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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2008

## Text

S
“rem tt U.S.

\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?

ii
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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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

Vv

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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vi

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

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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

1x

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:

2

“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:

ie

3

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;

5

(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

7

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

8

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);

9

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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10

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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11

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

12

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

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13

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

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14

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

15

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

16

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

17

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

18

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).

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21

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 ~

22

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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23

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

24

“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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25

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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26

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

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App. 6

the noise receives notice from a magistrate or peace
officer that the noise is a public nuisance.”!© Fann
concluded that twenty or more motorcycles a day on
the tracks would exceed the eighty-five decibel
benchmark “on a regular basis,” and one of the
loudest bikes would surpass eighty-five decibels even
at a distance of 1422 feet.11 Officer Toby Bean’s
testimony that he received a sound reading of
ninety-six decibels from the tracks corroborated
Fann’s conclusions, and the jury saw a DVD made by
appellees showing sound readings in the sixty and
seventy decibel range.

McAfee testified that he did not think
motorcycles were loud, and another witness denied
having any difficulty carrying on a conversation
while visiting the tracks. Further, McAfee presented
expert testimony that controverted appellees’ expert
to some extent.!2

10 See Tex. Penal Code Ann. 42.01(a)(5), (c) (2) (Vernon
2003 & Supp. 2007).

'!The number of motorcycles on the track on any given
day varied, but McAfee claimed he did not allow more than
forty riders on the track at a time. Officer Toby Bean recalled
seeing twenty or thirty motorcycles at the track when he was
there, and one weekend in August 2005 brought a total of 132
motorcycles to the track.

12 McAfee’s expert Kevin Ware testified that when
measuring sound, a time-weighted average is more accurate
than an instantaneous reading because sound levels fluctuate,
and noise ordinances are based on time-weighted averages.
Ware surmised that the measurements appellees recorded with
their sound meter were instantaneous readings.

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App. 7

In sum, appellees presented testimony that
McAfee’s motocross’ activities substantially
interfered with their use and enjoyment of their land
by causing unreasonable discomfort and annoyance
to them, and they offered expert testimony
supporting this testimony. Applying the
appropriate standards of review, we hold that the
evidence was both legally and factually sufficient to
support the jury’s nuisance finding. Accordingly, we
overrule McAfee’s first and second points.

In his third point, McAfee argues that the
trial court erred in granting a permanent injunction
because the trial court’s balancing of the equities
was not supported by legally or factually sufficient
evidence.

Abatement of a lawful business is a harsh
remedy, and even when the jury finds that a
nuisance exists, the trial court should balance the
equities in order to determine if an injunction is
appropriate.'* The trial court should consider injury
that may result to the defendant or the public by
granting the injunction as well as injury suffered by
the plaintiffs if the injunction is denied.'4 Public
convenience or necessity, economic burden to the
defendant, and the

13 Storey v. Cent. Hide & Rendering Co., 148 Tex. 509,
514-15, 226 S.W. 2d 615, 618-19 (1950); Lee v. Bowles, 397 S.W.
2d 923, 926-27 (Tex. Civ. App.—San Antonio 1965, no writ):
Fargason v. Econ. Furniture, Inc., 356 S.W. 2d 212, 215 (Tex.
Civ. App.—Austin 1962, writ refd n.r.e.).

4 Storey, 148 Tex. At 514-15, 226 S.W. 2d at 618-19.

FI a Le ee OL ee eee ee Oe eR NN ET em A a ew Se Fe Nee Gate Oe 1 ESP ee Sees TOR,

App. 8

Adequacy of a legal remedy may affect this
balance.'5 An injunction against the nuisance may
issue where the injury to the defendant and the
public is slight or disproportionate to the injury
suffered by the plaintiffs because of the nuisance.'®
We review the trial court’s decision whether to issue
an injunction for an abuse of discretion.!’

McAfee claimed that the motocross course was
his sole source of income. He reported a business
income loss of $11,847.00 on his 2004 income tax
return, however, and declared the property
“agriculture.”!§ Further, in the past McAfee
operated a fish business on the property without
producing excessive noise.

