NEW HAMPSHIRE: Group wants federal judge to hear 'unenforceable' motorcycle noise case

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http://www.seacoastonline.com/apps/pbcs.dll/article?AID=/20101117/NEWS/101119803/-1/NEWSMAP Group wants federal judge to hear 'unenforceable' motorcycle noise case - 11/17/2010

Portsmouth attorney Bob Shaines, center, stands with Dave Hickey, left, of Rye and Bill Mitchell of New Castle. Mitchell wants to make a federal case about his fight against motorcycle exhaust noise. Rich Beauchesne file photo By Elizabeth Dinan edinan@seacoastonline.com November 17, 2010 2:29 PM NEW CASTLE — Bill Mitchell wants to make a federal case about loud motorcycles.
Recent founder of the group New Hampshire Citizens Against Loud Motorcycles, the New Castle resident has instructed the group's attorney to attempt to have a motorcycle noise case heard by a federal judge.
"The dispute involves a federal statute and should, in our opinion, be judged in the Federal Circuit Court," said Mitchell.
The underlying dispute currently exists as a Rockingham County Superior Court lawsuit filed by Seacoast Harley Davidson in opposition to a new North Hampton ordinance regulating decibel levels emitted by motorcycles. The ordinance requires a federal Environmental Protection Agency sticker on all motorcycles manufactured after 1982, which indicates decibel levels don't exceed 80. That level is lower than the state of New Hampshire's level of 106 decibels.
In its lawsuit, the dealership asks the court to file a restraining order barring North Hampton from enforcing the motorcycle noise ordinance, to declare that state law trumps the local ordinance in terms of motorcycle noise and to award attorney's fees.
NH CALM has joined North Hampton in defending the suit, but the town isn't interested in taking it to a higher court.
A Nov. 15 email distributed to NH CALM members and written by North Hampton's attorney Matthew Serge says the town "does not assent to moving this matter to federal court." The email does not offer an explanation and Serge's office told the Herald on Wednesday that he was unavailable for comment.
Mitchell reminded that North Hampton Police Chief Brian Page called the ordinance unenforceable and, Mitchell believes, "the attitude of the town has been let's make this thing go away."
“The town ordinance is trying to circumvent state law and is not enforceable,” Page told the town's selectmen in June. “It would be ridiculous for me to direct my men to enforce it.”
NH CALM on the other hand hopes to get a federal ruling in support of the local ordinance and, said Mitchell, "make sure it's enforced."
"We all bought on to the strategy," to fund Portsmouth attorney Robert Shaines' legal fees to take the case to the federal court, he said.
Funding has come from donations, which Mitchell said "are getting a little thin" as a result of paying Shaines about $1,500 a month. To ramp up support, flyers are being prepared for New Castle residents and NH CALM members plan to meet with newly-elected lawmakers, he said.
Mitchell was so annoyed by loud motorcycles roaring past his home that he used his own money to buy the town's police department a decibel meter last year. He later learned it takes three officers to take an accurate decibel reading from a stopped motorcycle, so he founded NH CALM. The group is legally formed as a corporation, retained Shaines and its goal is to raise awareness, publicity and legal defense funds.
The North Hampton Harley dealership claims in its suit that the ordinance bans from town any motorcycles without an EPA label on its exhaust system, "even though the motorcycles comply with the state's noise level limit of 106 decibels."
"The ordinance has the effect of making the majority of Seacoast's (Harley dealership) entire used motorcycle inventory illegal," according to the suit.
The Harley dealership also notes that aftermarket exhaust pipes, which are popular among Harley owners, also do not have EPA stickers.
Earlier this year, the N.H. House killed a bill that would have mandated EPA stickers on motorcycle pipes as "inexpedient to legislate." Mitchell wrote to legislators urging them to enact the proposed law.
"For too long the citizens of New Hampshire have had to endure the outrageous racket caused by improperly muffled motorcycles," he wrote in January. "There is no justification in this day and age of environmental enlightenment to permit this noise pollution, or for allowing a minority to infringe on the rights of the majority to peace and quiet."
The bill was sponsored by state Rep. Judith Day (D-North Hampton) who has since joined NH CALM.

Since then, Page, the county attorney and a N.H. Local Government Center attorney all stated publicly that the North Hampton ordinance is not enforceable.

Mitchell said Day's husband Larry Miller, outgoing state Rep. David Borden (D-New Castle) and several Rye residents have joined NH CALM. And while there is a Maine CALM organization, also in opposition to motorcycle noise, Mitchell said it is not affiliated and, unlike NH CALM, not incorporated.

Contributions can be mailed to NH CALM, P.O. Box 358, Dover, NH 03821.