Petition for Writ of Certiorari — McAfee v. Foster (No. 08-639)

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\r ) 08-639 Nov 12 208

No.___ OFFICE OF THE CLERK

In The

Supreme Court of the United States

Michael M. McAfee, d/b/a McAfee MX

Petitioner

Vs.

Rick Foster,

Phillip Fitzgerald

James and Sherri Estrada

Ray and Gabrielle Fletcher

Steve and Sandy Fairfield

Tim Hitchcock and Haden Cowdry

Respondents.

On Petition For Writ Of Certiorari

To the Court of Appeals,

Second District of Texas-Fort Worth

PETITION FOR WRIT OF CERTIORARI

Michael M. McAfee, Pro Se

8352 FM 902

Collinsville, Texas 76233

Telephone: (214) 543-1575

QUESTIONS PRESENTED

1) Does the Federal Noise Control Act (Noise

Control Act) of 1972, 42 U.S.C. 4901 et seg., imply a

private right of action independent of the rights

explicitly created by the citizen suit provision of the

Act, 42 U.S.C. 4911(a)?

2) Does a private citizen have standing to

maintain a federal common law nuisance action for

alleged damages sustained resulting from motorized

vehicle noise emissions as a general federal question

under 28 U.S.C. 1331?

3) If any federal common law nuisance action

exists for alleged damages sustained resulting from

motorized vehicle noise emissions, if available to a

private citizen, is not said action preempted by the

present regulatory scheme governing motorized

vehicle noise emissions established by the Federal

Noise Control Act (Noise Control Act) of 1972?

QUESTIONS PRESENTED - CONTINUED

4) Does a state abuse its police powers in

enjoining a private entity under a state common law

theory of nuisance when the plaintiffs unclean

hands are adjudged as unassigned error?

ap AP a -

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ill

PARTIES TO THE PROCEEDING

Petitioner (defendant and appellant below):

MICHAEL M. McAFEE d/b/a McAFEE MX, PRO SE

8352 FM 902, Collinsville, Texas 76233

Respondents (plaintiffs and respondents below):

RICK FOSTER

PHILLIP FITZGERALD

JAMES AND SHERRI ESTRADA

RAY AND GABRIELLE FLETCHER

STEVE AND SANDY FAIRFIELD

TIM HITCHCOCK AND HADEN COWDRY

Represented by Brian P. Lauten, Esq., THE

LAUTEN FIRM, 2626 Cole Avenue, Suite 850

Dallas, Texas 75204

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TABLE OF CONTENTS

Page

QUESTIONS PRESENTED. ..............ccccscecceccsceeees i

PARTIES TO THE PROCEEDING...................... ili

De ee I escctavccisccosivscccccccscvessvess iv

TABLE OF AUTHORITIES.......ccsccvesccsccccccssesesces vil

. CITATIONS FOR OPINIONS BELOW.................. 1

BASIS FOR JURISDICTION IN THIS COURT...... 1

CONSTITUTIONAL AND STATUTORY PROVI-

esti ntniscodtweresersersssensweve 1

STATEMENT OF THE CASE...............ccceceeessceeees 3

REASONS FOR GRANTING CERTIORARI........... 9

1. THIS COURT’S DECISIONS CLARIFY

WHEN A PARTY INVOKES FEDERAL

JURISDICTION UNDER THE WELL-

PLEADED-COMPLAINT RULE................. 12

2. THIS COURT’S DECISIONS CLARIFY

THAT NO PRIVATE RIGHT OF

ACTION EXISTS IN FEDERAL

STATUTES WORDED SIMILARLY TO

THE NOISE CONTROL ACT..................... 15

TABLE OF CONTENTS-Continued

3. THIS COURT’S DECISIONS CLARIFY

THAT A PRIVATE CITIZEN HAS NO

| STANDING TO MAINTAIN, IN THE

3 ALTERNATIVE, A FEDERAL

COMMON LAW NUISANCE ACTION

AS SAID ACTION IS PREEMPTED BY

THE REGULATORY SCHEME OF

FEDERAL STATUTUES WORDED

SIMILARLY TO THE NOISE

Ce Ish occiccgnscctacntcpuintbepiiedinatinrosesces 17

4. WHILE THIS COURT'S DECISIONS

CLARIFY THAT CLEAN HANDS IS

EQUITYS MAXIM, STATE COURTS

OF LAST RESORT ARE IN CONFLICT

AS TO REVERSAL ON UNASSIGNED

ERROR IN CIVIL SUITS WHERE

UNCLEAN HANDS EXIST........................ 21

5. FAILURE TO IMMUNIZE THE

ACTIONS AT ISSUE HERE WILL

CREATE PROBLEMS CONGRESS

INTENDED TO AVOID IN CREATING

THE NOISE CONTROL ACT............2........ 22

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TABLE OF CONTENTS-Continued

: Appendix A: Opinion of the Court of Appeals,

3 2-4 District of Texas-Fort Worth,

4 dated February 7, 2008 McAfee v.