The evidence showed that families came to
McAfee’s course and enjoyed the motocross sport
together. One witness stated that since McAfee’s
track

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15 See Conner v. Smith, 433 S.W. 2d 911, 914 (Tex. Civ.
App.—Corpus Christi 1968, no writ) (adequate remedy at law);
Schiller v. Raley, 405 S.W. 2d 446, 447 (Tex. Civ. App.—Waco
1966, no writ) (public necessity); Hughes v. Jones, 94 S.W.2d
534, 536-37 (Tex. Civ. App.—Eastland 1936, no writ) (economic
harm to defendants).

16 Storey, 148 Tex. at 515, 226 S.W. 2d at 619.

17 See Vaughn v. Drennon, 202 S.W. 3d 308, 313 (Tex.
App.—Tyler 2006, no pet.); Estancias Dallas Corp. v. Schultz,
500 S.W. 2d 217, 221 (Tex. Civ. App. —Beaumont 1973, writ
refd n.r.e); Fargason, 356 S.W. 2d at 215.

'8 McAfee opened the tracks in January 2004 and
started charging riders in March 2004.

EP ee ee ee ee ee ee ee ge ee eS Lee ee ee nee eee Ie eee es ey ee

App. 9

had been closed down, he had to drive approximately
twenty-eight miles farther each way to get to
another motocross course. The activity at the tracks,
however, was so loud that on four days each week
appellees effectively could not use the land outside of
their homes. Further, on at least three occasions a
CareFlite helicopter landed near the tracks to
evacuate an injured rider.

Considering the competing interests, the trial
court could have concluded that a permanent
injunction would cause only slight injury to McAfee
and the public or that such injury would be
disproportionate to appellees’ injuries because of the
nuisance. Applying the appropriate standards of
review, we hold that the evidence was legally and
factually sufficient to support the trial court’s
balancing of the equities and that the trial court did
not abuse its discretion in issuing the permanent
injunction.!9

McAfee further contends under his third point
that the permanent injunction is overly broad and
the trial court “should have drawn the injunction so
as to eliminate the sound that can emanate from
[McAfee’s] property, rather than prohibit the activity
in its entirety.” Fann testified, however, that from

the distance at which appellees live, even one
bike could

18 See Estancias, 500 S.W. 2d at 221 (holding that trial
court did not abuse its discretion in granting permanent
injunction where noise prevented plaintiffs from entertaining
in their backyards and carrying on normal conversations in
their homes).

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App. 10

could exceed eighty-five decibels. Thus, it would be
impossible for the trial court to craft an injunction to
eliminate the excessive noise without prohibiting the
activity. Further, the injunction only prohibits
McAfee from “operating a public or private
motorcross [sic] facility’ on the property and
specifically allows “vehicles operated by immediate
family members of [McAfee] who are residents on
the real property or those related to [McAfee] by first
degree consanguinity or affinity.” We hold that the
restrictions placed on the motocross activity are
reasonable, and the permanent injunction is
narrowly drawn and precise.?°

For all of these reasons, we overrule McAfee’s
third point.?!

20 See Schneider, 147 S.W. 3d at 287 (holding that
permanent injunctions must be narrowly drawn and precise”);
Operation Rescue-Nat'l v. Planned Parenthood of Houston and
Se. Tex., Inc., 975 S.W.2d 546, 560 (Tex. 1998) (holding that
trial court has “some latitude” in fashioning the details of
appropriate injunctive relief); Shields v. State, 27 S.W.3d 267,
271 (Tex. App.—Austin 200, no pet.) (holding that an injunction
should be broad enough to prevent a repetition of the evil
sought to be corrected).

2\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).

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App. 11

In his fourth and fifth points, McAfee
challenges the legal and factual sufficiency of the
evidence supporting the permanent injunction,
arguing that appellees had an adequate remedy at
law and had not suffered an irreparable injury.

Permanent injunctive relief requires a
showing of, among other elements, irreparable injury
and the absence of an adequate remedy at law.?2
“Irreparable injury” occurs when the injury is of such
a nature that the injured party cannot be adequately
compensated in damages, or the damages cannot be
measured by any certain pecuniary standard.23. A
remedy is “adequate,” for purposes of determining
entitlement to an injunction, when it is complete,
practical, and efficient to the prompt administration
of justice.24 The existence of a remedy at law is not
ground for denial of injunctive relief unless the legal
remedy is as practical and efficient to the ends of
justice as the equitable remedy.”5

22 Triantaphyllis v. Gamble, 93 S.W.3d 398, 401 (Tex.
App.—Houston [14* Dist.] 2002, pet. Denied).

23 Montfort v. ‘Trek Res., Inc., 198 S.W.3d 344, 353 (Tex.
App.—Eastland 2006, no pet.); Fox v. Tropical Warehouses, Inc.,
121 S.W. 3d 853, 857 (Tex. App.—Fort Worth 2003, no pet.).

