LHC Safety and the Law

[rpenner]

Establishing a thread to cover the Hawaiian and European anti-LHC lawsuits since Walter L. Wagner feels that it is inappropriate to post these on his Astronomy thread.

Hawaiian complaint:
http://dockets.justia.com/docket/court-hidce/case_no-1:2008cv00136/case_id-78717/
Hawaiian update:
http://www.physforum.com/index.php?showtopic=4830&view=findpost&p=376492
September 17, 2008 -- Wagner and Sancho file their response to the government response to their motion to and yet another affidavit about a new fictitious danger. They cite the unpublishable and already rebutted R. Plaga paper again! They don't seriously address rule 4(f) or the Hague Convention and seem deaf to legal points being scored against them.
September 18, 2008 -- Wagner goes on a trip to Utah. Judge Chang orders that Wagner file reply by September 23 (moot!?) confirms new hearing date of October 14, and clarifies that the hearing is just on default judgment, not any sort of injunction versus CERN.
September 19, 2008 -- Sheldon Glashow, Frank Wilczek and Richard Wilson want back in as Amici Curiae -- now I have their autographs!
September 19, 2008 -- Wagner and Sancho try for the third time to properly file a motion for a permanent injunction and yet another affidavit. I am critical of their use of unattributed quotes which is contrary to the practice of both science and law and the general goofiness of the reasoning.
September 23, 2008 -- Conan O'Brian parodies Wagner's concerns.
September 25, 2008 -- Original date for hearing on default judgment versus CERN .. this would have been before the LHC startup, but Wagner won't be in town that date so the fate of the world is sold short for Wagner's travel plans. Or are we to believe that Wagner divined the LHC setbacks? If he is a prophet why can't he tell us which of the speculative bugaboos we have to worry about instead of coming up with new ones as the case moves along?
October 10, 2008 -- Wagner returns from Utah -- about this time the LHC was supposed to start physics runs, but transformers and quenches have probably set this back to 2009.
October 14, 2008 -- Hearing on default judgment versus CERN
* Wagner's own process server says that the service was illegal
* The Swiss Embassy says the service was illegal
* The US Government says the service was illegal
* Wagner points out that some form of service was physically accomplished, which was not the point at issue and while he seems to have cut-and-pasted an essay on Rule 4(f) and the Hague Convention he cites no cases giving leave for him to ignore them.

In most recent filings, Luis Sancho's signature appeared in a timely fashion. This represents a major improvement for Wagner's side.

European complaint (new URL):
http://lhc-concern.info/wp-content/uploads/2008/09/mr-beschwerde-cern-volltext.PDF
European (ECHR) update:
http://www.physforum.com/index.php?showtopic=4830&view=findpost&p=369936
This case is going nowhere -- I can't find any notice that the ECHR has taken more than an adminstrative pass at the paperwork and the filing seems deficient in that I don't see the prior court cases cited in detail -- the points raised in those cases must be in this record. They abandoned their chance to appeal in national courts.

I'm not a lawyer and none of this constitutes legal advice. But it is fun.

[BenTheMan]

Also, it might be nice to try to dig up some of the "The LHC/RHIC is not going to destroy the world" papers.

[Read-Only]

I'm not a lawyer and none of this constitutes legal advice. But it is fun.

Yep! And it also points out that Wagner is no better an amateur lawyer than he is amateur scientist!! HAR-HAR-HAR!!!:D:D:D

The guy is absolutely nothing but an all-around jerk.

[rpenner]

Since competent expert testimony may become part of the trial record, it is relevant to this thread to list potentially admissible papers.

Work in progress. Please post corrections, additions or suggestions in this format. Review articles are preferred because they address wider audiences.

Bugaboo: Black Holes of GR
Competent, Published Paper addressing it:
Competent, Published Paper rebutting it: R.L. Jaffe, W. Busza, F. Wilczek and J. Sandweiss. "Review of Speculative "Disaster Scenarios" at RHIC" Review of Modern Physics 72, 1125-1140 (2000) http://arxiv.org/abs/hep-ph/9910333
Competent response:

Bugaboo: Black Holes of 4-D quantum gravity
Competent, Published Paper addressing it:
Competent, Published Paper rebutting it: J.P. Blaizot, J. Iliopoulosm J. Madsen, G.G. Ross, P. Sonderegger and H.J. Specht. "Study of potentially dangerous events during heavy-ion collisions at the LHC: report of the LHC safety study group" CERN Yellow Book (2003) http://doc.cern.ch/yellowrep/2003/2003-001/p1.pdf
Competent, Published Paper rebutting it: R.L. Jaffe, W. Busza, F. Wilczek and J. Sandweiss. "Review of Speculative "Disaster Scenarios" at RHIC" Review of Modern Physics 72, 1125-1140 (2000) http://arxiv.org/abs/hep-ph/9910333
Competent response:

Bugaboo: Dangerous Black Holes of N-D quantum gravity
Competent, Published Paper addressing it:
Competent, Published Paper rebutting it: J.P. Blaizot, J. Iliopoulosm J. Madsen, G.G. Ross, P. Sonderegger and H.J. Specht. "Study of potentially dangerous events during heavy-ion collisions at the LHC: report of the LHC safety study group" CERN Yellow Book (2003) http://doc.cern.ch/yellowrep/2003/2003-001/p1.pdf
Competent, Published Paper rebutting it: Steven B. Giddings and Michelangelo M. Mangano. "Astrophysical implications of hypothetical stable TeV-scale black holes" Physical Review D78 035009 (2008) http://arxiv.org/abs/0806.3381
Competent response:

Bugaboo: Dangerous Large Black Hole Remnants of N-D quantum gravity
Unpublished paper addressing it: R. Plaga. "On the potential catastrophic risk from metastable quantum-black holes produced at particle colliders" http://arxiv.org/abs/0808.1415
Unpublished paper rebutting it: Steven B. Giddings and Michelangelo L. Mangano. "Comments on claimed risk from metastable black holes" http://arxiv.org/abs/0808.4087
Unpublished paper rebutting it: Roberto Casadio and Piero Nicolini. "The decay-time of non-commutative micro-black holes" http://arxiv.org/abs/0809.2471
Competent, Published Paper addressing it:
Competent, Published Paper rebutting it:
Competent response:

Bugaboo: Dangerous Black Holes of N-D quantum gravity without Hawking radiation
Competent, Published Paper addressing it:
Competent, Published Paper rebutting it: J.P. Blaizot, J. Iliopoulosm J. Madsen, G.G. Ross, P. Sonderegger and H.J. Specht. "Study of potentially dangerous events during heavy-ion collisions at the LHC: report of the LHC safety study group" CERN Yellow Book (2003) http://doc.cern.ch/yellowrep/2003/2003-001/p1.pdf
Competent, Published Paper rebutting it: Steven B. Giddings and Michelangelo M. Mangano. "Astrophysical implications of hypothetical stable TeV-scale black holes" Physical Review D78 035009 (2008) http://arxiv.org/abs/0806.3381
Competent response:

Bugaboo: Dangerous Black Holes of N-D quantum gravity without Hawking radiation with charge evaporation
Competent, Published Paper addressing it:
Competent, Published Paper rebutting it: Steven B. Giddings and Michelangelo M. Mangano. "Astrophysical implications of hypothetical stable TeV-scale black holes" Physical Review D78 035009 (2008) http://arxiv.org/abs/0806.3381
Competent response:

Bugaboo: Dangerous stranglets
Unpublished paper rebutting it:
John Ellis, Gian Giudice, Michelangelo Mangano, Igor Tkachev and Urs Wiedemann "Review of the Safety of LHC Collisions: Addendum on strangelets" http://lsag.web.cern.ch/lsag/LSAG-Report_add.pdf (June 20, 2008)
Competent, Published Paper addressing it:
Competent, Published Paper rebutting it: R.L. Jaffe, W. Busza, F. Wilczek and J. Sandweiss. "Review of Speculative "Disaster Scenarios" at RHIC" Review of Modern Physics 72, 1125-1140 (2000) http://arxiv.org/abs/hep-ph/9910333
Competent, Published Paper rebutting it: J. Ellis, G. Giudice, M.L. Mangano, I. Tkachev and U. Wiedemann "Review of the Safety of LHC Collisions" Journal of Physics G 35, 115004 (2008) http://arxiv.org/abs/0806.3414
Competent response:

Bugaboo: Dangerous Monopoles
Competent, Published Paper addressing it:
Competent, Published Paper rebutting it: J. Ellis, G. Giudice, M.L. Mangano, I. Tkachev and U. Wiedemann "Review of the Safety of LHC Collisions" Journal of Physics G 35, 115004 (2008) http://arxiv.org/abs/0806.3414
Competent response:

Bugaboo: "Supernovae", Collapse of the vacuum, and other super-obvious things not associated with p-p collisions at \sqrt{s} \leq 7 \, \mathrm{TeV}
Competent, Published Paper addressing it:
Competent, Published Paper rebutting it: J. Ellis, G. Giudice, M.L. Mangano, I. Tkachev and U. Wiedemann "Review of the Safety of LHC Collisions" Journal of Physics G 35, 115004 (2008) http://arxiv.org/abs/0806.3414
Competent response:

[rpenner]

Problem with the ECHR filing.

Swiss Federal Court decision BGE 118 Ib 562 was never filed by applicants. It concerns contractual disputes with CERN over a 1983 contract to build LEP not Human Rights or Environmental concerns. It was decided in 1992. How is misrepresenting yourself to the ECHR going to help you at the ECHR?

http://relevancy.bger.ch/php/clir/http/index.php?lang=de&type=highlight_simple_query&page=1&from_date=&to_date=&from_year=1990&to_year=1993&sort=relevance&insertion_date=&from_date_push=&top_subcollection_clir=all&query_words=BGE+118+Ib+562&part=all&de_fr=&de_it=&fr_de=&fr_it=&it_de=&it_fr=&orig=&translation=&rank=1&highlight_docid=atf%3A%2F%2F118-IB-562%3Ade&number_of_ranks=1&azaclir=clir

As for "Bezirksgericht Zürich EU080469/U" it is not available on the Zürich District Court's search service.

[Nasor]

Arxiv is nice and all, but surely there have been things published in actual peer-reviewed journals. Remember, anyone can slap anything up on arxiv. There's no review process. Or is this not even taken seriously enough to have gotten into real journals?

[Walter L. Wagner]

September 17, 2008 -- Wagner and Sancho file their response to the government response to their motion to and yet another affidavit about a new fictitious danger. They cite the unpublishable and already rebutted R. Plaga paper again! They don't seriously address rule 4(f) or the Hague Convention and seem deaf to legal points being scored against them..

No "legal points" scored; this is plaintiff's motion [for default injunction against CERN] still awaiting a response from the government attorneys on the Rule 4(f) issue. Rule 4(f) addressed extensively as requested by Judge Chang.

September 18, 2008 -- Wagner goes on a trip to Utah. Judge Chang orders that Wagner file reply by September 23 (moot!?) confirms new hearing date of October 14, and clarifies that the hearing is just on default judgment, not any sort of injunction versus CERN.

The Reply Memorandum was filed September 18, about the same time Judge Chang's deadline was filed. The Default Judgment is a request for a default permanent injunction, or alternatively a preliminary injunction if the Court allows defaulting defendant CERN the opportunity to late-file an Answer to the Complaint.


... now I have their autographs!

Woo hoo!

September 19, 2008 -- Wagner and Sancho try for the third time to properly file a motion for a permanent injunction and yet another affidavit. I am critical of their use of unattributed quotes which is contrary to the practice of both science and law and the general goofiness of the reasoning.

First time [not third] for a Motion for Preliminary Injunction [not permanent injunction]. Motion properly filed on September 19, 2008. In support of the motion is attached an Affidavit citing quotations. Attached to the Affidavit are Exhibits A-C which contain the quotations.

* Wagner's own process server says that the service was illegal.

The process server wrote me a letter stating that CERN told him they did not consider the service to be legal.


* The Swiss Embassy says the service was illegal.

The Swiss Embassy has not filed anything with the court.

I'm not a lawyer ...

So very true and obvious.

[Walter L. Wagner]

Shouldn't this thread be in one of the social sciences? It is not physics, per se. Ben, do you want to move it?

[prometheus]

Shouldn't this thread be in one of the social sciences? It is not physics, per se. Ben, do you want to move it?

Wouldn't you love that. The LHC is very much a physics topic. I vote that it stays.

[BenTheMan]

Arxiv is nice and all, but surely there have been things published in actual peer-reviewed journals. Remember, anyone can slap anything up on arxiv. There's no review process. Or is this not even taken seriously enough to have gotten into real journals?

Nasor---the process is not that simple. You have to be endorsed, so there IS a bit of a peer review. Also, you can click on the links that rpenner gave, and go to the right hand side of the screen to "SLAC-SPIRES HEP" and get the Journal citation, where applicable.

Shouldn't this thread be in one of the social sciences? It is not physics, per se. Ben, do you want to move it?

I can think of good arguments both ways, but since it was posted in physics to start with, I will leave it here.

[rpenner]

September 17, 2008 -- Wagner and Sancho file their response to the government response to their motion [for default](correction) ... They don't seriously address rule 4(f) or the Hague Convention and seem deaf to legal points being scored against them. No "legal points" scored; this is plaintiff's motion [for default injunction against CERN] still awaiting a response from the government attorneys on the Rule 4(f) issue. Rule 4(f) addressed extensively as requested by Judge Chang. Judge Chang requested discussion of rule 4(f) and the Hague Convention because of the Government's reply memorandum. The Government raised these points in their September 5 response [Added: (Docket Numbers 73 and 74)] to your August 5 motions. (Docket Numbers 28 and 29) They cited court cases that ruled that the Hague Convention process was mandatory.
Service in compliance with the Hague Convention is "mandatory" and "pre-empts inconsistent methods of service prescribed by state law in all cases to which it applies." Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 699 (1988).
The Hague Convention does not allow a party to effectuate service from the United States on an international organization headquartered in Switzerland by dropping pleadings off at that organization's legal offices in Geneva. As the Swiss Embassy has advised this Court, "the delivery of official court documents to an intergovernmental organization through a bailiff, an attorney or the court itself violates international law and, in particular, the Agreement between Switzerland and the European Organization for Nuclear Research Concerning the Legal Status of the European Organization for Nuclear Research in Switzerland, which sets down the inviolability of the buildings of the Organization and the immunity from legal process." Dkt. No. 39 or 58. In addition, the Hague Convention has a website with flowcharts on how to make it work in this case. The judge asked you to respond. And you gave a Wikipedia-level discussion of what Rule 4(f) is.

September 19, 2008 -- Wagner and Sancho try for the third time to properly file a motion for a permanent injunction First time [not third] for a Motion for Preliminary Injunction [not permanent injunction].
I remind you of Docket 29, filed on August 5 and your original complaint.

October 14, 2008 -- Hearing on default judgment versus CERN
* Wagner's own process server says that the service was illegal
The process server wrote me a letter stating that CERN told him they did not consider the service to be legal. Yes, and he added in his own voice:
S'agissant des organisations internationales, tous les actes judiciaires doivent être notifiés par la Mission Suisse, laquelle est le canal diplomatique et donc la vole appropriee pour notifier des actes judiciaires. [With respect to International Organizations, all judicial documents must be notified through the Swiss Mission, which is the diplomatic channel and therefore the adequate channel by which to notify judicial documents.]
* The Swiss Embassy says the service was illegal
The Swiss Embassy has not filed anything with the court. Docket Number 39 or 58.
I have already quoted this for you here: http://www.sciforums.com/showpost.php?p=2005374&postcount=238

Remember, anyone can slap anything up on arxiv. Which is why, when possible, I put the journal citation on the same line as the convenient arxiv link. R. Plaga, for example, hasn't found a journal to publish his paper in.

[Walter L. Wagner]

The Swiss Embassy is not allowed to file pleadings, as they are not a party. The US government has not attached any Swiss Embassy documents to any of their pleadings, as of yet. Further, the Swiss Embassy has not served me with any documents. Any documents they might have lodged with the clerk would be stamped 'received' rather than 'filed'.

The position that CERN is taking through the US government attorney is that they are immune from service of process from anyone in the world. The Hague Convention, if it were the only method applicable, would allow CERN to avoid service unless they consented, which clearly they don't. Accordingly, we've argued that CERN can't have its cake and eat it too. In other words, if they wan't to have the Hague Convention applicable, then they have to consent to service. If the Hague Convention is not mandatorily applicable [as we've argued], then they have been served. We are affording CERN the opportunity to file late, which is what I believe Judge Chang might decide to allow, and defer the preliminary injunction request for decision by Judge Gillmor.

[Walter L. Wagner]

I remind you of Docket 29, filed on August 5 and your original complaint.

Neither of those were motions for preliminary injunction. The complaint, by definition, is not a motion, even if it asks a demand for such in the demand portion of the complaint. It requires a separate, stand-alone motion, which we did not file for tactical reasons when the complaint was filed.

Likewise, the August 4-5 filing was the motion for default injunction against CERN [still pending], NOT the motion for preliminary injunction against the DOE.

The pending motion for preliminary injunction is the first such motion filed, recognized as such by all the lawyers involved, and the court. Only you, a non-lawyer, seem to think contrarily.

Now, I believe I've wasted enough time on correcting you, so why don't you let others post if they think this is a viable thread.

And Ben, I do believe it should be in Science and Society, since I'm not going to be discussing the physics of the suit in this thread, as it is inappropriate. Or we can just let it sink to oblivion, and instead follow the pleadings as they are filed in court, and not rpenner's attempts at synopsis.

[rpenner]

What CERN wants is not (yet) at issue. It's what the Swiss Government wants since they signed both the Hague Convention with the US and the HQ Agreement with CERN. That the process of serving papers on CERN is technically challenging is not an indication that it is impossible. Further, what basis do you rely upon to guess that CERN will somehow veto the process, when you have not allowed them to make that decision yet? Like your physics speculations of what you think might happen at the LHC, your legal speculations of what CERN's intentions or future legal strategies would be are without basis in historical or scholarly foundation.

The fact that the letter from the Swiss Embassy is in the docket allows both the Gillmor and Chang benchs to consider it on their own and have their clerks look up the precedents on their own. In fact, in factual and legal content it is largely redundant with the Breitenmoser correspondence. But it strongly indicates the position of the Swiss Government whose cooperation with the US Court cannot be depended upon as long as you break Swiss laws to pursue this case. Judges, unlike jury members, often have the discretion to investigate on their own. Rule 44.1 states in part "In determining foreign law, the court may consider any relevant material or source, including testimony, whether or not submitted by a party or admissible under the Federal Rules of Evidence."

http://www.law.cornell.edu/rules/frcp/

Added:
The position that CERN is taking through the US government attorney....
I'm no lawyer, but wouldn't that be some sort of huge ethics violation, conflict of interest and could get the attorney both fired and disbarred if it were true? But, of course, the basis for this charge is nowhere to be found. Not everyone who disagrees with you is working for CERN.

I'm not going to be discussing the physics of the suit in this thread That is, of course, your personal decision.

[Saxion]

How sad, that most of you feel the need to act like jerks towards him.

[Read-Only]

How sad, that most of you feel the need to act like jerks towards him.

Sorry, but you say that only because you've not yet had a chance to read everything - in MANY other threads here - where it's been proven beyond all doubt that actually he IS a jerk , liar, crook and misrepsents himself as having credentials that he clearly does not posess.

Once you've come across all that you'll understand why he's geting the treatment that he is in this thread.

[Saxion]

Sorry, but you say that only because you've not yet had a chance to read everything - in MANY other threads here - where it's been proven beyond all doubt that actually he IS a jerk , liar, crook and misrepsents himself as having credentials that he clearly does not posess.

Once you've come across all that you'll understand why he's geting the treatment that he is in this thread.


It's quite a flaw when someone involves themselves in a dispute with very little background knowledge on what the arguement entails.

Funnily enough, i have been watching the arguements for a good two years, and i don't percieve him as a jerk, a liar, or a crook of truth. However, i have also observed many attitudes around here, including your own, and you represent yourself as a jerk.

How do you feel about that?

[Read-Only]

It's quite a flaw when someone involves themselves in a dispute with very little background knowledge on what the arguement entails.

Funnily enough, i have been watching the arguements for a good two years, and i don't percieve him as a jerk, a liar, or a crook of truth.

Then you haven't been paying very close attention.

However, i have also observed many attitudes around here, including your own, and you represent yourself as a jerk.

How do you feel about that?

Feel? Nothing. Your opinion of me has no value at all as far as I'm concerned. You're nothing to me but words displayed on a screen.

[Saxion]

The behaviour sometimes reminds me of little children in the playpark, where one bully isn't enough, but requires the whole of them to hurl insults.

And your response shows no remorse, or adult intellect.

[Read-Only]

The behaviour sometimes reminds me of little children in the playpark, where one bully isn't enough, but requires the whole of them to hurl insults.

And your response shows no remorse, or adult intellect.

Absolutely NO remorse - nothing here deserves or calls any. But plenty of adult intellect and experience.

Why would you even suppose I would care about someone I don't know and will never meet? THAT'S illogical. I care about my family and dozens of friends as well as people in general that are affected by unfortunate or contrived disasters - but individuals like yourself? No interest at all one way or the other. I don't wish good or ill towards you.

[Saxion]

Absolutely NO remorse - nothing here deserves or calls any. But plenty of adult intellect and experience.

Why would you even suppose I would care about someone I don't know and will never meet? THAT'S illogical. I care about my family and dozens of friends as well as people in general that are affected by unfortunate or contrived disasters - but individuals like yourself? No interest at all one way or the other. I don't wish good or ill towards you.

It's not illogical to try and be civil to people you know (even if not well). That's just common decency -- a human attribute that seems to be lost more and more.

I don't wish good or ill towards you

Yes, maybe not me but your words certainly are wrapped up in hate and anger towards others.

And it is at this point, the conversation is begging to ask... if you care not of people round here, why do you care to express your emotions so clearly towards them?

[Read-Only]

It's not illogical to try and be civil to people you know (even if not well). That's just common decency -- a human attribute that seems to be lost more and more.



Yes, maybe not me but your words certainly are wrapped up in hate and anger towards others.

And it is at this point, the conversation is begging to ask... if you care not of people round here, why do you care to express your emotions so clearly towards them?

The only emotions you'll see me express are in conjunction with things that you have jumped on yourself - like the absurd claims made about Dark Matter.

That and laziness, lying and general misrepresentations of facts or truth. I absolutely HATE and abhor all those things! :mad:

But it's ONLY those kinds of things - the people themselves, I have no interest in. I neither like nor dislike them. Only the principles matter to me.

[Saxion]

Yes, but i am not going to go about and slag the guy for not understanding physics better. I will certainly comment on the theory, and express it is rubbish, indeed if it is, but i am not going to post comments saying he's as thick as shit, because that quickly becomes personal and insultive.

Do you not see?

[Read-Only]

Yes, but i am not going to go about and slag the guy for not understanding physics better. I will certainly comment on the theory, and express it is rubbish, indeed if it is, but i am not going to post comments saying he's as thick as shit, because that quickly becomes personal and insultive.

Do you not see?

Sure. So we are in agreement - except for possibly the fact that I truly care nothing about him/them as a person. And I think you exaggerate in regard to my being personally insulting towards them. I'll call them posters of "garbage" or "nonsense" and that's about the extent of it.

[Saxion]

But why attack the poster? Attacking the theory should suffice.

[Stryder]

Why don't we just cut to the chase, isn't it true that the US would have had their own LHC, however the funding was pulled on it?

If the US was running their own LHC would you guys be trying to pull the plug on it?

[Saxion]

Question is, should they? Do they have the right to voice their opinion?

[Read-Only]

But why attack the poster? Attacking the theory should suffice.

I don't. I attack the NONSENSE and GARBAGE they post. And I don't even do that until I've dealt with each of them for at least a week or so. I feel I've given them ample time to learn from their mistakes and reconsider - and it's only those who REFUSE to learn that I actually take to task over it.

I still believe you've formed an opinion of me without having looked back at the whole story and sequence of events. And that's your fault, not mine.;)

[Stryder]

Question is, should they? Do they have the right to voice their opinion?

I don't think anyone is suggesting they couldn't have an opinion. I think the main problem is rather than just stating that they fear certain aspects and want CERN operators to double check, they've been going out of their way to cause distress and attempt to chuck a spanner in the works.

(The following is not direct at you Saxion, just a generalised statement)
By all means raise your concerns, but don't step in the way of progress because you have no meaning to your life and want to make a name for yourself or just think you can jump on some money train.

[Read-Only]

Why don't we just cut to the chase, isn't it true that the US would have had their own LHC, however the funding was pulled on it?

If the US was running their own LHC would you guys be trying to pull the plug on it?

I'm not sure exactly who you're addressing here. But for my part, it doesn't matter WHERE it's located - it's only the science itself that really matters.

[Saxion]

I don't. I attack the NONSENSE and GARBAGE they post. And I don't even do that until I've dealt with each of them for at least a week or so. I feel I've given them ample time to learn from their mistakes and reconsider - and it's only those who REFUSE to learn that I actually take to task over it.

I still believe you've formed an opinion of me without having looked back at the whole story and sequence of events. And that's your fault, not mine.;)


Well that's simply not true is it.

Tracing your history of posts, you make a many of attacks on the poster, as much as you do on the theory.

[Saxion]

I don't think anyone is suggesting they couldn't have an opinion. I think the main problem is rather than just stating that they fear certain aspects and want CERN operators to double check, they've been going out of their way to cause distress and attempt to chuck a spanner in the works.

(The following is not direct at you Saxion, just a generalised statement)
By all means raise your concerns, but don't step in the way of progress because you have no meaning to your life and want to make a name for yourself or just think you can jump on some money train.

Some times, the way of progress is at expense of more dear things.

[BenTheMan]

I'm not sure exactly who you're addressing here. But for my part, it doesn't matter WHERE it's located - it's only the science itself that really matters.

In principle, I agree with you. But I can't tell you how many experimental seminars I've been in where people have made offhand comments about how the higgs or SUSY SHOULD have been discovered in America.

From what I understand (and someone correct me, please) the LHC was on the books a long time ago. Work was slated to begin after the other experiment at CERN was completed---LEP. The US (Reagan administration) saw what types of energies the LHC would achieve (14 TeV) and planned a machine to blow it out of the water (40 TeV). If you like, you can point out how typically American this is.

Either way, the SSC (American machine) was killed when it was way over budget in favor of the flying ant farm (Int. Space Station).

[rpenner]

How sad, that most of you feel the need to act like jerks towards him. Is it demonstrated that most of us act like jerks? You seem to focus on Read-Only and then generalize to the rest of us. It's quite a flaw when someone involves themselves in a dispute with very little background knowledge on what the arguement entails. But this is the case with all the anti-LHC plaintiffs. Not one has mastered GR, particle physics or other physical theories to the extent which is required to argue meaningfully. However, i have also observed many attitudes around here, including [Read-Only's], and [he] represent[s himself] as a jerk. But what's bad for your opinion of Read-Only is usually good for the readership count of SciForums.com. You're nothing to me but words displayed on a screen.Which is a very good point, since we have little proof that anyone is who they represent themselves on the Internet point. The behaviour sometimes reminds me of little children in the playpark, where one bully isn't enough, but requires the whole of them to hurl insults. You keep on changing your charges and generalizing to some group larger than the data supports. Is the problem jerks or bullies? It's not illogical to try and be civil to people you know (even if not well). That's just common decency -- a human attribute that seems to be lost more and more. No one knows someone over the Internet. There has never been something called common decency between people who do not see each other as peers. It is clear that Read-Only doesn't consider Walter Wagner his peer, chum, or buddy so it would very unnatural to see Read-Only's behavior change before the relationship changes. Yes, maybe not me but [Read-Only's] words certainly are wrapped up in hate and anger towards others. I disagree with your conclusion. And it is at this point, the conversation is begging to ask... if you care not of people round here, why do you care to express your emotions so clearly towards them? Read-Only's point, which is repeated several times, is that it should not be insulting to people to point out that they have said stupid things, and this being a factual assertion about what they said, is not even in the same category as making baseless claims about their birth, parentage or lack of capability. In the exact same way, a teacher's mark of F is not a personal slur. i am not going to post comments saying he's as thick as shitWhat is the basis of this proposed example? Attacking the theory should suffice. Provided the poster is playing by the rules and actually posts a theory. Otherwise, the poster has committed a foul by using the methods of crackpots and can expect grief for continued fouls as he does damage to his own reputation. Question is, should they? Do they have the right to voice their opinion? Everyone has the right to hold and express an opinion, but since people have died when they paid attention to the baseless opinions of quacks and crackpots, should we not hold them accountable for their own posts? Tracing [Read-Only's] history of posts, [he] make[s] many of attacks on the poster, as much as [he] do[es] on the theory. Could you actually illustrate this behavior on a thread other than this one? Some times, the way of progress is at expense of more dear things. Could you elucidate?

[rpenner]

On Friday, the Federal Court in Hawaii ended the proceedings based on the arguments presented on September 2. Presented for your viewing is the decision of the judge:

Two private individuals sue to enjoin several federal agencies and a European nuclear energy research center from operating the Large Hadron Collider (“LHC”), a subatomic particle accelerator straddling the French-Swiss border near Geneva, Switzerland. The LHC is designed to collide high-energy beams of subatomic particles into one another for purposes of scientific research. Plaintiffs allege that operation of the LHC could potentially trigger various irreversible processes that could lead to the destruction of the Earth. Plaintiffs’ implicit argument is that this Court has jurisdiction to enjoin the operation of the LHC because the Defendants are obligated to fulfill the requirements stated within the National Environmental Policy Act (“NEPA”), 42 U.S.C. §§ 4321-4347, before commencing operation of the LHC.

The United States Defendants move for dismissal for lack of subject matter jurisdiction or for summary judgment on other grounds. Defendants’ Motion to Dismiss (Doc. 14) is GRANTED.

PROCEDURAL HISTORY

On March 21, 2008, Plaintiffs Luis Sancho and Walter L. Wagner (“Plaintiffs”) filed a complaint. (Doc. 1, “Complaint”.)

On June 24, 2008, Federal Defendants United States Department of Energy, Fermilab, and National Science Foundation (“Defendants”) filed a Combined Motion to Dismiss and Motion for Summary Judgment. (Doc. 14, “Motion”.) Defendants also filed four declarations by Denis Kovar, Joanna Livengood, Morris Pripstein, and Bruce Strauss, in support of the Motion. (Docs. 17-20.)

On July 1, 2008, Plaintiffs filed a motion entitled, “Request for Entry of Default Against Defendant CERN [Center for Nuclear Energy Research].” (Doc. 24, “Request”.) Plaintiffs also filed a declaration by Walter Wagner in support of the Request. (Doc. 25.)

On August 5, 2008, Plaintiffs filed a proposed Judgment by Default Against Defendant CERN. (Doc. 28.)

On August 5, 2008, Plaintiffs filed a motion entitled, “Motion for Permanent Injunction Against Defaulting Defendant CERN.” (Doc. 29.) Plaintiffs also filed an affidavit by Walter Wagner in support of the Motion for Permanent Injunction. (Doc. 30.)

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, stating that CERN disputes jurisdiction based on the method of delivery of Plaintiffs’ Complaint. (Doc. 58.)

On August 22, 2008, seven days after it was due (Local Rule 7.4), Plaintiffs filed an Opposition to Defendants’ Combined Motion to Dismiss and for Summary Judgment (Doc. 49, “Opposition”) and affidavits by Plaintiffs Walter Wagner and Luis Sancho in support of the Opposition. (Docs. 54-55.)

On August 22, 2008, the same date Plaintiffs filed their Opposition, Defendants’ filed a timely Reply in Support of Combined Motion to Dismiss and Motion for Summary Judgment. (Doc. 48, “Reply”.)

On August 26, 2008, Plaintiffs filed a Rebuttal to Federal Defendant’ Reply in Support of Combined Motion to Dismiss and for Summary Judgment (Doc. 52, “Rebuttal”) without asking leave from the Court as required by Local Rule 7.4.

On August 29, 2008, Defendants filed a Declaration of Bruce P. Strauss in Response to the August 5, 2008 Affidavit of Walter L. Wagner and In Support of Federal Defendants’ June 24, 2008 Motion to Dismiss (Doc. 66) without authorization from the Court. See Local Rule 7.2(f).

On September 2, 2008, on the morning of the hearing, Plaintiffs filed an Affidavit by Walter L. Wagner in Rebuttal to the Late-Filed Affidavit of Bruce Strauss. (Doc. 67.)

The hearing on Defendants’ Motion occurred on September 2, 2008. At the hearing, the Court orally granted the Motion to Dismiss as to Plaintiffs’ claims that the United States was somehow bound by international law or foreign agreements named by Plaintiffs. The Plaintiffs’ claims were based on the European Council’s “Precautionary Principle” and the European Commission’s “Science and Society Action Plan.” Neither document has been incorporated into domestic law, by international treaty or otherwise. Defendants’ Motion to Dismiss (Doc. 14), filed on June 24, 2008, was orally granted as to the section of the motion entitled, “The United States is Immune from Suit Regarding Documents Issued by the European Commission and Council for the European Union.” (Defendants’ Motion, Doc. 14, Part I(C).)

At the hearing, the Court also denied Federal Defendants’ Ex Parte Application to Strike Plaintiffs’ Untimely Responses to Federal Defendants’ Motion to Dismiss or, in the Alternative, for an Opportunity to Reply. (Doc. 56.)

The Motion for Leave to File Brief Amicus Curiae (Doc. 37) and Motion for Leave to File Amended Brief Amicus Curiae (Doc. 44) were both denied. The filings were not supported by affidavits or other evidence that demonstrated that the alleged amici were involved in the filing. Both the amicus curiae brief and the amended amicus curiae brief were unsupported argument.

On September 19, 2008, amici curiae, Sheldon Glashow, Frank Wilczek, and Richard Wilson, filed a Motion for Permission to File Motion for Leave to Resubmit Amended Brief Amicus Curiae Filed August 21, 2008 with supporting affidavits. (Doc. 80.)

On September 24, 2008, the Court issued a Minute Order granting the Motion for Permission to File Motion for Leave to Resubmit Amended Brief Amicus Curiae Filed August 21, 2008. (Doc. 87.)

On September 25, 2008, amici curiae, Sheldon Glashow, Frank Wilczek, and Richard Wilson, filed a Motion for Leave to Resubmit Amended Brief Amicus Curiae Filed August 21, 2008. (Doc. 88.)

On September 26, 2008, the Court issued a Minute Order granting the Motion for Leave to Resubmit Amended Brief Amicus Curiae Filed August 21, 2008. The Court has considered the Amended Brief Amicus Curiae Filed August 21, 2008 in reaching its decision.

BACKGROUND

The Complaint alleges that Plaintiff Luis Sancho is a citizen of Spain, with legal residence in the State of Hawaii. (Compl. at ¶ 1.) Plaintiff Walter L. Wagner alleges he is a citizen and resident of the State of Hawaii. (Id. at ¶ 2.)

