As we count down to October 8 (45 days from the
August 24th ruling) for the appearance of Wagner's (and Sancho's ?) petition for rehearing of the appeal which affirmed the
September 26, 2008 dismissal of the Sancho and Wagner case, I thought I would make a report on where we are. Almost certainly Luis Sancho, a stranger to our lands, is left confused by the 2008 and 2010 rulings, and that is part of the reason he lashes out in
his blog.
For legal reference, you might see
wikipedia: Federal Rules of Civil Procedure which outlines the procedures followed in the case filed on March 21, 2008.
// New: RECAP and the Internet Archive have
a site for free copies of the 2008 case documents to accumulate in. The HTML is the partial Docket Sheet.
Is this complaint antiscientific and Luddite?
* Yes, because all of the anti-LHC arguments are based on speculation on what bad things might happen without the slightest basis in fact for those bad things being possible in this physical universe. The "dangerous black hole woo" and "dangerous strangelet woo" are every bit as baseless as Deepak Chopra's "quantum woo" or homeopathy's repackaging of "sympathetic magic woo." Moreover, we have seen time and time again the plaintiffs misrepresent their credentials and misrepresent the current state of knowledge. Finally, their pseudoscientific attempts at mastering risk analysis fail when they
fail to use numbers and inconsistently ignore equally baseless imagined positive outcomes of the LHC experimentation.
Is the US Constitution antiscientific and Luddite?
* Not on the face of it. Indeed, Article I, Section 8 provides in part: "
The Congress shall have power to … promote the progress of science and useful arts …"
* And any reasonable read of Amendment V, which provides in part "
No person shall be … deprived of life, liberty, or property, without due process of law" means that if you want to deprive CERN of the use of their equipment, you need to build a positive case that the collider itself is
illegal. But instead the plaintiffs went a different route.
* Finally, by
Article III, Section 2, US Courts are
courts of limited jurisdiction, and it is vital that Plaintiffs carefully build a case for the relief they seek and not just try to bluster and boss people around.
Did Plaintiffs establish
Subject-matter jurisdiction of the Federal Courts over the complaint?
* Only if they raised a Federal Question.
Did Plaintiffs raise a
Federal Question?
* Almost, in that they alleged bureaucratic steps required by
42 U.S.C. §§ 4321-4347 (NEPA) were not taken by the US Government.
** But, not only is NEPA long and complicated, the bureaucratic regulations
40 C.F.R §§ 1502.1 - 1502.25 are also long and complicated, so it is not trivially obvious to an outsider what is required in every case. Note that § 1502.3 indicates that most of the key phrases of the regulation that indicates when an E.I.S. is required are terms of art defined in
40 C.F.R §§ 1508.1 - 1508.28. Particularly relevant is a definition of
Major Federal action as something "potentially subject to Federal control and responsibility" § 1508.18 where the issue of who owns the LHC is a factor.
** Further, US statues and regulations are to be interpreted in the light of their history of case law, and where the Supreme Court has not spoken, such case law varies from Federal Court District to District. In the 9th circuit, the Federal defendants gave many examples of projects which were 90% or more funded by non-Federal funds being declared not to be
Major Federal actions in light of NEPA and relevant regulations.
* No, in that they waved European policy documents without standing in US Court, and were shot down for it in 2008.
* No, in that they made noises in their appellate hearing about the unspecific provisions of the
USA PATRIOT Act and
18 U.S.C § 831, but the Due Process clause of Amendment V would seem to require them have briefed that law formally back in March 2008.
Did Plaintiffs establish
Personal jurisdiction of the Federal Courts over the correct party?
* No, if the relief they sought was to prevent operation of the LHC.
** Federal Defendants offered
evidence that the construction, operation, and management of the LHC is the sole responsibility of CERN, an intergovernmental European agency headquartered in Geneva, Switzerland. The United States was not given any role in making financial, policy, or management decisions within CERN, or given any authority or decision-making power with regard to the construction or operation of the LHC.
** Plaintiffs have not provided the Court with any substantive written evidence in support of their position.
** Thus the LHC is
obviously under the complete control of CERN.
** And, as $531 million was spent by the US on LHC construction, it is not clear how, barring the invention of a time machine, how CERN is supposed to unbuild the LHC and unspend the money, as Plaintiffs repeatedly demand.
** Further, as it is not CERN's responsibility to fill out E.I.S.s under NEPA, it is hard to see where the justice is in depriving CERN of the use of it's property for a failure of another party.
Did Plaintiffs establish
standing to sue under Article III?
* No, they did not demonstrate an actual injury.
* No, they did not demonstrate a foreseeable actual injury, although they speak of "conceivable" injuries, just as fairies and witches are "conceivable."