: Foster, et al., (WL 3228008 (Tex.

Civ. App. — Fort Worth 2008))......App. 1

% Appendix B: Judgment of the Court of Appeals, 4

; 2 24 District of Texas (Fort Worth),

a dated February 7, 2008............. App. 16 4

Appendix C: Judgment of the state district :

court, dated December 19, 2006..App. 17 ;

Appendix D: Decision of the Texas Supreme

Court denying review, dated June

Appendix E: Decision of the Texas Supreme

Court denying rehearing, dated

FE - Bis Pe itantenncevtnsccecccess App. 23

Appendix F: Letter from Mr. Kenneth E.

Feith, Senior Scientist/Policy

Advisor, Environmental

Protection Agency,

dated February 27, 2007............ App. 24

i al a i i el a Bl Ne i. i oe ae Se i i il ll ee Li ee a Ma i

vii

TABLE OF AUTHORITIES

Page

CASES

Caterpillar v. Williams 482 U.S. 386 (1987).......... 13

Continental Coffee Products v. Cazarez,

937 S.W.2d 444 (Tex. 1996)............... densiensiel 9

Cort v. Ash, 422 U.S. 66 (1975)...............cceeeeeecees 21

English v. General Electric C., 496 U.S. 72 (1990)..18

Fidelity Fed. Sav. & Loan v. De La Cuesta,

EI el aS ee 18

Freightliner Corp. v. Myrick, 514 U.S. 280 (1995)..18

Geier v. American Honda Co., Inc.

BED GR: BOGS Ge ives ose cc sci c cscs scenes 18, 25

: Geopel v. National Postal Mail Handlers Union,

: 36 F.3d 306d (3d Cir. 1994).............:ceeeeeees 14

: Hillsborough County v. Automated Med. Labs, Inc., |

7 ee aie diidisinchdetnecevscesescosuse 25

F In re Murchinson, 349 U.S. 133 (1955)................. 22

4 International Paper Co. v. Quellette,

: WE CN incrccciicnccicceccsnicssenscscore 18

54 Keystone Driller Co. v. General Excavator Co.,

4 I vircrrcincsncdcccccesecevsesess 21

: Maddux v. Maddux, 475 N.W.2d 524 (1991).......... 22

4 Mapco, Inc. v. Forrest, 795 S.W. 2d 700

(Tex. 1990)........... es ass adatualll

f Middlesex County Sewerage Authority, et al., v.

4 National Sea Clammers Association,

; 453 U.S. 1 (1981).............. 12, 16, 17, 20, 20-21

OP OE ae pe ee ee ee iia

¥ - od , e ara

vill

TABLE OF AUTHORITIES-Continued

CASES

Pat Baker Co. v. Wilson, 971 S.W.2d 447

Te as 8, 22

Precision Instrument Mfg. Co. v. Automotive

Maintenance Machinery Co., 324 U.S. 806

ASRS ESAS Se ann oe PS EC 21

San Diego Bldg. Trades Counsel v. Garmon,

I Se iis coddnediidweninccseseceis 19

Silkwood v. Kerr-McGee Corporation, 464 U.S. 238

(EERE STOR ESSN ICO a ORD TCR OTT 19

Sivley v. Sivley, 972 S.W.2d 850 (Tex. App-Tyler

1998 orig. proceeding)..............c.scscsececccsceses a

State Bar of Texas v. Gomez, 891 S.W. 2d 243

SERS ICAI Ae a on a ae a eae s

Taylor v. Anderson, 234 U.S. 74 (1914).............006 14

Texas Association of Business v. Texas Air Control

Board , 852 S.W.2d 440 (Tex. 1993)............... 8

CONSTITUTIONAL PROVISIONS and STATUTES

Pe Nini ciindcnsvscsesscacsxedenceuescs passim

i . ccecennebeasionnaue 2-3, 23

~ Pouptpewts Amemdment,.........cccssccccccccsccccesccecs 3, 23

TER EOE Ee Drees. 1

I 11,14

REN rn ea RempE Omer Tenn, 8

TABLES OF AUTHORITIES-Continued

Page

CONSTITUTIONAL PROVISIONS and STATUTES

33 U.S.C. (& Supp. 1) §1251 ef seq............c0.0ee0e0e 12

33 U.S.C. (& Supp. 1) §1401 ef seg...........ccccceeeeee 12

ARIE ETS EEE aD 15 f

Ec okiintchcotnbsvedeeseacssssnetinanensevesibil 15 i

aii cxscavsevssecovsntevesonncstestnision +13

42 U.S.C. §4901 ef 8€q.,.......s0c0seees 10, 11, 15, 18, 23

MID oon... cccccccscnccscsesscrcesencens 19

ca semepuananseleninde 19 )