The Defendants include two federal agencies (“Federal Defendants”), the United States Department of Energy (“DOE”) and the National Science Foundation (“NSF”), a United States government agency responsible for the promotion of scientific research. (Id. at ¶¶ 3, 5.)

Plaintiffs have also named as Defendants the Center for Nuclear Energy Research (“CERN”), an intergovernmental European agency that conducts nuclear research (Id. at ¶ 6), and Fermilab (Id. at ¶ 4). The parties dispute whether Fermilab has been appropriately named as a Defendant. Federal Defendants state that Fermilab is a collection of federal buildings, facilities, and equipment wholly-owned by the United States Department of Energy, not a separate legal entity. (Federal Defendants’ Livengood Decl. ¶ 5.)

The Large Hadron Collider is a particle accelerator that straddles the French-Swiss border near Geneva, Switzerland. (Federal Defendants’ Strauss Decl. ¶ 6.) The LHC is comprised of a 27 kilometer ring of superconducting magnets, designed to collide high-energy beams of subatomic particles into one another. (Id.) The collision fractures the atoms into more fundamental particles that can be observed and studied for purposes of scientific research. (Compl. at ¶ 11.)

Plaintiffs allege that the collisions are unsafe and could potentially result in the destruction of the Earth. (Id. at ¶ 13.) Plaintiffs posit three separate theories regarding the outcome of the LHC particle experiments: (1) the creation of a runaway fusion reaction that would eventually convert all of Earth into a single, large ‘strangelet’; (2) the creation of a ‘micro black hole’ into which the Earth would fall; and (3) the creation of a runaway reaction due to the formation of a ‘magnetic monopole’. (Id.) Under all of Plaintiffs’ theories, the LHC particle experiments could lead to the end of all mankind. (Id.) Plaintiffs do acknowledge, however, that various competing scientific theories exist regarding the outcome of the subatomic collisions to be performed at the LHC. (Id. at ¶ 12.)

It is the Federal Defendants’ position that the LHC particle experiments have been thoroughly reviewed and are completely safe. Federal Defendants’ position regarding the safety of the LHC is fully stated in the Declaration of Bruce P. Strauss. (Strauss Decl. ¶ 31.) Dr. Strauss is the Program Manager in the Office of High Energy Physics, Office of Science, for the United States Department of Energy. (Id. at ¶ 1.) In support of Federal Defendants’ position, Dr. Strauss attaches to his Declaration the “Review of the Safety of LHC Collisions,” a report authored by CERN’s LHC Safety Assessment Group. (Strauss Decl. ¶ 31 and Attachment 15.) The “Review of the Safety of LHC Collisions” states as its conclusion: “There is no basis for any concerns about the consequences of new particles or forms of matter that could possibly be produced by the LHC.” (Id.)

The nature of the United States’ involvement in the Large Hadron Collider is not agreed upon by the parties. Plaintiffs allege that Federal Defendants and Defendant CERN engaged in a “partnership relationship” to construct the LHC. (Compl. at ¶ 8.) Federal Defendants do not dispute that they were involved with the LHC project, but offer evidence that the construction, operation, and management of the LHC is the sole responsibility of CERN, an intergovernmental European agency headquartered in Geneva, Switzerland. (Strauss Decl. ¶ 5.) According to the Federal Defendants, all 20 member states of CERN are European countries who are represented on CERN’s governing council; the United States is not a member state of CERN. (Id. at ¶¶ 5, 12.)

Federal Defendants state that the United States’ involvement with the LHC is governed by a December 8, 1997 International Cooperation Agreement (“1997 Agreement”) with the Center for Nuclear Energy Research. (Strauss Decl. ¶ 8 and Attachment 4.) The United States maintains that the 1997 Agreement outlined the parties’ respective responsibilities regarding the construction and operation of the LHC. According to the 1997 Agreement, the United States would assist in the construction of 38 (out of approximately 1890) superconducting magnets, which are used to steer the particle beams around the LHC ring. (Strauss Decl. ¶ 20.) The 1997 Agreement provides that the United States would also participate in the construction of two of the four detectors used to observe the subatomic collisions (id.) and in experiments involving the detectors (id. at ¶¶ 24, 25.).

It is the Federal Defendants’ position that the 1997 Agreement shows that the United States is only given non-voting “observer” status in CERN’s governing council, and the United States has no decision-making authority in CERN. Accordingly, the United States is only permitted to attend council meetings and receive council documents. (Id. at ¶ 12.) The 1997 Agreement reflects that 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. (Id. at ¶¶ 12, 13.) Under the United States’ interpretation of the 1997 Agreement, CERN member states have the exclusive responsibility for all such decisions. (Id. at ¶ 13.)

Plaintiffs orally contested Federal Defendants’ allegations regarding United States’ control over the LHC during the September 2, 2008 hearing, but have not provided the Court with any substantive written evidence in support of their position.

Pursuant to the 1997 Agreement, Federal Defendants state that they contributed a total of $531 million toward the construction of the LHC. (Id. at ¶¶ 14, 21, 22.) Federal Defendants calculate that this expenditure represents less than 10% of the LHC’s total construction cost of $5.84 billion. [[Various other materials suggest that the total cost of constructing the LHC far exceeds $5 billion.]] (Id. at ¶ 21.) Of the $531 million contributed by Federal Defendants, the DOE contributed $450 million toward the construction of the accelerator components and the two detectors. (Id. at ¶ 18.) The remaining $81 million was contributed by the NSF toward the construction of the two detectors. (Federal Defendants’ Pripstein Decl. ¶ 9.)

The United States indicates that their contributions toward the construction of the detector and the accelerator components have now been completed and the components are now in Geneva, Switzerland, under the complete control of CERN. (Id. at ¶ 7; Strauss Decl. ¶ 22.)

In addition to providing funding for the construction of the LHC, Federal Defendants will also provide support for the operation and maintenance of the LHC. (Pripstein Decl. ¶ 10.; Strauss Decl. ¶¶ 24, 25.) Federal Defendants’ involvement is projected to include supplying additional federal funding and providing research scientists to CERN. (Pripstein Decl. ¶ 10.; Strauss Decl. ¶ 25.)

STANDARD OF REVIEW

I. Motion to Dismiss

The Defendants seek dismissal of Plaintiffs' Complaint for lack of subject matter jurisdiction. A case is properly dismissed for lack of subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1) when the court lacks the constitutional or statutory power to adjudicate the case.

A court may consider extrinsic evidence in a 12(b)(1) motion to dismiss including: affidavits or any other evidence properly before the court .... It then becomes necessary for the party opposing the motion to present affidavits or any other evidence necessary to satisfy its burden of establishing that the court, in fact, possesses subject matter jurisdiction. Ass'n of American Medical Colleges v. United States, 217 F.3d 770, 778 (9th Cir. 2000) (citing St. Clair v. City of Chico, 880 F.2d 199, 201 (9th Cir. 1989) (further citations omitted)).

In evaluating a complaint pursuant to a motion to dismiss, the court must presume all factual allegations to be true and draw all reasonable inferences in favor of the nonmoving party. Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987); see Scheuer v. Rhodes, 416 U.S. 232, 236 (1974) (the complaint must be liberally construed, giving the plaintiff the benefit of all proper inferences); Wileman Bros. & Elliott, Inc. v. Giannini, 909 F.2d 332, 334 (9th Cir. 1990).

Conclusory allegations of law and unwarranted inferences, though, are insufficient to defeat a motion to dismiss. Pareto v. F.D.I.C, 139 F.3d 696, 699 (9th Cir. 1998); In re VeriFone Securities Litigation, 11 F.3d 865, 868 (9th Cir. 1993) (conclusory allegations and unwarranted inferences are insufficient to defeat a motion to dismiss for failure to state a claim); Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981), cert denied, 454 U.S. 1031 (1981) (the Court does not “necessarily assume the truth of legal conclusions merely because they are cast in the form of factual allegations”). Additionally, the Court need not accept as true allegations that contradict matters properly subject to judicial notice or allegations contradicting the exhibits attached to the complaint. Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001).

When the motion to dismiss is a factual attack on subject matter jurisdiction, no presumptive truthfulness attaches to plaintiff's allegations. The existence of disputed material facts will not preclude the trial court from evaluating for itself the existence of subject matter jurisdiction in fact. Thornhill Pub. Co., Inc. v. General Tel. & Electronics Corp., 594 F.2d 730, 733 (C.A.Wash. 1979); Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004), cert. denied, 2005 WL 282138 (May 2, 2005).

The party seeking to invoke the jurisdiction of the Court has the burden of establishing that jurisdiction exists. Scott v. Breeland, 792 F.2d 925, 927 (9th Cir. 1986); Thornhill, 594 F.2d at 733. "[A] Rule 12(b)(1) motion can attack the substance of a complaint's jurisdictional allegations despite their formal sufficiency," whereupon the plaintiff must "present affidavits or any other evidence necessary to satisfy its burden." St. Clair v. City of Chico, 880 F.2d 199, 201 (9th Cir. 1989) (holding that in a factual attack on subject matter jurisdiction, the Court may accept and evaluate evidence to determine whether jurisdiction exists).

II. Motion for Summary Judgment

Summary judgment is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). To defeat summary judgment there must be sufficient evidence that a reasonable jury could return a verdict for the nonmoving party. Nidds v. Schindler Elevator Corp., 113 F.3d 912, 916 (9th Cir. 1997).

The moving party has the initial burden of "identifying for the court the portions of the materials on file that it believes demonstrate the absence of any genuine issue of material fact." T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). The moving party, however, has no burden to negate or disprove matters on which the opponent will have the burden of proof at trial. The moving party need not produce any evidence at all on matters for which it does not have the burden of proof. Celotex, 477 U.S. at 325. The moving party must show, however, that there is no genuine issue of material fact and that he or she is entitled to judgment as a matter of law. That burden is met simply by pointing out to the district court that there is an absence of evidence to support the non-moving party’s case. Id.

If the moving party meets its burden, then the opposing party may not defeat a motion for summary judgment in the absence of probative evidence tending to support its legal theory. Commodity Futures Trading Comm'n v. Savage, 611 F.2d 270, 282 (9th Cir. 1979). The opposing party must present admissible evidence showing that there is a genuine issue for trial. Fed.R.Civ.P. 56(e); Brinson v. Linda Rose Joint Venture, 53 F.3d 1044, 1049 (9th Cir. 1995). “If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.” Nidds, 113 F.3d at 916 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986)).

The court views the facts in the light most favorable to the non-moving party. State Farm Fire & Casualty Co. v. Martin, 872 F.2d 319, 320 (9th Cir. 1989). Opposition evidence may consist of declarations, admissions, evidence obtained through discovery, and matters judicially noticed. Fed.R.Civ.P. 56(c); Celotex, 477 U.S. at 324. The opposing party cannot, however, stand on its pleadings or simply assert that it will be able to discredit the movant's evidence at trial. Fed.R.Civ.P. 56(e); T.W. Elec. Serv., 809 F.2d at 630. The opposing party cannot rest on mere allegations or denials. Fed.R.Civ.P. 56(e); Gasaway v. Northwestern Mut. Life Ins. Co., 26 F.3d 957, 959-60 (9th Cir. 1994). Nor can the opposing party rest on conclusory statements. National Steel Corp. v. Golden Eagle Ins. Co., 121 F.3d 496, 502 (9th Cir. 1997).

ANALYSIS

The district courts of the United States are courts of limited jurisdiction. Exxon Mobil Corp. v. Allapattah Servs., 545 U.S. 546, 552 (2005). Federal district courts have no jurisdiction without specific statutory authorization. Id. In 28 U.S.C. § 1331, “Congress has conferred on the district courts original jurisdiction in federal-question cases – civil actions that arise under the Constitution, laws, or treaties of the United States.” Exxon Mobil Corp., 545 U.S. at 552.

I. NEPA

The Complaint does not address a basis for jurisdiction in this Court. Jurisdiction may be found over this action only if there is a Federal Government violation of the National Environmental Policy Act (“NEPA”), 42 U.S.C. §§ 4321-4347.

Congress enacted NEPA to provide a "national policy which will encourage productive and enjoyable harmony between man and his environment; to promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man; [and] to enrich the understanding of the ecological systems and natural resources important to the Nation[.]" 42 U.S.C. § 4321.

NEPA requires that for all "major Federal actions significantly affecting the quality of the human environment," the relevant federal agency must prepare and file a detailed statement analyzing the environmental impact of a proposed action. 42 U.S.C. § 4332(2)(C). This statement is called the Environmental Impact Statement ("EIS"). An EIS must contain, among other things, analysis of the projected environmental impact, proposed mitigation measures, an evaluation of the cumulative environmental impact, and alternatives to the proposed action. 40 C.F.R. §§ 1502.1-1502.25. The EIS filing ensures that the federal agency considers all environmental factors when deciding whether to proceed with a proposed project, and provides notice to the public that such concerns were taken into account. See Baltimore Gas & Electric v. Natural Resources Defense Council, 462 U.S. 87, 97 (1983).

All proposed projects do not require the filing of an EIS. The federal agency must first determine whether this statement is required under NEPA. 40 C.F.R. § 1501.4(a). If the answer is not readily apparent, the federal agency may prepare an environmental assessment ("EA") in order to determine whether a full EIS is necessary. 40 C.F.R. § 1501.4(b)-(c). If the proposed action will not significantly affect the human environment, the agency can issue a finding of no significant impact ("FONSI"). 40 C.F.R. § 1508.13. If no proposal is pending, or a proposed action has already been carried out, an EIS is not required. See Sierra Club v. Penfold, 857 F.2d 1307, 1317-1318 (9th Cir. 1988).

II. NEPA’s “Major Federal Action” Requirement

NEPA requires federal agencies to prepare and file an EIS before undertaking any "major Federal actions significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(C). "’Major Federal actions’ includes actions with effects that may be major and which are potentially subject to Federal control and responsibility." 40 C.F.R. § 1508.18.

Here, Federal Defendants have undertaken a joint project with the Center for Nuclear Energy Research (“CERN”) in order to construct the Large Hadron Collider (“LHC”). Federal Defendants state that pursuant to the December 8, 1997 International Cooperation Agreement (“1997 Agreement”), they have contributed a total of $531 million toward the construction of the LHC. (Strauss Decl. ¶¶ 14, 21, 22.) According to Federal Defendants’ calculations, this expenditure represents less than 10% of the LHC’s total construction cost of $5.84 billion. (Id. at ¶ 21.)

The jurisdiction of the Court to address Plaintiffs’ claims depends on whether Federal Defendants have undertaken a “major Federal action” with respect to the construction of the LHC. To determine if the Court does have jurisdiction under NEPA, the Court must examine two factors: (1) the amount and nature of Federal Defendants’ funding, and (2) the extent of Federal Defendants’ involvement and control. Rattlesnake Coal. v. EPA, 509 F.3d 1095, 1101 (9th Cir. 2007); Ka Makani 'O Kohala Ohana Inc. v. Dept. of Water Supply, 295 F.3d 955, 960 (9th Cir. 2002); Sierra Club, 857 F.2d at 1314; Almond Hill School v. United States Department of Agriculture, 768 F.2d 1030, 1039 (9th Cir. 1985); State of Alaska v. Andrus, 591 F.2d 537, 541 (9th Cir. 1979).

No bright-line standard has been articulated by the Courts in determining when federal participation transforms a project into a major federal action within the meaning of NEPA. Almond Hill School, 768 F.2d at 1039 (9th Cir. 1985). Each project must be examined with the relevant criteria in mind.

A. Federal Funding of the Construction of the LHC

Prior litigation under NEPA has often involved situations where the federal government is engaged in a joint project with a local, state, or private entity. These joint projects often have multiple sources of funding. In these situations, the courts have required a significant level of federal funding in order to meet NEPA’s “major Federal action” requirement. Blue Ocean Preservation Society v. Watkins, 754 F. Supp. 1450, 1466 (D. Haw. 1991). Merely examining the total amount of federal funds distributed, however, will not give the correct result. A comparison must be made between the total amount of federal funds distributed and the total cost of the program. Ka Makani, 295 F.3d at 960.

The Courts have declined to find major federal action where federal funding was minimal relative to “the entire program.” Friends of the Earth, Inc. v. Coleman, 518 F.2d 323, 329 (9th Cir. 1975) (no major federal action where federal funding was 10% of the entire project); see also, e.g., Rattlesnake, 509 F.3d at 1101 (no major federal action where federal funding was 6% of the entire project); Ka Makani, 295 F.3d at 960 (no major federal action where federal funding was 1.6% of the entire project) (“consideration must be given to a great disparity in the expenditures forecast for the [nonfederal] and federal portions of the entire program." (italics in original) (internal citations and quotations ommitted)); Village of Los Ranchos de Albuquerque v. Barnhart, 906 F.2d 1477, 1482 (10th Cir. 1990) (no major federal action where federal funding was “minuscule in comparison with the cost of the total bridge project”). The Courts have also held that where a project may qualify for future federal funds, the potential to receive federal money at some later date does not qualify a challenged project as a major federal action. Friends of the Earth, 518 F.2d at 328.

According to Dr. Strauss, the Program Manager in the Office of High Energy Physics, Office of Science, for the United States Department of Energy, Federal Defendants contributed a total of $531 million toward the construction of the LHC pursuant to the 1997 Agreement entered into between Federal Defendants and CERN. (Strauss Decl. ¶¶ 14, 21, 22.) This expenditure is represented to be less than 10% of the LHC’s total construction cost of $5.84 billion. (Id. at ¶ 21.) The applicable caselaw indicates that the funding provided by the United States for the construction of the Large Hadron Collider does not constitute a “major Federal action” as defined by the National Environmental Policy Act.

B. Federal Funding of the Operation of the LHC

Dr. Strauss and Dr. Morris Pripstein, the National Science Foundation Program Manager for the Large Hadron Collider, state that the United States will also provide support for the operation and maintenance of the LHC in the future. (Pripstein Decl. ¶ 10.; Strauss Decl. ¶¶ 24, 25.)

An analysis of the “major Federal action” requirement in NEPA must focus upon federal funds that have already been distributed. Federal funds that have only been budgeted or allocated toward a project cannot be considered because they are not an “irreversible and irretrievable commitment of resources.” Friends of the Earth, 518 F.2d at 328 (quotations omitted). The expectation of receiving future federal funds will not transform a local or state project into a federal project. (Id.)

According to the evidence before the Court, the United States’ future involvement in the LHC will include supplying additional federal funding and providing research scientists to CERN. (Pripstein Decl. ¶ 10.; Strauss Decl. ¶ 25.) Federal Defendants’ state that the National Science Foundation will provide an additional $87 million for the operation and maintenance of the detectors. (Pripstein Decl. ¶ 10.) In addition, the United States Department of Energy represents that they have budgeted approximately $63 million for fiscal year 2008 and $72 million for fiscal year 2009. (Strauss Decl. ¶ 18 at Attachment 9.)

It is not clear what percentage the proposed federal funding by the United States will represent relative to the total maintenance and operation budget of the LHC. Regardless of the percentage, consideration of the budgeted future federal funds is not ripe for consideration in the “major Federal action” analysis before the Court.

C. Federal Involvement With and Control Over the LHC

The Court must also examine the extent of Federal Defendants’ involvement with and control over the LHC in analyzing if there was a major federal action within the meaning of NEPA. Rattlesnake, 509 F.3d at 1101; Ka Makani, 295 F.3d at 960; Sierra Club, 857 F.2d at 1314; Andrus, 591 F.2d at 541. A low level of federal control would weigh against a finding of major federal action. See Almond Hill, 768 F.2d at 1039 (no major federal action existed because federal officials only served on a technical advisory panel); Andrus, 591 F.2d at 540-541 (no major federal action existed because of an absence of active federal involvement in the state program); Sierra Club v. Babbitt, 65 F.3d 1502, 1513 (9th Cir. 1995) (no major federal action existed because of the federal government’s “inability meaningfully to influence” construction of a logging road).

According to the evidence before the Court, the United States has minimal control over the LHC project. The 1997 Agreement provides that the construction, operation, and management of the LHC is the responsibility of CERN, an intergovernmental European agency whose governing council is comprised of 20 European countries. (Strauss Decl. ¶¶ 5, 12.)

The 1997 Agreement, entered into between Federal Defendants and CERN, only gave the United States non-voting “observer” status in CERN’s governing council and no role in financial, policy, or management decisions or operation of the LHC. (Id. at ¶¶ 12, 13.)

According to the United States, their contributions toward the construction of the detectors and the accelerator components have now been completed. (Pripstein Decl. ¶ 7; Strauss Decl. ¶ 22.)

It is not enough that Plaintiffs orally contested Federal Defendants’ evidence regarding the United States’ lack of control over the LHC during the September 2, 2008 hearing. Plaintiffs have not met their burden of production to establish jurisdiction in this action.

D. Federal Defendants’ Funding of an International Project

The issue of federal funding of an international project, such as the LHC, was examined in Friends of the Earth, Inc. v. Mosbacher, 488 F.Supp.2d 889 (N.D.Cal. 2007). In Mosbacher, two United States’ government agencies partnered with various international entities in order to finance oil, coal, and gas projects around the world. Plaintiffs brought suit against the two agencies for providing financial support for the energy projects without first conducting the necessary environmental reviews required by NEPA. In determining whether the government agencies’ financing could be defined as a “major Federal action” under NEPA, the court in Mosbacher examined the same two factors used when a federal agency partners with a domestic entity: (1) the amount and nature of defendants’ funding, and (2) the extent of defendants’ involvement and control. Mosbacher, 488 F.Supp.2d at 913-916.

For purposes of analyzing NEPA’s “major Federal action” requirement in this case, no policy reason has been suggested for providing a different analysis solely because Federal Defendants contributed funding to an international entity rather than a state or local one.

III. The Court Lacks Subject Matter Jurisdiction Over Plaintiffs’ Claims

Upon analysis of the relevant two factors, the Court concludes that Federal Defendants’ involvement with the Large Hadron Collider does not qualify as a “major Federal action” within the meaning of the National Environmental Policy Act. 42 U.S.C. § 4332(2)(c). As a result, the Court does not have jurisdiction to adjudicate Plaintiffs’ claims.

Plaintiffs’ Opposition and Rebuttal have not provided any substantive information regarding the subject matter jurisdiction of this Court. Plaintiffs appear to believe they invoked federal jurisdiction by simply filing suit in a federal court. They have not met their burden of establishing that jurisdiction exists. Scott, 792 F.2d at 927.

IV. Federal Defendants’ Remaining Arguments

Federal Defendants’ Motion to Dismiss raised two additional jurisdictional arguments: standing and mootness. Federal Defendants argue that Plaintiffs lack standing to bring suit because they are unable to allege an injury in fact that is “concrete and particularized” and “not conjectural or hypothetical.” (Motion at 12.) The claim of mootness is based on the argument that there is no effective relief that the Court can order. (Id. at 28.) The Federal Defendants’ Motion for Summary Judgment argues that the matter is time-barred by the statute of limitations set forth in 28 U.S.C. § 2401(a). (Id. at 32.) The Court lacks subject matter jurisdiction over this action and, therefore, will not address the additional arguments raised by Defendants.

It is clear that Plaintiffs’ action reflects disagreement among scientists about the possible ramifications of the operation of the Large Hadron Collider. This extremely complex debate is of concern to more than just the physicists. The United States Congress provided more than $500 million toward the construction of the Large Hadron Collider. But Congress did not enact NEPA for the purpose of allowing this debate to proceed in federal court. "Neither the language nor the history of NEPA suggest that it was intended to give citizens a general opportunity to air their policy objections to proposed federal actions. The political process, and not NEPA, provides the appropriate forum in which to air policy disagreements." Metropolitan Edison Co. v. People Against Nuclear Energy, 460 U.S. 766, 777 (1983).

CONCLUSION

The Court lacks jurisdiction to adjudicate this action. Defendants’ Motion to Dismiss (Doc. 14) is GRANTED.
The entire action is DISMISSED.
IT IS SO ORDERED.

Dated: September 26, 2008, Honolulu, Hawaii.
_/s/ Helen Gillmor_________________
Chief United States District Judge

[Walter L. Wagner]

rpenner:

Thanks for posting that in toto. The appeal will be filed within the appropriate time limit [30 days].

It should make for an interesting appeal, just from the legal aspect. The judge said 10% involvement is insufficient involvement to obtain jurisdiction, without stating what is a proper percentage, [11%? 20%? 51%? 95%?] or proper dollar amount [$540 million?, $600 million?, $1 billion?]. Essentially, she avoided the issue, deferring to the appellate courts to define that "bright line" for future courts to follow. That's how new case law is made. Indeed, that is likely an interesting issue for certiorari before the US Supreme Court, no matter how the appellate court rules. Even though only 1 in 150 cases filed with them is granted certiorari, I suspect that whether plaintiffs or defendants end up filing for leave to file a Petition for Certiorari, it will be granted due to the nature of the issue, and it being an unresolved federal question. In the meanwhile, I believe lots of people will be doing as the trial court suggests and lobbying Congress, etc.

[Vkothii]

I believe lots of people will be doing as the trial court suggests and lobbying Congress, etc.Seriously?
I'd say most Americans lobbying Congress, are worried about something else altogether right now.

[rpenner]

Well, I don't think that petitioning Congress is going to help this case as a retroactive drawing of that "bright line" would seem the very words and spirit of forbidden ex post facto law. In addition, US accounting includes construction costs and labor together, which may not be represented in all the European documents due to accounting differences. So even a bright line at 10% seems unlikely to help you.

I also don't think that any appellate court will agree with you that Judge Gillmor had a duty or even an right to express a threshold test when it is clear that the judge relied on Friends of the Earth, Inc. v. Coleman which is 9th circuit law that regardless of what the actual threshold is, 10% is not "major."

[Walter L. Wagner]

[SIZE="1"]
No bright-line standard has been articulated by the Courts in determining when federal participation transforms a project into a major federal action within the meaning of NEPA. Almond Hill School, 768 F.2d at 1039 (9th Cir. 1985). Each project must be examined with the relevant criteria in mind. [underlining added for emphasis]

A. Federal Funding of the Construction of the LHC

Prior litigation under NEPA has often involved situations where the federal government is engaged in a joint project with a local, state, or private entity. These joint projects often have multiple sources of funding. In these situations, the courts have required a significant level of federal funding in order to meet NEPA’s “major Federal action” requirement. Blue Ocean Preservation Society v. Watkins, 754 F. Supp. 1450, 1466 (D. Haw. 1991). Merely examining the total amount of federal funds distributed, however, will not give the correct result. A comparison must be made between the total amount of federal funds distributed and the total cost of the program. Ka Makani, 295 F.3d at 960.

The Courts have declined to find major federal action where federal funding was minimal relative to “the entire program.” Friends of the Earth, Inc. v. Coleman, 518 F.2d 323, 329 (9th Cir. 1975) (no major federal action where federal funding was 10% of the entire project); see also, e.g., Rattlesnake, 509 F.3d at 1101 (no major federal action where federal funding was 6% of the entire project); Ka Makani, 295 F.3d at 960 (no major federal action where federal funding was 1.6% of the entire project) (“consideration must be given to a great disparity in the expenditures forecast for the [nonfederal] and federal portions of the entire program." (italics in original) (internal citations and quotations ommitted)); Village of Los Ranchos de Albuquerque v. Barnhart, 906 F.2d 1477, 1482 (10th Cir. 1990) (no major federal action where federal funding was “minuscule in comparison with the cost of the total bridge project”).

I believe the above will be the crux of the appeal.

The Court [Judge Gilmor] emphasized the lack of a "bright line" standard and that each case must be judged on its own merits. The largest percentage where the courts previously declined jurisdiction was at 10%, but that was not the criterion [i.e. 10% would be a "bright line" standard]. In other words, she has set the case up for an appellate level review on that issue. In this case, due to the extensive impact [compared to a relatively miniscule impact of the prior 10% case], I believe the appellate court will hold that 10% is sufficient. But then again, maybe the Supreme Court will be the final arbiter.

In any event, good arguments could be made in both directions it would appear, and the appellate court will need to examine the significance of the issue to the public as a whole, which I believe will be the deciding factor at the 10% level. If it were 50%, I believe it would be fairly clear that jurisdiction is present.

Got any juice with federal appellate judges?

[Walter L. Wagner]

rpenner:

By the way, while you were enjoying the grand reopening of the Academy of Sciences in SF, I was enjoying the Ringling Bros. and Barnum and Bailey Circus, which was quite fun for the kids. Lots of animal action, too. They still travel by train, as they did a century ago.

[James R]

Interesting case. Thankyou to rpenner and Walter L. Wagner for providing information.

[rpenner]

In any event, good arguments could be made in both directions it would appear, and the appellate court will need to examine the significance of the issue to the public as a whole, which I believe will be the deciding factor at the 10% level. If it were 50%, I believe it would be fairly clear that jurisdiction is present.

Got any juice with federal appellate judges? The mere lack of a mechanical rule does not seem to me a basis for an appeal, especially in this case when 10% funding and less has uncontested caselaw support. I don't think there being another reasonable way for the judge to proceed is grounds for appeal -- I think you have to show error in law or equivalently complete unreasonableness.

Should some cases show 10% or less is not a "major Federal" act and some other 9th circuit cases show 9% or more did indeed constitute a "major Federal" act, then it seems that you would have a strong case for appeal only if the factual record supported the contention that the LHC funding was between 9% and 10%. In fact, the federal supplied figures indicate that 9.1% funding is a top estimate of construction percentage paid for by the US, which could shrink more if labor costs for the European part of the LHC construction were taken into account.

In addition, section II C of the Analysis would seem to strengthen the reasonableness of the judge's decision, and II D strengthens the reasonableness of reliance on Friends for this particular case.

Even if I had influence with federal appellate judges, it would inappropriate for me to exercise it. (It would be quite the criminal conspiracy to rig a federal appeal in the 9th circuit as the judges are randomly selected in panels of 3 from various states.) But to my best information, no one who posts on this forum has influence with any federal judges or the policy makers of the defendants. But if you do have a hearing, the odds favor a San Francisco trial. (Honolulu seems the next most likely to me.)

[Walter L. Wagner]

Even if I had influence with federal appellate judges, it would inappropriate for me to exercise it. (It would be quite the criminal conspiracy to rig a federal appeal in the 9th circuit as the judges are randomly selected in panels of 3 from various states.) But to my best information, no one who posts on this forum has influence with any federal judges or the policy makers of the defendants.

I was jesting.

But if you do have a hearing, the odds favor a San Francisco trial. (Honolulu seems the next most likely to me.)

The 9th Circuit Court of Appeals is located in San Francisco. Looks like I'll be able to go see the Buffalo in Golden Gate Park once again. If we prevail there, then the trial would be in Honolulu where the case was filed.

----

The "10%" is not a "bright line" rule for good reason, which is where the appellate issue will focus, and as Judge Gilmor indicated, each case has to be decided on its merits. The US participation was for materials only. The US likely provided closer to 15% to 20% of the materials costs; whereas CERN covered all the labor costs. Additionally, I believe the total dollar amount was more than the US participation in all of the cases cited by Judge Gilmor combined together. As those numbers get bandied about, the appellate court will formulate some form of basis to obtain jurisdiction [or not] which will be clearer for future courts to decide on this type of issue.

And, as I mentioned, in the other cases, the actual impact on people was miniscule. Here, 10% involvement is an impact on 100% of the people; whereas in the other cases, 10% involvement was an impact on perhaps 0.1%of the people. I believe that that fact will be a major factor in the appellate court's reasoned analysis. I've not read all of the case law on this issue as of yet, and I'm sure I'll find further support as I do so. I almost always do.

[Saxion]

Ok, you cut my post down into almost unbearable time consuming elements. So i will also take the time to answer you.

Is it demonstrated that most of us act like jerks? You seem to focus on Read-Only and then generalize to the rest of us.

Not really.

However, he does hold one thing superior to the rest of you. He really does like to name call.

That is jerk, or at the very least, one who appears to be acting like a jerk.

But this is the case with all the anti-LHC plaintiffs. Not one has mastered GR, particle physics or other physical theories to the extent which is required to argue meaningfully.

Maybe so. In the end of the day, they still have a right to voice a view about something they find potentially dangerous.

You would be surprised how many people out there in this big world, independant of reading Walters work, who are simply affraid.

And they needed not thorough investigation into the General Theories of Relativity, to conclude how they generally felt about it.

You keep on changing your charges and generalizing to some group larger than the data supports. Is the problem jerks or bullies?

Ever heard of internet bullying?

It's a real thing you know. Not a myth.

No one knows someone over the Internet. There has never been something called common decency between people who do not see each other as peers. It is clear that Read-Only doesn't consider Walter Wagner his peer, chum, or buddy so it would very unnatural to see Read-Only's behavior change before the relationship changes.

I disagree somewhat. We can actually tell lot by a person, through their writing, and general attitude. Since there is a lot of information we gather as complex humanoids, the very ability to form opinions of someone simply through their writings, is quite consequential.

It's a well known fact of science that the written language holds almost just as much information in contrast to someone talking to you.

Also, i said, ''even if not well,'' it is still decent to compose yourself.

I disagree with your conclusion.

Too bad. I don't take it back.

When he continues to call people names (on a personal level of communiction), it seems more than obvious.

What is the basis of this proposed example

Because he has, with people who do not claim to know much, he still calls people ''thick as shit'' or more or less along the same lines, with the highest impunity.

Could you actually illustrate this behavior on a thread other than this one?

Yes, of course i can.

Could you elucidate?

What like? Don't you understand what i said?

[rpenner]

As I re-read the decision, I see clearly that Judge Gillmor used a two pronged test checking both the percentage Federal funding and the level of Federal control. I don't think that anyone is disputing that LHC is a major project, but what is being disputed is that it is a major Federal project, and that is the meat at which both prongs of the test are aimed at.

Counting European labor, an often quoted figure in the press is that LHC cost $8 billion, which would put the US construction costs at less than 7% unless you can demonstrate that the US spent more on construction than the $531 million quoted by the Strauss Declaration (Doc. 20 at 14). But at 21, Strauss indicates that the $5.84 billion number is exclusive of labor while the US DOE portion of $450 is not, and at 22 he correctly rounds the ratio 7.7+% to "about 8%" and condemns this argument more with:
Despite the differences between U.S. and European accounting practices, the DOE contributions to the construction of the LHC accelerator and the detectors are about 8% of the total cost. Including labor costs, DOE's contributions to the construction of the LHC accelerator and the detectors are about 4% of the total cost of the LHC. (Which would imply a price tag of $10-13 billion for LHC.) Further, for the actual collider construction costs, the International Agreement provides "any increase in funding requirements for the LHC shall be the responsibility of CERN." The Strauss affidavit is supported in these statements by attachments 3 (dated December 1999), 4 (dated December 8, 1997), 8 (dated December 1, 1998), and giving the greatest breakdown of the spending in one place: 9 (dated February 2008).

