UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIR E

Civil Action, File Number

Huntington and Caitriona B . Barclay

1394 Village Road

Box 125

Silver Lake, NH 03875 ,

Cecile and Joseph Bates

1160 Whittier Rd

Tamworth, NH

(mailing address: West Ossipee, NH 03890),

Diana M. Beliard

3191 Chinook Trial

Wonalancet, NH 03897,

COMPLAINT FOR

DECLARATORY RELIEF

Aron Bernstein and Susan Goldhor

322 Great Hill Roa d

Tamworth, NH 03886,

Amy K. and Thaddeus B . Berrier

139 Bryant Road

Tamworth, NH 03886,

Geoffrey B . and Andrea G. Burke

103 Old White Mountain Camp Rd .

Tamworth, NH 03886,

Anita N . Cameron

19 Nudd Road

West Ossipee, NH 03890 ,

Joan A. Casarotto

630 Cleveland Hill Road

Tamworth, NH 03886,

Frank and Kimberly Drew

39 May's Way

Tamworth, NH 03886,

Case 1:06-cv-00368-SM Document 1 Filed 10/02/06 Page 1 of 25
David L. Eastman

13 Bryant Road

Tamworth, NH 03886

PO Box 59

Ctr. Sandwich, NH 03227,

Stephen J. and Wendy Gaal

334 Pease Hill Road

Tamworth, NH 0388 6

PO Box 9 1

North Sandwich, NH 03259 ,

Christina Gill and John P. Felice

68 Old White Mountain Camp Road

PO Box 23 5

Tamworth, NH 03886,

Joan Gilmour

308 Mountain Road

PO Box F

South Tamworth, NH 03883,

Arvid and Shirley Gustavson

601 East Shore Drive

Silver Lake, NH 03875 ,

Bernard Haines and Gena Morgan

15 Mays Way

Tamworth, NH 03886,

Kent Hemingway, Sr.

224 Hidden Road

PO Box 148

Tamworth, NH 03886,

Carolyn and Kent Hemingway, Jr.

276 Great Hill Roa d

Tamworth, NH 03886,

John Howell and Laura Weymouth

3234 Chinook Trail

Wonalancet, NH 03897 ,

Peggy Johnson

3094 Chinook Trial

Wonalancet, NH 03897,

2

Case 1:06-cv-00368-SM Document 1 Filed 10/02/06 Page 2 of 25
Sara & Brian Kelley

282 Mountain Rd

South Tamworth, NH 03883,

Andrea Kennett

Old Mail Road

PO Box 535

Tamworth, NH 03886,

Anthony Leo and Rae LaForge

57 May's Way

Tamworth, NH

PO Box 48 7

West Ossipee, NH 03890 ,

David M. Little

468 Great Hill Road

Tamworth, NH 03886,

John and Arlene Littlefield

74 May's Way

Tamworth, NH 03886,

Lois and Edgar Merrithew

60 May's Way

Tamworth, NH 03886,

Michele Miller

3805 Chinook Trail

Wonalancet, NH 03897-5582 ,

Ed Morin

206 Summit View Drive

Tamworth NH

PO Box 834

West Ossipee, NH 03880 ,

Phyllis A. Nudd

4 Nudd Road

West Ossipee, NH 03890 ,

Linda J. Murphy Williams

20 Bryant Road

Tamworth, NH 03886,

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Case 1:06-cv-00368-SM Document 1 Filed 10/02/06 Page 3 of 25
Sheldon P. and Nina Perry

191 Great Hill Road

Tamworth, NH 03886,

Jack Pin e

71 Mays Way

Tamworth, NH 03886,

Donna Polhamus

39 Mountainview Estates Rd .

PO Box 101

Tamworth, NH 03886,

Richard and Marion Posner

1153 Cleveland Hill Road

Tamworth, NH 03886,

Lianne D. Prentice

Christopher R. Moneypenny

86 Mason Hill Road

South Tamworth, NH 03883,

Jo Anne M . Rainvill e

61 Benjamin Wentworth Dr.

Chocorua, NH 03817,

Cynthia A. Richards

130 Mason Hill Rd.

South Tamworth

PO Box 81 6

West Ossipee, NH 03890 ,

Margaret Rieser

55 Chocorua Road

PO Box 466

Tamworth, NH 03886,

4

Case 1:06-cv-00368-SM Document 1 Filed 10/02/06 Page 4 of 25
St

The Reverend Heidi Frantz-Dale, Rector )

. Andrews Church : )

(on behalf of the Vestry and Parish) )

Saint Andrew's-in-the-Valley Episcopal Church )

