UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

NORTHWEST BYPASS GROUP, et al.

Plaintiffs,

V.

U.S . ARMY CORPS

OF ENGINEERS, et al .

Defendants.

Civil No. 06-CV-00258-JAW

ORDER ON PLAINTIFFS' MOTION FOR TEMPORARY RESTRAINING ORDER

Concluding that the Plaintiffs failed to sustain their burden of proof to demonstrate legal

justification for the issuance of a temporary restraining order against the City of Concord's

commencement of construction of a connector road, this Court denies their motion.

1 . STATEMENT OF FACTS

Within the capitol city of Concord, New Hampshire, there is a roughly V-shaped parcel of

open land that runs from the center of the city to the playing fields of St . Paul's School.2 The V

lies on its side, pointing east. The northern leg of the V is Pleasant Street, the southern leg is

Clinton Street, and it is capped on the west by the Silk Farm Road and Dunbarton Road, which

wend through St. Paul's campus . Concord has grown around the V . Concord Hospital, a major

regional medical center, is located on Langley Drive, which intersects with Pleasant Street ;

' The Plaintiffs actually filed two motions for temporary restraining order . The first was filed with the Complaint on

July 13, 2006 . Pl.s Mot. for Temp. Rest Or. (Docket # 2). The second was filed on an emergency basis on

September 6, 2006. PL's Emergency Mot. for Temp. Rest. Or. (Docket # 32). Between the first and second, there

was an indication that the Court considered the first motion moot and was proceeding solely on the motion for

p re liminary injunction , but no formal order was issued . This Court hereby dismisses the first motion for temporary

restraining order as moot, this Order addresses the second motion on its merits .

2 This statement of facts has been gleaned largely from the allegations in the Plaintiffs' Complaint and matters of

public record, such as court and administrative decisions .

Case 1:06-cv-00258-JAW Document 46 Filed 09/15/06 Page 1 of 19
downtown Concord and Concord High School lie to the east of the point of the V ; and, 189

intersects with Clinton Street, the southerly leg of the V .

Surprisingly, the land inside the V has remained pristine. The V contains the state-owned

White Farm complex, a farm that has been listed on the National Register of Historic Places

since May 15, 1981 for its significance as representing the practice and evolution of progressive

agriculture . The V includes the Pleasant View Home, also listed on the National Historic

Register and known for its beautiful vistas; the Tuttle House, a property eligible for listing on the

National Historic Register; and a monastery for the Carmelite Sisters, a cloistered religious order

that prizes peace and quiet. This open, undeveloped area not only has an extensive system of

cross-country skiing and hiking trials often enjoyed by Concord residents, but also it has

significant wetlands.

In the late 1940s, Concord city planners developed a vision for a Northwest Bypass, a

circumferential roadway around the City . As Concord grew, only one portion of the Northwest

Bypass was constructed and the remaining plans to ring the city remained visionary . In 1956,

Concord Hospital, now one of the busiest hospitals in New Hampshire, moved to Pleasant Street

and as patient volume grew, so did traffic volume . After 1-93 and 1-89 were built and as the

surrounding area developed, the streets that formed the V became increasingly congested funnels

into and out of Concord. The worst of the problem centered around the notorious five prong

intersection of Pleasant and Fruit Streets, a problem exacerbated by its location between Concord

High School and its athletic fields and the constant ebb and flow of students . City planners

began to conceive of ways to loosen the snarl; they harkened back to the old concept of a

Northwest Bypass and began to focus on placing a road transecting the V, directly connectin g

2

Case 1:06-cv-00258-JAW Document 46 Filed 09/15/06 Page 2 of 19
Pleasant and Clinton Streets, and building a separate access road off Pleasant Street to Concord

Hospital.

In the early 1990s, the city filed for governmental approvals of the entire Northwest

Bypass project and on April 30, 1993, it received the necessary approvals from the state of New

Hampshire Department of Environmental Services (NHDES) for the whole project . The Corps

also issued a permit, but restricted its approval to so-called Phase I, the access road to Concord

Hospital as a spur from Pleasant Street on the side of the street away from the V.3 This relatively

short roadway - only 1,500 feet long - was non-controversial . As originally designed, it was

limited to a single curb-cut,4 and did not impinge on the unspoiled land in the center of the V .