i. csc ccsncendcccsecdudenmete 19

irc icsicscnccccscccccccscccvsccsesscees 20

OT, BE AICI. once cccccccccccccsncccscces 20

42 U.S.C. $4906 Ca NCNGiD..............2.ccccccceseeseeee 20

ers a ccics cc sccccccccnscsscocscsesss 23-24

es a once scccoscccessccccescosecsseonees 23

42 U.S.C. §4905 (e)(2).......... PERCE SEO ESPON 5" 24

i abiddsdeonnenl 10, 17

PI goose Sacecccnscsenccccossccecnssessvessnnts 17

40 CFR 205.150 ef seq.,............0.0cce.000. 10, 11, 15, 18

Te a ea SOROS 24

Texas Civil Practice and Remedies Code,

ae 4

Ne I I FI a is cn cicncnnasidadabuibedasonniegail 4

CITATIONS FOR OPINIONS BELOW

The opinion of the state Court of Appeals

(Appendix A) is not reported but is found at (WL

3228008 (Tex. Civ. App. — Fort Worth 2008)). The

state trial court’s final judgment and permanent

injunction (Appendix B), the decision of the Supreme

Court of Texas denying review (Appendix C) and the

order of the Supreme Court of Texas denying the

petition for rehearing (Appendix D) were not

reported.

BASIS FOR JURISDICTION IN THIS COURT

The state Court of Appeals filed its opinion on

February 7, 2008. The Texas Supreme Court denied

petitioner’s petition for review on June 27, 2008 and

denied petitioner’s motion for rehearing on August

15, 2008. 28 U.S.C. §1254(1) confers jurisdiction on

this Court to review on writ of Certiorari the opinion

of the Court of Appeals, Second District of Texas-

Fort Worth.

CONSTITUTIONAL AND STATUTORY

PROVISIONS AT ISSUE

The underlying action was brought by the

petitioner pursuant to 42 U.S.C. §1983, which reads

as follows:

“Every person who, under color of any

statute, ordinance, regulation, custom,

or usage, of any State or Territory or the

District of Columbia, subjects, or causes

to be subjected, any citizen of the

United States or other person within

the jurisdiction thereof to the

deprivation of any rights, privileges, or

immunities secured by the Constitution

and laws, shall be liable to the party

injured in an action at law, suit in

equity, or proper proceeding for redress,

except that in any action brought

against a judicial officer for an act or

omission taken in such officer’s judicial

capacity, injunctive relief shall not be

granted unless a declaratory decree was

violated or declaratory relief was

unavailable. For the purposes of this

section, any Act of Congress applicable

exclusively to the District of Columbia

shall be considered to be a statute of the

District of Columbia.”

The petitioner alleges that the Respondents

Tenth Amendment: “The powers not

delegated to the United States by the

Constitution, nor prohibited to it by the

violated his rights under the Tenth and Fourteenth

Amendments to the United States Constitution, the

relevant parts of which read as follows:

States, are reserved to the States

respectively, or to the people.”

Fourteenth Amendment (Section L:

“All persons born or naturalized in the

United States, and subject to the

jurisdiction thereof, are citizens of the

United States and of the State wherein

they reside. No State shall make or

enforce any law which shall abridge the

privileges or immunities of citizens of

the United States; nor shall any state

deprive any person of life, liberty, or

property without due process of law; nor

deny to any person. within its

jurisdiction the equal protection of the

laws.”

. STATEMENT OF THE CASE

Petitioner owns and operated, prior to

Respondent’s being granting injunction, a unique

agricultural business operation which included a

public recreational motocross track and fish farm on

his property located in a rural, unincorporated area

of Cooke County, Texas. Respondents brought suit

at common law for equity, without claiming

monetary damages, in state district court in late

March 2006. Petitioners alleged the motocross track

to be a private and public nuisance and a nuisance

per se, and alleged violations of the Texas Penal

Code. In Respondent’s First Amended Petition of

May 4, 2006, Respondents additionally alleged

“E.P.A. (Environmental Protection Agency)

Violations”, specifying motorcycle engine noise

emissions were at issue. Petitioner argued that he

was not a nuisance, as he was of public benefit and

was operating a legal business not in violation of any

statue c. ordinance.

At pre-trial proceedings and at jury trial, the

record revealed that:

(1) while Respondents plead nuisance per se, they

plead no viable cause of action establishing

nuisance per se under §125 of the Texas Civil

Practice and Remedies Code;

(2) while Respondents plead public nuisance, that

Petitioner was never cited under Texas Penal

Code §42.01 for public nuisance, nor was ever

warned prior to possible citation, as required

by said statue:

(3) that the jury question spoke exclusively as to

whether Petitioner was a private nuisance to

Respondents;

(4)that Respondents’ expert witness relied

heavily upon “a 1977 EPA study that

concluded two ard four-stroke engines .. .

would harm the community when the noise

systematically exceeded fifty-five decibels”

App. 5.

(5) Petitioner repeatedly and_ consistently

objected to any and all federal subject matter

(E.P.A.) questions, testimony, arguments,

exhibits, etc. RR1 at 14; RR2 at 40; RR3 at

20, 55-58; and RRQ at 5, 28-37, 45, 64, 66, 68,

70-72, and 74.