24 Matagorda County Hosp. Dist. v. City of Palacios, 47
S.W.3d 96, 103 (Tex. App.—Corpus Christi 2001, no pet.).

25 Khaledi v. H.K. Global Trading, Ltd., 126 S.W.3d 273,
284 (Tex. App.—San Antonio 2003, no pet.); Irving Bank &
Trust Co. v. Second Land Corp., 544 S.W.2d 684, 688 (Tex. Civ.
App.—Dallas 1976, writ ref'd n.r.e).

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App. 12

The equitable remedy of injunctive relief is
ordinarily available only when the legal remedy of
damages will not be adequate. When a nuisance is
of a recurring nature, however, the plaintiffs need
not seek damages, and injunctive relief may be
appropriate.27 At trial, appellees sought only
injunctive relief.

Appellees testified that the excessive noise
from the track was a “constant” on the four days
each week when the track was in operation. Further,
appellees expert Fann testified that (1) no wall or
other mechanism could feasibly be installed to
reduce the noise levels to an acceptable threshold; (2)
there was no way to assign a dollar value to the
noise pollution, lack of sleep, and difficulty
conversing experienced by appellees; and (3) the only
way to discontinue the nuisance was to shut the
motocross track down.28

26 Holubec v. Brandenberger, 58 S.W.3d 201, 210 (Tex.
App.—Austin 2001), rev'd on other grounds, 111 S.W.3d 32
(Tex. 2003).

27 Holubec v. Brandenberser 214 S.W.3d 650, 656 (Tex.
App.—Austin 2006, no pet.) (holding that injunctive relief was
appropriate because nuisance was of recurring nature); Hill v.
Villarreal, 362 S.W. 2d 348, 349 (Tex. Civ. App.—Waco 1962,
writ refd n.r.e.); Landwer v.Fuller, 187 S.W.2d 670, 673 (Tex.
Civ. App.—Amarillo 1945, writ ref'd w.o.m.).

28 McAfee contends that appellees’ injuries are
compensable through damages, citing appellee Richard Foster's
testimony-contained in a bill of exception made during a
temporary injunction hearing—that his property declined in
value be over $150,000.00 because of the motocross track.

ser ae ks. ee Cur

App. 13

McAfee’s expert Ware stated that sound
dissipates over distance according to many factors,
and McAfee could implement measures to reduce the

sound from the tracks.

The evidence showed that McAfee’s tracks
effectively precluded appellees’ use of their property
and shutting down the tracks was the only feasible
solution. The noise from the tracks was recurring,
and appellees did not seek money damages at trial.
Further, the trial court would not have abused its
discretion in concluding that damages were not “as
practical and efficient” as injunctive relief in this
case.29 Applying the appropriate standards of
review, we hold that the evidence was legally and
factually sufficient to show that appellees had
suffered an irreparable injury and had no adequate
remedy at law.3° We overrule McAfee’s fourth and
fifth points.

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The trial court, however, sustained appellees’ objection to this
testimony, and McAfee does not argue that it was improperly
excluded. Therefore, we do not consider this argument. See
Pat Baker Co., 971 S.W.2d at 450; Sommers v. Concepcion, 20
S.W.3d 27, 41 (Tex. App.—Houston [14 Dist.] 2000 pet. denied)
(holding that a party’s remedy for an adverse ruling is to assign
error regarding that adverse ruling).

29 Khaledi, 126 S.W.3d at 284; Irving Bank & Trust Co.,
544 S.W.2d at 688.
‘ #” Cf. Storey, 148 Tex. at 512-13, 226 S.W.2d at 617-18
(holding that plaintiffs had adequate remedy at law whcre
rendering plant's inconvenience and odors occurred only
occasionally, surrounding land had sold for increased value
since

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App. 14

In his sixth point, McAfee claims that the trial
court abused its discretion by refusing to submit his
proposed jury question regarding the social benefit of
the motocross track.*!