678 Whittier Road, PO Box 436

Tamworth, NH 0388 6

and

The Right Rev. V . Gene Robinson

The Episcopal Diocese of New Hampshire

63 Green Street

Concord, NH 03301 ,

Jim Shea and Cathy Arseneault-Shea

127 Mason Hill Rd.

P.O. Box E

South Tamworth, NH 03883,

Lyn Slanetz

1017 East Shore Drive

Silver Lake, NH 03875 ,

Mary B. and D. Edward I. Smyth

134 Mt. Mexico Road

Wonalancet, NH 03897 ,

Helen Steele

3329 Chinook Trail

Wonalancet, NH 03897 ,

Robert Streeter and Amy Carter

133 Pease Hill Rd.

PO Box 316

Tamworth, NH 03886,

Peter and Elisabeth Swiriduk

66 Mays Wa y

Tamworth, NH 03889 ,

Brenda F . Taylor

61 Benjamin Wentworth Dr.

Chocorua, NH 03817,

Paul and Hope Therrien

66 Mays Way

Tamworth NH 03886,

5

Case 1:06-cv-00368-SM Document 1 Filed 10/02/06 Page 5 of 25
Virginia C. Thomas

904 Whittier Road

Tamworth, NH 03886,

Harry Thompson

117 Whittier Rd

Tamworth, NH

(mailing address: West Ossipee, NH 03890),

Katharine T. Thompson

611 Mountain Rd

P.O. Box 48

South Tamworth, NH 03883,

Ruth G. Timchak

418 Old Mail Road

Tamworth, NH 03886,

Thomas and Katherine C. Vachon

1281 Cleveland Hill Road

Tamworth, NH 03886,

Richard Whiting

188 Gilman Valley Road

Tamworth, NH 03886,

Jennifer Hocking Wiley

93 Downs Road

PO Box 492

Madison, NH 03849,

Peter & Jacqueline Whyte

260 Summit View Drive

PO Box 124

Tamworth, NH 03886,

and

William F. and Louise M. Wrobleski

1445 Ossipee Mountain Highway

PO Box 373

Tamworth, NH 03886,

Plaintiffs

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Case 1:06-cv-00368-SM Document 1 Filed 10/02/06 Page 6 of 25
vs.

U.S . Army Corps of Engineers,

Executive Office, New England District

696 Virginia Road

Concord, MA 01 742-27 1 5 ,

Lt. General Carl A. Strock,

Chief Engineer, U.S . Army Corps

Of Engineers,

696 Virginia Road

Concord, MA 01 742-27 1 5 ,

Colonel Curtis Phalken ,

New England District Commander,

U.S . Army Corps of Engineers

696 Virginia Road

Concord, MA 01 742-27 1 5 ,

and

Motorsports Holdings, LLC,

2 Chester Road, Suite 304

Derry, NH 03038,

Defendants

COMPLAINT FOR DECLARATORY RELIEF

1 . Plaintiffs bring this action seeking declaratory relief against the U.S. Army Corps

of Engineers ("ACOE") for failing to comply with Sections 401 and 404 of the Clean Water Act

("CWA"), 33 U .S.C. § 1341 et sg. and the Administrative Procedures Act ("APA"), 5 U .S.C . §

701 et sg., prior to granting an individual CWA permit authorizing construction of a racetrack

facility on the north slope of Mt. Whittier in Tamworth, New Hampshire .

2. Defendant Motorsports Holdings, LLC ("MH") has proposed construction of a

251-acre racetrack on property in Tamworth, New Hampshire which is surrounded by more than

20,000 acres of conservation land . Because the project involves dredging and filling of

jurisdictional wetlands, the project required a permit from the ACOE .

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3. The ACOE violated the CWA in issuing a permit for this project .

JURISDICTION AND VENUE

4. This Court has jurisdiction pursuant to 28 U.S .C. § 1331 (federal question) ; 5

U.S .C . §§ 702 and 706 (1), (2)(A), (C) and (D) (Administrative Procedures Act) ; 28 U.S.C. §

1361 (mandamus); and 28 U.S.C. § 2201 (Declaratory Judgment Act) .

5. Venue is proper in this District under 28 U .S.C. § 1391(b), as the actions giving

rise to the claim occurred in the District of New Hampshire , and 28 U. S.C. § 1391(e) because it is

a civil action against an agency or officer of an agency of the United States acting in his official

capacity under 5 U.S.C. § 703 .