After the jury trial, the state trial court judge

signed an order and judgment on December 19, 2006

in favor of Respondents, granting permanent

injunction. (Appendix C). Petitioner then filed a

timely motion for new trial.

During the hearing on said motion, Petitioner

offered into the record undisputed testimony by

Petitioner's expert witness that Respondents lacked

clean hands, as they had enhanced audio levels on

videotape entered into evidence at trial. RR13, at

31-34. Additionally, Petitioner attempted to enter

into the record correspondence from Mr. Kenneth E.

Feith, Senior Scientist/Policy Advisor for the E.P.A.’s

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| Office of Policy Analysis and Review in Washington

D.C. (Appendix F), which states in pertinent part:

“The A-weighted 55 decibel (55 dBA)

sound level represents a “time

averaged,” continuous sound that is

measured over a specified time period,

generally 24 hours. This level is

referred to as the “Equivalent Sound

Level” (Leq). And is a single number

value that contains all variations in

sound amplitude that occur during the

specified time period. Consequently, a

Leq 55 dBA may contain peak levels in

excess of 100 dBA as well as low levels

of 20 dBA that when time averaged

result in the 55 dBA. This is explained

in detail in the referenced document.

It should be noted that the EPA

document does not mandate community

noise limits. The levels stated therein

are the result of a national noise survey

where community noise levels were

measured and then correlated with the

response of persons exposed to the

noise. The 55 dBA does not represent a

level of noise that poses a health or

safety risk to the public. Rather, it

represents the “time averaged” noise

level where the average person will

express some level of annoyance.” App.

25-26.

The state trial court dismissed _ this

correspondence as hearsay, and denied Petitioner's

motion.

In January 2007 Petitioner filed a timely

appeal with the (Texas) Second Court of Civil

Appeals in Fort Worth. The Court of Appeals

rendered its judgment and issued a Memorandum

Opinion in favor of Respondents on February 7, 2008

(Appendix A) and subsequent judgment (Appendix

B). .

Of particular note is footnote 21 in the Court

of Appeals opinion:

“McAfee also argues _ that

appellees should not have been granted

equitable relief because they lacked

clean hands. James Appleton, an expert

in forensic video and audio analysis,

testified in a bill of exception at the

hearing on McAfee’s motion for new

trial that the audio on appellees’ DVD

showing their sound readings had been

altered. McAfee, however, does not

argue that the trial court improperly

denied his motion for new trial; thus we

do not address this argument. See Pat

Baker Co. v. Wilson, 971 S.W.2d 447,

450 (Tex. 1998) (holding that appellate

court cannot reverse a trial court’s

judgment on unassigned error).” App.

10-11.

In February 2008 Petitioner filed a timely

motion for rehearing with the Court of Appeals,

which was denied on March 6, 2008. Petitioner then

filed a timely moticn with the Court of Appeals to

challenge subject matter jurisdiction by federal

questions and preemption on March 25, 2008.

The basis of Petitioner’s action continuing his

questioning subject matter jurisdiction, and for the

jurisdiction of the Court of Appeals, is well grounded

in the Tenth and Fourteenth Amendments, 28

U.S.C. §1343(3), and Texas case law. Texas

Association of Business v. Texas Air Control Board,

852 S.W.2d 440, 443-446 (Tex. 1993); State Bar of

Texas v. Gomez, 891 S.W.2d 243, 245 (Tex, 1994);

Sivley v. Sivley, 972 S.W.2d 850, 855 (Tex. App-Tyler

1998, orig. proceeding); Continental Coffee

Products Co. v. Cazarez; 937 S.W.2d 444, 449 n.2

(Tex. 1996); Mapco, Inc. v. Forrest, 795 S.W.2d 700,

703 (Tex. 1990).

As Petitioner had not received a reply from

the Court of Appeals as to his motion to challenge

subject matter jurisdiction, and the planetary power

of said court was set to expire, Petitioner filed a

timely Petition for Review to the Supreme Court of

Texas on May 20, 2008. Two days thereafter on May

23, 2008, the Court of Appeals ruled against

Petitioner’s motion.

The Supreme Court of Texas denied

Petitioner’s Petition for Review on June 27, 2008

(Appendix D). On July 11, 2008 Petitioner filed a

timely motion for rehearing, which was denied

August 15, 2008 (Appendix E).

REASONS FOR GRANTING CERTIORARI

Petitioner asserts that the State of Texas has

violated his constitutional rights under the 10% and

14% amendment through abuse of its police powers;

in acting upon issues involving federal questions and

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which is subject to federal preemption. Petitioner

asserts that Respondents’ specifying “E.P.A.