Although a party to an equitable action has
the right to a trial by jury, only ultimate issues of
fact are submitted for jury determination.52 The
jury does not determine the expediency, necessity, or
propriety of equitable relief.% The cases that
McAfee cites do not support his argument that social
benefit is an ultimate issue of fact that must be
submitted to the jury.*4

plant was built, and plant owner was “carrying out the latest
and recognized scientific practices to keep down odors and
flies”).

31 The proposed question stated,.“Do you find from a
preponderance of the evidence that the operation of the McAfee
MX motor [sic] has no beneficial social impact?”

32 State v. Tex. Pet Foods, Inc., 591 S.W.2d 800, 803
(Tex. 1979); Doll v. Hurst, No. 03-02-00576-CV, 2003 WL
21939711, at *8 (Tex. App.—Austin Aug. 14, 2003, pet. denied)
(mem. Op.).

33 Tex. Pet Foods, Inc., 591 S.W.2d at 803.

34 See Elbaor v. Smith, 845 S.W.2d 240, 243-44 (Tex.
1992) (holding that contributory negligence question should
have been submitted to jury); Tex. Pet Foods, Inc., 591 S.W.2d
at 803-05 (holding that the probability of defendant’s continued
action, relevant to issuance of permanent injunction, was a
question for the trial court rather than the jury); Shields, 27
S.W.3d at 273 (“The principle that the court rather than the
jury exercises equitable powers answers [appellant’s) complaint
that the court could not include these prohibitions in the order
without submitting specific jury questions thereon.”);

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App. 15

To the contrary, at least on court of appeals has
discussed “social utility” in the context of the trial
court’s balancing of the equities.35 McAfee has
failed to show error®* ;_ therefore, we overrule his
sixth point.

Having overruled all of McAfee’s points, we
affirm the trial court’s judgment.

PER CURIAM

PANEL A: CAYCE, C.J. ; LIVINGSTON
AND MCCOY, Ju.

DELIVERED: February 7, 2008

Lehmann v. Wieghat, 917 S.W.2d 379, 382 (Tex. App.—
Houston [14% Dist.] 1996, writ denied) (holding that a
controlling issue is one which requires a factual determination
to render judgment in the case).

35 See Speedman Oil Co. v. Duval County Ranch Co.,
504 S.W.2d 923, 930-31 (Tex.Civ.App.—San Antonio 1974, writ
refd n.r.e.).

36 See Jackson v. U.S. Fid. & Guar. Co., 689 S.W. 2d 408,

412 (Tex. 1985) (holding that an appellant has the burden to
show that the judgment of the trial court was erroneous).

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App. 16
COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH

NO. 02-07-00080-CV

McAfee MX d/b/a McAfee From the 235
Moto Cross and Michael District Court
Mark McAfee
of
v. Cooke County
(06-170)

Richard Foster, Phillip
Fitzgerald, James and February 7, 2008
Sherri Estrada, Ray and

Gabrielle Fletcher, Steve

and Sandy Fairfield, Tim

Hitchcock, and Haden Cowdry Per Curiam

JUDGMENT

This court has considered the record on appeal
in this case and holds that there was no error in the
judgment of the trial court. It is ordered that the
judgment of the trial court is affirmed.

It is further ordered that appellants will bear
the costs of this appeal, for which let execution issue.

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App. 17

CAUSE NO. 06-170

RICHARD FOSTER, PHILLIP IN THE
FITZGERALD, JAMES AND DISTRICT COURT
SHERRI ESTRADA, RAY AND
GABRIELLE FLETCHER,
STEVE AND SANDY
FAIRFIELD, AND TIM
HITCHCOCK, HADEN
COWDREY,
Plaintiffs,
Vs COOKE COUNTY
TEXAS
McAFEE MX d/b/a McAfee
MOTO CROSS and MICHAEL
MARK McAFEE, individually,
235TH
Defendants. JUDICIAL
DISTRICT

FINAL JUDGMENT AND ISSUANCE OF
PERMANENT INJUNCTION

On October 9, 2006, a jury was sworn and
empanelled to hear the Plaintiffs, RICK FOSTER,
PHILLIP FITZGERALD, JAMES ESTRADA,
SHERRI ESTRADA, RAY FLETCHER,
GABRIELLE FLETCHER, STEVE FAIRFIELD,

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App. 18

SANDY FAIRFIELD, TIM HITCHCOCK, and
HADEN COWREY’S (collectively, “Plaintiffs”),
application for a Permanent Injunction. Plaintiffs
appeared in person and by and through their
attorney of record. Defendants, McAFEE MX d/b/a
McAFEE MOTO CROSS and MICHAEL MARK
MCAFEE (collectively, “Defendants”), appeared in
person and through their attorneys of record. This
Court has taken judicial notice of the entire file in
this matter. See Tex. R. Evid. 201.