Once Phase I was completed in 1995, the city turned back to Phase II, the road transecting the V .

From a planning perspective, Phase II made good sense . The residential streets were

never designed to carry such heavy traffic loads, patients and emergency vehicles were caught in

interminable, unsafe delays, and traffic had shifted over to Silk Farm Road, which leads to

Dunbarton Road, and through the campus of St. Paul's School, a private secondary residential

school of about 525 students. Silk Farm Road and Dunbarton Road even now remain bucolic,

winding country roads, but they endure approximately 1,600 motor vehicles daily, some racing

through the campus and placing the students and others at risk . St. Paul's, anxious to restrict

access, and Concord Hospital, anxious to facilitate access, j oined forces with the City and agreed

to share the cost of the project equally . In addition, the City agreed to declare Silk Farm Road

and Dunbarton Road private, thereby limiting access to those who have business at St. Paul's.

s In February, 1993, the Army Corps of Engineers suspended processing the application at the city's request . The

city later continued with Phase I, which because of its small impact, qualified for the New Hampshire State General

Permit and did not require individual permitting .

4 Plaintiffs allege that the original design has been altered and the city has allowed "six serial violations of the

express single-curb-cut condition of its Phase I permit . . . . .. Compl. ¶ 216 (Docket # 1).

3

Case 1:06-cv-00258-JAW Document 46 Filed 09/15/06 Page 3 of 19
In November, 2000, the City announced its intention to proceed with Phase II by filing an

application with the New Hampshire Department of Environmental Services (NHDES) for a

wetland fill permit and water quality certificate. The City's decision provoked a firestorm of

controversy. A nonprofit unincorporated association of residents, called the Northwest Bypass

Group (NBG), coalesced opposition to Phase II, which the Complaint aptly describes as "fierce."

Compl. ¶ 5. NBG is dedicated to protecting and preserving "the scenic, historical, ecological and

aesthetic values that would be impacted by this project's construction, and [raising] public

awareness about the impact it would have on nearby neighborhoods." Id. The opponents of

Phase II have determinedly fought the project at each stage beginning with the multiple state

approvals and continuing with the final approval process of the United States Army Corps of

Engineers (Corps). Thus far, the opponents have lost each skirmish, culminating in a decision of

the state of New Hampshire Supreme Court, affirming the trial court's decision to grant

summary judgment in favor of the city. Blakeney v. City of Concord, No. 2004-0438, slip op .

(N.H. August 19, 2005) (Corrected Order) .

On January 10, 2006, the Corps issued its Environmental Assessment and Statement of

Findings (EA/SOF) and granted the City's application for a permit to construct the proposed road

(Phase II) . Def. City of Concord's Memo. of Law in Support of Their Opp. to Pl.'s Mot. for

Temporary Restraining Order and Preliminary Injunction Ex. C (Docket # 19) (City Memo) . By

Complaint dated July 13, 2006, the opponents waged an all out assault against the Corps'

decision. Consisting of one hundred and forty pages and nineteen separate counts, the Complaint

is an articulate treatise on environmental and administrative law complete with case law,

statutory, and regulatory support. In addition to NBG, the plaintiffs include Morton C . and

Carolyn H. Tuttle, owners and residents of the historic Tuttle House, and Leslie J . Ludtke, a New

4

Case 1:06-cv-00258-JAW Document 46 Filed 09/15/06 Page 4 of 19
Hampshire resident and avid user of the Turkey River White Farm Trials system that the

connector road would intersect . The Defendants include the Corps and the city of Concord and,

as intervenors, Concord Hospital and St . Paul's School. After the case was filed, the judges of

the United States District Court, which is located in Concord, began to recuse themselves.

Following a hearing on August 22, 2006 on the Plaintiffs' motion for preliminary injunction,

Judge McAuliffe issued a recusal order and Judge DeClerico soon followed suit . See Recusal

Orders (Docket # 29, 30). At that point, all New Hampshire federal judges were recused and the

case was reassigned by designation to this Court on September 8, 2006. See Procedural Order

(Docket # 34).

Late August turned to September and the spectre of a New Hampshire winter loomed .