Violations” in their well-pleaded complaint under the

color of state law circumvents the federal questions

raised under 42 U.S.C. §4901 et seq., (Noise Control

Act of 1972) and the subsequent regulatory scheme

established by Congress for motorized vehicle noise

emissions under 40 CFR §205.150, et seg. Petitioner

asserts that Respondents have no standing in a state

forum to ask questions regarding motorized vehicle

noise emissions, unless a private right of action

exists, separate from the Noise Control Act’s citizen's

suit provision, 42 U.S.C. §4911(a). Petitioner also

asserts that Respondents may not alternatively file a

federal common law nuisance action, as Congress

has preempted the field of motorized vehicle noise

emissions. While this Court has answered these

questions regarding numerous other federal

statutes, it has not done so in reference to the Noise

Control Act.

Petitioner additionally asserts that as

Respondents’ entire cause of action turned upon

evidence which Petitioner's expert witness’

undisputed testimony showed to be an act of

Respondents’ unclean hands, though adjudged

unassigned error by the state Court of Appeals (App.

10), merits review by this Court; as (1) it is well

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PE PO ORF eh PEA AN 2 re FR PIA POS. Oe Oe OPE ee a Aa Bt a ee eee rs

established that clean hands is equity’s maxim, and

(2) that state courts of last resort are in direct

conflict as to whether said court may reverse in civil

cases where unassigned error exists.

This case this unambiguously presents basic

questions as to whether private common law

nuisance actions, when said alleged nuisance arises

from motorized vehicle noise emissions, must be

heard in a federal forum:

1) Does a private right of action exist under

42 U.S.C. §4901 et seg., independent of the

citizen’s suit provisions of said act?

2) May private citizens file a federal common

law nuisance action for alleged damages as

a general federal question under 28 U.S.C.

§1331?

3) If a private citizen files such an action, is

| not said action preempted by the

regulatory scheme established by Congress

| under 42 U.S.C. §4901 et seg. and 40 CFR

| §205.150 et seg.?

This case also unambiguously presents an

additional question worthy of review by this Court:

Oe ee SD Vp as Te ee a ee ge a, ae ek eek ee ee en) Ones - A

Does a state deny equal protection when it

does not grant reversal in a civil case where

plaintiffs unclean hands exists, but is adjudged as

unassigned error?

While this Court has decided Petitioner’s first

three questions as they relate to Acts of Congress

from the same historical period; e.g., the similarly

crafted Federal Water Pollution Control Act (Clean

Water Act) 33 U.S.C. (& Supp. 1) 1251 et seg. and

the Marine Protection, Research, and Sanctuaries

Act of 1972 33 U.S.C. (& Supp. 1) 1401 et seq.,

Middlesex County Sewerage Authority, et al. v.

National Sea Clammers Association, et al. 453 U.S.

1; it has not spoken to these questions as they relate

to 42 U.S.C. §4901 et seg. Petitioner humbly asserts

that it is for this Court to decide these important

issues of federal law.

1. THIS COURTS DECISIONS CLARIFY

WHEN A PARTY INVOKES FEDERAL

JURISDICTION UNDER THE WELL-

PLEADED-COMPLAINT RULE

Petitioner asserts that Respondents’ plea of

“E.P.A. Violations” calls for response in a federal

forum, as Respondents failed to rely solely on state

{

ill

law. Count Two on the face of Respondents’ 1%

Amended Petition of May 4, 2006, under the heading

“Count two: NUISANCE PER SE/CRIMINAL AND

E.P.A. VIOLATIONS” states in pertinent part:

“Specifically, the E.P.A. has adopted regulations

with respect to motorcycle noise and recognizes that

noise in excess of fifty-five decibels harms the public

health, safety, and welfare.” This Court has held

that “federal jurisdiction exists only when a federal

question is presented on the face of the plaintiffs

properly pleaded complaint” Caterpillar v. Williams

482 U.S. 386 (1987) and “The [well-pleaded-

complaint] rule makes the plaintiff the master of the

claim; he or she may avoid federal jurisdiction by

exclusive reliance on state law” Jd. The issue here is

simple and clear. Either Petitioner committed some

‘E.P.A. violation’, or he did not. But when

Respondents plead as a cornerstone of their state

common law case, a claim of “E.P.A. Violations”, the

question becomes one which Petitioner asserts a

state court may no longer adjudicate. Respondents

have succeeded in an artful pleading by not

mentioning the Noise Control Act; but then trying to

hide behind the coattails of state common law to ask

a state court if an ‘E.P.A. Violation’ concerning

motorized vehicle noise emissions has_ been

committed. A plaintiff cannot disguise as a state

claim a cause of action that is necessarily federal in

— a. Ce.

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_— | oe

nature. Geopel v. National Postal Mail Handlers

Union, 35 F3d 306 (3d Cir. 1984). This Court has

understood for nearly 100 years that:

“whether a case is one arising under the

Constitution or a law or treaty of the

} United States, in the sense of the

3 jurisdictional statutel,] . . . must be

determined from what necessarily

; appears in the plaintiffs statement of

; his own claim in the bil. or declaration,

| unaided by anything alleged in

anticipation of avoidance of defenses

which it is thought the defendant may

interpose.” 7aylor v. Anderson, 234 U.S.