The Strauss documents contradict your assertion that the "US participation was for materials only." If you have actual evidence of this, I don't recall seeing that presented in the record, and it would change your claim on appeal from "error in law/judgment" to "new evidence" -- which is a tougher hill to climb given the 10 year history involved. But it seems that you are focusing only on the 10% prong which the judge seemed to find caselaw supporting and not the lack of Federal control prong which the judge also considered and found caselaw for both domestic and international jointly-funded projects.

Oh, and Saxion, all the Internet bullying I see described is defined between children and teenagers who go to the same school, so the term appears inappropriately co-opted to apply to Read-Only messages on this thread. You say everyone has a right to voice their opinion, but if that is a baseless opinion and the spreading of that opinion causes harm, riots, suicide, arson, etc. then surely the ignorant fearful disseminators bear responsibility for that harm. Is this not the lesson of witch trials? Also, there is tension between your criticism of Read-Only, who voices his opinion from a basis, and your support for free speech of the fearful yet ignorant.

I mostly find Read-Only annoying for his laughter that reminds me of the laughter of the “ungodly” in a Jack Chick tract. On this thread, (remember, I'm relatively new here) I don't see that his behavior is beyond the pale.

[Walter L. Wagner]

If you include the cost of the tunnel [already existent], and other costs originally borne by CERN, then you get to your figure of about $10 to $13 Billion. Likewise, I believe all of the staged injectors are also included in such a figure. Those are factors that will have to be weighed by the Court. Indeed, what about the value of the land? Throw that in, and the US component is even less. However, I believe that the Court will look primarily to the costs dedicated to the actual construction just of the LHC itself [and not the tunnel, injectors, etc.], and not peripheral costs. But who knows. Like I said, I believe the $531 million spent by the US is more than the amounts of all of the cited cases combined spent by the US on those projects, but I'll be checking more into that to verify that. I believe the Court will ultimately conclude it to be a Major Federal Project, both in dollar and scope and time involved. But who knows, maybe they'll decide to establish a "bright line" at 50% no matter what the project. That's what the US Supreme Court is for, to be a final arbiter.

[rpenner]

I disagree with your reasoning, possibly because I have never seen caselaw to support either your contention that $19 million (Friends vs. Coleman) is categorically different than $531 million or that disagrees with the 10% insufficiency in that case or that overcomes section II C of the ruling. Existing, settled law appears to be the hurdle, not untested law, and I only see weak argumentation based on special pleading.

At the end of the Analysis, Judge Gillmor refers to the unanimous Supreme Court decision in Metropolitan Edison Co. v. People Against Nuclear Energy, 460 U.S. 766 (1983) which reads, in part: It thought the severity of the harm is relevant to whether NEPA requires consideration of an effect. This cannot be the case. NEPA addresses environmental effects of federal actions. The gravity of harm does not change its character. which is a rejection of special pleading.

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=460&invol=766

[Saxion]

Oh, and Saxion, all the Internet bullying I see described is defined between children and teenagers who go to the same school, so the term appears inappropriately co-opted to apply to Read-Only messages on this thread. You say everyone has a right to voice their opinion, but if that is a baseless opinion and the spreading of that opinion causes harm, riots, suicide, arson, etc. then surely the ignorant fearful disseminators bear responsibility for that harm. Is this not the lesson of witch trials? Also, there is tension between your criticism of Read-Only, who voices his opinion from a basis, and your support for free speech of the fearful yet ignorant.

I mostly find Read-Only annoying for his laughter that reminds me of the laughter of the “ungodly” in a Jack Chick tract. On this thread, (remember, I'm relatively new here) I don't see that his behavior is beyond the pale.

Maybe Read-only doesn't care, but i do, expecially when he is very condescending towards individuals here, so yeh, i don't think i have a baseless opinion, inaccurate or biasm.

To be quite frank, you should have listened to me earlier when i said its fine to voice an opinion, but so long as its conducted in some adult tone. Except, i used an analogy of children in the play park, only for the reason that this is not the case anymore here...

...and don't think i am ''supposed to be niave'' in your theory, because i've been reading these forums for about two years. I've read a lot, and come to base opinions on many people. If Read-Only doesn't like this, i'm sure he'll keep to his non-forth-coming attitude proclaiming he has no emotions.

Whatever.

[Walter L. Wagner]

At the end of the Analysis, Judge Gillmor refers to the unanimous Supreme Court decision in Metropolitan Edison Co. v. People Against Nuclear Energy, 460 U.S. 766 (1983) which reads, in part: which is a rejection of special pleading.

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=460&invol=766

I believe that that shows that simply having a severe harm in and of itself does not determine whether NEPA is applicable. There the court held that psychological impacts do not fit NEPA requirements. It has to fit NEPA requirements to begin with, no matter how severe the harm. However, once it is determined that NEPA is applicable [as I believe it is herein], then the severity of the harm would become part of the jurisdictional test to see whether 10% is sufficient to constitute a Major Federal Action to then confer jurisdiction. And, that case you cite is just one case. As Judge Gilmor stated, each case turns on its own unique facts. Here, the huge dollar amount, coupled with a lengthy time-commitment [7 years or thereabouts], and large potential effect, could quite possibly sway the appellate court to find that, in this case, 10% is sufficient to find federal jurisdiction and NEPA requirements being mandated.

But as I said, we'll have to see what the court states. Otherwise, we're just speculating as to what other people's opinions might be. I can see it going either way, depending upon lots of other factors; and who knows, it might be a split 3-member-panel decision followed by a full hearing by the full appellate court. If the appellate court in turn has a close split decision, that would auger well for the Supreme Court granting certiorari.

In the meanwhile, any word on what they're finding out about the Accident? Any magnets damaged by the quench? What caused the massive quench?

For an interesting [some would say wacko] article by a CERN theoretician and his Yukawa associate predicting the accident, see:

http://arxiv.org/abs/0802.2991

[rpenner]

And in the ECHR news, here is a pre-print of an article rejecting the very weird Bose-Nova bugaboo.

Bugaboo: Bose-novas and other high-energy events in superfluid helium.
Unpublished paper rebutting it: Malcolm Fairbairn and Bob McElrath "There is no explosion risk associated with superfluid Helium in the LHC cooling system" http://arxiv.org/abs/0809.4004
Competent, Published Paper addressing it:
Competent, Published Paper rebutting it:
Competent response:

And in magnet news, there hasn't been enough time to warm up the section yet. There have been no new details.
http://www.msnbc.msn.com/id/26944101/

[rpenner]

If the case had not been dismissed (http://sciforums.com/showpost.php?p=2029021) on September 26th, then October 14th would have been the day for a hearing on Default Judgement versus CERN. This did not happen. The appeal will be filed within the appropriate time limit [30 days]. About 11 days remain. I am doubtful that this case will ever be about physics, although if Wagner and Sancho should win the appeal, then the judge could get around to talking about "standing" which is about the hypothetical injury Wagner and Sancho describe and "mootness" which is a basic physics issue, in a way.

[rpenner]

LHC news:
One month ago: 9kW glitch, arcing, fire, loss of vacuum -- but plenty of spare parts to wire it up for another go. The plan for removal/reinstallation, transport and repair of magnets in Sector 3-4 is being established and integrated with the maintenance and consolidation work to be performed during the winter shutdown across the whole CERN facility. The corresponding manpower resources have been secured.

Press Release (http://press.web.cern.ch/press/PressReleases/Releases2008/PR14.08E.html)
Technical Report (https://edms.cern.ch/file/973073/1/Report_on_080919_incident_at_LHC__2_.pdf)

It worked fine at 7000 A, but failed near 8700 A on the way to 9300 A, a process which was scheduled to take about 4 minutes. Wierdly, the other seven of the 3.3 km sectors have been tested all the way to 9300 A before. I'd hate to be the guy who installed that particular failed piece.

[rpenner]

Some news as text and video on the web.


September 26, 2008, MSNBC covers dismissal: Cosmic Log: "Doomsday Lawsuit Dismissed (http://cosmiclog.msnbc.msn.com/archive/2008/09/26/1457536.aspx)"
September 29, 2008, Nature Blogs covers dismissal: The Great Beyond: "Day of reckoning for doomsday lawsuit - September 29, 2008 (http://blogs.nature.com/news/thegreatbeyond/2008/09/day_of_reckoning_for_doomsday.html)"
October 1, 2008, Print press article -- The Register: "Hawaiian anti-LHC lawsuit thrown out: Beak bins botanist's bid to bust boson-botherers (http://www.theregister.co.uk/2008/10/01/lhc_lawsuit_thrown_out/)"
October 5, 2008, WalesOnline -- Wales on Sunday: "No black hole (http://www.walesonline.co.uk/news/columnists/2008/10/05/no-black-hole-91466-21965979/)"
October 16, 2008, Television appearance by Walter Wagner, Big Island Video News "Local man's quest to stop the LHC: Big Island resident fears possible doomsday creation of stranglet, black hole (http://www.bigislandvideonews.com/hamakua/20081016lhc.htm)" Bendy twisty statements in that last one, conflating "in existence" with "observed". Complete ignorance of all work ever done on strangelets. Conflates the "occurrence" of black hole creation not being ruled out with the issue of if they are dangerous. Where's this "work in physics" he starts with?
"Centuries or millenia or longer" -- like longer than the sun will be our friend. The US involvement is less than 10%, so if the bright line is drawn at 10% it cannot help this suit. Ends with pure conspiracy theory trying to say CERN has a PR budget on the order of $10 billion. He talks about cryptic "other actions" to pursue -- do you think he means a) prayer, b) terrorism or c) filing multiple lawsuits in multiple districts like he did with the RHIC?

It's just Microsoft Marketing 101 (Fear, Uncertainty and Doubt) but no product (i.e. no science). And what we haven't seen yet is the appeal. So I bring to you, the Walter L. Wagner and Luis Sancho case round two, an appeal has been filed -- this past Monday.

---

And it looks deficient! Rather than carefully present themselves as people who care about the rules of the appellate court, they invent procedures on the fly.

1) Once again, Luis Sancho has not signed the Notice of Appeal. Wagner is not Sancho's attorney. Yet the document is in plural. FRAP 3 (c) (1) (A)

2) They fail to notify anyone WHERE the appeal is being taken to. FRAP 3 (c) (1) (C)

3) Now, as long as this appeal was filed on time, the Appellate court is not forced to dismiss it. But they have that option for any breach of the rules. FRAP 3 (a) (2)

Boy, I would be mad if I were the person I saw on some forum saying they had given you $2k to pursue this case.

Reproduced here is my approximation of the filing (omitting the 26 pages of attached decision which appears in an earlier post).

Luis Sancho
PO Box 411
Honomu, HI 96728
808-XXX-XXXX

In the United State District Court
District of Hawaii

| Luis Sancho, et al., ) Civil No. CV08-00136 HG
| Plaintiffs ) Notice of Appeal
| )
| vs. )
| )
|US Department of Energy, et al., )
|__Defendants_____________________)

NOTICE OF APPEAL

Plaintiffs hereby provide Notice of Appeal that they appeal the final decision of this Court dated September 26, 2008 granting dismissal. A copy of the decision appealed from is attached hereto.

Dated: October 17, 2008

_(signed)_______
Walter L. Wagner

Link to the Alpha Magnetic Spectrometer (AMS) Home Page (http://cyclo.mit.edu/~bmonreal/)
Links to the Federal Rules of Appellate Procedure:
http://www.uscourts.gov/rules/appel2007.pdf (PDF with forms)
http://www.law.cornell.edu/rules/frap/ (HTML)

[rpenner]

On US Appeal Scheduling:

October 20, 2008 -- Notice of Appeal
up-to-10 day break for Wagner's decision to order transcript or a statement of the issues for appeal
Possible up-to-10 day break for US Government and other defendants to request partial transcripts
Possible up-to-30 day break for court reporter to prepare the transcript
Then in the district court clerks own good time, the record is forwarded to the appellate court.
Possible up-to-40 day break for Wagner to file the appellant’s principal brief
Possible up-to-30 day break for US Government (etc.) to file the appellee’s principal and response brief
Possible up-to-30 day break for Wagner to file the appellant’s response and reply brief
Possible up-to-14 day break for US Government (etc.) to file the appellee’s reply brief

I'm not a lawyer, and I'm reading these rules for the first time, but it looks like the US case has 6-months of pseudo-life in it. And the district court hasn't even ruled on other parts of the US's first motion to dismiss. Sigh. When are we going to be able to the the (lack of) physics at the heart of this case?

[Pandaemoni]

Somewhere, in the legal interstices between United States ex rel Mayo v. Satan and His Staff/1 and Tyler v. Carter/2, this case exists.

-----------
/1 54 F.R.D. 282 (1971)

/2 151 F.R.D. 537 (1993)
-----------

[rpenner]

Plaintiff ... prays for leave to proceed in forma pauperis. He alleges that Satan has on numerous occasions caused plaintiff misery and unwarranted threats, against the will of the plaintiff, that Satan has placed deliberate obstacles in plaintiff's path and has caused plaintiff's downfall.

Plaintiff alleges that by reason of these acts Satan has deprived him of his constitutional rights.

We feel that the application to file and proceed in forma pauperis must be denied. Even if plaintiff's complaint reveals a prima facie recital of the infringement of the civil rights of a citizen of the United States, the Court has serious doubts that the complaint reveals a cause of action upon which relief can be granted by the court. We question whether plaintiff may obtain personal jurisdiction over the defendant in this judicial district.
...
We note that the plaintiff has failed to include with his complaint the required form of instructions for the United States Marshal for directions as to service of process. [ed. So the Plaintiff was unwilling to tell the US Marshal to go to Hell?]

For the foregoing reasons we must exercise our discretion to refuse the prayer of plaintiff to proceed in forma pauperis.

http://members.aol.com/schwenkler/wcc/index.htm#United%20States%20v.%20Satan

A plaintiff asserting fantastic or delusional claims should not, by payment of a filing fee, obtain a license to consume limited judicial resources and put defendants to effort and expense. http://members.aol.com/schwenkler/wcc/tyler.htm

Thank you for bringing these to my attention.

[rpenner]

Well, watching legal deadlines come and go is about as interesting watching paint dry (apologies to physical chemists who do just that....). But I was wondering where Walter Wagner has gone off to. (Not for the first time, and I remain disappointed that we may never get to read the transcript of his argument for Judgment of Default versus CERN.)

Circa October 20, he was busy on a cluster of apparently closely networked blogs where the subject was Wagner's representation of his own credentials as given to this court and elsewhere. The response has not been very positive. (http://stonekettlestation.blogspot.com/2008/10/walter-l-wagner-pitifully-insane.html)

Now, I'm interested in researching WLW's W-L record in court. I think his greatest legal victory was walking away with an acquittal when charged by the Monterey D.A. with contempt of court. But he lost both the lawsuit he filed in retaliation and the appeal, whereupon I learned of it. Far from being a vindication, the appellate court suggested the D.A. erred in undercharging WLW. Ouch! The biggest problems in compiling a W-L record include that there's no National ID to quickly and uniquely identify which Walter Wagners are our Walter Wagner and that even in the Federal Court system, PACER is not an all-seeing eye. Like the internet itself, the PACER database is weak when it comes to the world that existed before Google and there are non-federal courts which don't seem to embraced the spirit of PACER at all.

Of Luis Sancho, I don't know what to think. He seems to have left all the work to WLW, including the drafting of most motions and the notice of appeal. When it comes to pro-se Plaintiffs, two heads did not seem to fare significantly better than one.

This thread was created and allowed to exist on the premise that at some point we were going to get to the physics of the claims, something that WLW indicated little interest in doing out of court in this thread. But as the US Goverment moved and the district court agreed, it would be a waste of time for Federal courts to examine the facts of a case where Federal law doesn't give the court power to do anything. I'll try to remember to check back on Tuesday to see if anything's changed.

[Read-Only]

Well, watching legal deadlines come and go is about as interesting watching paint dry (apologies to physical chemists who do just that....). But I was wondering where Walter Wagner has gone off to. (Not for the first time, and I remain disappointed that we may never get to read the transcript of his argument for Judgment of Default versus CERN.)

Circa October 20, he was busy on a cluster of apparently closely networked blogs where the subject was Wagner's representation of his own credentials as given to this court and elsewhere. The response has not been very positive. (http://stonekettlestation.blogspot.com/2008/10/walter-l-wagner-pitifully-insane.html)

Now, I'm interested in researching WLW's W-L record in court. I think his greatest legal victory was walking away from an acquittal when charged by the Monterey D.A. with contempt of court. But he lost both the lawsuit he filed in retaliation and the appeal, whereupon I learned of it. Far from being a vindication, the appellate court suggested the D.A. erred in undercharging WLW. Ouch! The biggest problems in compiling a W-L record include that there's no National ID to quickly and uniquely identify which Walter Wagners are our Walter Wagner and that even in the Federal Court system, PACER is not an all-seeing eye. Like the internet itself, the PACER database is weak when it comes to the world that existed before Google and there are non-federal courts which don't seem to embraced the spirit of PACER at all.

Of Luis Sancho, I don't know what to think. He seems to have left all the work to WLW, including the drafting of most motions and the notice of appeal. When it comes to pro-se Plaintiffs, two heads did not seem to fare significantly better than one.

This thread was created and allowed to exist on the premise that at some point we were going to get to the physics of the claims, something that WLW indicated little interest in doing out of court in this thread. But as the US Goverment moved and the district court agreed, it would be a waste of time for Federal courts to examine the facts of a case where Federal law doesn't give the court power to do anything. I'll try to remember to check back on Tuesday to see if anything's changed.

That link was a nice find. I hope that Saxion, with his smug and self-righteous attitude toward my characterizations of Wagner (fraud, liar, charlatan cheat) will read everything in that link. If he does, he should be able to see why I class Wagner that way.

Wagner has made strong claims concerning his credentials. Yet, after having been given dozens of opportunities (even in court and these very forums) to back up those claims by presenting them, he has every single time, without fail, ignored those requests and side-stepped them entirely.

Any individual with credientials has no problem in telling what school issued them and on what dates. Wagner will not. Therefore, I and many others, have formed a strong opinion that they do not exist.

That should be proof enough to anyone who isn't half brain-dead that Wagner clearly IS a liar and a fraud!

[udarnik]

Well, watching legal deadlines come and go is about as interesting watching paint dry (apologies to physical chemists who do just that....). But I was wondering where Walter Wagner has gone off to. (Not for the first time, and I remain disappointed that we may never get to read the transcript of his argument for Judgment of Default versus CERN.)

Circa October 20, he was busy on a cluster of apparently closely networked blogs where the subject was Wagner's representation of his own credentials as given to this court and elsewhere. The response has not been very positive.

Hey, I resemble that first remark. :bugeye:

Glad we in the UCF could be of service. I'm curious - has Wagner pointed to any original science of his own? From what we could tell, all he has done is point to Plaga and Rossler, and made oblique references to someone who appears to be a proto-crank from the NSF of all places, named Paul Werbos.

[rpenner]

I was unclear if Paul Werbos (http://www.werbos.com/) supplied any physics to the discussion. His letter which gets reposted seems in need of much editing. http://www.lhcdefense.org/lhc_experts5.php

There's a paragraph at http://www.werbos.com/space.htm but there's no physics there. It's just commentary on some arxiv papers. (Actually, just one paper by A. Helfer is cited to indicate that black holes might not radiate!) Like many others, the contention that black holes might not radiate is glued onto the possibility that black holes might be created at the LHC which is glued onto the naked assertion that all contemplated black holes must be as dangerous at the object depicted in the Disney movie The Black Hole. As I tried to point out in post 4 of this thread (http://sciforums.com/showthread.php?p=2019950#2019950), these things they lump together as "black hole" come from distinguishable physical theories and are not of a single type.

//Added after review:
Yokoso e kono homupeeji

[udarnik]

ありがとう ごずぃます.

I can't post links yet as I don't have 20 posts, sorry, but what I can find that Werbos has said in public is here:

zpenergy.com/modules.php?name=News&file=article&sid=2847

Relevant quote:

One idea is that the mysterious evidence of an unexpected degree of expansion in the universe can be explained by the presence of that quantum zero point energy as a source of gravitation. If zero point energy is there, one WOULD expect it to be a source of gravitation, one way or another.

The problem is that the observed gravitational effect... is many, many orders of magnitude less than what the usual zero point energy theory assumes.

This being so... why should we be so confident that the decay of a small black hole would be so rapid as what Hawking has suggested? If the actual decay rate is something like 10**-50 as fast as he suggests...

This argument seems to be at the heart of the quoted section of that letter talking about risking things on our understanding of zero point energy.

Although, earlier in that post, he did hedge his bets against coming out against the collider:

I have not taken a stand on that issue, in part because I do not really know ... would the LHC really have some chance of doing things that have not been done already, exactly the same way, in the earth's atmosphere dozens or thousands of times already? But still... there may be experiments possible that WOULD do new things...

I've been wading through the stuff he posted on arXiv, including the one on Bell's Theorem, and I wonder if you have done the same, and if you have, then what is your opinion of him?

[rpenner]

ありがとう ごずぃます.
え？すごいです。ウダルニック博士が上手ですね。アルファヌメリックさんも日本語を勉強します 。
I can't post links yet as I don't have 20 posts, sorry, but what I can find that Werbos has said in public is here:
zpenergy.com/modules.php?name=News&file=article&sid=2847 (http://zpenergy.com/modules.php?name=News&file=article&sid=2847)I think his thesis is actually that it is reasonable that certain experiments should be performed somewhere other than the surface of earth. But I see nothing to support that general sentiment or that specifically anything at LHC is in this proposed class. In short, I see nothing reasonable here in light of the long-term stability of the solar system and the background of 100+ EeV cosmic rays.
what is your opinion of him? He posts on zpenergy.com. In short, I see nothing reasonable here. It is the opposite of a persuasive argument.

But in light of the topic of this thread, I don't believe WLW has relied on PJW in any direct legal manner. Perhaps, though, it was PJW who brought Adam Helfer's paper to the attention of James Blodgett, author of an affidavit. But Martin Rees is mentioned twice and from what I recall, PJW not at all.

[udarnik]

外国語が大好きです。 ロシア語も中國語もフランス語を話せますけどロシア語だ
け上手です。妻は台湾人ですから中國語を話せます。

It seems to me that Wagner is casting about desperately for anyone with legitimate Ph.D. credentials, especially in Physics, to join his legal filing team.

In 2000, he had in his cluster of affidavits a letter from BYU Prof. Emeritus H. Kimball Hansen, who, as near as I can tell, was in his 80s in 2000. That's as close to a real, practicing Physicist joining the team as the anti-LHC crowd has ever come. I suspect that the hiatus in this round of legal proceedings mentioned by you in this thread - the one where WLW went to Utah - was an attempt to re-enlist Prof. Hansen in this particular cause. At this point, however, Prof. Hansen has to be pushing 90.

WLW's brother, a software engineer at Northrop Grumman, files along with him in the capacity of a "risk expert", and he has a Ph.D. in Computer Science:

chess.captain.at/strangelets-matter.html

iris.usc.edu/home/iris/rwagner/

[Read-Only]

外国語が大好きです。 ロシア語も中國語もフランス語を話せますけどロシア語だ
け上手です。妻は台湾人ですから中國語を話せます。

It seems to me that Wagner is casting about desperately for anyone with legitimate Ph.D. credentials, especially in Physics, to join his legal filing team.

In 2000, he had in his cluster of affidavits a letter from BYU Prof. Emeritus H. Kimball Hansen, who, as near as I can tell, was in his 80s in 2000. That's as close to a real, practicing Physicist joining the team as the anti-LHC crowd has ever come. I suspect that the hiatus in this round of legal proceedings mentioned by you in this thread - the one where WLW went to Utah - was an attempt to re-enlist Prof. Hansen in this particular cause. At this point, however, Prof. Hansen has to be pushing 90.

WLW's brother, a software engineer at Northrop Grumman, files along with him in the capacity of a "risk expert", and he has a Ph.D. in Computer Science:

chess.captain.at/strangelets-matter.html

iris.usc.edu/home/iris/rwagner/

It appears that there isn't anyone in the anti-LHC camp with any real credentials in particle physics. Primarily just a has-been botanist and a freaky psychologist.

[udarnik]

I plan to go over some of the individuals involved in a blog post. Plaga is the only one with a Physics degree, and Wagner follower JTankers is always quick to point to that Doctor Habil. as a "senior Ph.D.", as if seniority meant anything in science beyond tenure. Rossler touts that "visiting professorship" as if it means anything, as well. But on this side of the Atlantic, no there's been no one since Hansen with a legitimate Physics degree to lend any credence.

[rpenner]

Well a happy "ni hao" to your wife, then. (After two years self-study, my "ni hao" is passable, "zhongwen" has been recognized as the word I intended exactly once.)

RW (although not his exact relationship with WLW) is known to me from his affidavit.

In the also-ran category, was a certain "ubavontuba" of http://physforum.com/ (site down). He seemed more like a "if I post last, I win" type of troll than someone knowledgeable in physics or risk assessment. A weird combination of "Nothing else matters" and "I can't be bothered to reply coherently."

I'm not going to be discussing the physics of the suit in this thread
I had assumed that WLW was headed to Utah to attend the semi-annual meeting of the Church of Latter Day Saints. At least that was the conjecture given to me by two people familiar with the church, but they thought it strange since the events are availble world-wide by streaming video. BYU, to which Prof. Hansen is associated with, is also in Provo, so that may be it.

It was a complete mystery to me why judges in Hawaiian criminal court and Federal district court felt willing to grant leave for this Utah expedition. Some details might exist in document 72, TRANSCRIPT of Proceedings Motion to Dismiss or Motion for Summary Judgment held on 9/2/2008, before Judge Helen Gillmor. Court Reporter Debra Chun. But I don't want to fly to Hawaii for the opportunity to view it for free.

[udarnik]

rpenner - 僕のブログをコメントして下さい 。eメールを書きたいんだから。

You need a Chinese girlfriend. Although my wife says I speak Chinese like a deaf person, other people have no problem understanding my gweilo Chinese. :D

OT - I have encountered ubavontuba before while lurking. At first I mis-ID'd him as WLW. I also had a similar troll from Lower Saxony show up on my first post. That troll, JTankers and WLW were all in communication with each other. uba seems to be from California, so the German seems to be new to all this.

[prometheus]

ubavontuba is great fun though. :) I really miss physorg at the moment. Does anyone know why it's down and if / when it will be back?

[rpenner]

No, and no. The "news" portion of the site is still working.

In Hawaiian Lawsuit news, we have an official appellate court case number.
[9th circuit appellate court] Docket No.: 08-17389
The parties shall meet the following time schedule: Thu., October 30, 2008 Appellant/petitioner shall notify appellee/respondent of transcripts to be ordered, pursuant to 9th Cir. R. 10-3.1(a); Mon., November 10, 2008 Appellee/respondent shall notify appellant/petitioner of any additional transcripts needed, pursuant to 9th Cir. R. 10-3.1(b); Wed., November 19, 2008 Appellant/petitioner shall file transcript order form with the district court and make payment arrangements with court reporter, pursuant to 9th Cir. R. 10-3.1; Wed., February 4, 2009 Appellant/petitioner’s opening brief and excerpts of record shall be served and filed pursuant to FRAP 32 and 9th Cir. R. 32-1; Fri., March 6, 2009 The brief of appellee/respondent shall be filed and served, pursuant to FRAP 32 and 9th Cir. R. 32-1 The optional appellant/petitioner reply brief shall be filed and served within fourteen days of service of the appellee/respondent’s brief, pursuant to FRAP 32 and 9th Cir. R. 32-1.

Failure of the appellant to comply with the Time Schedule Order will result in automatic dismissal of the appeal. 9th Cir. R. 42-1

Appellants/Petitioners without representation of counsel in a prisoner appeal may have their case submitted on the briefs and record without oral argument, pursuant to FRAP 34(a). Within 10 days of the filing of the appellant’s opening brief, parties may file a statement setting forth the reasons why, in the opinion of the parties, oral argument should be heard.

[rpenner]

Wagner has signalled his intention to continue the appeal by filing on Monday a transcript order form which indicates he does not wish any transcripts of the previous oral hearing to be prepared. It seems strange to me that the appellee/respondent doesn't have docket entries with regard to that, but que será será.

So, with regard to the "Hawaiian LHC Case" we will likely have no news until post-Obama Inauguration. Indeed, no Google News this month.

Wagner didn't have to return to Hawaii for the cancelled October 14th hearing on the subject of Default Judgement vs. CERN. So where is Wagner now? Is it possible that he stayed in Utah the whole time since September 18? Probably not, since he was interviewed for Big Island Video News on or about October 16th. But on the latest form he once again lists an address in Utah. Brrr, cold! It reminds me of the time when he filed the same case in multiple jurisdictions. Maybe, at some point we can discuss physics.

New Links:
http://www.eejlaw.com/lhc/ Eric E. Johnson, an Assistant Professor of Law wants more "judicial review" -- not really sure what he means -- does he really want the courts to have to approve every single new thing people do? Or is he just throwing up the idea intending for others to properly shoot it down like the majority of the comments seem to have.

[rpenner]

News: LHC to restart in (June) 2009 (http://press.web.cern.ch/press/PressReleases/Releases2008/PR17.08E.html)
That less than 7 full months for Wagner to win his appeal, establish jurisdiction (not necessarily the same thing), establish standing, establish non-mootness, establish timeliness, establish damages, establish potential for meaningful relief and get a restraining order. (In addition, the question of whether he legally served CERN has yet to be decided.)

But it's actually worse than that, since the appellate court is unlikely to rule before March (unless it rules against Wagner). So less than 4 months remain in the district court -- indeed the appeal decision could drag out for months.

But on a factual basis, Wagner is in no better position to sue than he was in 1999. Since 1999 not one bit of evidence has made any of the disaster scenarios more likely. Why didn't Wagner sue in 1999 when his RHIC lawsuits were going and his legal education (some of it in the school of hard knocks) was that much newer?

[rpenner]

News results:

LHC Doom prediction is #7 on this list of worst predictions of 2008 (http://www.foreignpolicy.com/story/cms.php?story_id=4569&print=1) -- very mocking -- little substance to post.

But copied in China: 大強子對撞機 (Or in Simplified: 大强子对撞机) is literally Large Hadron Collider. Remarkable agreement between syllables. http://www.takungpao.com/news/08/12/11/_IN-1003110.htm (An item on the topic of democracy was removed, shifting Wagner up in the rankings.)

大 -- Large
強子 -- Hadron (from 強 Strong and 子 Particle)
對撞機 -- Collider (from 對 Onto 撞 Strike strongly -> 對撞 Collide and 機 Machine )

Courtroom News: (Today!)

We get a new US Attorney on the case. Actually its a bit confusing since at one point he was listed as attorney for all parties, including Wagner. John E. Arbab has reasonable experience with the NEPA and the appeals court. Let's hope he can slam dunk this one.

[rpenner]

Another page addressing Wagner and the LHC lawsuit. (http://www.cracked.com/article_16896_7-stupid-people-who-sued-scientific-method.html)

What a Victory Would Imply:

That one man with a lawyer is recognized as a better expert on a field than every expert on the planet in that field put together, with a billion dollar budget, working for over twenty years. Society itself would break down as every skilled worker in the world just gives up and either goes to law school or takes up professionally hurting themselves for money. Think Mad Max meets Jackass with lawsuits instead of gasoline.

[udarnik]

Walter has been active recently, and so has his minion, JTankers. He took offense at something Jim said, and in one small detail he happened to be right (I know, blind pigs, truffles, and all that). If you go back to the Stonekettle Station post about Walter, you'll find the whole mess.

But then, well, then he decided to threaten the lawyer in our little online group. Big mistake. For some real comedy Check out Standing On the Shoulders of Giant Midgets, and Eric's "Wagner is Still Under Indictment" and "Open Letter to Walter L. Wagner" posts.

As far as we know, Walter is back in Utah.

And I just published a thorough examination of Otto Rossler on Refugees From the City.

But the funniest piece is an email train that Jim and I were subjected to. I'll excerpt a part of it:

Yo conan obriarnt; found another douchebag fkface head hole to add to the zippy sux build. His name is Jim Wright with the UCF and he thinks he's somekind of mistard big bad billy bad ass G.I. Joe that likes to run around and intimidate innocent civilians like Jim Tankersly. Don't worry thx me latard. Btw, where's my tickets for teh february show, j1gg4?

Jim Wright: The best part of you went runnin down yo mommas legs, i suspect. You are the postar childe for coat hanger abortions, you fktard....If what Jim Tankersly writes is true: People like you, john, give the honest military vertarans out there a bad name. You still in the military? You're obviously a fking "squid". Who's your CO? I'm inclined to file a claim of lien against your assets for "services rendered" as I am now in fact doing your job, ergo: CLEANING UP YOUR WORLD DESTROYING POTENTIAL LHC FRAUDS.

>>"Otherwise, we're talking religion"<< refugeesfromthecity.blogspot.com/2008/10/delusional.html

Uh, no, fucktard john the psuedo-scientist...You're the one talking religion: You and your stupid fucking pro-LHC f4g squads are attempting to sell us "religion as science" just replace the words "god" and "bible" with "theories" and "math".

I would'nt shit or piss in your mouth, john, if you were starving AND on fire....
You call yourself a scientist? You are fucking kidding, right? blogger.com/profile/03467337009577733553

Note how your work terrorizes innocent people, you coward fucking terrorist. Where do you live? Mind if we have a peaceful protest in front of your mother fucking house, b1tch/////////


Let me guess...you, like CERN, also believe the LHC is the coldest place in space/universe although it's known that the boomerang nebula IS the coldest (sustained) place in the universe at 1 kelvin (one kelvin). Can YOU do *that* math ya fucktard delusional? Did'nt think so plz to eat shit kthx.

By the way, the boomerang nebula was discovered in 1995 so that amounts to approximately a decade+ worth of continued academic fraud and/or conspiracy in regards to the LHC temp. issues., racketeering (got RICO).,etc. At this point, I'm writing about your mother fucking unsolicited communication of CERN-LHC safety you stupid mother fu(ker. You and your VET friends don't scare or intimidate me in the least. My dad was a seasoned vietnam vet with expeditionary awards and I am total expeditionary on you and your UCF assclownporn frauds now ya piece of sh1t con-artist kthx have a great day (not). Seen the moive with robert duvall called "The Great Santini"? Well, that's exactly how I was raised just so you know where I'm coming from...

Hmmm, I can;'t seem to find vital stats/email address/ data on Jim Wright, atm. Will pick up this case ltaer when I have more time...

You and your Jim Wright/UCF clonies like to threaten and terrorize people with your no standard of evidence, no precautionary principle and no plan B with glee LHC style apps?