The City became concerned about its construction schedule . It informed the Plaintiffs that it

intended to put shovel to ground in early September and later backed the date up to September

18, 2006. This news stirred the Plaintiffs to file an Emergency Motion for Temporary

Restraining Order on September 6, 2006. Emergency Mot. for Temp. Rest. Order and Request

for Expedited Hearing (Docket # 32) (PI. 's Mot.) . On September 13, 2006, this Court held a

hearing on both the motion for temporary restraining order and the motion for preliminary

injunction. The parties informed the Court that for various intractable reasons, time was of the

essence and they urgently requested this Court to rule on the motion for temporary restraining

order by the close of business on Friday, September 15, 2006.

5

s The Court cautioned the parties that they had placed difficult time constraints on the Court . The Court first became

aware of the existence of this controversy on Friday, September 8, 2006, but the information was incomplete . A

hearing was scheduled for Wednesday, September 13, 2006 . As the Court attempted to familiarize itself with the

magnitude of the parties' disagreements, the parties filed multiple new memoranda on September 11, 2006, a 105

page transcript of the August 22, 2006 oral argument before Judge McAuliffe on September 12, 2006, and in the late

afternoon of September 12, 2006, a record consisting of seven full volumes containing approximately seven

thousand pages of material. This Court has done its level best, but the parties should appreciate "the temporal

constraints under which the district court labored" in arriving at this decision . BI(a)ck Tea Soc y v. City of Boston,

378 F.3d 8, 15 (1st Cir. 2004).

5

Case 1:06-cv-00258-JAW Document 46 Filed 09/15/06 Page 5 of 19
II. Standard of Review

To determine whether to issue a temporary restraining order, this Court applies the same

four-factor analysis used to evaluate a motion for preliminary injunction . Largess v. Supreme

Judicial Courtfor Mass., 317 F. Supp. 2d 77, 81 (D. Mass. 2004) (citing Merrill Lynch, Pi erce,

Fenner & Smith, Inc. v. Bishop, 839 F. Supp . 68, 70 (D. Me. 1993)). Those well established

factors are:

(1) the likelihood of success on the merits; (2) the potential for irreparable harm

[to the movant] if the injunction is denied ; (3) the balance of relevant impositions,

i .e., the hardship to the nonmovant if enjoined as contrasted with the hardship to

the movant if no injunction issues ; and (4) the effect (if any) of the court's ruling

on the public interest.

Esso Std. Oil Co. v. Monroig-Zayas, 445 F.3d 13, 18 (1st Cir. 2006) (quoting BI(a)ck Tea Socy

v. City of Boston, 378 F.3d 8, 11 (1st Cir. 2004)). As with a preliminary injunction, the party

seeking relief bears the burden of demonstrating that these factors "weigh in its favor." NievesMarquez v. Puerto Rico, 353 F.3d 108, 120 (1st Cir. 2003) . However, the authority of a judge to

grant such injunctive relief should be used "sparingly." Mass. Coalition of Citizens with

Disabilities v. Civil Def. Agency & Office ofEmergency Preparedness, 649 F.2d 71, 76 n.7 (1st

Cir. 1981); see also Augusta News Co. v. News America Pub., Inc., 750 F. Supp. 28 (D . Me.

1990) ("Preliminary injunctions must be used sparingly and only in cases where the need for

extraordinary equitable relief is clear and plain .").

Because this is a review of an action by a federal agency - the Army Corps of Engineers

- the action is governed by the Administrative Procedures Act (APA) . See 5 U.S .C. § 702.

Under the Administrative Procedures Act (APA), a district court will uphold an agency's

decision unless it was "arbitrary, capricious, an abuse of discretion, or otherwise not in

accordance with law . . . ." 5 U.S .C. § 706; see also Granite State Concrete Co. v. Surface

6

Case 1:06-cv-00258-JAW Document 46 Filed 09/15/06 Page 6 of 19
Transp. Bd., 417 F.3d 85, 88 (1st Cir. 2005). An agency action is "arbitrary and capricious if

the agency lacks a rational basis for adopting it." Assoc. Fisheries v. Daley, 127 F.3d 104, 109

(1st Cir. 1997). Accordingly, this Court's review under this standard is "highly deferential," in

that the agency action is presumed to be valid . Id. This Court will not substitute its own

judgment for that of the Corps.