PARTIES

6. Plaintiffs in this action are property owners in and around the Town of Tamworth,

New Hampshire. Each of the plaintiffs is either: (a) a direct abutter to the proposed racetrack

project site owned by MH, (b) a landowner in close enough proximity to the site that the proposed

project will have serious and damaging effects on them and the use of their property, (c) the owner

of real property in Tamworth upon which the individual pays property taxes, and/or (d) a resident

of Tamworth. Each plaintiff is threatened with harm in several ways, including the destruction of

and damage to their property, impairment of their water supply, and loss of the use, enjoyment and

value of their property . In particular, due to their location near the site, each plaintiff is

threatened by the occurrence of any of the following impacts which will occur as a result of the

proposal by MH to construct a racetrack and motorsports park in Tamworth : damage or

destruction of wetlands beyond the border of the proposed project site from erosion and

sedimentation, flooding, contamination of groundwater and the drinking water supply,

contamination of the Bearcamp River and other surface waters, noise pollution, loss and damage

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Case 1:06-cv-00368-SM Document 1 Filed 10/02/06 Page 8 of 25
to viewscapes and the aesthetic quality of the property, disruption and loss of wildlife and habitat,

loss of the recreational and conservation value of their property, and diminution of property

values.

7. Defendant Lt. General Carl A. Strock is Chief Engineer of the U.S . Army Corps of

Engineers, and is sued in his official capacity .

8. Defendant Colonel Curtis Phalken is the New England District Commander of the

Army Corps, and is sued in his official capacity .

9. Defendant Motorsports Holdings, LLC is the permit applicant/permittee in this

matter and is a limited liability company incorporated in the State of Delaware .

FACTS CONCERNING THE PROJECT

10. MH plans to construct a 251-acre racetrack and motorsports park on 242 acres it

currently owns and an additional nine (9) acres it plans to lease centered on the north slope of

Mount Whittier in the Ossipee Mountains in Tamworth, New Hampshire .

11 . The proposed Project consists of a 3 .1 mile closed-loop racetrack as well as

numerous accessory buildings including an administration building, vehicle maintenance building,

hotel, restaurant, club house and temporary residential facilities and private race car garages

("garagemahalls") as well as various access roads and paved parking areas .

12. The Project site is located directly over primary and secondary recharge areas for

the Ossipee Aquifer. The Aquifer, which is the major source of drinking water for Tamworth and

many other towns in the State of New Hampshire and the State of Maine, is a high-yield aquifer

that can recharge quickly with rainwater, and is also highly vulnerable to contamination .

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13. The project site is surrounded by more than 20,000 acres of conservation land,

including 14 parcels adjacent to the project site and an additional 108 parcels in the immediate

vicinity, representing an investment of more than $10 million of public and private funds .

14. The proposed double closed-loop racetrack will be the width of a New Hampshire

highway on which amateur drivers will race cars at extremely high speeds . This closed-loop

racetrack will cross wetlands seventeen (17) times .

15 According to the project's permit application filed by MH with the ACOE, the

project will include, among other activities, support services for repair, garaging and servicing for

high performance vehicles, including "paddock" areas, a facility maintenance building, and an

auto repair and high performance tuning shop for repair, maintenance and storage of vehicles.

16 As proposed by MH in its application, the project will involve seventeen (17)

wetland impact areas, approximately four (4) which relate to access roads and approximately

thirteen (13) which relate to construction of the racetrack itself or the buildings and structures

associated with the racetrack.

17 All of the proposed activities within jurisdictional wetlands will require the

erection or construction of structures or buildings and/or will alter the natural surface

configuration by the addition of fill or dredging, and/or will involve the removal or deposition of

material or obstruction, alteration, or pollution of wetlands.

FACTS CONCERNING THE ACOE PERMIT

18 The ACOE has regulatory powers under 42 U .S.C. § 1344 to issue permits for the

discharge of dredged or filled material into waters of the United States, including certain wetlands.

This statutory provision was adopted as Section 404 of the Federal Water Pollution Control Act

Amendments of 1972, also knows as the "Clean Water Act . "

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19 The overwhelming majority of projects impacting federal jurisdictional wetlands,

and requiring an ACOE permit, are addressed under what is known as the New Hampshire State

Program General Permit (SPGP), under which the ACOE relies on the State's wetland permitting

process and does not conduct an independent review . However, an individual permit is required

for projects with potentially significant impacts.

20. In this case, MH requested that its project be permitted under the SPGP. However,

the ACOE determined, by letter dated January 7, 2004, that the project was not eligible to be

addressed under the SPGP and that the application would be reviewed under individual permit

procedures. In support of that determination, the ACOE stated as follows: "The determination

that your project will have more than minor impacts was made after consideration of several

factors, which included the uncertainty of secondary impacts, the project's possible impacts on

aquifer resources, and significant public interest in the project. "

21 On or about March 4, 2004, MH filed with the ACOE a Section 404 Individual

Permit Application for its project.

22. Members of the public submitted comments regarding MH's permit application .

The Plaintiffs in this suit submitted detailed comments regarding the application on or about

August 13, 2004 and supplemented those comments on or about March 11, 2005 . The Plaintiffs,

through counsel, also provided testimony at the public hearing on said application held on October

6, 2004.