Oh, but there's more:


Note the downgrading of technical issues by fucktard delusionals like you, John: lhcconcerns.com/LHCConcerns/Forums/phpBB3/search.php?keywords=&terms=all&author=niksan&sc=1&sf=all&sk=t&sd=d&sr=topics&st=0&ch=300&t=0&submit=Search

The boomerang nebula is so cold, it's colder than the fucking universe. But, I'm sure a delusional such as your self will continue grapsing for those newton/einstein hallucination straws of your, eh? You really should seek serious medical help for those hallucinations of yours. You are, afterall, a postar child for birth control! Boomerang nebula: google.com/search?hl=en&q=boomerang+nebula+coldest+place+in+the+universe&btnG=Search


Teen in india committs sucide over LHC fears: google.com/search?hl=en&q=teen+in+india+committs+suicide+over+lhc+fears&btnG=Search

It seems that people are ready to wait twenty years for results if you've got formulas. If there are no formulas, they don't want to consider it. Formulas are means of talking utter nonsense until you understand what they mean. Every page of formulas usually contains six or seven arbitrary assumptions that take weeks of hard study to penetrate.
Younger physicists usually appreciate the implicate order because it makes quantum mechanics easier to grasp. By the time they're through graduate school, they've become dubious about it because they've heard that hidden variables are of no use because they've been refuted. Of course, nobody has really refuted them. At this point, I think that the major issue is mathematics. In supersymmetry theory an interesting piece of mathematics will attract attention, even without any experimental confirmation. (David Bohm, On Mathematics & Modern Physics, 1987) spaceandmotion.com/Physics-David-Bohm-Holographic-Universe.htm


You must be proud of your terroristic style work? You meet the definition of 'extremist religious fanatic" just replace the words "god" and "bible" with "theories" and "math" and you have a precise definition of you and your delusional pro-LHC dingbat drone pals work. Osama Bin Laden looks like Mother Theresa in contrast to your work, john/jim wright/UCF. Correct me if I'm wrong but I do not see osama running around prepping to completely annihilate and destroy the world with an LHC style apparatus like all of you pro-LHC (if the shoe fits) countries/John/Jim Wright/obama/mccain/bush.,etc

What do you know about proton-proton chains/ linear vs. nonlinear equations/shroedinger equations/hidden variables theories/heisenberg uncertainty principle/etc relating to non QED-QCD (SED) predicts on LHC? Oh, that's right: YOU KNOW SH1T.

32 countries involved with LHC computer tier grid network: google.com/search?hl=en&lr=&q=lhc+tier+grid+network&btnG=Search


Just icing on the cake. Too many hidden/missing variables to list here, atm...

As Jim noted, this guy is all OVER the net, and he's seriously pissed about the quoted temperature of those magnets. :crazy:

There is even more, I've left out about half the Crazy. But, you know, you guys take care of yourselves. This is why I blog anonymously. I don't think this guys a serious threat, but I've been around the mentally ill long enough to know not to bet the whole farm on what *I* think they will do.

[rpenner]

Walter has been active recently, and so has his minion, JTankers. He took offense at something Jim said, and in one small detail he happened to be right (I know, blind pigs, truffles, and all that). If you go back to the Stonekettle Station post about Walter (http://stonekettlestation.blogspot.com/2008/10/walter-l-wagner-pitifully-insane.html), you'll find the whole mess.

But then, well, then he decided to threaten the lawyer in our little online group. Big mistake. For some real comedy Check out Standing On the Shoulders of Giant Midgets, and Eric's "Wagner is Still Under Indictment (http://shouldersofgiantmidgets.blogspot.com/2008/12/it-is-december-30-2008-and-walter-l.html)" and "Open Letter to Walter L. Wagner (http://shouldersofgiantmidgets.blogspot.com/2009/01/open-letter-to-mr-walter-l-wagner.html)" posts.

As far as we know, Walter is back in Utah.

And I just published a thorough examination of Otto Rossler on Refugees From the City. (http://refugeesfromthecity.blogspot.com/2009/01/soft-underbelly-of-scientific.html) Links inserted. Yes, Walter seemed to get state court permission to leave Hawai'i and seemed to get his Federal court schedule shuffled for this departure, and Luis Sancho's Hawai'ian mailing address returns mail to the Federal Court also with a Utah forwarding address. Since the timing seemed to correspond with the semi-annual grand meeting of Utah's most prominent religious group, I didn't want to describe it as running away, but if the federal action hadn't been dismissed Walter should have been back in Hawaii by now. Plans change.

But as the credibility of these claims has long since jumped the shark, people might start asking questions about trivial claims made by the team of Sancho and Wagner. For example, what evidence is there that Luis Sancho, citizen of Spain, was a Hawai'ian resident? Is there some sort of meaningful standard here or can sleeping for a week on a friend's couch qualify?

I don't think they've gone to Utah to restart the Federal action from another state. (Wagner, at least, already tried that with respect to RHIC.)
//Edit -- I think I spotted Rössler's editorial trick before and commented on it.
Oh yes, that was back in April 2008 (http://www.physforum.com/index.php?showtopic=4830&view=findpost&p=335002). Has he actually published those papers somewhere, or are they perpetually "pending"?

[udarnik]

Well, he's still involved in the Botanical Gardens thing, and we found a document on the Hawai'i courts server that shows that the prosecutor in the theft and ID theft cases filed by the Botanical Gardens against him made a stipulation for him to leave Hawai'i for Utah in November on a $6000 bond. His snail mail threat to Jim a week or two ago came postmarked from Utah. As far as we know he's still there.

The interesting things in Utah I came up with were these:

pbw.co.utah.ut.us/scripts/pbcgi70.exe/uc1/u_functions/uof_serial_doc_detail?as_serial=000000000&as_entry=68419&al_year=2008

pbw.co.utah.ut.us/scripts/pbcgi70.exe/uc1/u_functions/uof_serial_doc_detail?as_serial=000000000&as_entry=68433&al_year=2008

Now, the Gardens been involved in litigation against him for close to these amounts, I'm assuming he has some sort of property in Utah against which these liens were filed.

The Gardens themselves are a corporation formed in the State of Nevada, and he's been involved with the court system there, too:

ccwashoe.com/public/ck_public_qry_doct.cp_dktrpt_docket_report?backto= P&case_id=CV05-02079&begin_date=&end_date=


You might get a chuckle out of a few quotes:

DEFENDANTS WALTER WAGNER AND DOUG HANSEN ARE JOINTLY AND SEVERALLY LIABLE TO WORLD BOTANICAL GARDENS, INC. IN THE AMOUNT OF $12,737.06, TOGETHER WITH POST JUDGMENT INTEREST AT THE LEGAL RATE FOR DAMAGES THEY CAUSE WORLD BOTANICAL GARDENS BY FREEZING THE BANK ACCOUNT AND CLOSING THE WEBSITE

FINDINGS OF FACT, CONCLUSIONS OF LAW, ORDER OF CONTEMPT, AND JUDGMENT OF CONTEMPT JUDGMENT AGAINST WALTER WAGNER $281,216.00 + PRE-JDUGMENT INTEREEST AT THE LEGAL RATE PER ANNUM FROM THE DATE OF EACH FRAUDULENT SHARE SALE AND POST-JUDGMENT INTEREST AT THE LEGAL RATE PER ANNUM. JUDGMENT AGAINST DAN PERKINS $70,304.00 + PRE-JUDGMENT INTERST AT THE LEGAL RATE PER ANNUM FROM THE DATE OF EACH FRAUDULENT SHARE SALE AND POST-JUDGMENT INTEREST AT THE LEGAL RATE PER ANNUM JUDGMENT AGAINST WALTER WAGNER AND DAN PERKINS, JOINTLY AND SEVERALLY $23,170.63 + POST-JUDGMENT INTEREST AT THE LEGAL RATE PER ANNUM WALTER WAGNER AND DAN PERKINS SENTENCED TO SERVE 90 DAYS IN THE WASHOE COUNTY JAIL WITH A NO BAIL HOLD AND EACH TO PAY $3,000.00 FINE FOR THEIR KNOWING, WILLFUL AND DIRECT CONTEMPT OF THE PRELIMINARY INJUNCTION AND OTHER COURT ORDERS. FURTHER PROVISIONS SET FORTH

COURT FINDS W. WAGNER, L. WAGNER AND D. PERKINS IN CONTEMTP FOR FAILURE TO APPEAR FOR THIS HRG. COURT GRANTS PLTS MOTION AND FINDS DEFTS ARE VEXATIOUS LITIGANTS COSTS AND FEES ARE AWARDED TO THE PLTS. BENCH WARRANT, NO BAIL ISSUED

[udarnik]

Oh yes, there are several reprimands in the Hawai'i LHC case documents about Walter filing papers for Sancho without a proper signature from Sancho. I have a feeling he's back in Spain.

[udarnik]

From here:

lhcdefense.org/pdf/Filed_ExParteApplication%20and%20WatsonDecl.pdf

7/ Plaintiffs' opposition brief is not the first or only paper that Mr. Wagner improperly signed and filed on behalf of both Plaintiffs. For instance, Plaintiffs' August 5, 2008 motion for a default judgment and permanent injunction against CERN and memorandum in support were signed only by Mr. Wagner. See Dkt. Nos. 29 and 31; see also Dkt. Nos. 9, 24 (other papers filed on behalf of Plaintiffs but signed only by Mr. Wagner). Although Mr. Wagner filed an "erratum" on August 11, 2008 purporting to correct this problem, see Dkt. No. 34, the original papers were still filed in violation of the rule against pro se parties practicing law without a license, and Mr. Wagner tacitly recognized this violation by filing the "erratum," which itself is also improperly signed only by Mr. Wagner. The filed version of Plaintiffs' opposition brief contains a written notation next to Mr. Wagner's signature stating that "Dr. Sancho signature to arrive via an 'Erratum' separately." Plfs. Opp. at 27. This notation is not on the version received by the United States Attorney's Office, and it is not indicated who made the notation. Plainly, however, the notation further emphasizes that Mr. Wagner is aware of the impropriety of his signing and filing papers on behalf of both Plaintiffs without both signatures. Plaintiffs' August 23 "Rebuttal," is also improperly signed only by
Mr. Wagner.

[rpenner]

http://www.physforum.com/index.php?showtopic=4830&view=findpost&p=327402
How can two pro-se plaintiffs align their interests in court if neither is acting as the other's lawyer? -- Mar 29 2008. rpenner

Udarnik's quote is from the Federal lawsuit and represents a professional's growing dissatisfaction with Wagner's making up procedure as he goes along. It was a footnote filed on August 27, 2008 by the US Defendants (Docket number 56, one of the subjects of the September 2 hearing which resulting in the ruling that the NEPA does not authorize the suit against the LHC). For reasons which the docket does not make clear, this motion (which was denied in the September 2 proceedings) does not appear in the docket.

Less than one month until Wagner's appeal brief is due.

[CptBork]

I just attended a talk given by one of the members of the LHC project (ATLAS detector to be specific), and they mentioned the staggering figures for media coverage surrounding the grand opening back in September. It was also mentioned that a lot of this coverage was sparked by interest in the inevitable doomsday us mad scientists were going to bring. I'm thinking we should claim a potential doomsday scenario every time we start a new project, and then charge viewers to watch the grand opening on pay per view. This could potentially fund physics research around the world for decades to come.

[rpenner]

Dat punk-ass ATLAS gonna sprocket the whole damn space-time continuum. The CMS is where it's at. Fo' shizzle!

[udarnik]

The only "mainstream" physicists to have been associated with this mess are Ranier Plaga, whom the OnScreenScientist eviscerated here:

onscreen-scientist.com/?p=34

and one H. Kimball Hansen, emeritus at BYU.

It should be noted that neither Hansen nor Plaga were particle physicists, and that by the time Hansen got involved he had been retired for 7 years after a 30m year career at BYU, and that Plaga is apparently no longer with Max Planck, but is a low-level bureaucrat at the Department for New Technologies and Scientific Foundations of the German Federal Office for Information Security (BSI)

nature.com/nature/journal/v453/n7191/full/453048a.html#a1

This is the affidavit from H. Kimball Hansen for the Brookhaven case, posted on LHCdefense.org, which is actually rather lukewarm in its support:

The following is a sworn affidavit filed in the U.S. District Court, Eastern District of New York, Walter L. Wagner v. Brookhaven Science Associates, LLC,Case No. 00CV1672 [2000]:


I, H. Kimball Hansen, Ph.D., declare under penalty of perjury as follows:

I am a Professor, emeritus, of astronomy in the Department of Physics and Astronomy at Brigham Young University, Provo, Utah. I was a member of the faculty there between 1963 and 1993, and from 1968 through 1991 I was also Associate-Editor of The Publications of the Astronomical Society of the Pacific.

I have read the First Amended Complaint, the Affidavits of Drs. Richard J. Wagner and Walter L. Wagner, the Safety Review[1] referenced therein, and the science article on strangelets by Joshua Holden, and am familiar with the issues therein with respect to operation of the RHIC.

I concur that the so-called 'supernova argument', used in the Safety Review to ostensibly show the safety of the RHIC, is wholly faulty. It presupposes the stability of small strangelets, with life-times on the order of centuries or longer, long enough to travel great distances through space. The authors had previously asserted, that to be dangerous, strangelets only needed to have lifetimes on the order of a billionth of a second, just long enough to travel a few centimeters and reach normal matter outside the vacuum of the RHIC.

There are a number of theoretical arguments that show that strangelets might be dangerous, and there are faults in the arguments presented, to date, to show the safety of the RHIC. I am of the opinion that it would be wise to avoid head-on collisions in the RHIC until a more thorough safety review, preferably before the physics community as a whole, has been obtained. However, the fixed-target mode of operation for the RHIC would be acceptable.

DATED: May 17, 2000

[signed]
H. Kimball Hansen, Ph.D.

[1] Review of Speculative "Disaster Scenarios" at RHIC

This is pretty much the extent of the physicists who have supported LHC alarmism. I figure it's good to get this out in the open on every forum that laymen are likely to run to for information before the instrument gets back up and running, because there is going to be another flurry of publicity.

[rpenner]

Bugaboo: "Supernovae", Collapse of the vacuum, and other super-obvious things not associated with p-p collisions at \sqrt{s} \leq 7 \, \mathrm{TeV}
Competent, Published Paper addressing it:
Competent, Published Paper rebutting it: J. Ellis, G. Giudice, M.L. Mangano, I. Tkachev and U. Wiedemann "Review of the Safety of LHC Collisions" Journal of Physics G 35, 115004 (2008) http://arxiv.org/abs/0806.3414
Competent response:

Replace with:

Bugaboo: "Supernovae", Collapse of the vacuum, and other super-obvious things not associated with p-p collisions at \sqrt{s} \leq 7 \, \mathrm{TeV}
Competent, Published Paper addressing it: M.S. Turner and F. Wilczek "Is Our Vacuum Metastable?" Nature 298, 635-636. (1982) http://www.nature.com/nature/journal/v298/n5875/abs/298633a0.html
Competent, Published Paper rebutting it: P. Hut, and M. J. Rees "How Stable Is Our Vacuum?" Nature 302, 508-509. (1983) http://www.nature.com/nature/journal/v302/n5908/abs/302508a0.html
Competent, Published Paper rebutting it: J. Ellis, G. Giudice, M.L. Mangano, I. Tkachev and U. Wiedemann "Review of the Safety of LHC Collisions" Journal of Physics G 35, 115004 (2008) http://arxiv.org/abs/0806.3414
Competent response:


Less than one month to go for Docket No.: 08-17389 at the 9th circuit appellate court (https://ecf.ca9.uscourts.gov/) (PACER service sign up required). At that time we will see Wagner's last chance to make the argument that the LHC, situated on the French-Swiss border and controlled by an internation organization of 20 European government is, in fact, a major US Federal Government project, significantly funded and/or controlled by the US and subject to US the NEPA law.

I am not a lawyer, and definately not a bookmaker, but if I were here's how I'd place the odds:

p = 5% Walter wins as technicality (19-to-1 against) only to go to a more expensive defeat in Hawai'i on the very issues the district court decided to not rule on.
p = 14% Walter loses after oral argument (6-to-1 against)
p = 66% Walter loses before chance of oral argument. (1-to-2 against)
p = 14% Walter loses before US Government replies (6-to-1 against)

[Nasor]

What exactly is the point of taking legal action in the U.S. over an accelerator in Europe?

[BenTheMan]

What exactly is the point of taking legal action in the U.S. over an accelerator in Europe?

In spite of what most European scientists are willing to admit, the US is a major underwriter of the LHC. In fact, I don't know that the LHC could operate without US involvement. Specifically, the US government funds the Dept. of Energy and the Nat'l. Science Foundation, which fund experimental high energy research at major Universities. I also think that DOE and NSF give money directly to CERN, but I'm not sure about this.

Either way, if the judicial system ordered a freeze on the government funding the LHC, it more or less couldn't operate---especially in these times, it would not be possible to find someone to contribute as much money as the US does to CERN to cover the operating costs.

[rpenner]

Wagner's contention (which has survived to this point) is that somehow the LHC is a "major Federal action" and requires NEPA review for potentially environmentally hazardous results of its operation.

The judge agreed with the US government (http://sciforums.com/showthread.php?p=2029021#post2029021) in that case law clearly supports a finding of no "major Federal action" when 10% or less of the funding and no control of operation is in Federal hands -- which are the uncontested facts of the case. (This appears to be the one and only point in a narrow case to be reviewed by the appellate court.)

The judge has not yet ruled if Wagner failed to file his case in a timely fashion (and other more technical issues), which means even a win in the appellate court could just mean being slapped back down in the Hawaiian court or being transferred to a court in Washington D.C.

Even if all the "let's sue in US court armed with the NEPA law" action was found sound, Wagner's case fails because he's not armed with physics. He's not claiming they haven't checked for known physics problems, but all the unknown physics problems. The NEPA has language in it so that these speculations unsupported by evidence and logic are not demonstrations of problems with safety review -- you can't hold up a highway construction project because Russell's Teapot (http://en.wikipedia.org/wiki/Russell's_teapot) prefers rail system infrastructure and is willing to rain down fire and damnation until it gets its way.

But the point of filing suit in the US is that US lawsuits are usually cheap entertainment for plaintiffs. Both Wagner and Sancho filed this suit pro se, representing just themselves as individuals -- Wagner (B.S. Biology, J.D.) cannot even act as Sancho's lawyer. It's not about physics. It's not about justice. It's not about social niceties. Perhaps it is only about self-promotion from someone holds a thirty-year grudge against physics because his work misinterpreting scratches on a plastic plate as a lab technician did not outshine Newton.

// Edit -- Yes, 10% is a lot of funding, but the US doesn't get a vote on LHC operations. But unless the US has some sort of time machine, when you are arguing from ignorances as Wagner is, you should sue when then monies are allocated, not after they were already spent.

[Farsight]

Can I encapsulate the argument for you? The fact remains that CERN say it's perfectly safe but they're hoping for the unexpected. How anybody can square this away I don't know. Especially in this day and age when a playground slide is too dangerous for kiddies. To be honest, I think it's safe too. But I don't know it's safe. So I wouldn't bet the farm.

You know, when I first heard about Turok's "bouncing universe" I thought yeah sure. Now I think I know how it works.

[rpenner]

Farsight, I think the people who built the LHC cannot be said to be hoping for the unexpected -- clearly they expect lots of things to happen and have built the detectors to measure those things. They expect to measure things better than they have been measured before and hope to measure things which have never been directly measured before. As far from actual unexpected things, like LHC transforming into a truly giant robot, I am certain CERN is not hoping for that.

If we understand physics, then the LHC is safe. This can be demonstrated theoretically based on specific alleged models of danger as well as empirically for broad classes which generalize the results of theories permitted by our current observation of the universe. That's not a foregone conclusion, but it is a very basic one which proceeds from both specific detailed calculations and heuristics which have been a staple of particle physics research since at least the 1960's. New forms of matter quickly decay to the lowest mass object which preserves their electric, color, flavor or baryon number charge -- and this conservation of charge is not dangerous. Since at least 1983, examination of cosmic rays has resulted in formal limits on collider disaster scenarios. Strange matter, if it exists at zero temperature and zero pressure, is not a high-temperature phenomenon, and the LHC is a high-temperature machine. It's for basic reasons like these that the average expert in these fields doesn't find it even interesting to try and create detailed formal analyses of bad ideas like the current crop of aphysical mumbo-jumbo.

On the other hand, if we don't understand physics, then no claim of safety, LHC-related or not, is well-founded, and the issue of "proving" safety is irrelevant.

But the dishonest tactics of the anti-LHC crusaders are shameful and entirely about the merchandising of fear and not about hard work and physics. They equate their own personal ignorance and lack of ability with that of experts. They prey on the under-informed like Chaya. http://news.bbc.co.uk/2/hi/south_asia/7609631.stm

If you'll notice, the anti-LHC forces have no experts backing their claims. Where are the papers which challenge our understanding? Where is the academic level debate? Even Wagner, the lawsuit enthusiast has stated in this thread that he doesn't wish to talk physics. If this is a metaphysical debate, then it doesn't belong in court for the same reason that the claim that God will strike us down if we don't switch on the LHC doesn't belong in court.

Finally, I don't see how Turok and LHC safety argument connect.

[Farsight]

They are hoping for the unexpected, Robert. Take your pick of this:

http://www.google.co.uk/search?sourceid=navclient&hl=en-GB&ie=UTF-8&rlz=1T4ADBF_en-GBGB240GB240&q=%22lhc%22+%22unexpected%22

And the very purpose of the LHC is to deliver the understanding that we currently lack. That's why we can't "prove" safety, and why the reassurances from CERN are meaningless. Again, there's lots of material out there:

http://www.google.co.uk/search?hl=en&rlz=1T4ADBF_en-GBGB240GB240&q=%22lhc%22+%22risk+assessment%22&meta=

No, we don't understand physics I'm afraid. That's why we do experiments. However I believe I understand more than most, things like energy, mass, charge, particles, the forces. People have difficulty in believing this, so much so that they refuse to examine what I say. There's a huge issue of conviction here. It's a common problem, most often seen in religion, but not limited to religion. It's a "people problem". There are no papers that challenge our understanding and no academic-level debate because of the conviction issue best paraphrased by "The Trouble with Physics", and an issue best called "The End of the World is Nigh". Stick your neck out and you'll have trouble getting past peer review. Do it with the LHC and you'll get called names. With the LHC, nobody wants to stick their neck out. Especially since if you cry danger and if you're right, nobody will ever know. It's a no-win situation, so people keep their heads down.

The Turok and LHC connection is that IMHO Hawking radiation is back to front. Whilst I think strange matter is hogwash, I'm still unhappy about you-know-what:

http://www.google.co.uk/search?hl=en&rlz=1T4ADBF_en-GBGB240GB240&q=%22cern%22+%22micro+black+hole%22&meta=

Virtual particles are a useful concept in QED calculations, but no particle, no matter how transient, conveys negative energy. Combine two out-of-phase photons and you're left with no photons. Both photons were positive energy, conservation of energy means the photon energy has gone into the "vacuum energy" of space. Play this backwards and you can separate this energy into two photons, and the micro black hole swallows them both. OK, sometimes one gets away, so a black hole gives off Hawking radiation. But it grows.

I don't think anything spectacular will happen. But like I say, and in all seriousness, I feel uncomfortable about betting the farm.

[rpenner]

Polemics don't disguise the fact that "danger" is just an argument from ignorance.

When this "Robert" character joins the discussion, I am confident he will support me.

[rpenner]

The schedule is set as follows:
Designation of RT for Appellant Luis Sancho and Walter L. Wagner due 10/30/2008.
Designation of RT for Appellee Center for Nuclear Energy Research, Doe Entities, Fermilab, National Science Foundation and US Department of Energy due 11/10/2008.
Transcript order for Appellant Luis Sancho and Appellant Walter L. Wagner due 11/19/2008.
Certificate of record due 11/26/2008.
Appellant Luis Sancho and Appellant Walter L. Wagner opening brief due 02/04/2009.
Appellee Center for Nuclear Energy Research, Appellee Doe Entities, Appellee Fermilab, Appellee National Science Foundation and Appellee US Department of Energy answering brief due 03/06/2009.
Appellant's optional reply brief is due 14 days after service of the answering brief. That's 2009/02/04 to the rest of you. So I log on to read the filed brief and find ... nothing. How very disappointing.

//Edit -- Just checked in Hawaii and the opening brief was not filed there, either. Does Wagner have an explanation?

[Farsight]

I don't argue from ignorance. My argument is very logical. And you obviously have no answer to it.

Sorry about the Robert. My mistake.

[BenTheMan]

I don't argue from ignorance. My argument is very logical. And you obviously have no answer to it.

Sorry about the Robert. My mistake.

It is, of course, possible that the LHC will produce hordes of fire breathing dragons (the total energy in the beam is equivalent to a fully loaded aircraft carrier moving at something like 20 knots) which could fly out and take over the world. There are, however, no reasons for us to expect this outcome.

If you'd read the objections and arguments over the past few pages, you'd see that the collisions in the LHC are happening all the time in our solar system and in our galaxy, some at far greater energies than we could ever hope to engineer. There are no black holes consuming our sun, or Jupiter, or even the earth, so we have very good reason to assume that such events won't happen in the LHC.

[rpenner]

News update -- http://cosmiclog.msnbc.msn.com/archive/2009/02/05/1781943.aspx
Cosmic Log says James Tankersley forwarded the reported appellate brief, but this still has not been filed on the relevant Appeals Docket #: 08-17389. The Deadline was Wednesday. The delay might be mail, one of formatting, or one of slowness of paperwork shuffling. I am cursed by my heady Internet age expectations.

Neither LHC Defense (Wagner's site?) nor LHC Facts (Tankersley's site?) has a copy of the brief.

We only have this summary from Alan Boyle: In a nutshell, the plaintiffs say the federal government's contribution of $531 million to LHC construction over more than 11 years, plus the U.S. consultative role on the project, are factors that add up to a "major federal action." But we don't know if it is from both Sancho and Wagner, if it cites any case law, or how the "consultative role" of the U.S. is (mis-)represented.

Judge Gillmor applied a two-prong test and skewered the issue of jurisdiction. Wagner, as last reported on this thread, was considering a strategy of demanding a bright line rule. Now, perhaps because of correspondence here, it seems that his strategy has changed. But the more than 10% and control tests seem sane, lawful and reasonable to me. Wagner hasn't always managed all three in my eyes. How I long to see that brief.

[rpenner]

I am cursed by my heady Internet age expectations. I phoned the SF circuit court clerks office, where I talked to a nice clerk who tells me for a pro-se, paper, mailed opening brief that it might be filed on PACER by the 13th.
--- But....
I checked back after lunch and it's here!

Section III (A) -- Wagner has sued the DOE, NSF, Fermilab, and CERN (under the wrong name) and up to 100 unnamed John Does. In this pleading he talks about the funding of LHC by the US Government through "DOE, etc." This leaves it to the court's imagination which of the defendants are "etc." A cynical court might speculate that Wagner is of the opinion that CERN is part of the US Government. :)
Wagner admits that Government funding of LHC has been going on for 11+ years. This undisputed fact could cost him the war even if he wins this battle.
Unlike Wagner, I believe the Large Hadron Collider is not made more accessible to non-particle-physicists by calling it an "atom smasher" since the nuclei are completely flayed of their electrons by the time they are introduced to the ring.
Verbatim: "Recent considerations of theoretical physics have arisen which show that the use of the machine [which is anticipated to be completed for use in late 2009] could result in the creation of novel forms of matter [e.g. "strangelets'' "micro-black-holes'' etc.) that could prove environmentally destructive by slowly converting Earth into either a large lump of strange matter, or into a small black hole." This is, unsupportable. Specifically, the second "could" should, on the face of the literature, read "could not."
Wagner asserts that NEPA should have forced some administrative board to consider Wagner's arguments in some form. I am not qualified to parse the NEPA law to see what exactly the government process is, if Wagner was correct and the literature said that the hypothetical products of the LHC could, in fact, prove environmentally dangerous, but as this is not the case, my reading says that NEPA doesn't force the government to audit imaginary threats, especially those at odds with fundamental physics and observation.

Section III (B): Wagner says that the court made an error in declaring that funding of 7.7% of the LHC and no control makes it not a "major Federal action" that would be subject to the NEPA law. (Thanks to Alan Boyle of Cosmic Log, I knew that already, but it's good to see it's in the right place.)

Section III (C): Wagner's paperwork was filed in a timely basis. Finally, an assertion I have no reason to question.

Section III (D): Technical language for "they booted me out of court."

Section IV :

There it is, in bold print. Wagner thinks he should not have lost on that point just because case law, including cases he brought into the record, supported making that decision. He thinks the large dollar amount (less than 2 orders of magnitude greater) makes the dollar amount qualitatively different than the case law examples. I disagree, unless he has relevant case law to support a threshold amount, Wagner is once again arguing from the special basis that an invisible threshold exists which only he is aware of. He repeats the length of time that the Federal government has been funding the effort, which if I were deciding this on the basis of common sense would either skip ahead to the statue of limitations or divide the dollar amount by the funding period. He claims that the Federal government, which initially was a LHC competitor with Tevatron and the started Superconducting Supercollider (SSC), was deeply involved in the planning of LHC. But the existing two-prong test speaks of "control" not "involvement" which here I read as "negotiated." The US government is CERN's partner, not its toady, so of course there is negotiation. Somehow, Wagner claims the US government initiated the LHC project. Once again, I think this perception is uniquely his. He equates the US's "observer" role as a "lobbying" role and that as a "controlling" role. Ridiculous! He then brings into the discussion of whether NEPA should declare something a "major Federal action" is the magnitude of the asserted environmental disaster. Well in that case, since Wagner asserts (aphysically) that the LHC could cause merely the destruction of the Earth, I will borrow a page from Prof. Dixon and assert the act of ruling in Wagner's favor could cause the destruction of everything in the future light-cone, and since my "concerns" trump Wagner's, NEPA requires that Wagner be imprisoned and denied due process, and the mere lucky happenstance that this hasn't happen yet for the paltry few number of times that a court has ruled in Wagner's favor ought not to prejudice the court against my argument.

Finally, Wagner says that the percentage funding is not 7.7% as the District court calculated, but 100%. Yes, 100% of the US dollars that contributed to LHC funding was funded by the US government which used real money, dollars, not that sissified, made-up stuff like pounds and euros. (Right now, James Tankersley should be doing something newsworthy and dramatic, like throwing himself into industrial machinery, to protest the stupidity of his own side.)

Section V (A): Myopically, he tries to make the LHC look like an American program. He claims "no State or Local funding" but ignores the 20 member states of CERN because he didn't want to do the research of where the monies come from. He denies monies that aren't Dollars are even monies.

He claims the risk isn't from building the LHC, but from operating it, but his complaint and the dollar amount indicate that construction is the issue. Wagner is a man who doesn't know his own mind. He claims that the risk issue is significant despite the court's ruling which doesn't indicate that the district court agreed.

He claims that the risk wasn't known when funding was allocated and any NEPA document would have been due. This is true. The risk is still not known -- it's an argument from ignorance not from physical theory. He claims that the conditions in the LHC are unlike those anywhere in the universe, which is pedantically true, but misses the big picture of the cosmic ray safety arguments which date back to 1983. Collisions at least as energetic as those which happen in the LHC happen every day in our own backyard (Earth's upper atmosphere). Since Walter Wagner's only exposure to physics professionals are with a 1970's cosmic ray team, this is hard-to-explain blindness. The request to read all seven of the affidavits of the original court will not endear Wagner to the appellate court -- but if they do read these, they will see that not even Wagner's "experts" agree on how the LHC poses a danger, which weakens the thought that it might pose a danger. Since none of the "experts" are in fact "experts," then Wagner could face sanctions of having their testimony excluded.

Wagner says "some" of the issues were addressed by the 2008 "LSAG Safety Report" -- but that didn't change the design of the LHC one whit -- it just showed that (at least) "some" of the (bizarre) inventions of Wagner's affiants are made-up and aphysical. Wagner makes up new physics and claims that the "nowhere in the universe" actually exists in the universe. He invents new motives for the LHC designers in that they want to create "strange matter," according to Wagner. But actually, the LHC operates at too high an energy for droplets of cold strange matter to form. It looks like Wagner has confused "strange matter" with "quark-gluon plasma."

Wagner talks about ideas "proven to be wrong" in probably an aphysical sense. In a violation of good lawyerly practice he cites the whole of his own affidavit instead to referring to the paragraph numbers. He gives original "expert" testimony in the appellate brief. Wagner shouldn't be suing the LHC -- he should be suing his law school for not flunking him out.

He plays games with the definition of words in the Amici brief by Nobel Laureates.

He states in bold text that the only acceptable prerequisite is that someone needs to prove as impossible that any imagined disaster will happen. That's not the job of mathematicians or physicists or EPA reviews to work with the imagination of the uneducated.

Section V (B): What is Luis Sancho a doctor of? What is Richard Wagner a doctor of? What is Walter Wagner a doctor of? (Oh, that I know -- he's got a J.D. from a lesser school of law.) What is Paul Dixon a doctor of? (Psychology.) All this puffery of titles is a smoke screen to hide that his "experts" are not relevant.

* Ironically, I remember reading about cases where it was argued that a Ph.D. from some of the best schools in the world was not, perhaps, up to the standards of, say Mississippi Tech., but Wagner alludes to this when he claims that foreign currency can't be in the same class as "dollars."

In this section, Wagner also takes pot-shots at the Government side for not following "local rules." He was admonished by the judge for smirking in court and for also not following the rules on September 2. (But that transcript is not part of this appeal.)

Section V (C): Wagner omits the judges findings that the US Government funded no more than 7.7% of CERN, compared to case law that spoke of 10% or less, and omits that Judge Helen Gillmor found also that the US government had no control over the operation of the LHC. Wagner is focused on the length of time and the "dollar" amount.

Section VI -- What are the facts as Wagner sees them?
1. Wagner characterized the 1997 International Cooperation Agreement as an agreement to build LHC, when I think it reads more a "pay-to-play" swap of resources for access. Nowhere is the sense that if the US doesn't sign, then the LHC won't be built.
2. It's very unclear where he gets his numbers from. Does "Document 20" say what he says it says? If he's referring to docket 20 from Hawaii, that has 17 attachments and is 258 pages long. Boy, Wagner is unreasonable. Ah, it's attachment 9. One possible read is that not-yet-allocated $72.450 million is largely for supporting the detectors, not the operation of LHC itself, and for doing the research for upgrades, also not operations. But Wagner calls it operations.
3. While the US contractors are responsible for the design of components, that's a long distance from design, purposing and control of the LHC. Wagner sees them as identical.
4. Rather than proving that the US initiated the LHC in 1997, as Wagner insists, Attachment 4 of Document 20 shows that CERN itself approved LHC in 1994.
5. Wagner reads "non-voting seat" and calls this "lobbying" and therefore "control."
6. Wagner argues rather than state facts, because no one can assign a non-zero probability to an event outside of physics. Where Wagner's hypotheses of danger are physical, they have been proven not to exist, and where they are aphysical they are irrelevant fancies.
7. Wagner asserts, without reference, that CERN members contribute in equal amounts to LHC and asserts that the maximum of 7.7% is really 10% when including undocumented European labor costs, it might be as little as 4%. This is at best lying through rounding and on the whole is a distortion.