On October 11, 2006, the jury received
definitions, instructions, and special issues for their
consideration. Upon receiving the evidence and
exhibits admitted at trial, the jury began its
deliberations. Upon a verdict of 11-1, the jury found
that the Defendants’ operation of a motorcross track
constitutes a nuisance to the individual Plaintiffs.
The Charge of the Court (“Charge”) and the jury’s
answer to the special issue in included in the Court’s
jacket, the Court has taken judicial notice of the
jurys answer and findings, and the Charge is
incorporated by reference as set forth fully herein for
all purposes.

Based upon the jury’s answer to the special
issue, this Court is of the following opinion: A
PERMANENT INJUNCTION SHALL ISSUE TO
PERMANENTLY ENJOIN DEFENDANTS FROM
OPERATING A MOTOCROSS TRACK. The Court
therefore issues the following ORDER to wit:

App. 19

Defendants, McAFEE MX db/a McAFEE
MOTO CROSS and MICHAEL MARK MCcAFEE, are
PERMANENTLY ENJOINED from directly or
indirectly operating a public or private motorcross
facility for motorcycles, dirt bikes, four wheelers,
real property described as 33.38 acres of land located
at 8352 FM 902, Collinsville, Texas, 76233, and
recorded at Abstract 0097 BOGGS ME, BEGINNIN
on the North line of the said Boggs Survey at the
Northwest corner of said Share No. Four (4);

- THENCE East 566 feet for corner; THENCE South

620 feet; THENCE East 566 feet; THENCE North
620 feet to North line of said survey; THENCE East
566 feet; THENCE South 1320 feet to South line of
said Share No. 4; and THENCE West 1320 feet to
the beginning of said property.

Plaintiffs have shown that they have and will
suffer irreparable harm if Defendants, McAFEE MX
d/b/a McAFEE MOTO CROSS and MICHAEL
MARK MCcAFEE, are not restrained and enjoined
because Defendants have operated and allowed to be
operated, and would continue to allow to be operated,
a public motorcross facility for motorcycles, dirt
bikes, four wheelers, and/or other off road
recreational vehicles on their above described real
property in a manner which causes excessive noise
to intrude on and over Plaintiffs’ adjoining real
property, and there is no adequate remedy at law
such that this PERMANENT INJUNCTION $s shall
issue.

App. 20

It is therefore ORDERED, ADJUDGED, and
DECREED that Defendants, McAFEE MX d/b/a
McAFEE MOTO CROSS and MICHAEL MARK
McAFEE, all of their agents and servants, heirs,
assigns, and successors in interest who may later
acquire the above mentioned real property SHALL
NOT allow any operation of motorcycles, dirt bikes,
four wheelers, and/or other off road recreational
vehicles on the above described real property, and
Defendants shall CEASE AND DESIST from the
operation of same, SAVE and EXCEPT: those
vehicles operated by immediate family members of
Defendants who are residents on the real property or
those related to Defendants by first degree
consanguinity or affinity.

The Court further finds that Plaintiffs have
and recover their taxable court costs from Michael
Mark McAfee in the amount of $2,438.70.!

Any failure to obey this ORDER SHALL
CONSTITUTE A CONTEMPT OF THIS COURT,

subject to fine, imprisonment, or both.

The Court orders execution of this judgment.
This order fully and finally disposes of all claims and
causes of action between the parties.

'Process Server for service of subpoena Gayle Kelley
$120.00; Court Reporter's Record of the Temporary Injunction
$1,018.00 and $289.00; deposition of Mark McAfee $823.70;
mediation fee $450.00; service of citation and temporary
restraining order $165.

.
4

App. 21

APPRROVED AS TO FORM ONLY:
/S/: Brian P. Lauten

Brian P. Lauten
Attorney for Plaintiffs

/S/: David Farris

David Farris
Attorney for Defendants

So ordered on this the 19** day of December
2006.