23. On or about August 26, 2005, the ACOE issued MH a Section 404 Permit,

authorizing MH to "fill approximately .73 acres (31,711 sq . ft.) of inland wetlands and streams to

construct a motorsports country club with an associated 3 .1-mile road course," upon certain

conditions.

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24. By letter dated April 27, 2006, the Plaintiffs, through counsel, requested that the

ACOE reconsider its permit, specifically requesting reconsideration of that portion of the permit

which accepted MH's proposed noise restriction for operations at the project.

25. By letter dated August 4, 2006, the ACOE denied Plaintiffs' request for

reconsideration.

LEGAL BACKGROUND

26. The CWA is a comprehensive statute enacted "to restore and maintain the

chemical, physical, and biological integrity of the Nation's waters ." 33 U.S .C. § 1251(a).

27. To achieve this goal, the CWA prohibits the discharge of any "pollutant," defined

broadly to include dredged or fill material , into "navigable waters," defined broadly to include

most wetlands, unless authorized by a CWA permit. 33 U.S.C. §§ 1311(a), 1341 et sg. ; see also

33 U.S .C. § 1362(6) (defining "pollutant"); 33 U.S .C. § 1362(7) (defining "navigable waters") ; 33

C.F.R. § 328.3 (further defining "navigable waters").

28. Section 404 of the CWA authorizes the Secretary of the Army, acting through its

Chief of Engineers (the Army Corps) to regulate discharges of dredged or fill material through the

issuance of permits. 33 U .S.C. § 1344(a).

29. Both the ACOE and the United States Environmental Protection Agency ("EPA")

define the "waters of the United States" to include most wetlands.

30. Individual Section 404 permits are processed under 33 U .S.C. § 1344(a) - (c) and

must be denied if the ACOE "determines, after notice and opportunity for public hearings, that the

[proposal] will have an unacceptable adverse affect on . . . wildlife, or recreational areas." 33

U.S .C. § 1344(c).

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31 . The ACOE permit issued in this case is an "` individual permit' [which is] an

[Army Corps] authorization that is issued following a case-by-case evaluation of a specific

structure or work in accordance with the procedures of [33 CFR Part 322] and 33 CFR Part 325,

and a determination that the proposed structure or work is in the public interest pursuant to 33

CFR Part 320." 33 CFR 322.2(e) .

32. The regulations implementing the CWA provide that "no discharge of dredged or

fill material shall be permitted if there is a practicable alternative to the proposed discharge which

would have less adverse impact on the aquatic environment." 33 U.S.C. § 230.10(a). "Most

wetlands constitute a productive and valuable public resource, the unnecessary alteration or

destruction of which should be discouraged as contrary to the public interest." 33 C.F .R. §

320.4(b)(1).

33. In addition, the Army Corps must conduct an independent assessment of the

project's merits to determine whether it is in the public interest, weighing the project's benefits

versus its detriments, including its cumulative impact . Id. § § 323 .6(a), 320.4(a).

34. Relative to the ACOE's obligation to determine whether a project is in "the public

interest," 33 C.F.R. § 320.4(a)(1) provides :

The decision whether to issue a permit will be based on an evaluation of the

probable impacts, including cumulative impacts, of the proposed activity and its

intended use on the public interest. Evaluation of the probable impact which the

proposed activity may have to the public interest requires a careful weighing of all

those factors which become relevant in each particular case. The benefits which

reasonably may be expected to accrue from the proposal must be balanced against

its reasonably foreseeable detriments . The decision whether to authorize a

proposal, and if so, the conditions under which it will be allowed to occur, are

therefore determined by the outcome of this general balancing process. That

decision should reflect the national concern for both protection and utilization of

important resources. All factors which may be relevant to the proposal must be

considered including the cumulative effects thereof: among those are conservation,

economics, aesthetics, general environmental concerns, wetlands, historic

properties, fish and wildlife values, flood hazards, floodplain values, land use ,

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navigation, shore erosion and accretion, recreation, water supply and conservation,

water quality, energy needs, safety, food and fiber production, mineral needs,

considerations of property ownership and, in general, the needs and welfare of the

people. . . . [A] permit will be granted unless the district engineer determines that

it would be contrary to the public interest. (Emphasis added.

35. "Before issuing any dredge or fill permit, the Corps is required to conduct a 'public

interest' review. This review considers virtually all aspects of a project : 'conservation,

economics, aesthetics, general environmental concerns, historic values, fish and wildlife values,

flood damage prevention, land use, navigation, recreation, water supply, water quality, energy

needs, safety, food production, and, in general, the needs and welfare of the people.' 33 C.F.R. §

320.4(a)(1) . . ." Buttrey v. United States, 690 F.2d 1170, 1180 (5th Cir. 1982), cert. den. , 461

U.S . 927, 103 S.Ct. 2087 (1983) .