III. A Limited Range of Consideration s

Upon analysis, the range of considerations for issuance of the temporary restraining order

is more limited than what initially appears. The Plaintiffs argue that the Court should evaluate

the merits of the entire claim and determine whether they have satisfied the four injunction

factors in any of the Plaintiffs' multitudinous contentions, ranging from weighing the competing

public interests in the project as a whole to assessing whether the Corps properly addressed the

mitigation proposals for the affected wetlands . If so, the Plaintiffs contend, the Court should

temporarily enjoin the entire project.

But, the City proposes to begin construction only on the White Farm, a discreet portion of the

entire parcel. It contemplates beginning construction on September 18, 2006, at an entry point

a The full text of this statutory provision reads :

To the extent necessary to decision and when presented, the reviewing court shall decide all

relevant questions of law, interpret constitutional and statutory provisions, and determine the

meaning or applicability of the terms of an agency action . The reviewing court shall-

(1)compel agency action unlawfully withheld or unreasonably delayed ; and

(2) hold unlawful and set aside agency action, findings, and conclusions found to be-

(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,

(B) contrary to constitutional right, power, privilege, or immunity ,

(C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right,

(D) without observance of procedure required by law ,

(E) unsupported by substantial evidence in a case subject to sections 556 and 557 of this

title [5 USCS §§ 556 and 557] or otherwise reviewed on the record of an agency hearing

provided by statute, or

(F) unwarranted by the facts to the extent that the facts are subject to trial de novo by the

reviewing court.

In making the foregoing determinations, the court shall review the whole record or those parts of it

cited by a party, and due account shall be taken of the rule of prejudicial error .

5 U.S .C. § 706.

7

Case 1:06-cv-00258-JAW Document 46 Filed 09/15/06 Page 7 of 19
on Clinton Street and proceeding north through the White Farm portion of the parcel, ending no

later than December 15, 2006 about two thirds of the way through the parcel . The work during

this interval will not directly affect many of the properties the Plaintiffs have focused on in their

Complaint. As such, this Court is mt required to evaluate the four temporary restraining order

factors relating to arguments unaffected by the work on the White Farm . For example, the

likelihood of success on the issues the Plaintiffs have raised about the Tuttle House, Pleasant

View Home, the Carmelite Monastery, and the wetlands are not material to whether the

temporary restraining order should be granted, since the work that is the subject of the motion for

temporary restraining order will not directly affect them 7

Also, the relevant time period runs from September 18, 2006, when the earth moving is to

begin, to the issuance of an order on the motion for preliminary injunction . Although given the

voluminous record, the extensive memoranda, and the complexity of the legal issues, this Court

is unable to predict with certainty when its decision on the motion for preliminary injunction will

issue; however, the record has been filed, the memoranda have been submitted, and oral

argument has been held .

The Plaintiffs have pointed out that, once begun, a certain momentum takes hold and the

project will become more difficult to stop . To that point, this Court expressly warned the City

that, if the motion for temporary restraining order were denied, it would proceed at its own risk .

If this Court later determines that the Plaintiffs sustained their burden and a preliminary

injunction issues, the City will be required to undo what it has done .

IV. The White Farm Complex and the Tile Drainage System

' Plaintiffs argued that the panorama from the Pleasant View Home would be affected by the construction on White

Farm, but apart from a general assertion of visual impact, there was no evidence as to what that impact would be .

8

Case 1:06-cv-00258-JAW Document 46 Filed 09/15/06 Page 8 of 19
The White Farm complex is registered on the National Register of Historic Places "for its

significance in New Hampshire development and history . . . and as a representative complex

illustrating the practice and the evolution of progressive agriculture in the 19th and early 20th

century New Hampshire both in private and public realms." Comp. ¶ 404 (quoting the state of

New Hampshire Historic Preservation Office) . The farm's "varied landscape incorporates

representative contiguous examples of its significant historical setting and production units,

including river edge marsh, meadow, mowing, tillage, garden, orchard, and woodlot, which

together with its grouping effectively convey its historical importance ." Id. The White Farm's

land is naturally wet and to alleviate this problem, the farmers installed an elaborate underground

tile drainage system that has remained effective in keeping the fields arable . The tile drainage

system as a whole is integral to the historic significance of the farm and the City acknowledges

that the fall construction work will affect a portion of the tile drainage system .