Section VII: Wagner argues briefly. (At least here it will be appropriate).
Wagner complains, as he did in this thread, that different cases in case law had different situations, not all equivalent to each other.
Wagner mistakes Judge Gillmor's use of a two-prong test as a one-prong test based on percentage total funding.
Wagner attempts to portray Judge Gillmore's reliance on case law to establish judicial error.
Wagner remembers Judge Gillmor did use also the second prong, but was silly to interpret "non-voting" as not "controlling."

Section VIII: Wagner argues long-windedly. (Shoot me, shoot me now.)
1. Wagner says $531 million is a lot of money. He reuses his unsupported "double" assertation. He reuses his "Dollarz iz teh onleez moneez" argument. And he says that $531 million is quantitatively different than the amounts of funds in the case law cases. (A cynical judge might ask if this means that the Bush and Obama stimulus packages are then major Federal actions that might foreseeably lead to the burning of more fossil fuels and speeding up climate change and other environmental effects making these actions also subject to NEPA.)
He cites two phrases where clearly the question is one of the federal relative percentage of project funding and claims the Judge erred in reading them the natural way.
Wagner claims that the judge should have ignored case law (this assertion lacks a basis) and ruled based on the dollar amount (this assertion lacks a basis), ruled on the duration of a project (this assertion lacks a basis, since there is such a thing as a statue of limitations seems contrary to law), rule on his claim (contradicted by documents he cites) that the US initiated the LHC project, yadda, yadda, yadda. [Wasn't Wagner suppose to support this in his September 2nd court appearance?] Wagner repeats himself several times.
2. Wagner conflates design of subsystems for design of the system and operation of detectors for operation of collisions. You would think someone who made a decade-long crusade against colliders would learn about them.
3. Wagner gives a sketch of an argument on how partial funding + observer status = control. But since title to those expensive magnets and detectors has been given to CERN, it's obvious that the US is paying to play, and that it is CERN who holds all the cards. Also, Wagner cites "permanent" over and over, but that word is not used to describe the US's role as a non-voting observer. It is pay-to-play.
4. Wagner manages to say not much, as far as I can tell.
5. Wagner argues from ignorance -- and manages to distort what he can

Section IX:
Despite no case law indicating that the LHC funding level or duration is qualitatively different than previous cases, Wagner asserts it just is. Despite no case law indicating that pay-to-play observer status is "control," Wagner asserts it just is. Wagner asserts 10% is the same as 7.7% is the same as probably 4% which is more than 5% a number he made up. (It seems likely to me that CERN funding is proportional to GNP for member states.) Despite the lack of case law to support the contention that U.S. Dollars are the only form of funding that matters, Wagner asserts it just is. Wagner flip-flops if he is suing because the US authorized construction or because the US wants to continue to be involved -- but it doesn't matter since what matters is what funding was approved by congress before the case originally went to trial.

Section X -- Claim that there are no related cases before the courts. Stab in the back to the European litigation team at ECHR.
Signature: There's a space for signature for Luis Sancho but either he signed it in non-photocopy-blue or this is just Wagner's appeal. [In the September 2 transcript, Wagner was warned to not act as Sancho's lawyer, advice which is appears he intended to disregard by including this signature line.]

Wagner lists one address for both himself and Luis Sancho. ¿Porqué?

[rpenner]

http://skeptico.blogs.com/skeptico/2009/02/global-warming-denial.html

Where have we seen these before?
Conflation of words that can have either the same or different meanings on the basis of context. Conflation of argument from authority with reliance on communities of hard-working experts. Alleging Conspiracy Selectivity (cherry-picking) Fake experts Impossible expectations (also known as moving goalposts) General fallacies of logic, and continuing to repeat arguments long after they have been debunked.

[Walter L. Wagner]

Anyone who is interested in reading the complete appellate brief that was filed, to see how it compares with the "analysis" by rpenner, may PM me and provide me with an email address, I will email it to them as an attachment. It's only 25 pages of a Word document.

[cosmictraveler]

So when does the LHC start operations again if the law suits don't stop it? I thought it was to be operational in March of this year?:shrug:

[BenTheMan]

So when does the LHC start operations again if the law suits don't stop it? I thought it was to be operational in March of this year?:shrug:

The latest word is September, I think.

[rpenner]

Anyone who is interested in reading the complete appellate brief that was filed, to see how it compares with the "analysis" by rpenner, may PM me and provide me with an email address, I will email it to them as an attachment. It's only 25 pages of a Word document.

Indeed, it is so brief it doesn't refer to attachment number, page number or paragraph of 250+ page documents in the case record. But if the intent was to have the appellate judges read and re-read the government-submitted affidavits and attachments, well done.

The assumption that Wagner is off-base when he guessed that the CERN member states contributed equally to construction costs of the LHC is strongly supported by the 1954 "Convention for the establishment of a European Organization for Nuclear Research" which also corrects long-standing misconceptions of what the acronym "CERN" stands for. http://documents.cern.ch//archive/electronic/other/legal/articles/LSL00000014.pdf

[Walter L. Wagner]

The assumption that Wagner is off-base when he guessed that the CERN member states contributed equally to construction costs of the LHC ...

The brief makes mention that Germany, France and the UK all contributed more than the 10% contributed by the US, and that other member states contributed less. It did not provide the details, which are publicly available, though I believe Germany is around 20%, France and UK around 15%. But why bother reading the brief when we have rpenner to think for you. [see page 18 of brief, bottom of page]

[cosmictraveler]

The latest word is September, I think.

So that small fire that happened last year wasn't so small after all! More was destroyed than first thought I guess when they started to dig deeper into the problem. To bad we all have to wait but I guess a few more years won't be that important when they finally start it up and cannot the Higgs particle.

[rpenner]

The brief makes mention that Germany, France and the UK all contributed more than the 10% contributed by the US, and that other member states contributed less. It did not provide the details, which are publicly available, though I believe Germany is around 20%, France and UK around 15%. But why bother reading the brief when we have rpenner to think for you. [see page 18 of brief, bottom of page]
Let the reader decide, eh?
The Percentage of the Dollar participation in the project is 100%, and double the average amount of all of the other 20 participating CERN countries [10% for the federal government; 5% average for the 20 CERN countries] when converted from Euros to Dollars, with no Dollars contributed by State, Local or Private sources, with the other monetary commitments instead being Euros from CERN countries.
I wrote: "Finally, Wagner says that the percentage funding is not 7.7% as the District court calculated, but 100%. Yes, 100% of the US dollars that contributed to LHC funding was funded by the US government which used real money, dollars, not that sissified, made-up stuff like pounds and euros." and then added commentary on the unpersuasiveness of this argument.
There are no other sources of US Dollars for the project other than the federal government, which therefore constitutes 100% of the US Dollar involvement, though roughly estimated at 10% of the total budget if the Euro contribution from co-defendant CERN were converted into Dollars. However, CERN is composed of 20 countries, each averaging 5% of the CERN budget (20 X 5% = 100%). The US government involvement at 10% of the CERN budget is therefore significantly larger than the average of the CERN countries at 5% of the CERN budget for each country [ROA, Document #20].
I wrote: "Wagner asserts, without reference, that CERN members contribute in equal amounts to LHC and asserts that the maximum of 7.7% is really 10% when including undocumented European labor costs, it might be as little as 4%. This is at best lying through rounding and on the whole is a distortion."
The federal government has expended a large sum for the construction of the LHC over the course of more than a decade.The amount of money spent by the federal government is approximately DOUBLE the amount spent by each of the other countries involved in the construction project [10% versus 5%], and constitutes 100% of the Dollar commitment to the project [the other commitments were in Euros]. This long-term expenditure commitment dwarfs the expenditures of those cases in which it was found that federal involvement in a project did not constitute a major federal action.
It is misleading to examine only the US involvement as a percentage of the total project [after converting the Euro budget into dollars]. The federal government is the only contributor of US Dollars [the remaining contribution is in Euros], and more importantly, its commitment to-date is twice the average³ [10% of the total budget, versus 5% average for the CERN countries] of all of the other individual CERN countries participating in construction of the LHC. The US is a significant player in the construction of the LHC, though due to the large-scale nature of the project, no one single country could shoulder the full economic burden of its construction cost.
....
³Three CERN countries actually provide a somewhat larger percentage of the total budget than does the US — namely, Germany, France and the UK. The other CERN countries accordingly are at less than the 5% average.
I wrote: "He reuses his unsupported "double" assertion. He reuses his "Dollarz iz teh onleez moneez" argument." -- I didn't even comment on the unsupported "no one single country could shoulder the full economic burden of its construction cost." -- Really, $10-15 billion dollar projects are beyond the pale for a mere government? What, really?

Here's the CERN budget source contributions for 2009.

If the US contribution is on par with the 4% of Bruce Strauss, then 6 countries out-spend the US. If the US contribution is 7.7% as Bruce Strauss can more clearly document, then 5 countries out-spend the US. If you use the more conservative limit implied from the numbers Wagner quotes in his opening appellate brief, the US contribution has an upper bound of 9%, and 4 countries out-spend the US. Finally, even if you accept the unsupported "rounded" figure of 10% used by Wagner throughout, those 4 countries out-spend the US -- and Germany contributes twice as much as the US, so Wagner argues that this should be tried in German court.

Bulgaria 0.22%
Slovak Republic 0.54%
Hungary 0.78%
Portugal 1.14%
Czech Republic 1.15%
Finland 1.55%
Denmark 1.76%
Greece 1.96%
Austria 2.24%
Norway 2.53%
Sweden 2.76%
Belgium 2.77%
Poland 2.85%
Switzerland 3.01%
Netherlands 4.79%
Spain 8.52%
Italy 11.51%
United Kingdom 14.70%
France 15.34%
Germany 19.88% http://dg-rpc.web.cern.ch/dg-rpc/Scale.html

The whole issue of "average percentage per country" is a bad argument to make, and as a biologist, Wagner should know that "average plant size" is not a figure which helps you understand how a forest looks.

[cosmictraveler]

It is interesting that when FERMI LAB was built no other nation ever put any money into it. Many foreigners were using the lab for their own experiments though even if they did not contribute one penny toward its operation.

[Walter L. Wagner]

United Kingdom 14.70%
France 15.34%
Germany 19.88%

I wrote in the post above that I believed that Germany was at 20% and UK and France at 15%. Not too far off for doing it from memory.

The exact quote in the brief reads:

"Three CERN countries actually provided a somewhat larger percentage of the total budget than does the US -- namely Germany, France and the UK. The other CERN countries accordingly are at less than the 5% average."

It's really pointless to argue the point. The 10% figure is the one used by the US government at the trial court level, so on appeal one is not allowed to interject 'new facts', and I simply used the figure already in use by the trial court judge. The average of the 20 countries is 5%, and NOWHERE did it suggest that each country was actually at that average; and moreover it explicitly stated that at least those three countries [Germany, UK, France] were above the 10% figure for the US. To now suggest anything to the contrary along the lines of rpenner's first false assertion that I "guessed" that each country was exactly at 5%, with exactly equal contribution, is simply lying. The court understands that these are approximations to give the court a handle or feel for the US involvement versus the CERN member involvement. Should the US government try to make an issue out of this, I would be more than happy to provide the exact figures in the Reply Brief to be filed in about 5 weeks, though I doubt that this will bother the government attorneys like it seems to bother rpenner.

[rpenner]

Spain and Italy are also above 5%, so the second sentence you quote from your own brief appears to be false.

I don't wish to debate with you about the possibility of introduction of "new evidence." How fortunate, then, that Judge Gillmor has read this materials and included in the decision this paragraph and the later paragraph which I believe that you quoted in the appellate opening brief. I show footnotes in the original with "[[" and "]]".
Pursuant to the 1997 Agreement, Federal Defendants state that they contributed a total of $531 million toward the construction of the LHC. (Id. at ¶¶ 14, 21, 22.) Federal Defendants calculate that this expenditure represents less than 10% of the LHC’s total construction cost of $5.84 billion. [[Various other materials suggest that the total cost of constructing the LHC far exceeds $5 billion.]] (Id. at ¶ 21.) Of the $531 million contributed by Federal Defendants, the DOE contributed $450 million toward the construction of the accelerator components and the two detectors. (Id. at ¶ 18.) The remaining $81 million was contributed by the NSF toward the construction of the two detectors. (Federal Defendants’ Pripstein Decl. ¶ 9.) According to Dr. Strauss, the Program Manager in the Office of High Energy Physics, Office of Science, for the United States Department of Energy, Federal Defendants contributed a total of $531 million toward the construction of the LHC pursuant to the 1997 Agreement entered into between Federal Defendants and CERN. (Strauss Decl. ¶¶ 14, 21, 22.) This expenditure is represented to be less than 10% of the LHC’s total construction cost of $5.84 billion. (Id. at ¶ 21.) The applicable caselaw indicates that the funding provided by the United States for the construction of the Large Hadron Collider does not constitute a “major Federal action” as defined by the National Environmental Policy Act.
From Post 35 (http://sciforums.com/showthread.php?p=2029021#post2029021) of this thread.

$531 million/ $5.84 billion = 9.09% which as the judge calculates is indeed "less than 10%". Indeed, in both places it is referred to as "less than 10%." That is, the number she computes is not 10% but is bounded above by 10%. I would be surprised if you could find an actual government calculation of the number as equal to "10%."

cf. pp 7-8 of Document 15, complete with footnote 3 and p. 25 of Document 15 where both times "less than 10%" is the phrasing used.

No doubt the government attorneys will act as directed by their professionalism, ethics and standards of practice. My foray into LOLcat language is unlikely to appear even in news coverage. But if you would like me to send it to The Daily Show, we will see if they accept unsolicited submissions.

[cosmictraveler]

When are other countries going to help finance the FERMILAB with its on going operations?

[rpenner]

One week to go before Government reply. At least that was as per the orginal schedule. The brief is due on Friday, which Variety has dubbed "cerulean genitalia" day.

But, the U.S. Attorney has requested a 30-day extension of this deadline. Luis Sancho continues to be invisible. Wagner makes unreasonable demands in exchange for granting the extension, so the Government requested the extension Thursday from the appellate court.

[rpenner]

Monday, Monday.

On Friday, Wagner, and Wagner alone, formally opposes the motion for the 30-day extension.

Wagner does not cite case law, but reads the literal text of the Rules. But he is in error when he suggests that the Government attorney has merely made a "conclusory statement" that the attorney is too busy at the moment to reply diligently. The actual attorney has an actual case load, with some other deadlines piling up, and said so on Thursday.

Wagner writes, a bit uncivilly, "Here, Mr. Arbab has shown neither diligence in preparing for an answering brief, nor has he demonstrated a substantial need for an extension of time." Them's fighting words, and in a reply made today the government attorney points out, pointedly, that the non-expert, non-professional has no basis to judge the operation of the professional. He then lectures Wagner on what attorneys do, and why the case load he described on Thurday means actual work happens.

Wagner makes light of Mr. Arbab's "desire" to take a vacation, but Mr. Arbab replies that from the professional's point of view, one schedules ones vacations in advance as part and parcel of ones workload management. [Mr. Arbab was handed this case on December 5, during the last days of the Bush administration, and there are a number of personal and professional events both that need to be scheduled four or more months in advance. Also, I seem to recall Wagner requesting and getting an extension to appear from the District court in this very same case, over the objections of the government.]

According to Mr. Arbab, Wagner also gets it wrong when Wagner tells the appeal court what can constitute a reply to an appeal. Wagner makes his unsupported pontification to the people most familiar with what is allowed -- the appellate court, while Mr. Arbab cites a court decision which came to the opposite conclusion.

Wagner seems to be claiming that it would be possible to do a diligent appeal reply in just 20-40 hours. [Or is he boasting about how little time he spends on legal matters? That would be apples (non-lawyer) and oranges (distinguished appellate lawyer representing multiple government departments).]

He then goes on to demand that if the US government gets its extension, that it would be just that the US also be ordered to stop funding CERN's ongoing operations despite the paucity of evidence that these activities are 1) happening, 2) related to LHC, 3) in violation of any law, 4) related in any way to the instant matter of whether or not Mr. Arbab is too busy at the moment to do a good job for the Government or not.

Wagner then proceeds to snow the appellate judges with another inflated CV, in an affidavit that seems argumentative to say the least.

l am a scientist who has worked in one capacity or another as a scientist since 1967. l am presently employed in science education by state government, and formerly employed in nuclear safety and safeguards by the federal government. l have substantial expertise in the science issues pending before this court. (Perhaps his documented stint in various law schools was an empirical investigation to answer the question: "Can I get a law degree?")

It's a bit like a multiply-convicted home-invasion robber claiming that he had a prominent role in supplying an education in the field of criminal law to dozens of individuals. Which state, I wonder, presently employs Wagner to teach "[a]ll fields of science and mathematics, including physics, chemistry, biology, and calculus" ?

Wagner brings the Nobel Laureate amici into this, despite the fact that they haven't filed yet in the appeal and their filings haven't been cited by specific document number. He makes a classic appeal to personal incredulity and calls them religious nuts. And tries to leverage that bit of illogic into an assertion that the US government should be ordered to "discontinue any further funding of defendant CERN's operation" during the appeal.

[Walter L. Wagner]

He makes a classic appeal to personal incredulity and calls them religious nuts

Paragraphs 3 & 4 of the affidavit in opposition to the request for a time extension:

"As a scientist, I have been unable to calculate how likely or unlikely such production of dangerous strangelets would be, due to the lack of experimental/empirical data that would shed light on such production potential. Accordingly, I find that the opinion [that production of dangerous strangelets is "unlikely"] of the amici is an expression of a faith-based belief in an alleged inherent safety of the LHC, and not based upon experimental data, or observation from the natural world. That faith is apparently a belief that the laws of nature would not be such that they would allow us to accidentally destroy our planet by extreme testing of high-energy physics."

Anyone wanna buy some of rpenner's snakeoil?

[rpenner]

As a scientist, A term for which the poster uses a private definition so weak as to be useless. The term, as used here, does not mean an expert in the procedures and calculations of particle physics. Not does it refer to a authority in that field as evidenced by peer-reviewed articles in a journal of good reputation or as an author of textbooks accepted by any panel as acceptable for teaching the needs of the curriculum.
I have been unable to calculate how likely or unlikely such production of dangerous strangelets would be, Is that because you personally are incapable, or because the odds are actually unknowable? Some people feel capable to examine the question:
Phys. Lett. B633 314 (2006) (http://arxiv.org/abs/hep-ph/0512112)
Rev. Mod. Phys. 72 1125 (2000) (http://arxiv.org/abs/hep-ph/9910333)
Phys. Lett. B470 142 (1999) (http://arxiv.org/abs/hep-ph/9910471)

Likewise while the experts write in summary: If they exist, strangelets would be bound states that would be initially formed with an atomic number comparable to that of normal nuclei. Like normal nuclei, strangelets would also contain a significant baryon number. We know from the basic principles of quantum mechanics that, for a strangelet to be formed, its constituents must be assembled in a configuration that contains less than its characteristic binding energy. If this were not the case, the forces between the constituents would not be strong enough to hold them together, and the strangelet would not form. As a consequence, strangelet formation is less likely if the constituents initially have more kinetic energy, and specifically if they emerge from a hotter system. Correspondingly, strangelet production is less likely in a hotter system. Wagner replies, not with science, reasoned argument or calculation, but with simple and sterile denialism.

J. Phys. G: Nucl. Part. Phys. 35 115004 (2008) (http://arxiv.org/abs/0806.3414)
due to the lack of experimental/empirical data that would shed light on such production potential. Aren't the main issues, as you see it, entirely theoretical. If the remaining issues are experimental, then you seem to want more experimental data, which is to say more collider experimentation. Like the results from RHIC that show higher energy collisions result in conditions less suitable for strangelet production.
Accordingly, I find that the opinion [that production of dangerous strangelets is "unlikely"] of the amici is an expression of a faith-based belief in an alleged inherent safety of the LHC, and not based upon experimental data, or observation from the natural world. But your basis for this non-expert "finding" is the above argument from personal incredulity. (Note, this word "finding" in an affidavit appears to be part and parcel of Wagner trying to represent himself to the court as an expert in the relevant field.)
That faith is apparently a belief that the laws of nature would not be such that they would allow us to accidentally destroy our planet by extreme testing of high-energy physics. I don't believe the judges will find this persuasive, and I am certain the intended audience of this forum doesn't find this argument persuasive. These conclusions are nearly a decade old, which is many times the publishing lag time of even the stodgier journals. Where are the rebuttals of these as "faith" in the scientific literature? Why haven't you published one?

[udarnik]

On other Wagner-related court news, the World Botanical Gardens has won a civil suit against three defendants, including Wagner and his wife:

hawaiitribune-herald.com/articles/2009/03/03/local_news/local01.txt

The suit, filed on behalf of WBGI by Hilo attorney Tom Yeh, accused the Wagners of stealing more than $179,000 of WBGI funds and Walter Wagner of bilking would-be investors of over $1,000,000 with the help of Perkins by selling phony shares in the garden.

The document also accused Walter Wagner of setting up a false Board of Directors and misrepresenting WBGI after he had been dismissed as a legitimate director. The suit charged that the defendants' actions damaged the garden's reputation and its ability to raise investment capital to finance development and construction projects.

The identity theft case will be commencing shortly:

Both Walter and Linda Wagner were indicted in February 2008 on criminal counts of first-degree identity theft and attempted first-degree theft for attempting to defraud the company of the $340,000. The Pepeekeo couple is free on $6,000 bail each while pre-trial proceedings continue. Neither appeared for a Feb. 2 court date before Nakamura. A status conference is set for March 30 at 8 a.m. A motion filed by Vaughan Winborne, Walter Wagner's court-appointed attorney, to remove Nakamura from the criminal case is scheduled to be heard by Hara Friday at 9 a.m.

Nakamura's boss has recused himself (and I assume Nakamura, though I can"t find any word on that):

hawaiitribune-herald.com/articles/2009/03/04/local_news/local04.txt

from the criminal case because he was the one who had to reverse himself on one of Walter's suits:

Hilo Circuit Judge Glenn Hara granted Wagner a default judgment in September 2004 -- which Hara later reversed -- for about $340,000 against the garden for unpaid salary, because no one represented the garden at the 2005 court hearing for the matter. Yeh argued that Wagner had served only his wife with lawsuit and that the lawful board of directors was unaware of it.

I'm glad Hara recused himself - judges get pretty angry about having to reverse themselves, and it's best that a new judge hear the criminal case. Any reasonable person who is familiar with Wagner's behavior has lots of questions about anything the man is involved in

This is what I don't get about the media attention to the LHC case. A small amount of research would turn up a these fraud allegations, which I see as enough evidence to ask for significant additional proof about any statements Wagner makes about anything, and yet they keep on identifying him as a "nuclear physicist" and "former nuclear safety officer" (as if logging the radiomedicine shipments at a VA hospital was the same as conducting experiments) based only on his own word, without looking into either his credentials or his conduct.

To top it off, the Wagner vs. Morton case:

people.com/people/archive/article/0,,20069143,00.html

is the case that spurred the California stalker law. Any halfway competent reporter should have turned up all of these legal adventures, but they are too busy with the "end of the world" tongue-in-cheek crap to actually do any real reporting.

[rpenner]

Walter has filed a "supplemental affidavit" on Friday in San Francisco.

I, Walter L. Wagner, affirm, state and declare under penalty of perjury as follows:

1. Contrary to Mr. Arbab's false assertion that I am not a lawyer, Which was simply based on Wagner's own admission to the judge that Wagner had not been admitted to the bar anywhere. Being admitted to the bar is the difference between a law school graduate and a lawyer. That same bar is responsible for monitoring ones ethical conduct and in the case of serious breach is empowered to render someone into an ex-lawyer. and therefore cannot make pronouncements on whether he has a light caseload or not,Your right to make pronouncements is guaranteed by the First Amendment. Your right to make informed pronouncements is established by a documented history where you would get the expertise to make such pronouncements on some sort of basis. l completed a standardThere is nothing "standard" about changing law schools before graduating. 3-year Socractic [Sic] law curriculum in the 1970s, and briefly practiced as an attorneyWith the expectation that you would eventually pass the bar?? before embarking on a career in nuclear physics in an administrative capacity.Did you mean as a clerical worker in nuclear medicine inventories? One of my responsibilities was to insure that the federal administrative agency for which l worked did not become embroiled in legal disputes, with which I was quite successful.And yet not so successful that you have seen fit to list these successes on a resume submitted to the current action. My civil procedure professor once commented that the best lawyers are the ones who keep their clients out of court. Oh, snap! That means lawyers who file lawsuits must be complete morons. Naturally, Mr. Arbab is blameless since he offered no legal advice to the D.O.E., N.S.F. or CERN, back in 1997-8. He just got involved as of December 5 of 2008. But Wagner filed both the District suit as well as this Circuit court review. And this is not the only lawsuit that Wagner had been involved in.

2. Mr. Arbab also alludes to issues other than whether or not defendant DOE's expenditure of a half billion dollars on the European LHC constitutes a major federal action. Again, those issues if such exist would have been present long before we fled our Appellants' Opening Brief, and he's had since December 5, 2008 to flesh them out. If they are issues already raised and adjudicated, they are the law of the case and not suitable for review on appeal in that no appeal of such adjudication was filed. If they are novel issues pertaining to jurisdiction, certainly they can be raised. However, Mr. Arbab has not even alluded as to what those issues might be, leaving this court in the dark as to whether additional time should be granted to address such issues. Argumentative. Therefore this paragraph is improper in an affidavit.

3. In that Mr. Arbab formerly had an automatic right to a two-week extension of time simply by telephoning the clerk of the court and requesting same, this Court might feel inclined to grant such two-week extension. Again, should it do so, in order to preserve the status quo, it is respectfully requested that this Court issue an Order freezing all further expenditures of funding by defendant DOE of the LHC pending resolution of this appeal. Argumentative. Therefore this paragraph is improper in an affidavit.

Just how many bites of the apple does Wagner want?

[rpenner]

March 8, Wagner sends and cc's email. http://www.bigislandvideonews.com/hamakua/2009/20090308wagner.htm -- points to Wagner's October 2008 plans to leave Hawaii -- raises question of wisdom of leaving in the middle of a courtroom appearance -- and that of following up on a civil lawsuit loss by making criminal accusations against the winners.
Still waiting to hear from San Francisco appellate court on 30-day motion. If denied, perhaps some news this week.

I would love for this thread to have more physics content -- but when faced with an argument from ignorance for continued ignorance, there simply may not be enough common ground to address the science.

In addition to obtaining evidence which strengthens the argument that the higher-energy LHC will be less likely to make any strangelets than previous generations of colliders, the Fermilab folks have put new limits on the Higgs mass. http://www.sciam.com/article.cfm?id=higgs-constraints-fermilab-tevatron

http://www.fnal.gov/pub/presspass/press_releases/Higgs-mass-constraints-20090313.html

http://tevnphwg.fnal.gov/results/SM_Higgs_Winter_09/

[rpenner]

I've been away for a few days and am still terribly dehydrated. These articles caught my eye.

April Fool's Day "news":
Tevatron particles broke free and staged a coup (http://www.symmetrymagazine.org/breaking/2009/04/01/particles-attempt-lab-takeover/)
A black hole is being kept under quarantine at LHC (http://www.thetechherald.com/article.php/200914/3354/CERN-admits-black-hole-ripped-in-space-by-Large-Hadron-Collider)

[rpenner]

More from 9th circuit appellate court, Docket No.: 08-17389
April 1 -- no foolin' -- court gives US Government until April 6 to reply to Wagner. Appellees’ motion for an extension of time to file the answering brief is granted. The answering brief is due April 6, 2009. The optional reply brief is due within 14 days after service of the answering brief.

Appellants’ request for an order directing that appellees provide no further funding to CERN will be addressed by the next available motions panel. The second paragraph doesn't call Wagner out-of-bounds quickly enough for the Government. A letter was written. Dear Ms. Dwyer:
I represent the federal appellees U.S. Department of Energy, National Science Foundation, and Fermilab in the above-styled appeal. Today, the Court issued an order granting the federal appellees’ motion for an extension of time within which to file their answering brief. That brief is now due on Monday, April 6, 2009. However, the order also states that “Appellants’ request for an order directing that appellees provide no further funding to CERN will be addressed by the next available motions panel.” April 1, 2009 order at 2.

The purpose of this letter is to respectfully submit that the motions panel should review the federal appellees’ soon-to-be-filed answering brief before ruling on the request referenced in the April 1 order. As noted, the answering brief will be filed shortly, on April 6. That brief will demonstrate that there is no factual basis for the relief referenced in the April 1 order because the federal appellees are as a factual matter not providing “further funding to CERN.” Rather, any ongoing funding by the federal appellees in connection with the Large Hadron Collider (“LHC”) project is directed to supporting United States research projects at the LHC, not to supporting the operation of the LHC itself (i.e., the particle colliding process). Operation of the LHC is the sole responsibility of CERN. In short, any ongoing federal funding flows to U.S. scientists, not to CERN.

I would also bring to the Court’s attention the procedurally improper posture of the request referenced in the April 1 order. Appellants are requesting injunctive relief pending appeal, yet they did not file a motion for such relief in the district court, contrary to Fed. R. App. P. 8(a)(1). Nor have appellants advised this Court why seeking such relief in the district court first would be impracticable, contrary to Fed. R. App. P. 8(a)(2)(A)(i). Nor have appellants submitted to this Court any reasons for granting such relief, or any material supporting a request for such relief, contrary to Fed. R. App. P. 8(a)(2)(B). Pro se litigants such as the appellants in this case must follow “the same rules of procedure that govern other litigants.” King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987). In short, as I noted in paragraph 6 of my declaration dated March 2, 2009 (attached to the federal appellees’ reply in support of their extension motion), appellants have demonstrated no entitlement whatsoever to any injunctive relief against the federal appellees pending appeal.

If the Court wishes briefing on any of the above points in advance of the filing of the federal appellees’ answering brief on April 6, I would be happy to provide it. Please forward a copy of this letter to the motions panel. I suspect this is overkill, but Wagner is fond to point out that I am not an attorney and thus have no basis to form an opinion of what a Government attorney's standards of professionalism would require. But pointing out that your opponent is confused on many points can't hurt.

Ho`ohiki news:
3PC08-1-000097 Hearing for possible disqualification of Judge Nakamura to be heard on March 18 was continued to April 8. Jury trial on criminal charges on August 3rd.

Be back next week.

[rpenner]

The following is the Government Reply to the Walter Wagner Appeal opening brief

STATEMENT OF JURISDICTION
The district court’s jurisdiction rested upon 28 U.S.C. § 1331 (federal question). The district court entered a judgment on September 26, 2008 dismissing the action. SER 150 (docket entry 92). [[“SER” refers to the Supplemental Excerpts of Record filed by the federal appellees. Because Luis Sancho and Walter L. Wagner are proceeding without counsel, they are excused from filing excerpts of record. 9th Cir. R. 30-1.2.]] That judgment is final under 28 U.S.C. § 1291. A notice of appeal was filed on October 20, 2008. SER 137. The notice of appeal is timely under Fed. R. App. P. 4(a)(1)(B). This Court’s jurisdiction rests upon 28 U.S.C. § 1291.

However, there is no continuing, live controversy on appeal with respect to plaintiff Luis Sancho; and plaintiff Walter L. Wagner lacked Article III standing to bring this action in the district court. See infra, pp. 12-41.
Ed: That's Section I of the Argument below which mirror point I of the Statement of the Issues.

STATEMENT OF THE ISSUES
Whether there is a continuing, live controversy on appeal with respect to Luis Sancho. Whether Walter L. Wagner lacked Article III standing to bring this action in the district court. Whether, if Wagner possessed Article III standing to bring this action, the district court correctly concluded that the Large Hadron Collider is not a “major Federal action” for purposes of the National Environmental Policy Act, 42 U.S.C. § 4332(2)(C).

STATEMENT OF THE CASE
A. Introduction: complaint and disposition below
The focus of this lawsuit is a device known as the Large Hadron Collider or “LHC.” SER 3 (¶ 8). The LHC is a particle accelerator that straddles the border between France and Switzerland near Geneva, Switzerland. Situated 100 meters underground, the LHC is designed to collide high-energy beams of subatomic particles traveling around a 27-kilometer ring of superconducting magnets and other structures. These collisions create more fundamental particles that can be studied for purposes of scientific research. SER 25 (¶ 6), SER 116-117.

On March 21, 2008, pro se plaintiffs Luis Sancho and Walter L. Wagner filed this action in the United States District Court for the District of Hawaii. SER 1. As described by the district court, the suit rests on an allegation that “the collisions [at the LHC] are unsafe and could potentially result in the destruction of the Earth.” SER 117. For example, the complaint alleges that particle collisions at the LHC could in theory create “a miniature version of a giant black hole,” and “[e]ventually, all of earth would fall into such growing micro-black-hole, converting earth into a medium-sized black hole.” SER 4 (¶ 13(b)).

The complaint named as defendants two federal agencies: the United States Department of Energy and the National Science Foundation. In this answering brief, these agencies are referred to collectively as “DOE” unless otherwise indicated. [[The complaint also named “Fermilab” as a defendant. SER 2 (¶ 4).
However, the record demonstrates that Fermilab (the common name for the Fermi National Accelerator Laboratory) is simply a collection of physical assets (e.g., buildings) owned by the Department of Energy in Batavia, Illinois. Fermilab is not an agency of the federal government nor is it a legal entity in its own right. SER 20-21.]] The complaint also named as a defendant a non-federal entity: the Conseil Européen pour la Recherche Nucléaire (“CERN”), which the complaint identified in English as the Center for Nuclear Energy Research. SER 2 (¶ 6). As the district court stated, CERN is “an intergovernmental European agency that conducts nuclear research.” SER 116.

The complaint alleged, in relevant part, that DOE and CERN “have engaged in a partnership relationship to construct” the LHC; that “[n]o absolute refutation of the adverse scenarios that have been described has yet been articulated”; and that, under the National Environmental Policy Act (“NEPA”), the defendants were required to, and did not, prepare an environmental impact statement (“EIS”) for the LHC project. SER 3, 4-5, 6-7, 9 (¶¶ 8, 14, 16, 18, 22). In fact, DOE did not prepare an EIS (or any other type of NEPA analysis) for the LHC project.