36. "[T]he district engineer will determine in accordance with the record and

applicable regulations whether or not the permit should be issued. He shall prepare a statement of

findings (SOF) or, where an [Environmental Impact Statement ("EIS")] has been prepared, a

record of decision (ROD), on all permit decisions. The SOF or ROD shall include the district

engineer's views on the probable effect of the proposed work on the public interest including

conformity with the guidelines published for the discharge of dredged or fill material into waters

of the United States (or CFR Part 230)." 33 C.F.R. § 325.2(a)(6) .

COUNT I

DECLARATORY JUDGMENT THAT ACOE' S PERMIT

ISSUANCE WAS ARBITRARY AND CAPRICIOU S

37 . Plaintiffs repeat and reallege the allegations set forth in the preceding paragraphs .

38. The CWA explicitly provides a private right of action under which "any citizen

may commence a civil action on his own behalf . . . against any person . . . who is alleged to be

in violation of" the various provisions of the CWA. 33 U.S.C. § 1365(a)(1).

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39. In addition, the APA provides that any "person suffering legal wrong because of

agency action within the meaning of a relevant statute, is entitled to judicial review thereof." 5

U.S .C. § 702 . See also 5 U.S .C. § 704 ("[F]inal agency action for which there is no other

adequate remedy in a court [is] subject to judicial review.")

40. As the First Circuit has recognized, this Complaint, which alleges a violation of the

CWA provisions, and all similar claims, challenge the correctness of the ACOE's substantive

result, not simply the adequacy of the procedure followed by the agency in reaching it :

The Clean Water Act (CWA) was "a bold and sweeping legislative initiative, "

. . . enacted to "restore and maintain the chemical, physical, and biological integrity

of the Nation's water." . . . "This objective incorporated a broad, systemic view of

the goal of maintaining and improving water quality : as the House Report on the

legislation put it, 'the word "integrity" . . . refers to a condition in which the

natural structure and function of ecosystems [are] maintained . "' . . . In contrast to

NEPA's focus on process, the CWA is substantive, focusing upon the "integrity of

the Nation's Waters, not the permit process. "

Dubois v. Department of Agriculture , 102 F .3d 1273, 1295 (1st Cir. 1996) (emphasis added,

citations omitted); see also Carmel-By-The-Sea v . U .S. Dept. Of Transportation, 123 F.3d 1142,

1152 (9th Cir. 1997) (NEPA "is procedural and is simply not as demanding as the Clean Water

Act on the issue of wetlands" ( citing Dubois)).

41 . Under the Administrative Procedures Act (APA), this Court must "hold unlawful

and set aside agency action, findings, and conclusions found to be . . . arbitrary, capricious, an

abuse of discretion, or otherwise not in accordance with law[.]" 5 U .S.C. § 706(2)(A).

42. Agency action must be set aside if the agency relies on factors which Congress did

not intend for it to consider, entirely fails to consider an important aspect of the problem, offers an

explanation for its decision that runs counter to the evidence before the agency, or is so

implausible that it could not be ascribed to a difference in view or the product of agency expertise .

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Motor Vehicle Manufacturers Ass'n of U.S., Inc. v. State Farm Mutual Auto, Inc. , 463 U.S. 29,43

(1983).

43. Much of the public comments focused on the noise to be associated with MH's

proposed project. Written comments submitted by Plaintiffs in this case highlighted the issue as

follows:

The noise that this racetrack will generate is of paramount concern to the

surrounding community. Up to 25 vehicles or more will be racing at high speeds

on the track at any one time, generating noise pollution that will travel well beyond

the boarders of the site and negatively impact a nearby church as well as

residential, conservation, and recreational properties both immediately adjacent to

the site and in neighboring communities.

The Army Corp is charged with evaluating the effect that proposed projects will

have on the public interest, including aesthetics, recreation, the needs and welfare

of the people, and considerations of private ownership . Unless the project

incorporates substantial noise barriers and operational limits, noise of the type and

levels that this project will generate will have a significantly adverse impact on

each of those considerations of the public interest.

44. The ACOE recognized the issue of noise as a significant factor in its "public

interest review" pursuant to 33 C .F.R. § 320.4. Specifically, in its "Environmental Assessment

and Statement of Findings" within its permit decision, the ACOE identified noise as having an

"adverse" public interest effect. The Assessment further noted that, "Noise was raised as the

largest concern by the public and the Corps gave this concern a great deal of attention."

Approximately two-and-one-half pages of the ACOE's Environmental Assessment was addressed

to its analysis of the noise issue.

