Barclay v. U.S. Army Corps Engineers 06-CV-368-SM 02/14/08 UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Huntington Barclay, et a l ., Plaintiffs
v. Civil No. 06-CV-368-SM Opinion No. 2008 DNH 037 The United States Army Corps of Engineers; L t . General Carl A Strock; Col. Curtis Phalken; and Motorsports Holdings. L L C , 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 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 J u d g m e n t .
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." Griqqs-Rvan v. Sm i t h . 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. 5 6 ( 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
2 Machinists & Aerospace Workers v. Winship Green Nursing C t r . , 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. § 7 0 6 ( 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 A g r i c u l t u r e . 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. V o l p e , 401 U.S. 402, 416 (1971). See also Adams v .
United States E P A . 38 F.3d 43, 49 (1st Cir. 1994) ("Under the
3 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 R t . 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
4 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'
5 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.
I d . (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
6 comply would be ordered off the course and exposed to possible
s a nction s .
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 I d . 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
r e s trict i o n s :
7 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 13 7.
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
8 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." Rl. 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 f e e t ) .
9 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. S e e , 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
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 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
11 [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 P a r k . 401 U.S. at 416,
and may be vacated only if "lack[s] a rational basis," A d a m s , 38
F.3d at 49, or is the product of a "clear error of judgment,"
D u b o i s . 102 F.3d at 1285. Here, the court cannot conclude that
12 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
13 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
w h a t s o e v e r .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
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. S e e , 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 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. S e e , 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
15 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
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 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 d B A ) . 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
17 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.
I d . 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
18 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
r e s trict i o n s .
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 u n l i m i t e d ) . The suggestion that the Corps should
not have approved any operating plan submitted by Motorsports
that included sound emissions above 8.9 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
19 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
enviro n m e n t .
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
20 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 p l a n ) . 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.
21 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.
Smeven J/ McAuliffe Chief Judge
February 14, 2008
cc: Andrew W. Serell, Esq. Laurel A. Bedig, Esq. Matthew R. Johnson, Esq.