Alleging that construction of the LHC was nearly finished, the complaint sought a preliminary injunction “enjoining defendants from operating the LHC until after they have completed” an EIS. SER 3, 11 (¶¶ 8, 26(b)). Subsequently, on September 10, 2008, the first beam in the LHC was successfully steered around the full 27 kilometers of the accelerator. [[See http://press.web.cern.ch/press/PressReleases/Releases2008/PR08.08E.html. Other press releases issued by CERN indicate that the following events also took place after the complaint was filed. On September 19, 2008, during commissioning (without beam) of the final sector of the LHC, an incident occurred that resulted in a large helium leak into the tunnel. No one was put at risk by this incident, which investigation determined was caused by a faulty electrical connection between two magnets. On October 21, 2008, the LHC was formally inaugurated. On February 9, 2009, CERN management confirmed a restart schedule, under which first beams in the LHC are expected at the end of September 2009, with collisions following in late October 2009. See id. at Releases2008/PR09.08E.html (http://press.web.cern.ch/press/PressReleases/Releases2008/PR09.08E.html); id. at Releases2008/PR14.08E.html (http://press.web.cern.ch/press/PressReleases/Releases2008/PR14.08E.html); id. at Releases2008/PR16.08E.html (http://press.web.cern.ch/press/PressReleases/Releases2008/PR16.08E.html); id. at Releases2009/PR02.09E.html (http://press.web.cern.ch/press/PressReleases/Releases2009/PR02.09E.html) (each last visited April 6, 2009). Cf. Opening Brief 23 n.7 (referring to an “unexpected accident” at the LHC on September 19, 2008).]]

DOE filed a motion to dismiss the complaint for lack of jurisdiction under Fed. R. Civ. P. 12(b)(1). SER 142 (docket entry 14). DOE’s motion contended, inter alia, that Sancho and Wagner lacked Article III standing to bring this suit. At a September 2, 2008 hearing on DOE’s motion to dismiss, trial counsel for DOE argued, in response to the court’s questions, that even if the court had jurisdiction to entertain the suit, on the merits, the LHC is not a “major Federal action” triggering the application of NEPA. SER 99-102. On September 26, 2008, the district court granted DOE’s motion, holding that the LHC is not a “major Federal action” for purposes of NEPA, 42 U.S.C. § 4332(2)(C). SER 127-135. In dismissing the action, the court acknowledged, but did not rule on, DOE’s contention that Sancho and Wagner lacked standing to bring suit. SER 135. At no juncture did the court issue any injunctive relief against the operation of the LHC.

B. Statement of Facts
1. a. Facts bearing on whether there is a continuing, live controversy on appeal with respect to plaintiff Luis Sancho
A timely notice of appeal was filed on October 20, 2008. SER 151 (docket entry 96). However, the notice of appeal is signed only by plaintiff Walter L. Wagner. SER 137. Plaintiff Luis Sancho did not sign the notice of appeal. While Sancho’s name appears in typescript in the upper left-hand corner of the notice of appeal, there is no signature line for Sancho on the document. SER 137. Although the notice of appeal purports to be filed on behalf of both “Plaintiffs,” the district court had previously admonished Sancho and Wagner, on the record, that as a pro se litigant, Wagner lacks authority to file legal papers for Sancho. See SER 95-98.

In addition to not signing the notice of appeal, Sancho also did not sign the opening brief filed in this Court on February 5, 2009. That filing, which purports to be the “Appellants’ Opening Brief,” is signed (at 25) only by Wagner. A signature line for Sancho appears on the last page of the brief, but that line is blank.

b. Facts bearing on whether plaintiff Walter L. Wagner lacked Article III standing to bring this action in the district court
As noted earlier, this suit rests on an allegation that “the collisions [at the LHC] are unsafe and could potentially result in the destruction of the Earth.” SER 117; see SER 3-4, 10 (¶¶ 13, 26). Based on that allegation, the complaint sought a preliminary injunction “enjoining defendants” – i.e., DOE and CERN – “from operating the LHC until after they have completed” an EIS. SER 11 (¶ 26(b)).

However, the district court found that there was no dispute as to the following facts, which establish that DOE has no authority to prevent the LHC from operating. Under a 1997 “International Cooperation Agreement” entered into between DOE and CERN (hereafter, “1997 Agreement”), the construction, operation, and management of the LHC is “the responsibility of CERN.” SER 119, 133. The 1997 Agreement “only gave the United States non-voting ‘observer’ status in CERN’s governing council and no role in financial, policy, or management decisions or operation of the LHC.” SER 133. CERN’s governing council is “comprised of 20 European countries,” i.e., it does not include the United States. SER 133.

Regarding CERN – i.e., the sole entity that possesses authority to prevent the LHC from operating – the record establishes that CERN is not a party to this action because Sancho and Wagner never properly served the complaint on CERN. Sancho and Wagner attempted to serve CERN by hand-delivering a copy of the complaint to its legal department in Geneva, Switzerland. SER 108; see SER 110. But the plaintiffs’ own process server advised them that this method of service was improper and had been refused by CERN. SER 109. That view was corroborated by the Embassy of Switzerland in Washington, D.C. SER 78. CERN did not enter an appearance in the district court, nor has it entered an appearance in this Court. See infra, pp. 21-24.
Ed. Look for the argument below concerning Marco Breitenmoser.

2. Facts bearing on whether the LHC is a “major Federal action” within the meaning of NEPA
The district court found that there was no dispute as to the following facts regarding whether the LHC is a “major Federal action.” SER 120 (noting the plaintiffs’ failure to provide “any substantive written evidence in support of their position”). Pursuant to the 1997 Agreement, DOE contributed a total of $531 million toward the construction of the LHC. This federal expenditure is less than 10% of the LHC’s total construction cost, which is $5.84 billion. SER 130-131. In addition, “the United States has minimal control over the LHC project.” SER 133. Under the 1997 Agreement, the construction, operation, and management of the LHC is “the responsibility of CERN.” SER 133. The 1997 Agreement “only gave the United States non-voting ‘observer’ status in CERN’s governing council” – which is “comprised of 20 European countries” – and that agreement granted the United States “no role in financial, policy, or management decisions or operation of the LHC.” SER 133.

C. Factual Inaccuracies in the Opening Brief
There are numerous material factual inaccuracies in the opening brief’s “Course of Proceedings” section and elsewhere in that brief. We discuss the former set of inaccuracies in this section and address the latter set of inaccuracies as necessary in the Argument section below.

First, the opening brief asserts (at 10) that plaintiffs Luis Sancho and Walter L. Wagner submitted affidavits supporting the complaint in the capacity of persons who hold the title of “Dr.” In fact, those affidavits demonstrate that neither plaintiff holds a Ph.D, an M.D., or a similar doctoral degree in any scientific or science-related field. Rather, Sancho’s affidavit states that he obtained an “undergraduate degree” in an unspecified field, “followed with my post-graduate studies,” also in an unspecified field. SER 17 (¶ 1). Wagner’s affidavit states that he obtained a “graduate degree in 1978 . . . in law.” SER 12 (¶ 1).

Second, the opening brief asserts (at 11) that DOE’s motion to dismiss the complaint was supported by “unsworn” declarations. This assertion ignores that each of the federal government’s declarants in this case executed his or her declaration “under penalty of perjury” – as permitted by federal statute. See 28 U.S.C. § 1746.

Third, the opening brief asserts (at 12) that certain amici curiae filed an amended brief in the district court after it had already “terminat[ed] . . . the action three days prior thereto.” In fact, as the court’s opinion states, the court issued a minute order granting the amici leave to file an amended brief, and the court considered that brief in reaching its decision. SER 115-116. The amici below were Professors Sheldon Glashow, Frank Wilczek, and Richard Wilson. Glashow and Wilczek are Nobel Laureates in physics; Wilson holds a chair in physics at Harvard University. The amici brief below states that the plaintiffs’ allegations are “not scientifically credible.” SER 144 (docket entry 44, Ex. A at 2, 3, A-i).

Fourth, the opening brief adverts (at 11) to the district court clerk’s “entry of default” against CERN. No default judgment, however, was ever entered against CERN. Wagner moved for a default judgment, the motion was referred to a magistrate judge, and it was pending when the district court entered judgment dismissing the action. SER 148, 150 (docket entries 75, 76, & 92).

Fifth, the opening brief asserts (at 13) that “plaintiffs-appellants filed their Notice of Appeal” on October 20, 2008. However, as discussed in Section B-1-a of the Statement of Facts, supra, the notice of appeal is signed only by Wagner, and is not signed by Sancho – notwithstanding that the district court had earlier admonished the plaintiffs on the record that, as a pro se litigant, Wagner cannot file legal papers for Sancho.

D. The District Court’s Decision
In a September 26, 2008 decision, the district court dismissed this suit, holding that the LHC is not a “major Federal action” for purposes of NEPA. SER 111-136. The court explained that under Ninth Circuit case law it was required to examine two factors, namely: “(1) the amount and nature of the Federal Defendants’ funding, and (2) the extent of the Federal Defendants’ involvement and control.” SER 128. Applying those factors, the court concluded that “[the] Federal Defendants’ involvement with the [LHC] does not qualify as a ‘major federal action’ within the meaning of [NEPA].” SER 134. As discussed in Section B-2 of the Statement of Facts, supra, p. 7, the court found it undisputed that: (1) DOE contributed less than 10% of the LHC’s total construction cost; and (2) “the United States has minimal control over the LHC project.” SER 130-131, 133. As noted earlier, the court acknowledged, but did not rule on, DOE’s contention that Sancho and Wagner lacked Article III standing to bring this suit. SER 135.

STANDARD OF REVIEW
The district court’s grant of a motion to dismiss is reviewed de novo. See, e.g., Whitman v. Mineta, 541 F.3d 929, 931 (9th Cir. 2008). This Court may “affirm the district court’s dismissal of the claim on any grounds supported by the record, even if the district court did not rely on those grounds.” Granite Rock Co. v. Int’l Brotherhood of Teamsters, Local 287, 546 F.3d 1169, 1176 n.3 (9th Cir. 2008).

SUMMARY OF ARGUMENT
I. A. There is no continuing, live controversy on appeal with respect to plaintiff Luis Sancho. By not signing the notice of appeal, and by not signing the opening brief to this Court, Sancho has objectively manifested that he has dropped out of this case at the appellate stage.

B. The sole originating plaintiff who remains in this appeal – Walter L. Wagner – lacked Article III standing to bring this suit. The record is clear that the alleged injury – i.e., the potential destruction of the Earth if the LHC is allowed to operate – is not fairly traceable to DOE, because DOE has no authority to determine whether the LHC does or does not operate. Rather, only CERN possesses that authority. The record is also clear that a court cannot award Wagner the redress sought in the complaint – i.e., an injunction “enjoining defendants from operating the LHC until after they have completed” an EIS. CERN, which is the only entity with authority to prevent the LHC from operating, is not a party to this case because the plaintiffs never properly served the complaint on CERN. Wagner therefore cannot establish the causation and redressability requirements of Article III standing.

Where Wagner clearly cannot establish causation or redressability, this Court need not address whether Wagner established the requisite injury in fact. But if the Court reaches the question, the allegations of the complaint are legally insufficient to establish the requisite injury in fact, because any alleged threat of potential harm posed by the LHC is manifestly not an immediate threat.

Moreover, although Wagner states that there is “a significant risk of planetary destruction” if the LHC is allowed to operate, his assertion is purely conjectural. That assertion is based solely on extra-record material, which in any event undermines Wagner’s claim; and the assertion is thoroughly discredited on scientific grounds by the record compiled below.

II. Even if Wagner possessed Article III standing to bring this suit, the district court correctly concluded that the LHC is not a “major Federal action” for purposes of NEPA. DOE was therefore not required to prepare an EIS (or any other type of NEPA analysis) for the LHC project. The record clearly demonstrates that DOE contributed less than 10% of the construction cost, and has no control over the operation or management of the LHC. Under this Court’s case law, such minimal federal involvement in the LHC project does not transform it into a “major Federal action.”

ARGUMENT
I. A. THERE IS NO CONTINUING, LIVE CONTROVERSY ON APPEAL WITH RESPECT TO LUIS SANCHO.
“To qualify as a case fit for federal-court adjudication, an actual controversy must be extant at all stages of review, not merely at the time the complaint is filed.” Arizonans for Official English v. Arizona, 520 U.S. 43, 67 (1997) (internal quotation marks omitted). That issue “goes to the Article III jurisdiction” of the federal courts. Id. The Article III jurisdictional requirement that there be a continuing, live controversy “at all stages of review” is plainly not met with respect to a plaintiff who has, by any objective measure, dropped out of the case at the appellate stage. Luis Sancho is such a plaintiff.

Sancho’s own conduct after judgment was entered in the district court makes it evident that he has dropped out of this case on appeal. As discussed in Section B-1-a of the Statement of Facts, supra, p. 5, Sancho did not sign the notice of appeal filed on October 20, 2008 – which is signed only by Walter L. Wagner. Sancho also did not sign the opening brief to this Court filed on February 5, 2009 – which is once again signed only by Wagner. By not signing these legal papers, Sancho has objectively manifested that he is not pursuing an appeal. That objective manifestation is particularly clear in view of the district court’s explicit warning to Sancho and Wagner, long before the notice of appeal was filed, that Sancho cannot rely on Wagner to file legal papers for him. See SER 95-98.

At a hearing held on September 2, 2008 – i.e., some eight weeks before the notice of appeal was filed – Chief Judge Gillmor admonished Sancho and Wagner in no uncertain terms on the record that, as a pro se litigant, Wagner lacks authority to file legal papers for Sancho. The court made plain its concern that, prior to the hearing, there had been “no observing of the rules with respect to the fact that, as a pro se litigant, Mr. Wagner, you cannot file for Mr. Sancho.” SER 96. The court even expressed “surprise[ ]” that “Mr. Sancho is here because it does appear that in almost all the filings it is you who are the moving party.” SER 96.

The court then confirmed that Wagner is not licensed to practice law in any jurisdiction: [[The court was no doubt aware that, prior to the hearing, Wagner had stated, in an affidavit filed with the complaint, that he obtained a law degree in 1978. See supra, p. 8.]] THE COURT: Are you admitted to the bar anywhere, Mr. Wagner?
MR. WAGNER: No, Your Honor. SER 96. The court instructed the plaintiffs: “[A]s a pro se litigant, Mr. Wagner, you cannot file for Mr. Sancho. Mr. Sancho has to sign the documents and make them his.” SER 96 (emphasis added). The court made it absolutely plain that “you [Wagner] can’t represent him,” i.e., Sancho, and drove the point home by stressing that it “if Mr. Sancho hasn’t signed it . . . it’s not going to be treated as coming from Mr. Sancho.” SER 96, 97.

In response to the court’s explicit admonitions, Wagner requested “clarification.” Wagner advised the court that Sancho “is living in Spain,” which “makes it difficult for me to send a document that we both prepared together to Spain, have him sign it and then send it back to me to meet the time requirements.” Wagner asked whether it would be “possible for him to sign the signature page and mail that in.” SER 97. The court, however, made it clear that Wagner’s proposal was unacceptable, and Wagner so understood: THE COURT: Well, Mr. Wagner, what you are doing, basically, is you are attempting to be an attorney without being admitted to the bar; you’re attempting to represent a side in this controversy with more than yourself. As far as I’m concerned, [I]anything that is signed by you and not signed by Mr. Sancho is just your position; it’s not Mr. Sancho’s position.
MR. WAGNER: I’ll make certain that all documents in the future have both our signatures when they’re filed, Your Honor. Thank you. SER 98 (emphasis added). Given the court’s express admonitions at the hearing, and Wagner’s explicit commitment to the court, Sancho thereafter could not possibly have continued to labor under an erroneous belief that Wagner is free to submit legal papers on his behalf.

Particularly in light of the district court’s prior express admonitions, it is clear that Sancho has dropped out of this case on appeal. His subsequent failure to sign either the notice of appeal or the opening appellate brief cannot credibly be explained away as an inadvertent oversight. Moreover, even without express admonitions from a court, it is well-settled that pro se litigants must follow “the same rules of procedure that govern other litigants.” King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987). Various rules that govern litigation in the federal courts amply illustrate the principle that, if pro se plaintiff A wishes to join in legal papers filed by pro se plaintiff B, then A must sign those papers himself and cannot rely on B’s signature as a proxy for his own. [[See Fed. R. Civ. P. 11(a) (“Every pleading, written motion, and other paper must be signed . . . by a party personally if the party is unrepresented.”); Fed. R. App. P. 3(c) (“A pro se notice of appeal is considered filed on behalf of the signer. . . .”); Fed. R. App. P. 32(d) (“Every brief . . . filed with the court must be signed by the party filing the paper. . . .”). That Sancho is not pursuing an appeal is entirely consistent with these rules. Otherwise, Sancho would be giving tacit approval to Wagner’s (continued) improper attempt to act as his lawyer.]] These rules implement the well-known general principle that: “Although a non-attorney may appear in propria persona in his own behalf, that privilege is personal to him. He has no authority to appear as an attorney for others than himself.” C.E. Pope Equity Trust v. United States, 818 F.2d 696, 697 (9th Cir. 1987) (citation omitted). See also Carter v. Commissioner of Internal Revenue, 784 F.2d 1006, 1008 (9th Cir. 1986) (pro se appellants “personally must sign their notices of appeal”).

In sum, by not signing the notice of appeal and the opening brief to this Court, even in the face of the district court’s express admonitions, Sancho has clearly manifested that he is not pursuing an appeal. Accordingly, insofar as Sancho is concerned there is no continuing, live controversy on appeal. See, e.g., Arizonans for Official English, 520 U.S. at 59-60, 66-71 (case became moot on appeal when, one day after notice of appeal was filed, plaintiff took another job, where her speech was not governed by the law at issue).

B. WALTER L. WAGNER LACKED ARTICLE III STANDING TO BRING THIS ACTION IN THE DISTRICT COURT.
Because there is no continuing, live controversy on appeal with respect to Luis Sancho, the question whether there still exists a party who possessed Article III standing to bring this action must focus upon the sole originating plaintiff who remains in the case at the appellate stage. That plaintiff is Walter L. Wagner. Wagner, however, has wholly failed to carry his burden of demonstrating that he possessed Article III standing to bring this suit. See Daimler Chrysler Corp. v. Cuno, 547 U.S. 332, 342 (2006) (plaintiffs must carry the burden of establishing Article III standing as the party asserting federal jurisdiction). Indeed, Wagner’s opening brief to this Court does not even address standing. That omission is particularly glaring given that DOE moved to dismiss this action in the district court on the ground that Sancho and Wagner lacked Article III standing to bring suit. See supra, p. 4.

1. Article III standing requirements
Article III, § 2 of the Constitution “confines federal courts to the decision of ‘Cases’ or ‘Controversies.’” Arizonans for Official English, 520 U.S. at 64. A plaintiff’s standing to sue “is an aspect of the case-or-controversy requirement.” Id. To satisfy Article III’s standing requirements, a plaintiff must show that: (1) it has suffered an “injury in fact” that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167, 180-81 (2000) (discussing Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992)). See, e.g., Cantrell v. City of Long Beach, 241 F.3d 674, 679 (9th Cir. 2001).

The Supreme Court recently reaffirmed these Article III standing principles in the specific context of cases where, as here, the plaintiff seeks an injunction in a suit alleging that a federal agency has violated a procedural statute (e.g., NEPA): To seek injunctive relief, a plaintiff must show that he is [1] under threat of suffering “injury in fact” that is concrete and particularized; the threat must be actual and imminent, not conjectural or hypothetical; [2] it must be fairly traceable to the challenged action of the defendant; and [3] it must be likely that a favorable judicial decision will prevent or redress the injury. Summers v. Earth Island Institute, 129 S. Ct. 1142, 1149 (2009) (bracketed material added). See generally Vt. Yankee Nuclear Power Corp. v. Natural Res. Def. Council, Inc., 435 U.S. 519, 558 (1978) (NEPA is a procedural statute and does not mandate a particular substantive result). [[When it dismissed this action, the district court did not rule on DOE’s standing argument because the court believed that its ultimate conclusion – i.e., that the LHC is not a “major Federal action” for purposes of NEPA – deprived it of “subject matter jurisdiction” over the action. SER 135. While there is some authority for the court’s view (see Rattlesnake Coalition v. U.S. E.P.A., 509 F.3d 1095, 1101 (9th Cir. 2007)), there is also authority for the proposition (which we believe is the better view) that the “major Federal action” question is a merits issue (not a jurisdictional issue). See Marbled Murrelet v. Babbitt, 83 F.3d 1068, 1073 (9th Cir. 1996). In this case, the district court’s subject matter jurisdiction was provided by 28 U.S.C. § 1331 because the complaint alleged a claim arising under federal law (i.e., NEPA). In any event, the Court need not decide the characterization issue here. However the “major Federal action” issue is characterized, the separate question of Article III standing simply provides this Court with another ground on which to affirm the judgment below, and it is free to do so even though the district court did not rely on that ground in dismissing the case. See Standard of Review, supra, p. 10.]]

2. Wagner cannot demonstrate that the alleged injury that might potentially result if the LHC is allowed to operate is fairly traceable to DOE, and the only entity which can redress that alleged injury – CERN – was never made a party to the suit by the plaintiffs through proper service of the complaint.
The record plainly demonstrates that Wagner cannot carry his burden of establishing his Article III standing to bring this suit because the causation and redressability requirements (i.e., the second and third elements of Article III standing) are not satisfied here.

Regarding causation, the complaint alleged in a nutshell that “the collisions [at the LHC] are unsafe and could potentially result in the destruction of the Earth.” SER 117. Based on that allegation, the complaint sought an injunction “enjoining defendants from operating the LHC until after they have completed” an EIS. SER 11 (¶ 26(b)). However, the alleged injury is not fairly traceable to DOE because DOE has no authority to prevent the LHC from operating. For the same reason, insofar as relief against DOE is concerned, the injunction sought by Wagner could not redress his alleged injury because DOE has no role in operating the LHC.

As discussed in Section B-1-b of the Statement of Facts, supra, p. 6, the district court found it undisputed that DOE has no authority to prevent the LHC from operating. Under the 1997 Agreement, the construction, operation, and management of the LHC is “the responsibility of CERN.” SER 133. The 1997 Agreement “only gave the United States non-voting ‘observer’ status in CERN’s governing council” – which is “comprised of 20 European countries” – and that agreement granted the United States “no role in financial, policy, or management decisions or operation of the LHC.” SER 133. In short, the alleged injury that might potentially result if the LHC is allowed to operate is not fairly traceable to DOE, because only CERN has authority to decide whether the LHC does or does not operate.

Regarding redressability, it is equally clear from the record (see Section B-1-b of the Statement of Facts, supra, p. 6) that the alleged injury cannot be redressed by a court because Sancho and Wagner never made CERN a party to the suit through proper service of the complaint. Most likely for that reason, CERN did not enter an appearance below, and it has not entered an appearance in this Court. The record demonstrates that Sancho and Wagner attempted to serve the complaint on CERN by improper means, and that their own process server told Sancho and Wagner that their chosen method of service was invalid. Yet the plaintiffs took no steps to serve CERN properly.

Sancho and Wagner employed a Geneva-based process server named Marco Breitenmoser to serve the complaint on CERN. In a letter dated June 4, 2008, Breitenmoser advised the plaintiffs’ Swiss-based representative, Armin Albarracin, that on May 28, 2008, he (Breitenmoser) had “remitted in hand” a copy of the complaint “to Mrs. Lucie Barbin at the Legal Department of the CERN.” SER 108; see SER 110. Then, in a follow-up letter dated July 25, 2008, Breitenmoser advised Albarracin that CERN had rejected service, why it had done so, and what the proper method of service is. That letter states, in relevant part: I am again referring to my Record of Service drafted on May 28, 2008 at the request of Messrs. Luis Sancho and Walter L. Wagner and inform you of the following:

The CERN has not accepted said Service because of the Headquarters Agreement signed with the Swiss Federal Council dated June 11, 1955 that stipulates that the CERN shall enjoy the immunities and privileges usually granted to international organizations to the extent required for the fulfillment of their tasks.

With respect to International Organizations, all judicial documents must be notified through the Swiss Mission, which is the diplomatic channel and therefore the adequate channel by which to notify judicial documents. SER 109 (emphasis added). However, notwithstanding the explanations of their own process server, Sancho and Wagner took no steps to remedy their defective service. Rather, on August 5, 2008, i.e. some ten days after Breitenmoser’s follow-up letter, Wagner filed a motion for a default judgment against CERN in the district court (SER 143 (docket entry 28)), which motion had not been ruled on and thus became moot when the court dismissed the action. See supra, p. 9.

The explanation Breitenmoser gave Sancho and Wagner as to the impropriety of their attempted service was corroborated by the Embassy of Switzerland in Washington, D.C. In a letter to the district court dated August 11, 2008, Alexander Wittwer, the Swiss chargé d’affairs, strongly objected to the delivery of the “court documents” at CERN’s office “by Mr. Marco Breitenmoser, a Geneva-based bailiff.” SER 78. Wittwer stated that “the court documents to be served must be delivered by the United States Embassy in Bern to the Swiss Federal Department of Foreign Affairs (FDFA), which would carry out the service on CERN via our Mission in Geneva.” SER 78. Sancho and Wagner, however, did not pursue service by such means.

The Federal Rules of Civil Procedure make clear that the manner in which Sancho and Wagner attempted to serve the complaint on CERN was improper (as Breitenmoser and Wittwer had stated). Rule 4 governs service of process in the district courts, and the only provision that arguably covers service on CERN is Rule 4(h), which specifies the permitted manner of service on an “unincorporated association that is subject to suit under a common name.” Fed. R. Civ. P. 4(h). Assuming arguendo that CERN is such an entity, Rule 4(h) provides that if (as in this case) service is “at a place not within any judicial district of the United States,” then such an entity “must be served: * * * in any manner prescribed by Rule 4(f) for serving an individual, except personal delivery under (f)(2)(C)(i).” Fed. R. Civ. P. 4(h)(2) (emphasis added).

“[E]xcept personal delivery” under Fed. R. Civ. P. 4(f)(2)(C)(i) means except by “delivering a copy of the summons and of the complaint to the individual personally.” However, that was precisely the prohibited manner of service Sancho and Wagner used to serve CERN – i.e., hand-delivery of the complaint to Mrs. Barbin at CERN’s legal department in Geneva. SER 108; see SER 110. Again, pro se litigants must follow “the same rules of procedure that govern other litigants.” King, 814 F.2d at 567. [rovided the State of destination does not object.” 20 U.S.T. 363. Switzerland – “the State of destination” here – ratified the Hague Convention, but expressly declared that it is “opposed to the use in its territory of the methods of transmission provided for in Article[ ] . . . 10.” 2 Bruno A. Ristau, International Judicial Assistance A-74 (2000). Article 10 is thus inapplicable to this case. And Swiss chargé d’affairs Wittwer’s objection to the plaintiffs’ attempt to serve CERN was consistent with Switzerland’s blanket opposition to Article 10. SER 78.]]

The sum of the matter in regard to Wagner’s lack of Article III standing is this: CERN (not DOE) is the sole entity to which the alleged injury – i.e., the possibility that the Earth might eventually be destroyed if the LHC is allowed to operate – is fairly traceable; and the plaintiffs did not make CERN a party to the action through valid service of process.

Accordingly, Wagner lacked Article III standing to bring this suit at all – and most certainly lacked standing to bring this suit against DOE – because the alleged injury is fairly traceable solely to the conduct of a non-party; and it is by definition not “likely” that a court could order effective redress against such a third party. See, e.g., Defenders of Wildlife, 504 U.S. at 560 (alleged injury cannot be the result of “the independent action of some third party not before the court”; and redress by a favorable decision must be “likely,” as opposed to merely “speculative”) (quoting Simon v. Eastern Ky. Welfare Rights Organization, 426 U.S. 26, 38, 42, 43 (1976)); Ecological Rights Foundation v. Pacific Lumber Co., 230 F.3d 1141, 1152 (9th Cir. 2000) (causation inquiry does not examine challenged conduct of “some other actor not before the court”).

3. The standing arguments as to causation and redressability that Wagner advanced in the district court lack merit.
As noted earlier, Wagner’s opening brief to this Court does not address whether he possessed Article III standing to bring this suit, even though DOE specifically challenged the plaintiffs’ standing below. In the district court, however, Wagner did attempt to establish his standing in an opposition to DOE’s motion to dismiss. SER 80-83. [[Although that opposition contended that “Plaintiffs Have Standing,” it is signed only by Wagner (and not by Sancho). SER 86.]] If Wagner were to reassert those arguments as to causation and redressability in a reply brief to this Court, they would lack merit.

Regarding causation, Wagner argued below that the complaint sufficiently alleges “the actual injury” of plaintiffs’ “exclusion from participation in NEPA hearings, etc.,” which is “directly traceable to the failure of the government defendants to hold such hearings, etc. as required by law.” SER 81-82. That causation argument is meritless because it is based on a legally invalid premise. The premise is that a federal agency’s alleged violation of a procedural statute, such as NEPA, standing alone, qualifies as injury in fact for purposes of Article III standing. However, such a premise is flatly contrary to Summers, which holds that the deprivation of “a procedural right in vacuo” is “insufficient to create Article III standing.” 129 S. Ct. at 1151.

Regarding redressability, Wagner argued below that “a judicial decision requiring the government defendants to comply with NEPA laws would in fact directly redress plaintiffs’ injuries.” SER 82. That redressability argument, however, is simply a repackaging of Wagner’s contention that Article III standing can be established simply by alleging the deprivation of a procedural right under NEPA. As just discussed, that argument is foreclosed by Summers.

Wagner also argued below that “a plaintiff’s NEPA claims can be redressed” in this case because there are “extensive funds remaining to be spent in Fiscal Year 2009” by “the government defendants” in connection with the LHC. SER 82. Although he used the term “the government defendants” in making this argument below, Wagner was actually referring only to the Department of Energy. There are several fatal flaws in that redressability argument. First, even assuming arguendo that Wagner obtained a favorable decision from this Court on his NEPA claim prior to September 30, 2009 (i.e., by the end of fiscal year 2009), his redressability argument would fail. The relief sought in the complaint is not an injunction prohibiting the Department of Energy from spending funds for fiscal year 2009 (or any other fiscal year) in connection with the LHC until it prepares an EIS. Rather, the complaint seeks an injunction prohibiting “[d]efendants” (i.e., the Department of Energy, the National Science Foundation, and CERN) from operating the LHC until they prepare an EIS. SER 11 (¶ 26(b)). However, for the reasons discussed supra, pp. 20-25, a court cannot award Wagner that form of redress because the federal agencies have no authority to decide whether the LHC operates or to operate the LHC; only CERN has that authority, and the plaintiffs did not make CERN a party to the suit through valid service of process. [[The Court is unlikely to have issued mandate in this appeal by September 30, 2009. Accordingly, even if Wagner were to prevail on his NEPA claim, effective judicial redress is unlikely to be available because, by that point in time, the Department of Energy already will have disbursed any remaining fiscal year 2009 funds. See Rattlesnake Coaliation v. U.S. E.P.A., 509 F.3d 1095, 1103 (9th Cir. 2007) (concluding, in a NEPA suit, that plaintiff’s injuries “cannot be redressed now that . . . the federal funds are expended”).]]

Second, the factual assumption underlying Wagner’s redressability argument is simply wrong. The record clearly establishes that the Department of Energy’s funds for fiscal year 2009 in connection with the LHC are directed to supporting United States research projects at the LHC, not to supporting the operation of the LHC itself (i.e., the particle colliding process). Yet Wagner’s redressability argument is premised on a court’s enjoining the latter (factually non-existent) type of funding. To put the point another way, even if a court were to enjoin the former type of funding (which is a form of relief not even sought in the complaint), the LHC would continue to operate.

The factual distinction regarding the use of these fiscal year 2009 funds is made plain in a declaration submitted to the district court by Bruce P. Strauss, an official in the Department of Energy’s Office of High Energy Physics, who serves as Associate Program Manager for the LHC Accelerator Construction Project and Program Manager for University, Industrial, and Intergovernmental Grants. SER 88 (¶ 1). [[Strauss obtained an Sc.D from the Massachusetts Institute of Technology in 1967. He has co-authored numerous papers that have been published in peer-reviewed scientific journals, and has many years of experience in the field of particle accelerator construction. SER 23, 44-45, 47-50.]] Dr. Strauss explained without contradiction: DOE’s Office of High Energy Physics plans to provide financial assistance [I]to scientists from U.S. universities and laboratories to conduct high energy physics research with the ATLAS and CMS detectors. The amounts listed for FY 2007, FY 2008, and beyond are in support of the scientists taking data on the CMS and ATLAS detectors, as well as for support of next generation accelerator technology that is done domestically. Although the U.S. and other international and non-federally-financed researchers will conduct experiments, CERN will be solely responsible for providing, controlling, and scheduling the use of the particle beams necessary for LHC collisions to occur. SER 89-90 (¶ 11) (emphasis added). In short, any ongoing federal funding flows to U.S. scientists, not to CERN. The redressability argument Wagner raised in the district court fails to recognize this clear factual distinction between the Department of Energy’s funding of federal research projects at the LHC, on the one hand, and CERN’s separate (and sole) responsibility for operating the LHC itself, on the other, i.e., for providing, controlling, and scheduling “the particle beams necessary for LHC collisions to occur.” As Dr. Strauss explained: “If U.S. scientists were to be pulled back from the LHC today, this would have no impact on CERN’s start of LHC operations. The LHC would still operate without U.S. participation.” SER 31 (¶ 27). [[Wagner also relied below (SER 82, 84-85) on a page from the Department of Energy’s Fiscal Year 2009 Congressional Budget Request, which Dr. Strauss had attached to one of his declarations. In that budget request, the agency sought approximately $72 million for “Large Hadron Collider Support” in fiscal year 2009. SER 58. As discussed in the text above, Dr. Strauss fully explained the use of those funds. The bottom line is that those funds flow to U.S. scientists, not to CERN; the funds are directed to supporting U.S. research projects at the LHC in fiscal year 2009 – which are not at issue in this case – and not to supporting CERN’s operation of the LHC; and the LHC would continue to operate without the participation of U.S.-funded scientists in research projects there.]]

Finally, Wagner summarily asserted below that “the requirements of causation and redressability are ‘relaxed’ when a plaintiff alleges NEPA claims.” SER 83. For the reasons discussed above, however, the requirements of causation and redressability would have to be entirely ignored (not simply “relaxed”) for Wagner to establish his Article III standing. While it is true that the plaintiff in a NEPA suit may establish standing “without meeting all the normal standards for redressability” (Defenders of Wildlife, 504 U.S. at 572 n.7), redressability assumes, at its irreducible core, that the defendant federal agency in a NEPA suit possesses authority and discretion to halt the project at issue – i.e., to halt the project that is alleged to injure or threaten to injure the plaintiff’s concrete interests. As the Supreme Court has stated, “the very essence of the redressability requirement” is that the requested relief must remedy the alleged injury. Steel Co. v. Citizens For A Better Environment, 523 U.S. 83, 107 (1998). However, the injunctive relief sought in the complaint fails that core redressability requirement because the federal agencies have no authority to halt the operation of the LHC, and the only entity possessing such authority – CERN – is not a party to the action.

4. Because Wagner cannot carry his burden of demonstrating that he established the causation and redressability requirements of Article III standing, this Court need not address the injury in fact requirement.
For the reasons previously discussed, it is clear that Wagner cannot carry his burden of establishing the causation and redressability requirements for Article III standing to bring this suit. It is therefore unnecessary for this Court to address whether Wagner established the requisite injury in fact. See Steel Co., 523 U.S. at 105 (declining to reach injury in fact issue because the complaint failed to establish redressability).