45. As set forth above, "the decision whether to authorize a proposal, and if so, the

conditions under which it will be allowed to occur, are . . . determined by the outcome of this

[public interest review] general balancing process." 33 C .F.R. §320.4 (a)(1). In imposing

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conditions related to noise, the ACOE accepted MH's proposed noise restriction for operations a t

its facility. In particular, the ACOE adopted the following proposal of MH :

Allowable Sound Levels - during all hours of operation and anywhere on-site, with

the exception of Sunday morning before 11 :00 a.m., no vehicle may exceed an

average sound limit of 92 dBA at 50 feet from the source, nor a maximum sound

limit of 99 dBA at 50 feet from the source .

46. As explained further below, the ACOE's acceptance of MH's proposed noise

restriction was arbitrary and capricious since the effect of the maximum sound limit of 99 dBA is

twice as loud as the noise limitation proposed by the ACOE's own expert.

47. The significance of the noise issue led the ACOE to hire its own noise expert,

Acentech, to evaluate noise impacts from the proposed project. The ACOE's Environmental

Assessment contains a summary of the parties' submissions on the issue of noise that led the

Corps to commission the Acentech report:

The applicant hired Tech Environmental, Inc. (TE) to perform a sound study . . .

which resulted in the applicant proposing virtually unlimited generation of noise at

the facility. Focus Tamworth, an opponent of the project, hired Harris Miller

Miller & Hanson Inc. (HMMH) to review the TE study and make

recommendations. HMMH produced a report . . . [which] recommended to

severely limit the applicant's generation of noise at the facility . The HMMH

recommendation included the limitation of noise to 69 dBA at any point from the

property line during track operations. . . . The New Hampshire Department of

Environmental Services had determined that they had no jurisdiction to determine

the impacts of noise at the project. . . .[T]he Corps faced the task of analyzing two

competing noise studies . . . . As a result of this, the Corps hired an independent

and private noise expert, Acentech, Inc . . . .

48. Acentech also recognized the significance of the noise issue as it related to this

project, stating in its report to the ACOE :

It must be recognized that this facility, as proposed, will operate during daylight

hours year-round and the sound generated by its participants will be heard

throughout the community . The frequency, content and the duration of the noise

events that could be caused by this facility will sound like no other sound source s

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in the area. Without appropriate limits, this will change the environment of the

Tamworth area.

49. The Acentech report was provided to the ACOE by letter dated March 15, 2005 .

The Acentech report utterly discredited the report of MH's noise expert, Tech Environmental,

which was the basis for MH's proposed noise limit (which was ultimately accepted by the

ACOE). As explained in the Acentech report :

The TE report used the Federal Highway Administration (FHWA) Traffic Noise

Model (TNM) to predict the noise levels that would be generated by the proposed

facility. Independent of the TNM modeling results, the attached [communications

from FHWA officials] are testament to TNM not being appropriate or adequate for

modeling race track noise . Since the model that was used as a basis for the TE

analysis was not appropriate for this project, it is unnecessary to further discuss

issues with the TE modeling effort .

[T]he TE report does not address the potential impact of the proposed facility on

the community. Its modeling is inappropriate and its criteria are deficient for a

proposed facility of this type to peacefully coexist with a nearby residential

community.

50. The ACOE recognized and accepted this critical finding of the Acentech report,

stating in its Environmental Assessment :

Acentech's report indicated that the applicant had characterized the proposed

project as being "non-race track" in nature and therefore had used model technique

and criteria based on Federal Highway Administration Traffic Model, New

Hampshire Department of Transportation and U .S. Environmental Protection

Agency criteria . This was deemed inappropriate, since the Corps had determined

the proposed project was to be characterized as "race track" for purposes of the

sound analysis, only, even though the applicant considered the project a road

course.

51 . As a result of these deficiencies in modeling, the ACOE determined that "the best

approach would be to identify a similar facility of comparable uses, sensitivities, and

topography/geography (background effects, etc.) as a base-line to recommend the allowable nois e

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Case 1:06-cv-00368-SM Document 1 Filed 10/02/06 Page 18 of 25
restrictions at this facility ." Acentech had identified the Lime Rock facility in Lakeville,

Connecticut as an appropriate facility for comparison purposes, and the ACOE concurred.

52. The race track in the Village of Lime Rock, Connecticut, has generated noise

which has resulted in litigation spanning almost 30 years. This village is, much like Tamworth, a

mainly residential rural area to which visitors and residents are drawn because of the peace and

tranquility it offered. In a decision holding that noise from that track constituted a public

nuisance, the court stated as follows :

When these races take place, or when the track is in use, the noise and roar of car

engines caused by the operation of the vehicles upon the track can be heard for a

considerable distance away. The track is constructed with a number of sharp

curves, and the squealing of brakes, screeching of tires, and other noises emanating

from the operation of the cars upon the track can be heard throughout the Village of

Lime Rock.

During racing events or speed tests . . . [t]he noise and sounds, particularly when the

vehicles are unmufflered, reach such intensity that they can sometimes be heard for

some distance beyond the village depending upon wind and atmospheri c

conditions.