74 (1914).

Petitioner asserts that this Court, not a state

court, has the authority under 28 U.S.C. §1331 and

Article VI, Section Two of the U.S. Constitution to

decide this, or any other issue involving exercise of

federal powers. What ultimately is at issue is

whether Petitioners have standing to file a private

right of action in the state forum they have chosen,

out of a private right of action granted by federal

authority. If not, then one question remains: may

Petitioners file a federal common law nuisance

action, or is such action preempted by the federal

regulatory scheme in 42 U.S.C. §4901 et seg. and 40

CFR §205.150 et seg.? Only this Court can decide

these important questions.

2. THIS COURT'S DECISIONS CLARIFY THAT

NO PRIVATE RIGHT OF ACTION

EXISTS IN FEDERAL STATUTES

WORDED SIMILARLY TO THE NOISE

CONTROL ACT

Petitioner looks to the wording of the citizen’s

suit provision of the Clean Water Act, 33 U.S.C.

§1365(a) and the savings clause of the Clean Water

Act, 33 U.S.C. §1365(e), and compares them to their

respective counterparts in the Noise Control Act, 42

U.S.C. 4911(a) (citizen’s suit provision) and 42

U.S.C. 4911(e) (savings clause). The wording of the

two citizen’s suit provisions are nearly identical and

the wording of the two savings clause(s) are identical

verbatim. This Court, in Middlesex, clarified

Congressional intent in the wording of the Clean

Water Act’s (and Marine Protection, Research and

Sanctuaries Act’s) citizen’s suit provision and

savings clause:

“These Acts contain unusually elaborate

enforcement provisions, conferring authority to sue

for this purpose both on government officials and

private citizens.” Middlesex, at 13. “These citizen-

suit provisions authorize private persons to sue for

injunctions to enforce these statutes.” J/d., at 14.

“In view of these elaborate enforcement

provisions it cannot be assumed that

Congress intended to authorize by

implication additional judicia] remedies

for private citizens suing under the

MPRSA and FWPCA. As we stated in

Transamerica Mortgage Advisors,

supra, “It is an elemental canon of

statutory construction that where a

statute expressly provides a particular

: remedy or remedies, a court must be

chary of reading others into it.” 444

U.S., at 19, 100 S. Ct., at 247. See also

Touche Rosss & Co. v. Redington,

supra, at 571-574, 99 S. Ct. at 2486-

- - 2488. In the absence of strong indicia

of a contrary congressional intent, we

are compelled to conclude _ that

Congress’ provided precisely the

remedies it considered appropriate.”

Id., at 14-15.

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“Where, as here, Congress has made

clear that implied private actions are not

contemplated, the courts are not authorized

to ignore this legislative judgment.” Jd, at

18.

“We hold that there is no implied right of

action under these statutes...’ Jd, at 11.

Petitioner does not desire to bore this Court

with a rehashing of Middlesex. He simply asserts

that this Court’s careful reasoning in Middlesex

logically should be applied to the Clean Water Act’s

sister legislation; the similarly worded Noise Control

Act. Petitioner again asserts that no right of action,

save the citizen’s suit provision of said Act at 42

U.S.C. 4911(a), with the proper 60-day notice as

required by 42 U.S.C. 4911(b), is available to any

litigant making a claim of “E.P.A. Violations”

pertaining to motorized vehicle noise emissions.

3. THIS COURT'S DECISIONS CLARIFY THAT

A PRIVATE CITIZEN NO HAS STANDING

TO MAINTAIN, IN THE ALTERNATIVE, A

FEDERAL COMMON LAW NUISANCE

ACTION AS SAID ACTION IS PREEMPTED

BY THE REGULARTORY SCHEME OF

FEDERAL STATUTES WORDED

SIMILARLY TO THE NOISE CONTROL ACT

. —— Ta

Petitioner asserts that Congress’ has

preempted the field of two and _ four-stroke

motorcycle engine noise emissions under 42 U.S.C.

§4901, et seg., and its regulatory scheme, 40 CFR

§205.150 et seg. Article VI, Section Two of the U.S.

Constitution (Supremacy Clause) gives Congress

preemptive power over any state law conflicting with

the exercise of federal power, and this Court has

spoken accordingly. Fidelity Federal Savings & Loan

v. De La Cuesta, 458 U.S. 141, 152-153 (1982). This

Court has stated that state law may be preempted

by explicit, field, and conflict preemption. English v.

General Electric C., 496 U.S. 72 (1990). This Court

has stated that under field preemption, state law is

preempted when it regulates conduct in a field that

Congress intends the federal government to occupy

exclusively. Jnternational Paper Company v.

Ouellette 479 U.S. 481, 492 (1987) and “federal law

or regulations may impliedly preempt state law or

regulations in the state’s scope’ indicates that

Congress intended federal law or regulations to

occupy the ffield exclusively.” Freightliner

Corporation v. Myrick, 514 U.S. 280, 287 (1995).