Moreover, the Court should not address the injury in fact question because, as discussed infra, pp. 51-53, Wagner’s suggestion to the contrary notwithstanding (Brief 23), “the potential magnitude of the environmental impact” is irrelevant as a matter of law in determining whether the LHC is a “major Federal action” for purposes of NEPA. Accordingly, a ruling from this Court on whether Wagner established the requisite injury in fact for Article III standing purposes would be purely advisory; and of course “federal courts are not permitted to render advisory opinions.” West Linn Corporate Park L.L.C. v. City of West Linn, 534 F.3d 1091, 1099 (9th Cir. 2008).

5. Were the Court to reach the question, it should hold that the complaint does not satisfy Wagner’s burden of establishing the requisite injury in fact.
Ed. I like to call this Wagner's Arguement from Ignorance, but it is as close to physics as we will get, I think
If the Court finds it necessary for some reason to address the question, it should conclude, for the reasons outlined in this section, that in the complaint Wagner failed to carry his burden of alleging the requisite injury in fact to establish his Article III standing to bring this suit. See Summers, 129 S. Ct. at 1149.

A. According to the complaint, if the LHC is allowed to operate, then the Earth could in theory “eventually” be converted into “a single large ‘strangelet’ of huge size”; or the Earth could in theory “[e]ventually” be converted into “a medium-sized black hole”; or a “runaway reaction” could in theory occur at some unspecified point in the future if “magnetic monopoles” are created. SER 3-4 (¶¶ 13(a), (b), (c)). Given these allegations, it is conceivable that, in a reply brief to this Court, Wagner might argue that he has established the requisite injury in fact. The argument might run like this: accepting the complaint’s allegations as true, the LHC poses a threat to Wagner’s personal interests in Hawaii (where he is a “citizen,” SER 2 (¶ 2)), even though the LHC is located thousands of miles away from Hawaii, on the border between France and Switzerland. That argument, if raised, would lack merit.

Assuming arguendo that the threat of injury alleged in the complaint is sufficiently “concrete” for Article III standing purposes, it is clearly not an “imminent” threat of injury, and therefore does not establish the requisite injury in fact. Summers, 129 S. Ct. at 1149. In ordinary English usage, “imminent” means “[a]bout to occur” or “impending.” The American Heritage Dictionary of the English Language 877 (4th ed. 2006). But a threat of injury that may (or may not) “eventually” materialize, or a threat of injury that may (or may not) occur in “theory” at some unspecified future point in time, cannot reasonably be characterized as an injury that is impending or about to occur. SER 3-4 (¶¶ 13(a), (b), (c)).

Moreover, as the Supreme Court has explained, although “imminence” is a “somewhat elastic concept,” it “cannot be stretched beyond its purpose, which is to ensure that the alleged injury is not too speculative for Article III purposes – that the injury is certainly impending.” Defenders of Wildlife, 504 U.S. at 564 n.2 (emphasis added by Court; internal quotation marks omitted). However, a threat of injury that may (or may not) “eventually” materialize, or a threat of injury that may (or may not) occur in “theory” at some unspecified future point in time (SER 3-4 (¶¶ 13(a), (b), (c)) is plainly not a “certainly impending” injury. 504 U.S. at 562 n.2. While it is true that the plaintiff in a NEPA suit may establish standing “without meeting all the normal standards for . . . immediacy” (id. at 572 n.7), the concept of “immediacy” would have to be ignored altogether for Wagner to establish his standing. [[This case bears no resemblance to the example of a proposed dam discussed in footnote 7 of Defenders of Wildlife. The Supreme Court stated that “one living adjacent to the site for proposed construction of a federally licensed dam has standing to challenge the licensing agency’s failure to prepare an [EIS] . . . even though the dam will not be completed for many years.” 504 U.S. at 572 n.7. The LHC is plainly not “federally licensed.” Moreover, a proposed dam has a readily ascertainable expected completion date, and when it becomes operational, the alleged injury to the plaintiff will occur. Here, however, it is alleged that the potential threat of harm posed by the LHC might or might not “eventually” occur, even after it becomes operational.]]

For similar reasons, the alleged threat of injury is insufficient to confer Article III standing on Wagner under this Court’s framework for analyzing allegations of “procedural injury” in NEPA suits. See Ashley Creek Phosphate Co. v. Norton, 420 F.3d 934, 937-39 (9th Cir. 2005). Ashley Creek (applying pre-Summers circuit law) inquires “whether it is reasonably probable that the challenged action will threaten the [plaintiff’s] concrete interests.” Id. at 938 n.2. Even under a “reasonably probable” test, however, the complaint does not establish the requisite injury in fact. A threat of injury that may (or may not) “eventually” materialize, or a threat of injury that may (or may not) occur in “theory” at some unspecified future point in time is clearly not a “reasonably probable” threat of injury. SER 3-4 (¶¶ 13(a), (b), (c)).

B. The federal appellees would be content to let the injury in fact question rest here, were it not for Wagner’s assertion in the opening brief that, in this case, “it has been proven that there is at least a significant risk of planetary destruction” if the LHC is allowed to operate. Brief 22 (footnote omitted). Although not presented as such, that assertion could be interpreted as a claim by Wagner that he has established the requisite injury in fact for Article III standing. However, if the Court even were to address the injury in fact question, it should do so on the firm understanding that Wagner’s assertion about “proven . . . significant risk of planetary destruction” is pure conjecture and has no basis in the record. This assertion therefore cannot establish the requisite injury in fact. Summers, 129 S. Ct. at 1149 (threat of injury cannot be “conjectural or hypothetical”).

Indeed, the opening brief makes no effort to explain how the record in this case supports Wagner’s assertion about “proven significant risk.” Instead, the opening brief, in a footnote, simply provides a cryptic Internet citation to two papers, both of which (as Wagner states) were posted “in the last few days,” i.e., obviously well after the district court entered judgment dismissing this action. Brief 22 & n.6. In other words, the sole citation in support of Wagner’s “proven significant risk” assertion is to material that is outside the record of this case. Generally, this Court “will not consider facts outside the record developed before the district court,” United States ex rel. Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992), and Wagner offers no basis for a departure from that general rule in this case.

Moreover, even a cursory review of the two cited extra-record papers demonstrates that they do not support Wagner’s assertion. Rather, one of the cited papers directly contradicts that assertion: in the abstract paragraph at the beginning of the paper, the authors state that, “ased on this analysis, we argue against the possibility of catastrophic black hole growth at the LHC.” [[See Roberto Casadio, Sergio Fabi & Benjamin Harms, On the Possibility of Catastrophic Black Hole Growth in the Warped Brane-World Scenario at the LHC (Feb. 17, 2009), http://arXiv.org/abs/0901.2948, at 1 (last visited April 6, 2009) (emphasis added).]] The other cited paper does not even purport to address whether the LHC poses a risk of planetary destruction (much less a “significant risk,” as Wagner states): rather, the “basic message” of this paper is that “any scientific risk assessment is only able to give us the probability of a hazard occurring conditioned on the correctness of its main argument” – a completely unremarkable conclusion. [[See Toby Ord, Rafaela Hillerbrand & Anders Sandberg, Probing the Improbable: Methodological Challenges for Risks with Low Probabilities and High Stakes (submitted Oct. 10, 2008), http://arXiv.org/abs/0810.5515, at 15 (last visited April 6, 2009). To the extent that this paper addresses the LHC at all, it summarily asserts that “[w]hile the arguments for the safety of the LHC are commendable for their thoroughness, they are not infallible” (id. at 13) – a claim for which no explanation is offered, and which in any event is not a claim that the LHC poses a “proven significant risk” of planetary destruction (as Wagner states).]]

In addition, Wagner’s conjectural assertion of “proven significant risk” is thoroughly discredited by scientific evidence in the record compiled below. So as not to unduly belabor a point that is unnecessary for the Court to address in any event, we offer just a few examples.

In an affidavit filed with the complaint, Wagner presented excerpts from a “Wikipedia” article in support of the complaint’s allegations. The Wikipedia excerpts discuss two “Safety Concerns” about the LHC. SER 13-14 (¶ 11). One concern is that collisions at the LHC might possibly create “micro black holes,” which “might not decay as rapidly as calculated, and accumulate inside the earth and eventually devour it.” SER 14. The second concern is based on “a hypothetical form of strange matter” known as “strangelets.” The excerpt states that “if strangelets can actually exist, and if they were produced at LHC, they could conceivably initiate a runaway fusion process (reminiscent of the fictional ice-nine) in which all the nuclei in the planet were converted to strange matter, similar to a strange star.” SER 14. [[See Brief 9 n.1 (explaining that the term “ice-9 reaction” is from a novel by Kurt Vonnegut “involving fictional material that engages in a runaway transformation of the earth’s oceans into ice that freezes at room temperature”).]]

Assuming arguendo that proffering excerpts from a Wikipedia article is a permissible means for a litigant to place (purported) scientific testimony before a federal court, [[But see [I]Badasa v. Mukasey, 540 F.3d 909, 910 (8th Cir. 2008) (“Since when did a Web site that any Internet surfer can edit become an authoritative source by which . . . experts could provide credible testimony. . . ?”) (quoting R. Jason Richards, Courting Wikipedia, 44 Trial 62, 62 (Apr. 2008)).]] the Wikipedia excerpts themselves do not support Wagner’s assertion that the LHC poses a “proven significant risk” of planetary destruction. The Wikipedia excerpts simply offer hypotheses, without any evaluation whatever as to whether there is a scientific basis for the hypotheses.

Moreover, scientific evidence in the record of this case thoroughly discredits the Wikipedia hypotheses. Regarding the “micro black hole” hypothesis, under which such structures could accumulate and “eventually devour” the Earth instead of harmlessly evaporating, Dr. Strauss of the Department of Energy’s Office of High Energy Physics explained, for instance, that such a concern had been firmly rejected on scientific grounds in a June 2008 safety report for the LHC, known as the “LSAG Report.” SER 33-34 (¶ 31). The LSAG Report, commissioned by CERN from a group of physicists (id.) states, in pertinent part: One might nevertheless wonder what would happen if a stable microscopic black hole could be produced at the LHC. However, we reiterate that this would require a violation of some of the basic principles of quantum mechanics – which is a cornerstone of the laws of Nature – in order for the black hole decay rate to be suppressed relative to its production rate, and/or of general relativity – in order to suppress Hawking radiation.SER 37-38 (¶ 41) (emphasis added); see SER 68. As Dr. Strauss summed it up in lay terms, “even if hypothetical micro black holes were to be produced at the LHC, the physical laws that govern their hypothetical creation would govern their rapid decay through Hawking radiation”; and “scenarios with stable [micro] black holes . . . would violate basic principles of physics.” SER 91-92 (¶ 21). [[Dr. Strauss further noted that the LSAG Report was subsequently reviewed by a five-member panel of the Scientific Policy Committee (“SPC”), which is a 20-member external scientific advisory group composed of “many renowned physicists not affiliated with CERN.” The SPC panel, which included a Nobel Laureate, concluded in its report to CERN: “We fully endorse the conclusions of the LSAG report: there is no basis for any concerns about the consequences of new particles or forms of matter that could possibly be produced at the LHC.” SER 34 (¶ 32); see SER 74. As reported in a CERN press release of June 28, 2008, the SPC panel presented its conclusion to a meeting of the full 20 members of the SPC, who unanimously approved it. SER 34 (¶ 32); see SER 76-77. Moreover, on September 5, 2008, the LSAG Report was published in a peer-reviewed scientific journal. SER 107 (¶ 3).]]

Regarding the Wikipedia excerpts’ other hypothesis, i.e., “strangelets” – which Wagner states is “arguably the greater risk” (Brief 23) – Dr. Strauss explained, for instance, that even prior to the LSAG Report in 2008, CERN had commissioned a safety report for the LHC from a group of six European theoretical physicists “not affiliated with CERN.” This safety report, which issued in 2003, concluded that “except when making ‘totally unrealistic’ assumptions, the data excluded the possibility of creating the ‘dangerous’ strangelets at the LHC.” SER 33 (¶ 30), SER 35 (¶ 36); see SER 63.

Dr. Strauss also noted that this same concern about “strangelets” was subsequently re-examined in 2008, in the LSAG Report itself. The LSAG Report addressed “the hypothetical risk of producing the never-observed strangelets in light of more recent experimental results from RHIC,” i.e., the Relativistic Heavy Ion Collider at the Department of Energy’s Brookhaven National Laboratory in Upton, New York, which had started operations in 1999. SER 32 (¶ 28), SER 35 (¶ 37). The LSAG Report concluded that “heavy-ion collisions at the LHC are less likely to produce strangelets than the lower-energy heavy-ion collisions already carried out in recent years at the RHIC, just as strangelet production at RHIC was less likely than in previous lower-energy experiments carried out in the 1980s and 1990s.” SER 35-36 (¶ 37); see SER 69. [[The Wikipedia excerpts offered in Wagner’s affidavit do not address the “magnetic monopoles” hypothesis alleged in the complaint. Under that alleged scenario, a magnetic monopole “might have the ability to catalyze the decay of protons and atoms, causing them to convert into other types of matter in a runaway reaction.” SER 4 (¶ 13(c)). However, Dr. Strauss noted that the LHC safety report in 2003 had concluded that magnetic monopoles “do not present any conceivable threat,” and that the LSAG Report in 2008 pointed out that theories predicting monopoles that catalyze proton decay require monopole masses so large that there is no chance that they will ever be produced at the LHC. SER 38 (¶ 42), SER 38-39 (¶ 43); see SER 64.]]

In sum, if the Court were even to reach the question, it should conclude that: (1) the allegations of the complaint are legally inadequate to establish the requisite injury in fact, because the alleged threat of potential harm posed by the LHC is manifestly not an immediate threat; and (2) Wagner’s purely conjectural assertion about “proven significant risk of planetary destruction” if the LHC operates (a) is based on extra-record material, which in any event undermines Wagner’s assertion, and (b) is thoroughly discredited on scientific grounds by the record in this case.

Ed: There's more, but don't you like the clear writing?

[B]II. EVEN IF WAGNER POSSESSED ARTICLE III STANDING TO BRING THIS SUIT, THE DISTRICT COURT CORRECTLY CONCLUDED THAT THE LHC IS NOT A “MAJOR FEDERAL ACTION” FOR PURPOSES OF NEPA.
For the reasons discussed above, the judgment below should be affirmed on the ground that Wagner lacked Article III standing to bring this suit. However, if it reaches the issue, the Court should affirm the district court’s conclusion that the LHC is not a “major Federal action” for purposes of NEPA. It therefore follows that DOE was not required to prepare an EIS (or any other type of NEPA analysis) for the LHC project.

A. NEPA’s “major Federal action” requirement
“To trigger the application of NEPA, an action must be ‘federal.’” Rattlesnake Coalition v. U.S. E.P.A., 509 F.3d 1095, 1101 (9th Cir. 2007). That principle is reflected in the text of NEPA, which states in relevant part:[A]ll agencies of the Federal Government shall – * * * * include in every recommendation or report on proposals for . . . major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on – the environmental impact of the proposed action. 42 U.S.C. § 4332(2)(C)(i) (emphasis added). As the statutory text makes clear, “the EIS requirement of NEPA” is not “trigger[ed]” unless federal involvement in the project at issue is “sufficiently major to transform it into a ‘major Federal action.’” Ka Makani ‘O Kohala Ohana Inc. v. Water Supply, 295 F.3d 955, 960 (9th Cir. 2002). See also id. (“‘Congress did not intend NEPA to apply to state, local, or private actions.’”) (quoting Atlanta Coalition on Transp. Crisis, Inc. v. Atlanta Reg’l Comm’n, 599 F.2d 1333, 1344 (5th Cir. 1979)). [[As an alternative to an EIS, the complaint also alleged that “[d]efendants” were required to prepare either a “FONSI” or a “FONSI EA” for the LHC project. SER 6 (¶ 18). A federal agency, however, is not required to prepare an “EA” (environmental assessment), “FONSI” (finding of no significant impact), or any other type of NEPA analysis for a project that is not a “major Federal action,” such as the LHC. An EA is simply a type of concise analysis that, by regulation, a federal agency may use to determine whether a full-dress EIS should be prepared; and a FONSI is issued by the agency if it determines on the basis of an EA not to prepare an EIS. See 40 C.F.R.§ 1501.4(c), (e); Sierra Club v. Penfold, 857 F.2d 1307, 1312 (9th Cir. 1988). As the statutory text of NEPA makes clear, however, the question whether an EIS should be prepared does not even arise unless the project is a “major Federal action.” See 42 U.S.C. § 4332(2)(C); Ka Makani, 295 F.3d at 960.]]

To make that determination, this Court “look[s] to ‘the nature of the federal funds used and the extent of federal involvement.’” Rattlesnake Coalition, 509 F.3d at 1101 (quoting Sierra Club v. Penfold, 857 F.2d 1307, 1314 (9th Cir. 1988)). While “‘significant federal funding’ can turn what would otherwise be a state or local project into a ‘major federal action’” (Ka Makani, 295 F.3d at 960 (quoting Alaska v. Andrus, 591 F.2d 537, 540 (9th Cir. 1979)), “consideration must be given to a ‘great disparity in the expenditures forecast for the state [and county] and federal portions of the entire program.’” Ka Makani, 295 F.3d at 960 (quoting Friends of the Earth, Inc. v. Coleman, 518 F.2d 323, 329 (9th Cir. 1975)) (bracketed material as in Ka Makani). See also Rattlesnake Coalition, 509 F.3d at 1101. Moreover, “[f]ederal decisionmakers must also retain power, authority, or control.” Id. NEPA does not apply if the federal agency is “not placed in a decisionmaking role.” Ka Makani, 295 F.3d at 961 (internal quotation marks omitted). [[To the best of the federal appellees’ knowledge, this Court has not addressed whether the principles discussed in the text above also apply where (as here) the alleged “major Federal action” is an international project situated in a foreign country. Cf. Mayaguezanos Por La Salud Y El Ambiente v. United States, 198 F.3d 297, 301 (1st Cir. 1999) (expressing skepticism about an assumption that “NEPA’s ‘major federal action’ requirement would work in the same fashion in the domestic and the international contexts,” but declining to address the validity of that assumption). This answering brief assumes arguendo (consistent with the district court’s analysis) that this Court’s domestic NEPA case law also applies to determining whether the LHC is a “major Federal action.”]]

B. The district court correctly concluded that the LHC is not a “major Federal action,” where DOE contributed less than 10% of the construction cost, and has no control over its operation or management.
In the opening brief, Wagner does not contend that the district court applied an erroneous legal standard in concluding that the LHC is not a “major Federal action,” nor does he contend that the court erred in finding that the relevant facts are undisputed. Rather, Wagner challenges the court’s conclusion that the LHC is not a “major Federal action” by raising a number of factual arguments that are either contrary to the record, not based on the record, or irrelevant as a matter of law. Brief 13-25. We address Wagner’s principal arguments seriatim below and show that they lack merit.

The district court found that DOE contributed less than 10% of the LHC’s total construction cost. SER 130-131. This Court “has found that federal funding amounting to just 10% of total estimated expenditures does not federalize a project for purposes of NEPA application.” Rattlesnake Coalition, 509 F.3d at 1101 (citing Friends of the Earth, 518 F.2d 323). The same conclusion applies here in respect to the LHC.

However, Wagner contends that, notwithstanding the very limited federal funding as a percentage of the total construction cost (less than 10%), the amount of DOE’s expenditure ($531 million) “[s]how[s] Major Federal Action” because it is allegedly “DOUBLE the amount spent by each of the other countries involved in the construction project.” Brief 16 (capitalization in original); see also id. at 18. Wagner, however, cites nothing in the record to support his factual assertion that the amount of DOE’s contribution toward the LHC’s total construction cost is “double” that of every other country which contributed funds toward the LHC’s construction.

Indeed, Wagner’s factual assertion is evidently based on nothing more than an arithmetical calculation, which assumes that because CERN is comprised of 20 member countries, it must be the case that no single country contributed more than 5% of the LHC’s total construction cost. See Brief 14-15. That division exercise plainly does not demonstrate that, as a factual matter, each of CERN’s 20 member countries contributed an equal amount toward the construction of the LHC, or that no single member country contributed more than a 5% share.

In any event, even accepting arguendo Wagner’s factual assertion, it is irrelevant as a matter of law. The relevant question in a “major Federal action” analysis is not (as Wagner suggests) whether the amount of the federal expenditure exceeds the expenditure of any single non-federal participant viewed in isolation from the expenditures of all other non-federal participants. Rather, the proper question is whether there is a “‘great disparity in the expenditures forecast for the state [and county] and federal portions of the entire program.’” Ka Makani, 295 F.3d at 960 (quoting Friends of the Earth, Inc., 518 F.2d at 329) (bracketed material as in Ka Makani). See Rattlesnake Coalition, 509 F.3d at 1101 (stating same principle). Here, there is plainly a “great disparity” between those categories of federal and non-federal expenditures, and that disparity demonstrates that the LHC is not a “major Federal action”: DOE contributed less than 10% or $531 million toward construction of the LHC; non-federal contributions accounted for the remaining 90-plus percent of the $5.84 billion total construction cost, or at least $5.256 billion. SER 130-131.

Wagner also contends that it is germane to the “major Federal action” question that DOE’s limited contribution of less than 10% “constitutes 100% of the Dollar commitment to the project (the other commitments were in Euros).” Brief 16. However, even supposing arguendo that the remaining 90-plus percent of the $5.84 billion construction cost was in fact denominated in Euros, that circumstance would again be irrelevant as a matter of law. On Wagner’s reasoning, it would presumably be significant – which it obviously is not – that DOE contributed $1.00 toward the LHC’s total construction cost (i.e., 100% of the cost denominated in U.S. dollars) and the remainder of the $5.84 billion was paid by other countries in Euros. As just discussed, the proper inquiry focuses on the amount of the federal contribution versus all other non-federal contributions to the project. The proper comparison demonstrates that the LHC is not a “major Federal action” because the federal contribution is less than 10%, and the non-federal contribution is over 90%, of the total construction funding outlay. See Ka Makani, 295 F.3d at 960.

Wagner also refers to the “$72 million budgeted by defendant Department of Energy . . . for 2009,” and suggests that this amount, considered in addition to the United States’ $531 million contribution toward the LHC’s total construction cost in prior years, supports a conclusion that the LHC is a “major Federal action.” Brief 18. That suggestion is without merit for several reasons. Even if the $72 million budgeted by the Department of Energy for fiscal year 2009 is added to the total of $531 million spent by that agency and the National Science Foundation in prior years for construction, the total federal expenditure would still be a very minor percentage (10.3%) of the total construction cost of $5.84 billion.

Moreover, as explained supra, pp. 28-30, the Department of Energy’s budgeting of $72 million in connection with the LHC for fiscal year 2009 is money directed toward support of U.S. research projects at the LHC using the ATLAS and CMS detectors – not toward operation of the LHC itself. Any funds flow to U.S. scientists, not to CERN, which is separately and solely responsible for operating the LHC, i.e., for providing, controlling, and scheduling “the particle beams necessary for LHC collisions to occur.” SER 90 (¶ 11). CERN would still operate the LHC even if U.S.-funded scientists did not participate in research projects there. SER 31 (¶ 27). In short, this aspect of federal funding only serves to underscore that the United States does not “retain power, authority, or control” over the LHC, and therefore, that the LHC is not a “major Federal action.” Rattlesnake Coalition, 509 F.3d at 1101.

Wagner further contends that the United States’ “lengthy 11+ year, long-term commitment of federal involvement since the signing of the 1997 Agreement” is sufficient, standing alone, “to make this a major federal action.” Brief 19. But the sole record citation provided by Wagner in support of that contention is a declaration submitted by Dr. Strauss of the Department of Energy’s Office of High Energy Physics, and that declaration refutes Wagner’s contention.

Dr. Strauss’ declaration demonstrates that the Department of Energy’s participation in the LHC is limited to discrete aspects of the overall project under the terms of the 1997 Agreement, namely: (1) spending funds from 1998 through 2005 toward construction of the accelerator itself ($200 million); (2) spending funds from 1998 through 2007 toward construction of the ATLAS and CMS detectors ($250 million), which actually comprise only two of the LHC’s four detectors; and (3) providing support for construction of about 2% (38 out of 1,890) of the required superconducting magnets, which is included in the amount referenced in item (1). SER 27, 28, 29 (¶¶ 14, 18, 20). That these expenditures on limited aspects of the overall project do not federalize the LHC is further underscored by the fact that, as Dr. Strauss stated, the Department of Energy “completed transfer of title of all [Department of Energy] accelerator components to CERN on September 18, 2007.” SER 30 (¶ 22). [[Wagner’s repeated assertion (e.g., Brief 6, 19, 25) that the United States was involved in the LHC project at the planning stage is contrary to the record, in particular, to the 1997 Agreement itself. The agreement states that “on 16 December 1994, the CERN Council approved the Large Hadron Collider (LHC) Project.” SER 53. That is, the LHC was approved three years prior to the agreement that defines the United States’ role in the project, and it was approved by a body – the CERN Council – that does not include the United States in its membership.]]

Wagner also contends that the federal government must actually possess control over the LHC because the United States retains “a permanent seat on the CERN council,” which seat, “albeit a ‘non-voting’ seat,” allows the United States “ready lobbying access to the CERN countries.” Brief 19-20 (emphasis in original). That argument lacks merit for several reasons. The factual premise of Wagner’s argument is contrary to the record, which establishes that the United States does not possess a “permanent seat” on the CERN council. Rather, the 1997 Agreement provides that the United States “shall become an Observer at the CERN Council.” SER 54 (¶ 7.1). In other words, the United States has no seat of any kind on the CERN council, but rather, as Dr. Strauss explained, the United States “is permitted to attend Council meetings and to receive Council documents” as a non-voting “observer” nation. SER 26 (¶ 12). As the district court correctly found, the 1997 Agreement “only gave the United States nonvoting ‘observer’ status in CERN’s governing council and no role in financial, policy, or management decisions or operation of the LHC.” SER 133.

Moreover, Wagner’s speculation about the United States having “ready lobbying access” to the CERN council, even if true, is irrelevant as a matter of law. The relevant question is whether “[f]ederal decisionmakers . . . retain power, authority, or control.” Rattlesnake Coalition, 509 F.3d at 1101. Even if a federal agency provides advice to a non-federal entity, NEPA does not apply if the federal agency is “not placed in a decisionmaking role.” Ka Makani, 295 F.3d at 961 (internal quotation marks omitted). The federal government’s (purported) ability to “lobby” members of the CERN council is plainly not authority to control decisionmaking on matters relating to the LHC. Indeed, the United States’ lack of such authority is made clear by the 1997 Agreement itself; it provides that observer status will allow the United States to “participate in all major decisions which will impact the U.S. contributions.” SER 54 (¶ 7.1) (emphasis added). That is, even as to important decisions impacting the United States’ (limited) monetary contribution to the LHC project, the United States only has authority to “participate in” – not make or control – those decisions.

Finally, Wagner urges this Court to consider “the potential magnitude of the environmental impact” in determining whether the LHC is a “major Federal action.” Brief 23. However, Wagner concedes (id.) that “no prior case law appears to exist” for that proposition – and there is no sound reason for recognition of such a proposition in a case like this one. Rather, a project’s potential environmental impact (whether small or large) is simply not material to a determination whether the project is “Federal action” for purposes of NEPA, 42 U.S.C. § 4332(2)(C). “The purpose of NEPA is to bring environmental considerations to the attention of federal decision-makers.” Ka Makani, 295 F.3d at 960 (internal quotation marks omitted). Accordingly, as this Court’s decisions clearly hold, NEPA is not even triggered unless “[f]ederal decisionmakers . . . retain power, authority, or control” over the project (Rattlesnake Coalition, 509 F.3d at 1101), and NEPA does not even apply if the federal agency is “not placed in a decisionmaking role.” Ka Makani, 295 F.3d at 961 (internal quotation marks omitted).

However, the “potential magnitude of the environmental impact” of a project (Brief 23) says nothing whatever about that central issue, i.e., whether there exists a federal decision maker with power, authority, or control over the project. To put the point another way, even if a project may have a large potential environmental impact (which the LHC does not, see supra, pp. 35-41), the project is not a “major Federal action” where it does not involve a federal decision maker whose exercise of power, authority, or control over the project would be informed by the preparation of an EIS. The record is clear that the authority to make decisions concerning construction, operation, and management of the LHC is vested in CERN, not DOE. SER 133. Accordingly, the LHC is not a “major Federal action” under settled law, such that DOE was not required to prepare an EIS (or any other type of NEPA analysis) for that project.

CONCLUSION
For the foregoing reasons, the judgment of the district court dismissing this action should be affirmed.

[rpenner]

Wagners' claims of appearance of impropriety unsupported and denied
Once again the absence of evidence is used as evidence for claiming argument from ignorance. (Because if you had evidence, why the hell would you not bring it?!)

April 8, 2009 -- Walter and Linda Wagner's Hawaiian troubles were given a setback when the attempt to remove Judge Nakamura from the case failed.

Their lawyers in the criminal proceedings argued that neither the Wagners' presence nor their affidavits were needed since the only issue was the "appearance of impropriety" of the Wagner's having to stand again in front of a Judge who previously ruled against them.

What is not disputed is that Linda Wagner was arrested during a break in the previous civil trial based on outstanding warrants. But at the previous civil hearing, Judge Nakamura stated he did not have anything to do with the arrest. The court believed the Wagners were aware of these warrants and that Judge Nakamura has not been found to antagonistic towards the Wagners.

Defense lawyers claimed that not halting the civil trial upon the arrest of Linda and Walter absenting himself may be addressed in an appeal, but no such ruling has been entered, nor even evidence that the appeal was filed. It was also claimed that the record reflected an agreement between the Sheriff's office and the Judge to have a recess during which the arrest could proceed, but the court found that support lacking.

Without evidence of impropriety, defense lawyers suggest that the mere coincidence in timing should be ground for "appearance of impropriety" but Deputy Prosecutor Seelen suggests that in order to avoid the charges, the Judge could not have ordered any recess during the day, an absurdity. It was argued that the fact that one party was unhappy with the Judge's ruling is not a prima facie case for animus, abuse of discretion, or even "appearance of impropriety".

Walter's lawyer argued that it was impossible for anyone to have sat in judgement over the Wagners, finding that they were vexatious and performed a fraud on the court, and not continue to be influenced while sitting on the criminal case, but the court didn't think that this was necessarily so and noted that no transcripts demonstrating these claims have been submitted.

So Nakamura remains on the case, for now.

[Walter L. Wagner]

But at the previous civil hearing, Judge Nakamura stated he did not have anything to do with the arrest.

For the record, the arrest warrant was issued and signed by Mr. Nakamura two months before it was acted upon. In my book, that is having everything to do with the arrest. Two weeks prior to the civil trial, at a civil hearing before Mr. Nakamura, he released Linda Wagner from his courtroom on her own recognizance, and did not effect an arrest, even though the warrant had been issued two months earlier by him. At that hearing two weeks prior to the civil trial, he then directed Linda Wagner to appear in two weeks at the then forthcoming civil trial. When Linda Wagner appeared at the civil trial [after having filed a motion to have the warrant recalled, which hearing on that motion was scheduled for about two weeks after the civil trial], Mr. Nakamura effected the arrest [via sheriff's officers] pursuant to the warrant he had issued some two months earlier, and deprived her of her opportunity to appear and defend in that civil trial. He left the courtroom moments before the sheriff's officers entered the courtroom and the arrest occurred, to preclude any motions being made for a continuance. Subsequent statements of his on the record showed he had made arrangements with the sheriff's to allow them to enter his courtroom and effect the arrest.

The arrest warrant was issued based on perjured testimony of a disgruntled company shareholder. That disgruntled shareholder's testimony is directly contradicted by the public records of Nevada, as well as by all of the private corporate records of the company. Those facts cannot change, since they are the public record of Nevada, which showed Linda Wagner to be a corporate officer until September 2, 2004 [the perjured testimony, used as the basis for the claim of criminal conduct, claimed that Linda Wagner was no longer a corporate officer on January 1, 2004, so that a document she signed on that date as a corporate officer was done so unlawfully].

Judge Strance suggested that Mr. Nakamura be approached and his recusal sought, which is likely what might happen.

Of course, you won't get these facts from rpenner, who appears to have an axe to grind.

To save rpenner the trouble, I'll likely post the response to the federal brief when it is filed.

[rpenner]

All I'm doing is reading the public records and you don't dispute my reading of those minutes. I could have copy and pasted the minutes from Ho`ohiki (Hawai`i State Judiciary Court Records) but that would have told the same story, albeit in ALL CAPS. As I said, all parties agree on the order of events (valid warrant, recess, arrest), but the court (Judge Strance) seemed unimpressed with thin evidence given towards establishing causation (Just how did Judge Nakamura schedule the arrest? How can you distinguish your story from Sheriff's officers working independently and noticing the ongoing trial with public records matched the name on a still-active warrant and waiting perhaps hours for an opportunity where entering the courtroom would not be grounds for contempt?) or in mind-reading Judge Nakamura (Why would you assume any action in a civil trial is predicated on the criminal arrest warrant?). I was not there, Walter, and you were not there on April 8. But after you are done with your response, I'd be happy to hear about any problems you think I have reading the Ho`ohiki minutes.

I put the propsition to you that your problem is with the court records and not with me.

[Walter L. Wagner]

(Just how did Judge Nakamura schedule the arrest? How can you distinguish your story from Sheriff's officers working independently and noticing the ongoing trial with public records matched the name on a still-active warrant and waiting perhaps hours for an opportunity where entering the courtroom would not be grounds for contempt?)

As stated before, Mr. Nakamura went on the public record, after the fact, and stated that the sheriffs approached him before the arrest event, and obtained his approval to enter the courtroom during the civil trial and effect the arrest [and the warrant that he had issued]. The moment they entered the courtroom [at the back of the courtroom], he stood up and announced he was taking a break, cutting off the witness who was testifying mid-sentence, and he rapidly exited the courtroom [through his chambers door]. The sheriffs then proceeded forward and effected the arrest of Linda Wagner, who was sitting at the front at the defense table.

Mr. Nakamura had many other avenues available to him. It was his courtroom. He could have modified the warrant to preclude it being executed in his courtroom. He could have recalled it. He could have recessed the trial for a few hours while bail was being posted. He could have requested the sheriffs wait until 4:00 PM when the trial ends for the day. None of those events were done.

Now tell us, rpenner, how that case relates to the LHC and the Law thread you initiated? Isn't this just an effort on your part for an ad hominem attack?

[Stryder]

Forgive me, I know my physics is not up to par (in fact it's beyond rusty or mature), however I'm pretty sure that *if* CERN and it's LHC was to generate a blackhole that swallowed the world, we would already know about it far before the actual activation.

