, all the relevant evidence before the Corps suggested

(albeit implicitly) that road course facilities of the type

Case 1:06-cv-00368-SM Document 41 Filed 02/14/08 Page 18 of 22
19

proposed by Motorsports cannot operate subject to sound emission

limits less than 95 dBA Lmax (measured at 50 feet from the

source). Not a single comparable facility whose sound

restrictions were before the Corps operates subject to a sound

restriction of less than 95 dBA Lmax. See Admin. Rec., vol. 1,

page 16. And, notably, plaintiffs have failed to identify any

similar road course facilities that do operate subject to such

restrictions. 

As noted above, Lime Rock is subject to the 89 dBA Lmax

limitation embraced by plaintiffs for only a portion of its

operating season. The other similar facilities referenced in the

record (none of which appears to operate subject to the “hybrid”

type of restrictions imposed on Lime Rock) all operate subject to

sound restrictions at, or above, 95 dBA (i.e., 95, 99, 103, 105,

unlimited, and unlimited). The suggestion that the Corps should

not have approved any operating plan submitted by Motorsports

that included sound emissions above 89 dBA (for the entire

operating season) is both unpersuasive and unsupported by the

record. It was, on the other hand, entirely reasonable for the

Corps to conclude, based on the evidence before it, that a

facility of the type proposed by Motorsports could not operate

successfully if subjected to an 89 dBA Lmax sound limit. And, as

Case 1:06-cv-00368-SM Document 41 Filed 02/14/08 Page 19 of 22
20

noted above, the Corps adequately explained its conclusion that

the restrictions proposed by Motorsports represented a fair and

reasonable balance between the needs of the developer, the

desires of the community, and the overall well-being of the local

environment. 

Conclusion

Plaintiffs challenge the Corps’ issuance of a permit under

Section 404 of the Clean Water Act on very narrow grounds: they

say the Corps acted arbitrarily and capriciously and/or abused

its discretion when it determined that Motorsports’ proposed

operating plan, including a 99 dBA limit on sound emissions

(resulting in an average of 92 dBA emissions), would not have “an

unacceptable adverse effect on municipal water supplies, . . .

wildlife, or recreational areas.” 33 U.S.C. § 1344(c). In

attempting to carry their burden of proof, plaintiffs assert that

the facility at Lime Rock is comparable to the one proposed by

Motorsports and, therefore, the Corps should not have permitted

Motorsports to proceed until it adopted sound emission limits at

least as restrictive as those at Lime Rock. 

There are, however, two aspects to the sound emission limits

at Lime Rock: the first allows the facility to operate without

Case 1:06-cv-00368-SM Document 41 Filed 02/14/08 Page 20 of 22
21

any sound restrictions at all for a substantial portion of its

operating season, while the second imposes an Lmax limit of 89

dBA for the remainder of the season. Plaintiffs suggest that the

Corps should have imposed on Motorsports only the more strict

aspects of the Lime Rock limitations and ignored those that

permit operation without any noise restrictions. The Court

disagrees. 

The Corps did not, however, require Motorsports to adopt

such an operating plan. Instead, after carefully reviewing the

record before it, the Corps provided a reasonable, logical, and

thorough explanation for its decision to accept Motorsports’

original proposed operating plan (it rejected Motorsports’

proposed amendment to that plan). Plaintiffs have, then, failed

to demonstrate that the Corps’ issuance of the Section 404 permit

sought by Motorsports constituted an abuse of discretion, nor

have they shown that it was arbitrary and capricious. 

For the foregoing reasons, as well as those set forth in the

legal memoranda submitted by the Corps (documents no. 35-2 and

39) and Motorsports (documents no. 31-2 and 40), plaintiffs’

motion for summary judgment (document no. 29) is denied. 

Case 1:06-cv-00368-SM Document 41 Filed 02/14/08 Page 21 of 22
22

Defendants’ motions for summary judgment (documents no. 35 and

36) are granted. 

The Clerk of Court shall enter judgment in accordance with

this order and close the case. 

SO ORDERED.

____________________________

Steven J. McAuliffe

Chief Judge

February 14, 2008

cc: Andrew W. Serell, Esq.

Laurel A. Bedig, Esq.

Matthew R. Johnson, Esq.

Case 1:06-cv-00368-SM Document 41 Filed 02/14/08 Page 22 of 22