Even if Congress does not completely occupy a given

regulatory field, state law is preempted to the

extent it conflicts with federal law. Geler v.

American Honda Co., Inc., 120 S. Ct. 1913, 1920

(2000).

BAe ge CN ee Re Peo

A i eg on VED al

This Court has stated that any state law (to

include claims under state law) is a form of

regulation subject to the Supremacy Clause. Jd. at

1928; San Diego Building Trades Counsel v.

Garmon, 359 U.S. 236, 247 (1959). It does not

matter whether the ‘state law is a_ statute,

ordinance, common law, or tort law; it is preempted

when such state standard is in conflict with the

objectives of the federal law. Jc’ Silkwood v. Kerr-

McGee Corporation, 464 U.S. 238, 256 (1984).

Congress has made clear its intent to preempt

the field of motorized vehicle engine noise:

1) “the Congress finds” it is a “major source

of noise” 42 U.S.C. §4901(a)(2)

2) “Federal action is essential to deal with

major noise sources in commerce control of

which require national uniformity of

treatment” 42 U.S.C. §4901(a)(3)

3) “The Congress declares that it is the policy

of the United States to promote an

environment for all Americans free from

noise that jeopardizes their health or

welfare” 42 U.S.C. §4901(b)

a ‘ sy

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;

4) in “authorizling] the establishment of

Federal noise emission standards for

products distributed in commerce” /d.

5) by declaring “The Administrator shall...

publish information on the levels of

environmental noise the attainment and

maintenance of which in defined areas

under various conditions are requisite to

protect the public health and welfare with

an adequate margin of safety” 42 U.S.C.

§4904 (a)(2); and

6) specifically includes “Transportation

equipment (including recreational vehicles

and related equipment)” and “any engine

or motor” thereof 42 U.S.C.

§4905(a)(1)(C)(ii) and (iii).

Petitioner again points to this Court’s decree

in Middlesex, “Finally, the Court of Appeals failed to

take account of the rest of the enforcement scheme

expressly provided by Congress....” Middlesex, at17.

Applying the four-factor test this Court established

in Cort v. Ash 422 U.S. 66, 78, 95 to the Noise

Control Act, it becomes clear why this Court

concluded, regarding the Clean Water Act that“...

the federal common law of nuisance has been fully

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feck en dee Be thd MO a a ee

pre-empted in the area of ocean _ pollution.”

Middlesex, at 11. Petitioner thus asserts that the

federal common law of nuisance has been fully

preempted in the area of motorized vehicle noise

emissions.

4. WHILE THIS COURTS DECISIONS

CLARIFY THAT CLEAN HANDS IS

EQUITYS MAXIM, STATE COURTS OF

LAST RESORT ARE IN CONFLICT AS TO

REVERSAL ON UNASSIGNED ERROR

WHERE UNCLEAN HANDS EXIST

The doctrine of clean hands is so well

established that Petitioner need only to restate the

maxim that “he who comes into equity must come

with clean hands” and cite the appropriate cases

decided by this Court: Precision Instrument Mfg.

Co. v. Automotive Maintenance Machinery Co., 324

U.S. 806 (1945); Keystone Driller Co. v. General

Excavator Co., 290 U.S. 240 (1933).

The state Court of Appeals Memorandum

Opinion states it cannot grant equitable relief to

Petitioner, by granting his motion for new trial, as

they proclaim Respondents’ unclean hands to be

unassigned error; and that an appellate court in

Pe Pe ae eT Pane a peer Bw e, tt 4 oe ee Raed ~

Texas “cannot reverse a trial court’s judgment on

unassigned error.” Pat Baker Co., App. 10-11.

Petitioner would show this Court that at least

one state court of last resort that has taken the

completely opposing position concerning reversal for

unassigned error in civil cases. Maddux v. Maddux,

475 N.W.2d 524 (1991) involves a non-custodial

parent’s failure to pay child support. In this case,

the Supreme Court of Nebraska stated:

“The Supreme Court always reserves

the right to correct error unassigned or

uncomplained of but which is plainly

evident from the record and

prejudicially affects a _litigant’s

substantial right, and which if left

uncorrected would result in a

miscarriage of justice or damage the

: integrity, reputation, and fairness of the

judicial process, regardless of whether

the error was raised at trial or on

appeal.” Maddux, at 526.

This Court has stated that “[a] fair trial in a

fair tribunal is a basic requirement of due process.”

In re Murchinson, 349 U.S. 133, 136 (1955).

;

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Petitioner asks this Court whether two courts

of last resort, coming to diametrically opposing

conclusions concerning reversal for unassigned error

in civil cases, is permissible under the powers

granted the states by the 10% Amendment, or a

violation of equal protection rights granted U.S.

citizens by the 14 Amendment.