(Adams v. Vail, Superior Court, Litchfield County, Connecticut, Docket No. CD58-001-54-595,

Memorandum of Decision dated May 8, 1959 at pp. 2-3.)

53. As noted in the ACOE permit, the Lime Rock facility is currently subject to "a

drive-by sound limit of 89 dBA measured 50 feet from the source." Significantly, this is an LmAx

limit, rather than an LBQ limit. The distinction between the two is explained in the Tech

Environmental report referenced above:

The LMAx is the near instantaneous maximum sound level. The LBQ, or equivalent

sound level, is the steady-state sound level over a period of time that h as the same

acoustic energy as the fluctuating sounds that actually occurred during that period .

It is commonly referred to as the average sound level.

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54. The Acentech Report discussed the implementation of this limit at the Lime Roc k

facility as follows :

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 and the facility peacefully coexists with the facility

(according to Lime Rock Park personnel, from a personal telephone conversation).

55. The Acentech report ultimately concluded that the noise impacts at the Tamworth

facility had an even greater potential adverse impact than the noise impacts at Lime Rock Park for

the following reasons :

Also note that the Lime Rock Park track is on a relatively level elevation in a

valley, and the proposed track will be built on the side of a mountain that overlooks

the Tamworth community . This provides less opportunity for any topographic

shielding than is available for Lime Rock Park. There is also a 40-foot tall rock

ledge that is planned for an upper section of the track which provides a large

surface to reflect the sound to the community it faces . These topographic features

will send more sound into the community than is the case at Lime Rock Park .

Having visited the project site, I experienced the low background sound levels

(documented in the TE report) in the area resulting from the few sound sources in

the area. The combination of low background levels and topography more suited

to send sound from the project site into the community would not justify higher

sound limits for this project over those at the Lime Rock Park facility .

Thus, the Acentech report concluded that "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 . "

56. While the permit issued by the ACOE purported to rely on and adopt the Acentech

report, in actuality the ACOE adopted a noise limit proposed by MH that was directly at odds with

the conclusions reached by Acentech . Specifically, MH proposed and the ACOE accepted the

following limit: "No vehicle may exceed an average sound limit of 92 dBA at 50 feet from the

source, nor a maximum sound limit of 99 dBA at 50 feet from the source . "

57. The ACOE justified its acceptance of MH's proposed limit on the following basis:

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The applicants' proposed Operating Plan . . . appears to be acceptable when

compared to the recommendations of Acentech . The 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 applicant's ability to accomplish his project purpose

of operating a profitable and sustained 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 averages [sic] of high and low sound fluctuations. . .

58. There are several flaws in the ACOE's reasoning. First, in comparing Lime Rock's

89 dBA limit to MH's proposed 92 dBA limit, the ACOE compared apples to oranges . As stated

above, the Lime Rock limit is "a drive-by sound limit of 89 dBA measured at 50 feet from the

source," which is an instantaneous maximum sound level . Acentech found that the Tamworth

facility should be subject to a track-side noise limit "that is at least as restrictive as that used at the

Lime Rock Park facility ." Yet the ACOE did not compare this Lime Rock instantaneous limit to

the instantaneous maximum limit proposed by the Applicant (99 dBA) but rather to what MH

terms "an average sound limit" at 92 dBA . The ACOE's comparison of the Lime Rock limit of 89

dBA to MH's proposed "average" limit of 92 dBA is wholly inappropriate . The Lime Rock limit

is an instantaneous maximum that applies to each vehicle. The same limit proposed by MH and

adopted by the ACOE is 99 dBA, not 92 dBA. That is a difference of 10 dBA. As discussed

further below, the maximum limit allowed by the ACOE permit would be heard as twice as loud

and represents ten times the sound energy as the value recommended as a minimum by the

ACOE's own expert.

59. The ACOE's second error is its adoption of MH's proposed use of an "average"

sound limit. Acentech concluded that it would be inappropriate to use an "average value" in

imposing noise restrictions on a race track. Moreover, neither the ACOE's permit nor MH's

operating plan make clear what "an average sound limit" is or how it is to be measured . The

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Corps' permit states that "no vehicle" may exceed this average limit. However, under MH's

proposal, its "average" limit is not applied to each vehicle as specified by the Corps' permit.

Indeed, it is unclear how an average sound limit could ever be applied to an individual vehicle .

Furthermore, implementation of an "average" sound limit has, to the best of our knowledge, never

been imposed at any racing venue in any jurisdiction . That is because such a limit is undefined

and effectively unenforceable .