V. The Temporary Restraining Order Factors

A. Likelihood of Success on the Merits

For purposes of the TRO motion, the narrow question is whether it is more likely than not the

Plaintiffs will prevail on their claims relating to White Farm . To do so, Plaintiffs must satisfy

the formidable burden of demonstrating that the Corps' decision to grant the City's permit was

arbitrary and capricious with respect to the White Farm property . The importance of this part of

the four-factor analysis cannot be understated : "The sine qua non of that formulation is whether

the plaintiffs are likely to succeed on the merits." Weaver v. Henderson, 984 F.2d 11, 12 (1st

Cir. 1993).

The chief concern of the Plaintiffs with respect to the White Farm property is that the

drainage system currently in place underneath the land will be harmed by the construction of th e

9

Case 1:06-cv-00258-JAW Document 46 Filed 09/15/06 Page 9 of 19
Phase II project. Although specific discussion of the drainage issue is absent from Plaintiffs'

TRO motion (and, consequently, from the Defendants' reply), Plaintiffs' counsel made clear at

oral argument that, because of the proposed construction schedule, damage to the White Farm

property - and the drainage tiles beneath it - is the most pressing concern . Plaintiffs also

devoted significant attention to the issue in their Complaint, alleging that a disruption of the tile

system could cause "increased and prolonged flooding," which would threaten "the continued

viability and existence of the White Farm as an historical agricultural exemplar." Comp1. ¶ 417 . 8

Section 106 of the National Historic Preservation Act (NHPA) provides that before issuing

any license or permit, a federal agency must "take into account the effect of the undertaking on

any district, site, building, structure, or object that is included in or eligible for inclusion in the

National Register." 16 U.S.C. § 470(f) . Pursuant to the regulations under the NHPA, when

considering a proposed federal action, the agency is required to make a "reasonable and good

faith effort" to identify historic properties, and to consider any adverse effects that may result

from the action. 36 C.F.R. §§ 800.4, 800.5.9 In order to complete this task, the agency may seek

information and assistance from numerous parties, including consultants, local governmental

officials, and the applicant itself 36 C.F.R. § 800.2 .

First, limited to the impact on the White Farm, Plaintiffs will not likely prevail on the merits

of its claim that the Corps' decision to grant the permit was arbitrary and capricious . Plaintiffs

assert that the Corps failed to take into account the potential damage to the White Farm drainage

system - as evidenced by its absence from the Environmental Assessment and Statement of

Findings (EA/SOF) - and its failure makes the decision arbitrary and capricious. The

s Count XII of Plaintiffs' complaint is devoted entirely to a discussion of White Farm . See Compl. ¶¶ 403-421 .

Plaintiffs claim that the Corps violated the NHPA because it failed to take into account "significant, extensive and

jermanent adverse effects upon the White Farm National Register historical resource ." Compl. ¶¶ 414, 418 .

The Complaint alleges that the Corps failed to "identify, evaluate, and resolve" potential adverse effects upon

White Farm, see Compl. ¶ 420. This language goes further than what the regulation requires.

10

Case 1:06-cv-00258-JAW Document 46 Filed 09/15/06 Page 10 of 19
administrative record, however, contradicts that assertion. After the Corps' public comment

period, Martha L. Drukker, City Engineer, wrote the Corps on April 9, 2001, to respond to

certain public comments . An attachment to that letter, entitled "Response by the City of

Concord to Comments Received by the ACOE During the Public Comment Period for the NW

Bypass Application," represents :

Those drainage tile systems in the White Farm agricultural fields that will be

interrupted by the Bypass will be replaced and reconnected to assure continued

proper drainage for agricultural use . The State Division of Forests and Lands

which manages the White Farm on behalf of the State has been involved in the

review of the designs to insure the continuity of drainage.

AR 2:306 .10

The record reflects other examples of the Corps' consideration of the White Farm issue.

The Corps' EA/SOF itself confirms that it considered the general impact on White Farm - above

surface:

Three National Register properties will be adversely effected (sic) in a minor way .

The setting of the White Farm will be altered slightly by having a paved road

crossing between two fields. The eastern-most field will be separated from the

other fields by a road. Farm equipment will have to cross the road to get from one

field to the other.

See FA/SOF at 10. The Memorandum of Agreement also states that the Corps considered the

provision of mitigation of adverse effects, such as the installation of fencing and shrubs. To the

extent the record reveals that the Corps was aware of the tile drain system, had received

assurances from the City, and had taken into consideration the historical and environmental

uniqueness of the White Farm in arriving at its decision, this militates against a conclusion that

the decision was arbitrary or capricious regarding the farm .