5. FAILURE TO IMMUNIZE THE ACTIONS AT

ISSUE HERE WILL CREATE PROBLEMS

CONGRESS INTENDED TO AVOID IN

CREATING THE NOISE CONTROL ACT

If the Respondent’s conduct at issue in this

action is not made subject to federal, and not state

authority, then litigants disliking any motorized

vehicle noise emissions above 55 dBA will build upon

this precedent. Using claims of “E.P.A. Violations”

and the studies authorized under 42 U.S.C. §4901 et

seq.; Respondents would hide under the color of state

law in a state common law nuisance action, to meet

their ends in the absence of a defendant’s violation of

state statute or ordinance. Respondents’ tactic, if

allowed to stand, becomes an attempt to ‘legislate by

litigation’ and create a new scheme more restrictive

than, and contrary to, Congressional intent. 42

U.S.C. §4905(e)(1)(A) makes clear that:

ee rg RN OP ED AE LE ae EE ah OO RE Re ee fe re So) ey ee ee

“No state or political subdivision

thereof may adopt or enforce . . . with

respect to any new product for which a

regulation has been prescribed by the

Administrator under section, any law

or restriction which sets a limit on

noise emissions from such new product

and which is not identical to such

regulation of the Administrator”

But the State of Texas has allowed

Respondents to set such new, non-identical limits,

more restrictive than those established under the

authority of the Noise Control Act, (at 40 CFR

§205.152 for two and four-stroke motorcycle

engines). While 42 U.S.C. §4905(e)(2) says that

states may “establish and enforce controls on

environmental noise (or one or more sources thereof)

through the licensing, regulation, or restriction of

the use, operation, or movement of any product or

combination of products”, they may only do so when

said statute, regulation, etc., is not in conflict with

existing federal statutes or regulatory schemes.

Respondents’ tactic ultimately makes’ every

motorized vehicle noise emission subject to their

new, 55 dBA “law”. This is certainly not Congress’

intent, as it would increase product’ costs

dramatically and _ discourages technological

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development. “If a state law is an obstacle to the

accomplishment and execution of the full purpose

and objective of Congress by interfering with the

methods employed in the federal scheme, the state

law is preempted.” Gejer, at 1921. The State of

Texas has made it impossible for Petitioner, or

anyone with a motorized vehicle, to comply with the

existing federal regulatory scheme and the “new”

scheme the states has created. This Court has

stated that a state law is preempted if the regulated

party cannot comply with both the state and federal

regulation. Hillsborough County v. Automated

Medical Labs, Inc. 471 U.S. 701, 713 (1985).

CONCLUSION

The decision of the Texas Supreme Court, in

denying review of the opinion of the Texas Second

Court of Appeals-Fort Worth, opens a wide door for

anyone using the Respondents’ theory to file an

action for nuisance under state common law where

motorized vehicle engine noise exceeds 55 dBA.

Without instruction from this Court, all purchaser's

of federally approved motorized vehicles are subject

and vulnerable to legal action based upon the new

standard establish by Respondents’. This is outside

the scope intended by Congress and subjects said

purchasers of otherwise federally approved products

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to unequal protection under’ the law.

The true nuisance is the undermining and

circumventing by states of Congressional intent and

preemption in this field. Only this Court can decide

whether this door shall remain open. Accordingly,

Petitioner most humbly and respectfully urges this

Court to grant this petition for writ of certiorari.

DATED: November 11, 2008

Most Humbly & Respectfully submitted:

/S/; Michael M. McAfee, Pro Se

ve EE PE te Ae ee LN fa eet BAP ee Oe On ER ep ee I Oe ed a Ee EES RL Ee ln ee ag oe a ee eee Pt <

App. 1

COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-07-00080-CV

MCAFEE MX D/B/A MCAFEE APPELLANTS

MOTO CROSS AND

MICHAEL M. MCAFEE

| V.

RICHARD FOSTER,PHILLIP APPELLEES

FITZGERALD,JAMES AND

SHERRI ESTRADA, RAY AND

GABRIELLE FLETCHER, STEVE

AND SANDY FAIRFIELD, TIM

HITCHCOCK, AND HADEN COWDRY

FROM THE 235TH DISTRICT COURT

OF COOKE COUNTY

MEMORANDUM OPINION !

Appellants McAfee Mx d/b/a McAfee Moto

Cross and Michael McAfee (collectively, “McAfee”)

appeal from the trial court’s final judgment and

permanent injunction. We affirm.

1 See TEX. R. APP. P. 47.4.

CS ET SE FY Se OE el ee a ee eee

App. 2

McAfee operated a motorcross course on his

land near Gainesville, Texas. The course consisted

of two tracks—one for adults and one for children—

and ran four days a week from 9 a.m. or noon until

dusk. Richard Foster, Phillip Fitzergerald, James

and Sherri Estrada, Ray and Gabrielle Fletcher,

Steve and Sandy Fairfield, Tim Hitchcock, and

Haden Cowdry (collectively, “appellees”) are

McAfee’s neighbors, residing or working within 1100

feet of McAfee’s property. In 2006, appellees sued to

permanently enjoin McAfee from operating the

motocross course, claiming it was a nuisance due to

the excessive noise and dust it produced, among