/S/: Janelle M. Haverkamp

DISTRICT JUDGE

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App. 22

[SEAL] THE TEXAS SUPREME COURT
OF
TEXAS
Post Office Box 12248
Austin, Texas 78711

June 27, 2008
Mr. Michael M. McAfee Mr. Brian P. Lauten
P.O. Box 1772 The Lauten Firm,
P.C.
Gainesville, TX 76241 2626 Cole Avenue,
Suite 850

Dallas. TX 75204
RE: Case Number: 08-0310
Court of Appeals Number: 02-07-00080-CV
Trial Court Number: 06-170
Style: MICHAEL M. MCAFEE
Vv.
RICK FOSTER, ET AL.

Dear Counsel:

Today the Supreme Court of ‘Texas d=nied the
petition for review in the above-referenced case.

Sincerely,

/S/- Blake A. Hawthorne
Clerk

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App. 23

[Seal] THE SUPREME COURT
OF
TEXAS
Post Office Box 12248
Austin, Texas 78711

August 15, 2008

Mr. Michael M. McAfee Mr. Brian P. Lauten

P.O. Box 1772 The Lauten Firm,

P.C.

Gainesville, Tx 76241 2626 Cole Avenue
Suite 850

Dallas, TX 75204

RE: Case Number: 08-0310

Court of Appeals Number: 02-07-00080-CV

Trial Court Number: 06-170
Style’ MICHAEL M. MCAFEE

v.

RICK FOSTER, ET AL.
Dear Counsel:

Today the Supreme Court of Texas denied
the motion for rehearing of the above-referenced
petition for review.

Sincerely,

/S/: Blake A. Hawthorne
Clerk

App. 24

[SEAL] UNITED STATES
ENVIRONMENTAL PROTECTION AGENCY

WASHINGTON, D.C. 20460

February 27, 2007

Mr. Mark McAfee
McAfee MX

8352 FM 902
Collinsville, TX 76233

Dear Mr. McAfee:

This letter is in response to your letter of February
27, 2007 in which you request clarification of
statements by Plaintiffs, in a court action against
you, regarding certain alleged regulatory actions by
the Environmental Protection Agency concerning
noise. Specifically, you requested confirmation that
the Plaintiffs statement “...the EPA has adopted
regulations with respect to motorcycle use and that
the federal agency recognizes that noise in excess of
fifty-five decibels harms the public health, safety and
welfare.”

The Environmental Protection Agency (EPA)
promulgated regulation at Volume 40 Code of
Federal Regulations, Part 205, Subpart D, that
established noise emission limits for both on and off
road motorcycles.

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App. 25

The noise emission limits found at §205.152 are
based upon model year and engine displacement.
The noise limits are determined under specified test
conditions that demonstrate compliance by the
manufacture. The noise emissions of the motorcycle
may be more of less than the emission limits
depending upon the mode of vehicle operation. The
regulation exempts all motorcycles that are
specifically intended for competition.

The EPA has net, nor does it have legislative
authority to establish community noise limits. The
noise levels referred to by the Plaintiffs may have
been obtained from an EPA document entitled
“Levels of Environmental Noise Requisite to Protect
Public Health and Welfare with an Adequate Margin
of Safety.” (EPA/ONAC 550/9-74-004, March 1974).
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.

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App. 26

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. Typically, the average
person will adjust the volume of their television set
to a sound level between 60 and 70 dBA. Today’s
automobiles present a “pass-by” noise level between
65 and 80 dBA under typical cruise conditions.
Trucks produce noise levels between 75 and 85 dBA.
However, when time averaged with other community
sounds over 34 hours, the Leq may te less than 55
dBA.

One final point. The Leq 55 dBA is the
recommended residential comfort level during
waking hours (7:00 a.m. to 10:00 p.m.). There is a
10 dBA penalty for Leq between (10:00 p.m. and 7:00
a.m.) that brings it to 45 dBA. For light commercial
areas, the recommended levels are Leq 65 and

55dBA. For heavy commercial, the recommended
levels are Leq 75 and 65 dBA.

I trust the above information is responsive to your
questions.

Advisor
Office of Policy Analysis & Review.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385015_0397%3A1. Public record. Not legal advice.