10 This statement was in response to a public comment by Gordon Blakeney - Plaintiffs ' counsel -that "there are

unacceptable adverse impacts to wetlands , historic values, wildlife, recreation, traffic safety, environmental

concerns, economic concerns, and land use." AR 2306 .

11

Case 1:06-cv-00258-JAW Document 46 Filed 09/15/06 Page 11 of 19
Second, the Plaintiffs have not demonstrated that construction of Phase II will have a wideranging, detrimental impact on White Farm. Plaintiff's engineering expert is Raymond Helmer

testified by telephone at the September 13, 2006 hearing. Mr. Helmer asserted that the method

for locating the drainage tiles, described in the study by GFI Consultants, is improper.

Furthermore, in his opinion, the Phase II construction project could result in significant damage

to the tiles. On cross-examination at the hearing, however, Mr . Helmer admitted that he had no

personal knowledge of the tile system at White Farm, had never visited the project site to see the

property, had relied solely on a hard-to-read schematic to determine the placement of the drain

tiles, and had not ascertained the contractor's planned method for locating the tiles .

The City responded that, of the fifty drain lines that comprise the system underneath White

Farm, only one would be affected by the Phase II construction and that it intended to construct a

separate drainage system in the area of road construction. Finally, the City explained that it has a

plan to remediate the one tile that will be affected . In sum, the Defendants have adequately

addressed the concerns expressed in the report of Mr . Helmer. Standing on this ground alone,

Plaintiffs have not met their burden .

The Corps identified White Farm as a historic property on that National Register, ascertained

the potential adverse effects from the construction of Phase II, and consulted with local officials

regarding plans for remediation . The Plaintiffs failed to demonstrate that its conclusion was

either arbitrary or capricious and, therefore, they have failed to demonstrate that they have a

likelihood of success on the merits. As such, the Court's analysis could stop . Esso, 445 F .3d at

18. However, in excess of caution and aware of the public interest in this decision, the Court

will proceed to the remaining three considerations. BI(a)ck Tea, 378 F .3d at 15 ("In the interests

12

Case 1:06-cv-00258-JAW Document 46 Filed 09/15/06 Page 12 of 19
of completeness, however, we briefly mention the remaining three parts of the preliminary

injunction calculus.") .

B. Irreparable Harm to the Movant

The next factor is whether Plaintiffs would suffer irreparable harm if this Court denies its

request for a TRO, and the City is allowed to begin construction of Phase II. Generally, a

demonstration of irreparable harm is a "necessary threshold showing for awarding preliminary

injunctive relief." Matos v. Clinton Sch. Dist., 367 F.3d 68, 73 (1st Cir. 2004). In fact, even the

existence of "some irreparable harm" does not conclusively justify a preliminary injunction . See

Bl(a)ck Tea Soc'y v. City of Boston, 378 F.3d 8, 15 (lst Cir. 2004) (upholding the denial of a

preliminary injunction on a First Amendment claim even though "a burden on protected speech

always causes some degree of irreparable harm"). Thus, even if Plaintiffs could feasibly cross

this threshold, the other factors in the balance might weigh against awarding temporary

injunctive relief in this case .

In addition, the irreparable harm must be fairly concrete ; that is, "[a] finding of irreparable

harm must be grounded on something more than conjecture, surmise, or a party's unsubstantiated

fears of what the future may have in store ." Charlesbank Equity Fund II, Ltd. Pship v. Blinds To

Go, Inc., 370 F.3d 151, 162 (1st Cir. 2004) ; see also Matos v. Clinton Sch. Dist., 367 F.3d 68, 73

(1st Cir. 2004) (requiring a "realistic prospect of irreparable harm"); Sierra Club v. Larson, 769

F. Supp . 420, 422 (D. Mass. 1991) (requiring an "actual, viable, presently existing threat of

serious harm"). Thus, Plaintiffs must demonstrate that the potential for irreparable harm is

immediate and serious rather than merely remote and speculative.

Here, Plaintiffs' fears of damage to White Farm tile drainage system remain speculative.