60. The ACOE's third error is that it neglected to recognize that decibels are units on a

logarithmic scale. When the ACOE (erroneously) compared the Lime Rock limit of 89 dBA to a

limit of 92 dBA, it concluded that this 3 dBA difference was only a 3 .4% increase . That would be

true on a straight numeric scale. However, on a logarithmic scale, a sound measured at 92 dBA is

twice as (100 percent more) intense than a sound measured at 89 dBA, and would be heard as 23%

louder. Significantly, a sound measuring 99 dBA (as an instantaneous maximum) is 10 times

(1,000 percent) more intense than a sound measuring 89 dBA (as an instantaneous maximum) and

is heard as twice as loud . Not only has the ACOE incorrectly compared the applicant's proposed

"average" limit of 92 dBA to Lime Rock's instantaneous maximum limit of 89 dBA, but it also

understated the difference between those limits by virtue of the logarithmic nature of decibel

measurements.

61 . The ACOE's fourth error is that it 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." The Lime Rock facility is subject to the 89 dBA limit and there is no

information in the record that compliance with such a limit renders that facility unprofitable or

impracticable. In fact, it has been operating for many years subject to these noise restrictions. In

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short, the ACOE cited no evidence in the record that would justify imposition of a less restrictive

noise limit at the Tamworth facility than exists at the Lime Rock Park facility, particularly where

its own expert recommended that the Tamworth facility be subject to limits at least as stringent as

those at Lime Rock Park.

62. The ACOE appropriately recognized noise as a legitimate concern in consideration

of this permit application . The ACOE appropriately hired its own expert to address the issue .

However, when armed with the conclusions of its own expert, the ACOE approved a noise limit

proposed by MH completely at odds with the conclusions of ACOE's expert. Specifically, while

the ACOE's expert concluded that the Tamworth facility should be subject to "a track-side noise

limit that is at least as restrictive as that used at the Lime Rock Park facility", the ACOE approved

a noise limit that is effectively twice as loud as that at the Lime Rock Park facility . The ACOE

states that it was following the recommendations of its expert, when in fact just the opposite is

true.

63. The ACOE's decision to adopt the noise restriction proposed by the applicant MH,

which was directly at odds with the conclusion of the ACOE's own expert, constituted an abuse of

discretion and rendered the ACOE's decision arbitrary and capricious . As set forth above, the

ACOE was mandated by statute to impose "conditions under which [the proposed activity] will be

allowed to occur" following a balancing of "the benefits which reasonably may be expected to

accrue from the proposal . . . [and] its reasonably foreseeable detriment." Here, the ACOE

reached a decision directly counter to the evidence before it without explanation . When the

Plaintiffs' request for reconsideration, which set forth the information in paragraphs 43 to 62

above, presented the ACOE with an opportunity to explain the basis for a decision that wa s

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contrary to the evidence before it, it declined to do so, stating only that it "reaffirmed its permit

decision. "

64. For the foregoing reasons, the ACOE's decision to adopt the noise limitation

proposed by the Applicant MH was arbitrary, capricious, an abuse of discretion, and not otherwise

in accordance with law. On the basis of the evidence before it, which the ACOE accepted, the

ACOE was required to impose a noise limit at least as restrictive as that imposed at the Lime Rock

Park facility : a limit of 89 dBA on each vehicle as an instantaneous maximum measured 50 feet

from the source.

PRAYER FOR RELIEF

WHEREFORE, for the foregoing reasons, Plaintiffs pray that this Court grant the

following relief against the Defendants as follows:

A. Adjudge and declare that Defendants have violated Section 404 of the Clean Water

Act, 33 U.S.C. § 1344, and its implementing regulations;

B. Adjudge and declare that the ACOE's permit issued on August 26, 2005, allowing

Defendant MH to dredge and fill wetlands in connection with its construction of its motorsports

country club and racetrack, is unlawful, invalid, null and void ;

C. Remand this case to the Defendants for further administrative action to officially

suspend and/or revoke the permit pursuant to 33 C.F .R. § 325 . 7

D. Award the Plaintiffs their attorneys' fees, costs and other expenses in bringing this

action; and,

E. Grant such further relief as may be just and proper.

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Case 1:06-cv-00368-SM Document 1 Filed 10/02/06 Page 24 of 25
Respectfully submitted ,

Huntington and Caitriona B . Barclay, et al,

By Their Attorneys

RATH, YOUNG AND PIGNATELLI, PC

Dated: September 29, 2006

Dated: September 29, 2006

By : /s/ Andrew W. Serell

Andrew W. Serell (Bar No . 2298)

One Capital Plaza

P.O. Box 1500

Concord, NH 03302-1500

(603) 226-2600

aws@rathlaw.com

By : /s/ Tracy A . LaChance

Tracy A. LaChance (Bar No. 15592)

One Capital Plaza

P.O. Box 1500

Concord, NH 03302-1500

(603) 226-2600

tal@rathlaw.com

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