NEW HAMPSHIRE: Judge: Motorcycle noise case can't be heard in federal court Group ordered to repay dealership's legal fees

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www.seacoastonline.com/articles/20110207-NEWS-110209827

Judge: Motorcycle noise case can't be heard in federal court Group ordered to repay dealership's legal fees..
By Elizabeth Dinan mailto:edinan@seacoastonline.com 
February 09, 2011

CONCORD - The state's federal court declined to hear a motorcycle noise dispute, remanded the case back to Rockingham County Superior Court and ordered motorcycle noise opponents to pay a Harley-Davidson dealership's legal fees.
By order dated Feb. 4, U. S. District Court Judge Landya McCafferty ruled that a case filed by New Hampshire Citizens Against Loud Motorcycles belongs in the superior court, not the federal court as NH CALM had argued. New Castle resident and NH CALM founder Bill Mitchell previously told the Herald the dispute involves a federal statute and should be judged in the Federal Circuit Court.
The federal judge disagreed Friday on the basis that NH CALM intervened in the case involving Seacoast Motorcycles and the Town of North Hampton. Because the town did not join NH CALM in its motion to have the case heard in the federal court, the judge wrote, the court lacked jurisdiction over the dispute.
"Without formally analyzing the issue, the court observes that NH CALM's claim for federal-question jurisdiction appears to be exceptionally weak," wrote Judge McCafferty..
The judge also ordered NH CALM to pay Seacoast Motorcycles' attorneys fees in an amount to be determined within 20 days.
The underlying dispute involves a Superior Court lawsuit filed by Seacoast Motorcycles in opposition to North Hampton's new 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 106-decibel requirement.
In its suit, the dealership asks the court to file a restraining order preventing 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.
North Hampton Police Chief Brian Page has called the ordinance unenforceable.
"The town ordinance is trying to circumvent state law and is not enforceable," he told the town's Select Board in June of 2010. "It would be ridiculous for me to direct my men to enforce it."
Mitchell was so annoyed by loud motorcycles roaring past his home, he used his own money to buy New Castle'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 legally formed as a corporation, retained Portsmouth attorney Robert Shaines and its goal is to raise awareness, publicity and legal defense funds.
The Harley dealership claims in its suit that the ordinance bans motorcycles from town without EPA labels on exhaust systems, "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 after-market exhaust pipes, which are popular among Harley owners, also do not have EPA stickers.
Last year the N.H. House killed a bill that would have mandated EPA stickers on motorcycle pipes as "inexpedient to legislate." The bill was sponsored by state Rep. Judith Day, D-North Hampton, who has since joined N.H. CALM.