Again, the primary support for this position came from Mr . Helmer and for the reasons reviewed

13

Case 1:06-cv-00258-JAW Document 46 Filed 09/15/06 Page 13 of 19
earlier, Mr. Helmer's testimony was insufficient to carry the Plaintiffs' substantial burden . This

Court has concluded that the Corps took into consideration the potential danger to the tile

drainage system and obtained the City's assurances that any damage to the tiles would be

ameliorated. Thus, the Plaintiffs have not demonstrated that, without the issuance of a TRO, the

White Farm will be harmed beyond repair. Even if there were some potential harm to White

Farm, this fact alone would not justify the issuance of a temporary restraining order . See BI(a)ck

Tea Soc'y, 378 F.3d at 15.

Finally, to demonstrate irreparable harm, the Plaintiffs must show that any damage is in fact

irreparable. The Plaintiffs failed to sustain this burden, especially in the face of the City's

assurance that if necessary, it can and will remediate any damage to the tiles . Thus, for the

narrow purposes of the TRO, the risk of irreparable harm to the Plaintiffs is not sufficiently

immediate or certain to sustain their burde n

C. The Balance of Relevant Impositions

The third factor is what the First Circuit terms the "balance of relevant impositions," an

assessment of "the hardship to the nonmovant if enjoined as contrasted to the hardship to the

movant if no injunction is granted ." Esso, 445 F .3d at 18.

1. Hardship to the City

The City presented a convincing case that if not allowed to proceed with construction on

or near September 18, 2006, the entire project would be delayed and would not be completed for

an additional year. Timing becomes critical due to two factors : 1) the irreducible amount of

time necessary to prepare the earthwork for the roadway ; and, 2) a five to seven month period the

earth must settle before it is finally prepared and hot topped . Concord contends the earthwork

must be completed by December 15, 2006 so that the five to seven months can lapse over th e

14

Case 1:06-cv-00258-JAW Document 46 Filed 09/15/06 Page 14 of 19
winter and work can proceed in the spring with an anticipated completion date of January 2008 .

Further, the engineering consultants have recommended against the placement of any fill or the

exposure of any subgrades when the ambient temperature is below 25 degrees Fahrenheit, absent

special procedures approved by the geotechnical engineer . If the preparatory work is not

finished this fall, the five ti seven month fallow period must take place during the spring and

summer and, given the difficulty of continuing road construction work during the winter months,

the City estimated the entire project would be delayed for an additional year and would not be

complete until January 2009 . The City, relying on the principle that time is money, noted that

the cost of the project had mushroomed during the extended period of contention from $3 .7

million to $6.5 million; it estimated the additional cost to the project from the delay would total

$580,000.00. "

The Plaintiffs presented an alternative view at the hearing. During his testimony, Mr.

Helmer agreed that the earthwork must settle for five to seven months, but he opined that the

project could safely be delayed because more recent experience of milder winters means that the

ground does not freeze until January or even February . In practical terms, therefore, the

Plaintiffs contend that if the Court granted the TRO, the City could start later in the fall and still

be on schedule .

The Plaintiffs have not sustained their burden on this point. The Court is unwilling to

force the City to submit its construction schedule to the vagaries of a New Hampshire winter.

Although Mr. Helmer may be correct and the upcoming winter may be mild, weather predictions

- months out - remain chancy and the risk falls hard on the City. This risk is not solely financial ,

11 These figures are found in the Affidavit of Martha Drukker, an employee of the City's Engineering Department .

City Memo Ex. J.

15

Case 1:06-cv-00258-JAW Document 46 Filed 09/15/06 Page 15 of 19
but would delay the benefits of the connecting road, including improved access of emergency

vehicles to the Concord Hospital, for as much as an additional year.

2. Hardship to the Plaintiffs If Not Granted

By contrast, the hardship to the movant if no injunction is granted is more speculative .

Again, the relevant time is from September 18 - when the construction would begin - to

whenever the order is issued on the preliminary injunction . During this interval, the City intends

only to work on the White Farm portion of the project. The Plaintiffs' best contention is that the

earthwork will destroy the tile drainage system underlying the White Farm . They press the

argument that there is a paucity of information about where the tile drains actually are and what

impact major earthmoving will have on the agricultural fields. Mr. Helmer, drawing from his

mid-west experience where this type of drainage system is more common, testified that the City

should have mapped the system and designed the construction to minimize the impact of

construction.