* No, they did not speak of a threatened injury, since no one who works at CERN thinks their LHC will be dangerous to humanity. Also, no one who works at CERN exhibits knowledge of a detailed mechanism by which a hypothetical CERN-created object, allowed by physical observation of the universe, could be dangerous.
* No, since without a fact-supported chain of reasoning even Plaintiffs'
imagined hypothetical future injury could not be fairly traced to any action of CERN, including operation of the LHC.
* No, since instead of suing CERN for attempted injury (see below), they sued the US Government for not filing paperwork, and filing that paperwork would not seem to impede CERN from their actions.
Is Hawaii's Federal court the proper venue?
* It isn't today since neither Wagner nor Sancho lives there, but
* It might have been in 2008, if you believe Sancho is a resident of Hawaii, and
* It's pretty much undisputed that up until recently Wagner was a resident of Hawaii.
Was CERN properly served notice of the complaint?
* Signs point to no.
** The
Hague Convention is a signed and ratified treaty (and therefore binding US Law) which governs the notification process required when suing foreign entities.
** On August 14, 2008, a letter was received from Alexander Wittwer, the Charge d’Affaires at the Embassy of Switzerland in the United States of America, disputing jurisdiction based on the method of delivery of Plaintiffs’ Complaint.
** The Appellate Court unanimously held that CERN was not properly served.
Does NEPA apply when at least 90% of a project is funded from non-US Government sources?
* Probably not, at least in the Ninth District. Issues of ownership and control may yet remain.
Can Plaintiffs bring the same lawsuit in a different district.
* Nope. Wagner tried this once before with RHIC.
Does NEPA have a expired statute of limitations?
* Almost certainly, since the allegedly required paperwork would have had to been filed when funding was being planned back in 1996 or 1997, over ten years before the LHC was completed or the case was filed.
28 U.S.C. § 2401 (a) almost certainly murders this case by 2003.
But, wait, James Tankersley says Wagner's the smartest guy he knows!
* The evidence given for this is a CBEST Math test, which tests only rudiments of estimation, reasoning and calculation at the level of a bright 12-year-old. So as far as math credentials go: CBEST < GED < PSAT MATH < SAT MATH < Bachelors in Engineering < Bachelors in Physics < Bachelors in Math < Graduate Degrees in Physics and Math
** The implication about the other people Tankersley chooses to associate with is damning.
So, neither the law, nor the mathematics of risk management, nor the observed physics of the universe, nor the very flow of time are on Plaintiff's side. Indeed, based on facts, the appellate court had no choice but to unanimously side with the
Government's brief. But what if, instead of trying the case in law, that they tried theoretical physics?
Well, theoretical physics is applied mathematics. You model a piece of the hypothetical world with axioms and givens, and you work out the consequences, and then ask the observations people if such consequences are consistent with what was observed. Some time has passed, so I think I need to update my posts of
*
Bugaboos September 23, 2008
*
Bugaboos September 30, 2008
*
Bugaboos, January 29, 2009
*
Demonstrating Wagner could not parse a scientific paper he presents as supporting his case, November 15, 2009
*
Correcting the reading of Choptuik and Pretorius, February 5, 2010
*
More papers misread by Wagner, March 26, 2010
*
More papers misread by Wagner, March 30, 2010
Perhaps an interested reader will see something I missed.
But wait! Otto Rössler says something different!
* Making claims is easy, getting your math in a journal is hard.
* No one has seen Rössler's "50 month" calculation. It is, in Silicon Valley speak, "vaporware"
But wait! Rainer Plaga says something different!
* Making claims is easy, getting your physics in Phys. Rev. D is hard.
* Plaga is working is a field with experts, and those experts make forceful arguments against his view. Plaga relies on their expertise to make his points and then makes mewling noises when he is corrected.
* Plaga is treating his pre-print like a blog
http://arxiv.org/abs/0808.1415
* Steven B. Giddings, Michelangelo L. Mangano, "
Comments on claimed risk from metastable black holes" (preprint response to v1)
* Roberto Casadio, Piero Nicolini "
The decay-time of non-commutative micro-black holes"
Journal of High Energy Physics,
2008 JHEP11 (2008)
* Roberto Casadio, Sergio Fabi, Benjamin Harms "
Possibility of Catastrophic Black Hole Growth in the Warped Brane-World Scenario at the LHC"
Phys. Rev. D 80, 084036 (2009)
* Roberto Casadio, Sergio Fabi, Benjamin Harms, Octavian Micu "
Theoretical survey of tidal-charged black holes at the LHC"
Journal of High Energy Physics,
2010: 2, 1-23 (2010)
* Roberto Casadio, Benjamin Harms, Octavian Micu "
Affect of brane thickness on microscopic tidal-charged black holes" (preprint)
Kirk to Khan, revised: "You've managed to [assert you are better at physics and law than] just about everyone else, but like a bad marksman you keep missing the target!"