The City responds that, contrary to Plaintiffs' assertions, it has in fact considered the

White Farm tile drainage system and has planned the construction to minimize the impact on the

system as a whole . It goes on to say that, based on its analysis of the location of the drain tile,

the construction will affect only one drain tile line and it has designed a drainage system that will

alleviate any damage to that line. Although the City's commitment regarding the tile drainage

system was not included in the formal Memorandum of Agreement between the Corps and the

City, as noted earlier, the City affirmatively represented to the Corps that it would act to assure

continued drainage to the White Farm site .

Based on the record, the Plaintiffs have failed to convince the Court that the

commencement of work on September 18, 2006 will cause other than minimal damage to the tile

16

Case 1:06-cv-00258-JAW Document 46 Filed 09/15/06 Page 16 of 19
drainage system, that Concord's remediation of the damage will be insufficient, or that if

necessary whatever damage does occur to the system could not be repaired, if the preliminary

injunction is granted .

The Court concludes that the harm to Concord from granting the temporary restraining

order exceeds the harm to the Plaintiffs from failing to grant it.

D. The Public Interest

The best measure of competing public interests is the array of parties lined up on either

side of this community divide . The Court assumes the Plaintiffs are a group of affected citizens,

many from residential areas surrounding the project, who represent the passionate viewpoint that

this large swath of open space so close to downtown Concord is a precious and invaluable

environmental and historic treasure, which will be forever marred and lost to future generations

for the sake of short-term, minuscule, and illusory changes in Yaffic patterns. The presence as a

Plaintiff of Morton C. Tuttle, the son of Donald D . Tuttle, the person for whom the home is

named, adds special emphasis to what is at risk in the potential loss of Concord's sense and pride

of place. Underlying the Plaintiffs' determined advocacy may be a distrust of what will happen

to the land on either side of the road, once the economic opportunity represented by the volume

of traffic entices developers. The Plaintiffs point to the City's decision to allow multiple curb

cuts in Langley Drive as a harbinger for future development along the connecting road once it is

built.

Against these legitimate concerns are the significant public interests represented by

Concord Hospital . The current routes to the hospital from the interstate exchanges are tortuous,

leading ambulances and patients through a warren of streets, stop lights, and traffic jams . Rapid

17

Case 1:06-cv-00258-JAW Document 46 Filed 09/15/06 Page 17 of 19
access to a critical care hospital like Concord Hospital carries profound health and safety

implications. The last thing a person suffering from congestive heart failure should have to

battle is traffic congestion. The record provides ample support for the proposition that the

project, if completed, will lessen the delays emergency vehicles now encounter before delivering

their critically ill patients to the emergency room .

Because St. Paul's School is a small, elite, private school, its desire to limit public access

to its campus has less resonance . However, here, the students of Concord High School are also

posited as beneficiaries of the project and the undercurrent of class and socio-economic

differences, if present, has not been overtly pressed .

But, the main measure of the balance among competing public interests must be that

Concord city government itself has consistently been the major proponent of this project . The

Concord City Councilors must stand for public election and are entrusted by the citizens of

Concord to make policy decisions for the greater good. If the connector road were not a

reflection of the wishes of the majority of Concord citizens, the citizens have had the means and

opportunity to elect a Council that does reflect their views. They have not done so . Instead,

throughout the long history of this controversial project, the City has remained its main advocate .

This Court is chary about making a policy judgment for the citizens of Concord that they have

manifestly not made for themselves.

Finally, in the narrow context of the motion for temporary restraining order, the Court

cannot conclude that the public interest in whatever damage will occur to a line of tile drains

within the White Farm exceeds the public interest in avoiding the substantial additional costs and

delay that will occur if the construction does not go forward as scheduled .

VI. CONCLUSION

18

Case 1:06-cv-00258-JAW Document 46 Filed 09/15/06 Page 18 of 19
This Court DENIES Plaintiffs' emergency motion for temporary restraining order

(Docket # 32).

SO ORDERED.

/s/ John A. Woodcock, Jr.

JOHN A. WOODCOCK, JR.

UNITED STATES DISTRICT JUDGE

SITTING BY DESIGNATION

Dated this 15th day of September, 2006

19

Case 1:06-cv-00258-JAW Document 46 Filed 09/15/06 Page 19 of 19