The reason I pose, would be down to a blackhole distorting spacetime enough and having an "Event Horizon". What I mean is that during the passage of time up to the event of a blackhole, our space would be distorted as it would actually be a proportion of that Event Horizon.

(I'm pretty sure some might be able to reason further if they are willing to theorize in regards to the EPR Paradox and the Copenhagen Interpretation of Events.)

I guess I'm saying I see it pretty foolish to be chasing lawsuits on something that should be pretty fundamental.

[rpenner]

Now tell us, rpenner, how that case relates to the LHC and the Law thread you initiated? Isn't this just an effort on your part for an ad hominem attack? It goes to credibility and estimation of competence. You are consistently attacking my estimations of courtroom outcome, so I investigate to see what basis, if any, you have for claims of superior estimation. But if you would prefer to speak to the physics of the case, I would feel obliged to reciprocate. (Taking in mind, of course, that at this instant, your interests may be better served in reading, researching and responding to the Reply Brief.)

read everything - in MANY other threads here - where it's been proven beyond all doubt that actually [Wagner] IS a jerk , liar, crook and misrepsents himself as having credentials that he clearly does not posess. I have long considered the fund-raising on LHC Defense to be a claim of competence. I have seen one posted claim that they donated $2000, which is an extraordinary demonstration of confidence in the competence of the Sancho/Wagner legal team.

Circa October 20, [Wagner] was busy on a cluster of apparently closely networked blogs where the subject was Wagner's representation of his own credentials as given to this court and elsewhere. The response has not been very positive. (http://stonekettlestation.blogspot.com/2008/10/walter-l-wagner-pitifully-insane.html)

Now, I'm interested in researching WLW's W-L record in court. Because the question of "are LHC Defense contributers and Luis Sancho well-served by Wagner's expertise?" is raised. For that matter, has Linda Wagner been well-served?

It was a complete mystery to me why judges in Hawaiian criminal court and Federal district court felt willing to grant leave for this Utah expedition. Some details might exist in document 72, TRANSCRIPT of Proceedings Motion to Dismiss or Motion for Summary Judgment held on 9/2/2008, before Judge Helen Gillmor. Court Reporter Debra Chun. But I don't want to fly to Hawaii for the opportunity to view it for free. No such details exist in the transcript (http://www.lhcdefense.org/pdf/080136%209-2-08.pdf) or are forthcoming from other sources...

March 8, Wagner sends and cc's email. http://www.bigislandvideonews.com/hamakua/2009/20090308wagner.htm -- points to Wagner's October 2008 plans to leave Hawaii -- raises question of wisdom of leaving in the middle of a courtroom appearance -- and that of following up on a civil lawsuit loss by making criminal accusations against the winners. Judges Hara and Nakamura are both unacceptable? What happens when Wagner runs out of Judges in Hawaii? While being arrested is always traumatic, in a practical matter it is a process which can take hours and is not easily interrupted. It is totally unclear to me why leaving the courtroom was a good idea. With benefit of hindsight, filing a motion to quash is not the same as quashing, and better advice might have been to surrender to the warrant and deal with it in a timely manner instead of letting outside circumstances dictate when the arrest would happen. Yet better advice would be to engage the services of at least one lawyer to deal either with the civil or criminal aspects. Even practicing attorneys have been known to hire the services of a lawyer.

[rpenner]

Forgive me, I know my physics is not up to par (in fact it's beyond rusty or mature), however I'm pretty sure that *if* CERN and it's LHC was to generate a blackhole that swallowed the world, we would already know about it far before the actual activation.

The reason I pose, would be down to a blackhole distorting spacetime enough and having an "Event Horizon". What I mean is that during the passage of time up to the event of a blackhole, our space would be distorted as it would actually be a proportion of that Event Horizon. This seems completely untrue from the GR definitions of black hole and event horizon.

It is sufficient to demonstrate that if dangerous black holes could be formed at LHC that the universe would look different than observed, to eliminate the possibility of dangerous black holes at LHC.

[rpenner]

My heroes! The amici are back (April 13) to again pop the bubble of claims of expertise by Wagner.

Amici have special knowledge which they believe will assist the Court in this case. Moreover, amici are concerned that Appellants have misunderstood, misconstrued and misstated the import of amici’s submission to the district court, and have misrepresented that submission as supporting Appellants’ claims.
...
Amici are aware that the LHC has undergone thorough scientific safety and risk analyses, and are familiar with the numerous scientific papers examining the risks associated with the LHC. These scientific papers have examined, inter alia, the very claims asserted by Appellants here. Appellants’ claims have not been accepted by the scientific community and are not based on rigorous scientific analysis.
...
Amici are concerned about the use of litigation based on misinformation about and misunderstanding of science under the guise of concern for the environment that inhibits vital and important scientific inquiry. Amici are prompted to submit this brief in part because the Appellants have misconstrued and misrepresented the nature of science and scientific knowledge, and have misused and misconstrued our amicus brief in the district court to support their fallacious arguments in this Court.

II. APPELLANTS’ ARGUMENT THAT AMICI’S CONCLUSION THAT A CATASTROPHIC EVENT AT THE LHC IS “UNLIKELY” SUPPORTS PLAINTIFFS’ CLAIMS IS BASED ON A FUNDAMENTAL MISUNDERSTANDING OF THE NATURE OF SCIENCE

Appellants argue that: “Merely being ‘unlikely’ or ‘very unlikely’ that the LHC will create conditions that destroy Earth is every reason not to proceed with the experiment unless and until it can be proven to be impossible to destroy the Earth.” (Appellants’ Brief at 11 (emphasis supplied)). Appellants’ proposed standard, that for something to be safe experts must conclude that an accident is “impossible”, betrays Appellants’ fundamental misunderstanding of the nature of science.

As Nobel laureate in Physics Richard Feynman put it, “Scientists, therefore, are used to dealing with doubt and uncertainty. All scientific knowledge is uncertain. This experience with doubt and uncertainty is important. I believe that it is of very great value, and one that extends beyond the sciences. I believe that to solve any problem that has never been solved before, you have to leave the door to the unknown ajar. You have to permit the possibility that you do not have it exactly right. Otherwise, if you have made up your mind already, you might not solve it.” Feynman, R. P. The Meaning of It All: Thoughts of a Citizen-Scientist 26-27 (1999).

The Supreme Court has recognized that “it would be unreasonable to conclude that the subject of scientific testimony must be ‘known’ to a certainty; arguably, there are no certainties in science. See, e.g., Brief for Nicolaas Bloembergen et al. as Amici Curiae at 9 (‘Indeed, scientists do not assert that they know what is immutably ‘true’-- they are committed to searching for new, temporary theories to explain, as best they can, phenomena’).” Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 590 (1993) (footnote omitted). As the Bloembergen amici went on to explain: “in science accepted ‘truth’ is not a constant . . . it evolves, either gradually or discontinuously. . . . An hypothesis can be falsified or disproved, but cannot, ultimately, be proven true because knowledge is always incomplete. An hypothesis that is tested and not falsified is corroborated, but not proved. Thus, scientific statements or theories are never final and are always subject to revision or rejection. See L. Loevinger, “Standards of Proof in Science and Law”, 32 Jurimetrics J. 327 (1992). . . .” Brief of Amici Curiae Nicolaas Bloembergen, et al. at 12-13, filed in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), 1993 WL 13006286 (January 19, 1993); see also L. Loevinger, “The Distinctive Functions of Science and Law,” 24 Interdisciplinary Science Reviews 87 (1999). “Even the most robust and reliable theory, however, is tentative. A scientific theory is forever subject to reexamination and -- as in the case of Ptolemaic astronomy --may ultimately be rejected after centuries of viability.” Brief of 72 Nobel Laureates and Others, filed in Edwards v. Aguillard, 482 U.S. 578 (1987), 1986 WL 727658 (August 18, 1986). [Nullius in Verba,” which has been translated by the renowned physicist Freeman Dyson (in 55 New York Review of Books, Number 10 (June 12, 2008)) as "Nobody's word is final," signifying a commitment to knowledge through experiment rather than through dogma or doctrine.]]

Appellants note that amici are not “absolutely certain” that there is no risk and they imply that our views should therefore be disregarded. As scientists, we would be abusing the meaning of “absolute” or “certainty” if we had written that there was no chance of any event occurring in the future, because there is nothing absolutely certain about our understanding of the future. To claim that something is “absolutely safe” is incorrect usage and we studiously declined to play this word game in our brief to the district court or in this brief to this Court.

However, we are content to tell this Court, as we did the district court, that the issue of the safety of the LHC has been properly raised by its proponents. It has been extensively examined and discussed by many of the brightest minds that have addressed the issue. The particular concerns raised by the Appellants are not correct.

Amici believe that the procedure for addressing the safety issue was proper and followed and follows the highest standards scientists have yet developed. Whereas we do not say that it is “absolutely safe,” we have no qualms about endorsing the operation of the LHC to our colleagues, our friends, to this Court, and to the world.

Whether such measured thoughts have any impact on the appellant who advanced the argument that "Dollarz iz teh only moniez" is yet to be seen.

[rpenner]

The Wagner-associated LHCDefense site is down. No word if this is a mere technical glitch or a case of not enough "Dollarz".

http://www.lhcdefense.org/

[rpenner]

I hate the slowness of paper and mail. Wagner's response to the Government reply is nowhere to be found. I was hoping to have it as early at this Monday.

[James R]

rpenner:

What's your association with this case (if any)? Or are you just interested? Are you just posting public documents here, or do you have inside information?

[rpenner]

No association, just interested. Wagner is one of the uncredentialed people who posted on physforum (Sept 3, 2007 - Jan. 3, 2008). Here, where he invited the discussion to follow, he stays but does not answer questions related to physics. He has in the past felt quite free to post his legal plans and strategies both here and on physforum.com and I have felt welcome to criticize them from my layman's perspective.

US Government documents are public. (An alternative policy is that of the UK's "Crown Copyright" where reproducing government documents has to be justified in some manner.) Any US person with a credit card can sign up for a PACER account and read along with the documents of the Federal Justice system at no more than $0.08 per page (which is cheaper than if you walk up to the courthouse to do the same thing). I learned about this while following along in the SCO anti-Linux lawsuits on groklaw.com.

In addition, both the Hawai'i state case and the Federal lawsuit have received local and national news coverage, respectively, as have some of Wagner's earlier lawsuits.

Wagner jokes about asking if I have influence over the court system, but I'm just Joe Citizen. Typically, I don't cut-and-paste large parts of Wagner's documents. While groklaw's PJ is happy to do it, the SCO filed an annoyance motion to add her to the case without basis. Also, I would feel compelled to render their orginal use of italics, bold and underlining (sometimes in the same sentence). And since they are PDFs of paper documents, they are too large to simply attach.

Wagner, too, used to post documents on his now defunct website, but that ended when the court dismissed the case on September 26, 2008.

Please feel free to PM me or post again if you need more info.

I'm pro-LHC, but not affiliated (even indirectly) with any plaintiff, defendant, affidavit submitter, funding source, press agency, law school, etc, and know of no basis where I might be a potential witness, jurist or added party to the covered case. Nor do I have academic or equivalent credentials which would relate to any facet of this case as a first-rank expert witness. (Some physics and math Ph.D. students think I'm well-versed for a layman, but a layman I am.) Nor am I a member of the Union of Collaborating Founders (UCF), a group which some anti-LHC websites describe as a pro-LHC think tank, a depiction which I feel is unfair.

I've been replying to scare stories about the LHC since about March 29, 2006 and got my interest peaked in legal proceedings by being a regular reader on groklaw.net -- which focused largely on one Unix/Linux vendor's suits against the Linux-using world and eventual Chapter 11 bankruptcy. I think I first became aware of Walter L. Wagner with his posts of September 3, 2007, and attempted to engage him in plain physics discussion. Until 2008 television coverage, I have never seen his face or heard his voice. And if there is any organized opposition to him, I have never met with them either.

[James R]

I find your continued commentary on Walter's case interesting, rpenner. I'm not trying to put you off posting updates as you have been. I was just interested in your interest in the litigation.

It certainly looks like the case will be sunk on procedural issues.

[rpenner]

The Motions Panel for the 9th Circuit appellate court has met this morning. Wagner loses on the proposition that the US Government should stop paying scientific grants. My heroes the amici are allowed to file their brief.

The next phase, the appeal being "fully briefed" is now ready to appear on the court calendar. Presumably, June-July is the earliest this will happen, but as always IANAL. As of this time, it looks like Wagner's reply to the US government does not appear on the docket.

I'll be watching this link: http://www.ca9.uscourts.gov/calendar/view_hearing_notices.php
For 08-17389 Luis Sancho, et al v. US Department of Energy, et al

After a case on the calendar is heard, the ruling may appear as soon as the same week.

[rpenner]

No doubt the government attorneys will act as directed by their professionalism, ethics and standards of practice. My foray into LOLcat language is unlikely to appear even in news coverage. But if you would like me to send it to The Daily Show, we will see if they accept unsolicited submissions.

Dammit, Walter! I thought we were being neighborly and professional. But then you had to go steal my idea.

Here it is, Walter L. Wagner on the May 30, 2009 episode of The Daily Show.

http://www.thedailyshow.com/video/index.jhtml?videoId=225921&title=large-hadron-collider&byDate=true

At least he didn't use the "Dollarz iz teh onleez moniez" argument. Instead, he argued that the destruction of the Earth for a never-before done physics experiment is always 50%.

[prometheus]

Dammit, Walter! I thought we were being neighborly and professional. But then you had to go steal my idea.

Here it is, Walter L. Wagner on the May 30, 2009 episode of The Daily Show.

http://www.thedailyshow.com/video/index.jhtml?videoId=225921&title=large-hadron-collider&byDate=true

At least he didn't use the "Dollarz iz teh onleez moniez" argument. Instead, he argued that the destruction of the Earth for a never-before done physics experiment is always 50%.

Hilarious!

[AlphaNumeric]

John Oliver really trumps him with the chances of having a child from two men joke!

[udarnik]

Nor am I a member of the Union of Collaborating Founders (UCF), a group which some anti-LHC websites describe as a pro-LHC think tank, a depiction which I feel is unfair.

Well, I am a member of the UCF, and I find that characterization hilarious. For the real story of the origins of the UCF, you have to go to John Scalzi's Whateveresque forum where we all met. Specifically, this entry

whateveresque.com/phpBB3/viewtopic.php?f=35&t=99&st=0&sk=t&sd=a&hilit=jim+wright+emperor+of+the+universe

where Jim introduced himself. The name UCF grew out of off-line joking about that post, and we formed an off-line friendship, linking our various blogs in the process. We're a pretty eclectic bunch, bound together mostly by our interest in Science Fiction. We have a wide range of political and scientific affiliations. We have a Physics Ph.D. and myself (a P-Chem Ph.D.) in the group, which also includes IT professionals, a public defender and several former military personnel. It was one of the former Navy NCOs who first stumbled upon Walter Wager, and Walter stumbled upon our less than favorable opinions of him and his science by vanity Googling. The story of that encounter can be found here:

chicagoboyz.net/archives/6347.html

As for myself, I'm a Chemist working as a project manager in industry, and the only thinking (as in think-tank) I do about the LHC has been because I was irritated by something Walter said on the Internet. If he had had the sense to leave our one-off posts well enough alone, the members of our group would have pretty much ignored him, but as you can see from his behavior here, he has the habit of continually engaging any and all critics in debate.

[rpenner]

We [an undefined group of unassociated people which I assume is in the majority despite the lack of collaboration] asked Wagner to discuss the physics behind his belief in the possible destruction of Earth. But he refused.
We questioned the wisdom of some of the legal actions taken by Wagner in his quest to shutdown LHC, particularly since he also attempted to shut down the RHIC. But he persisted.
We ridiculed the logic of approaching an appeal with arguments predicated on guesswork and nonsensical assertions. But he got angry.
We suggested that the media would agree with us. And so Wagner went on The Daily Show. Below are some reviews.

May 1, Steinn Sigurðsson in Science Blogs: Dynamics of Cats "Daily Show does LHC and other action items (http://scienceblogs.com/catdynamics/2009/05/daily_show_does_lhc_and_other.php)"
May 1, Seth Zenz in US/LHC Blogs "Evil Genius Says What? (http://blogs.uslhc.us/?p=1166)"
May 1, Janiece Murphy in Hot Chicks Dig Smart Men "Walter L. Wagner PWND By The Daily Show (http://hotchicksdigsmartmen.blogspot.com/2009/05/walter-l-wagner-pwnd-by-daily-show.html)"
May 1, Matt Tobey in Comedy Central Insider "John Oliver Visits the Large Hadron Collider (http://ccinsider.comedycentral.com/2009/05/01/john-oliver-visits-the-large-hadron-collider/)"
May 1, Sean Carroll in Discover Magazine Blogs: Cosmic Variance "Daily Show Explains the LHC (http://blogs.discovermagazine.com/cosmicvariance/2009/05/01/daily-show-explains-the-lhc/)"
May 1, Tona Kunz in Symmetry Breaking "The Daily Show on CERN, particle physics and black holes (http://www.symmetrymagazine.org/breaking/2009/05/01/the-daily-show-on-cern-particle-physics-and-blackholes/)"
May 1, Jim Wright in Stonekettle Station "Walter L. Wagner Explains Probability (http://stonekettlestation.blogspot.com/2009/05/walter-l-wagner-explains-probability.html)"
May 1, Luboš Motl in The Reference Frame "Jon Stewart & John Ellis & LHC (http://motls.blogspot.com/2009/05/jon-stewart-john-ellis-lhc.html)"
May 1, Rack Jite in KicK! Making Politics Fun "Daily Show, John Oliver the Hadron Collider will Destroy the World (http://rackjite.com/archives/3350-Daily-Show,-John-Oliver-the-Hadron-Collider-will-Destroy-the-World.html)"
May 1, Ethan Siegel in Science Blogs: Starts with a Bang! "The LHC, Black Holes and You (http://scienceblogs.com/startswithabang/2009/05/the_lhc_black_holes_and_you.php)"
May 1, Adam Yurkewicz in US/LHC Blogs "Daily Show at CERN (http://blogs.uslhc.us/?p=1171)"
May 1, Jennifer Ouellette in Discovery Space: Twisted Physics ""I'm Not Sure That's How Probability Works..." (http://blogs.discovery.com/twisted_physics/2009/05/im-not-sure-thats-how-probability-works.html)"
May 3, Phil Plait in Discover Blogs: Bad Astronomy "Intelligence falls into a black hole (http://blogs.discovermagazine.com/badastronomy/2009/05/03/intelligence-falls-into-a-black-hole/)"

Canadians rejoice -- here is the clip for Canada: http://watch.thecomedynetwork.ca/the-daily-show-with-jon-stewart/full-episodes/#clip165880

And here is the Digg page: http://digg.com/general_sciences/Daily_Show_Visits_the_Large_Hadron_Collider

[James R]

Nice Daily Show segment.

Maybe Walter thinks that any publicity is good publicity.

[AlphaNumeric]

My supervisor's other half turns out to be a Daily Show follower but for years thought the news segments with the "Best ****ing news team in the world!" were made up. Until he saw John Ellis, a personal friend, on the show. It got emailed around the theory group here and even the people who I wouldn't say are people who watch The Daily Show of their own accord found it hilarious.

My supervisor and her husband worked at CERN many years ago along side John and can testify to his office being that full of paper but like all organised chaos John knows exactly where everything is.

[rpenner]

Anyone wanna buy some of rpenner's snakeoil? To save rpenner the trouble, I'll likely post the response to the federal brief when it is filed. Now tell us, rpenner, how that case relates to the LHC and the Law thread you initiated? Isn't this just an effort on your part for an ad hominem attack? It goes to credibility and estimation of competence. You are consistently attacking my estimations of courtroom outcome, so I investigate to see what basis, if any, you have for claims of superior estimation. But if you would prefer to speak to the physics of the case, I would feel obliged to reciprocate. (Taking in mind, of course, that at this instant, your interests may be better served in reading, researching and responding to the Reply Brief.) OK. The promised response to the federal appellate brief never appeared. LHCdefense.com went dark. The Daily Show piece aired. The appeal was ruled "fully briefed" and ready to be scheduled for hearing.

Where is Wagner?
State court filings in Hawai'i may provide insight. But since Wagner thinks I'm not qualified to comment on criminal trial practice, here are the actual minutes of criminal case 3PC08-1-000097 on April 24, 2009:

Party Name: WAGNER, WALTER
Div.: 3C01 CR Date: 04-24-2009 Time: 1000A Priority: 0 Judge I.D.: JGNAKAMURA
Video No.: Audio No.:

CONVENED@ 10:31 A.M. *REPORTER: JENNIFER WHETSTONE
APPEARANCES: JASON SKIER, DEPUTY PROS ATTY
VAUGHAN WINBORNE, CA
.
V. WINBORNE: REQUEST DEFT'S PRESENCE BE
WAIVED.
.
J. SKIER: OBJ TO MOTION; ARGUMENT.
.
COURT: CONCERNED ABOUT DEFT'S PRIOR MAINLAND
TRAVEL WHILE BEING SUBJECT TO CHARGE IN THIS CASE;
DO NOT SEE NECESSITY BASED UPON WHAT HAS BEEN
PRESENTED TO TRAVEL TO SWITZERLAND; MOTION DENIED.

This is in response to a motion filed by Walter's lawyer on April 13, the same day the amici filed to be added to the case.

[rpenner]

In my previous post I asked, "Where is Wagner?" We now have a partial answer.

On May 5, it appears the Wagner has produced the response to the Government's reply to Wagner's appeal. I have not seen it yet, but it may have an original work (if also untimely and impermissibly long) by Luis Sancho stapled to the back of it. And just before noon on May 11, the Government filed a motion to strike it from the record. The government thinks it's in violation of two scheduling orders and the Federal Rules which govern the timing of appeals paperwork (all of which anticipated this would be filed on April 20).

The government indicates that Wagner seems to have been working under the misapprehension that the government's response constitutes a "cross-appeal" which would result in some additional time for Wagner, but insists even if this is the case that the correct procedure is to request for the additional time before the deadline passes and points out this is not the first time that Wagner needed to be hit with the clue stick.

Specifically, the government (which raised many arguments on topics not addressed by Wagner's original appeal brief) points out their reply was not a "cross-appeal" brief. It's clear that the docket does not call it a cross-appeal brief and the title page of the brief does not mention a cross-appeal, no notice of appeal was filed by the government as required by FRAP 28.1 (b), and it does not ask the court to overturn any ruling of District Court so it is not a stealth cross-appeal even if such was proper. Indeed, what separates an original brief or cross-appeal brief from a reply brief is FRAP 28 (a) (10) "stating relief sought" and the government seeks no relief from the District Court's decision to toss Wagner out of court.

http://topics.law.cornell.edu/wex/Cross-appeal
Note that no cross-appeal exists when an appellee simply wishes to have a lower court's decision upheld by a higher court[.]

So now that you have that background, the anti-LHC forces have a somewhat better idea of just how good a friend Wagner is to the goals of their cause.

http://www.law.cornell.edu/rules/frap/

Pursuant to Fed. R. App. P. 27 and 9th Cir. R. 27-1, Federal Defendants-Appellees United States Department of Energy, the National Science Foundation, and Fermilab (collectively, “DOE”) hereby move to strike the reply briefs filed by pro se litigants Walter L. Wagner and Luis Sancho. [[The cover of the tendered brief states that it is the reply brief of Wagner. However, a reply brief of Sancho is stapled to the back of Wagner’s reply.]] The reasons for this motion are set forth below.

The reply briefs are more than 2 weeks out of time. DOE filed and served its answering brief on April 6, 2009. Under the Court’s order filed April 1, 2009, “[t]he optional reply brief is due within 14 days after service of the answering brief.” April 1 order at 1. Consequently, any reply brief in this case should have been filed and served no later than April 20, 2009. However, the tendered reply briefs were not filed and served until May 5, 2009, according to a certificate of service executed by Wagner (but not by Sancho, whom Wagner does not represent). The tendered replies are therefore 15 days late and should be stricken as untimely.

Wagner and Sancho offer no explanation for their untimely filing, other than a cryptic statement by Wagner, in the certificate of service, that “the Reply Brief to this Court” was mailed “within 29 days of the April 6, 2009 filing of the appellee’s [sic] Answering Brief which was also a cross-appeal brief.” [[Presumably on that basis, the untimely reply has a yellow, rather than the customary gray, cover.]] That assertion provides no justification for the untimely filing because, as the Court is surely aware – and as a glance at the Court’s docket sheet confirms – DOE did not file, nor did the Court docket, a cross-appeal in this case. Given that this case does not involve a cross-appeal or “cross-appeal brief,” the time period for filing a reply in a cross-appeal plainly does not apply here. See Fed. R. App. P. 28.1(f)(3).

Although neither has sought to do so, Wagner and Sancho should not be permitted at this late date to submit a motion for leave to file reply briefs out of time. Such a motion would be plainly futile because, on April 30, 2009, the Court issued an order (per Judges Leavy and Bea) stating, inter alia, that “[t]his case is ready for calendaring.” April 30 order at 1. The Court’s determination that this case is ready for calendaring is a clear indication that the time for filing briefs is already over. [[For the same reason, the untimely reply briefs should not be allowed on the notion that they seek, in part, to respond to an amicus brief that the Court did not accept for filing until April 30, 2009. This notion is obliquely hinted at in Wagner’s certificate of service, which states that “such mailing was within 5 days of the Order granting Movants’ leave to file an amicus brief.” However, in its April 30 order, the Court was well aware of this circumstance, yet it deemed the period for filing briefs closed: the Court’s order both directed that “[t]he Clerk shall file the amicus brief” and that “[t]his case is ready for calendaring.” The obvious implication of the April 30 order is that the Court does not want a reply to the amicus brief.]]

The reply brief tendered by Sancho should also be stricken for the additional reason that it is evidently over length. The “certificate of compliance” to that brief (at 37) states that it contains 6,994 words excluding, inter alia, “Notes.” But it is plain that the footnotes in that brief far exceed six words; i.e., the reply tendered by Sancho is substantially in excess of the 7,000 words permitted for reply briefs. See Fed. R. App. P. 32(a)(7)(B)(ii).

As DOE has noted before, pro se litigants such as Wagner and Sancho must follow “the same rules of procedure that govern other litigants.” King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987). They have once again failed to do so. For the foregoing reasons, DOE respectfully requests that the reply briefs of Wagner and Sancho be stricken and that the Court proceed to calendar this matter forthwith.

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!"

[rpenner]

Back from a visit to the San Francisco Federal Courthouse. It was quiet and the people friendly. The federal building across the street has some interesting architecture -- not up to City of London standards, but nice and very modern-looking.

But while I was there, I browsed a document which would have taken about 90 days to appear electronically, and I checked on the courthouse copies to see what parts of the September 2 courtroom transcript was used and to see if Luis Sancho's signature was any more visible than on the PDFs I have.

[rpenner]

News from the Court. Wagner's reply has been rejected by the clerk. There is no mention of Luis Sancho.
Clerk's notes:

Received original and 15 copies reply brief of Appellant Walter L. Wagner (Informal: No) 19 pages. Served on 05/05/2009. Deficiency: Untimely. Other deficiencies: Footnotes font too small. Incorrect color covers. Notified Appellant. (GLS)

To: Walter L. Wagner
[Address]
From: [], Clerk of Court
By: [], Deputy Clerk
Re: Receipt of a Deficient Reply Brief of Appellant on 05/08/2009

The referenced brief cannot be filed for the following reason(s):
Major Deficiencies: Footnotes font too small: The footnotes must be the same size and format (14-point font) as the body of the brief. See FRAP 32(a)(5). Please submit a replacement brief (original and 15 copies). Untimely: The brief was not served by the scheduled date. Within fourteen (14) days from the date of this notice, please submit a motion requesting leave to file the brief late. If such a motion is filed, the responding order will adjust the dates for filing any subsequent briefs. See 9th Cir. R. 31-2.
Minor Deficiencies: Incorrect color covers: The brief has an incorrect color cover. See FRAP 32(a)(2). Please submit sixteen (16), grey replacement covers of the correct color for your brief.

The following action has been taken with respect to the brief received in this office: The deficiency by appellant is judged to be serious. We cannot file your brief. You must correct the deficiency within 14 days. If the defect by appellant is not corrected in a timely manner, the reply brief will not be filed and the case will be deemed ready for calendaring on the basis of the principle briefs.
When submitting corrections to your brief, please return a copy of this letter. If you don’t submit your correction within 14 days of this notice, you must file a motion for leave to file a late brief. See 9th Cir. R. 31-2.3 re: Extensions of time for filing brief.

When you file a brief, you are writing for the ages and the court rules often reflect this in large and small ways. In the scientific publishing arena, have you seen similar form letters?

In addition to the general rules of the Federal Appeals Court, each circuit has its own rules. Here are the local rules (referenced in the letter above): http://www.ca9.uscourts.gov/rules/FRAP/Rules_TOC.htm

[rpenner]

On May 11, 2009, the Government filed a motion in the appeal case calling Wagner's response untimely and requesting that the court rule that Wagner has no right to reply in this or any further untimely filing.

FRAP 26 and FRAP 27 only give Wagner 8 working days to respond. That would be today.

But perhaps there is a response in the mails. Some insightful, earth-shattering reasoned argument, citing the laws of this land and the wise rulings of yore which will not only explain why FRAP does not apply to Wagner, but that we were foolish to expect them to.

News when I have it.

[rpenner]

The Wagner-associated LHCDefense site is down.

http://www.lhcdefense.org/

And now it is back up.

[prometheus]

And now it is back up.

What a load of outrageous crap.

[The LHC] has been dubbed the largest, most expensive, most powerful experiment ever attempted, certainly dwarfing all particle colliders ever built before, both in terms of size and power.

How is it's size so much bigger than all particle colliders built before it when it uses the same tunnel as the previous collider, LEP?

[rpenner]

Another warm cloudless day at the San Francisco Federal courthouse. A day apparently unmarred by the docketed receipt of any reply to the motion to bar Wagner (and Sancho) from responding to the Government case for the District Court decision to toss out the anti-LHC lawsuit.

Helicopters hovered for hours in the mid-morning, apparently in response to news at another SF-based courthouse.

[rpenner]

Timeline:
March 21, 2008 - Luis Sancho and Walter Wagner file suit in Federal Court Page with free link to original claims (http://dockets.justia.com/docket/court-hidce/case_no-1:2008cv00136/case_id-78717/)
Sept 2, 2008 - Oral argument on a motion to dismiss
Sept 26, 2008 - The Federal Court in Honolulu rules against Sancho and Wagner. Text of Ruling (http://sciforums.com/showpost.php?p=2029021&postcount=35)
Feb 2, 2009 - Walter Wagner filed appeal argument Commentary (http://sciforums.com/showpost.php?p=2165228&postcount=95) As on LHC-concern.info (http://lhc-concern.info/wp-content/uploads/2009/02/a-sanchovdoe-final-appellantsopeningbrief.doc)
Feb 26-March 3 - Government and Wagner file motion, opposition and reply in regards to an extension of time for the Government.
April 1 - Court grants Government request for additional time. Gives Wagner 14 days to respond if he so chooses. (This actually overrides FRAP 31 (a) (1) which makes Wagner's affidavit of May 27 an admission of negligence.)
April 6 - Government replies to appeal. Text here (http://sciforums.com/showpost.php?p=2218091&postcount=117)
April 13 - Glashow, Wilczek and Wilson petition to file an amici brief (This is timely according to FRAP 29 (e) and FRAP 26 (a) (2).) Partial Text Here (http://sciforums.com/showpost.php?p=2225963&postcount=125)
April 20 - Wagner's deadline to respond to the Government lapses without even the recommended letter from Wagner (Local rule 31-2.3 recommends letters for non-filers. FRAP 28 (c) states in part: "Unless the court permits, no further briefs may be filed." So this would have normally been the last chance for Wagner to prop up his case.)
April 21 - Wagner's deadline to argue against the amici brief being considered expires.
April 30 - Court rules against Wagner's vague wish for an order compelling the Government to halt any funding, accepts the Nobel Laureates and Professor as amici (No argument against amici was ever filed)
May 5 - Wagner's brief finally shows up -- and is rejected by the court clerk -- // Update: We may now have a copy of how this was meant to appear: http://rjwagner49.com/Personal/Politics/LHC/WalterWagnerReplyBrief.pdf http://rjwagner49.com/Personal/Politics/LHC/LuisSanchoReplyBrief.pdf
May 11 - Government argues that Sancho is basically a no-show and Wagner should not be allowed any more briefs Text here (http://sciforums.com/showpost.php?p=2251130&postcount=140)
May 16 - Dr. Roessler types up a pre-print allegedly for Science
May 19 - Deadline for Wagner to respond to above passes without notice.
May 27 - Wagner files a motion to be allowed to reply to amici brief -- in it is clear grounds for LHCDefense contributors to be angry at Wagner. "l believed that it was timely filed even with respect to the government brief, which brought in counter-claim issues, though if not, I apologize to the Court for mis-reading the rule pertaining thereto." It is not about parsing rules, it's about showing respect to all parties (especially the court) and requesting to deviate from the rules. But Wagner is so clueless that he doesn't even cite the rules that give the court discretion to grant his request. And where are these "counter-claim issues" Wagner speaks of?

He spends the bulk of his time composing a diatribe of an affidavit. He claims to be a scientist (once again, the question of Wagner's credentials goes unanswered) and tries to argue that no "vital" science can be done at LHC. (Not even to answer the question in Wagner's mind if particle accelerators could kill every one of us, which is his central drive.)

On or prior to June 4, I expect to see the Government tear a hole in Wagner.

[rpenner]

In the May 27 filing, Wager attaches a purported pre-print from O.E. Rossler. (no umlaut).

Seven New Features of Black Holes Impart an Uncanny Risk on the LHC
Otto E. Rossler
Division of Theoretical Chemistry, University of Tubingen, Morgenstelle 8, 72076
Tubingen, F.R.G.

Abstract
The most recent chapter in the fascinating story of black holes is offered. Johnny Wheeler's witty profundity in the footsteps of his mentor Einstein still shines through. The "no-hair theorem" is clipped from 3 to 2 surviving "hairs" (mass and angular momentum remain, charge goes). And an unbelievable oversight of the scientific community maintained for 7 decades is exposed: an infinite slow-down of infalling astronaut clocks so that horizons become effectively unreachable. The other five new features are: nonevaporation; threshold reduction; exclusive risk to earth; quantum protection of neutron stars; and exponential growth inside matter. An attempt at falsifying this 7-link chain in at least one element is encouraged as a precondition for the Large Hadron Collider's planned second start.

(April 17, 2009, revised May 16, 2009)

Much of it is unintelligible due to photocopy and/or printing defects. There are no equations and no math. The conceit that this paper might be published in Science anywhere near it's current form is laughable.

As always, Roessler fails at GR and so needs to shut up.

Black holes carry a funny name -- John Wheeler had thought about the latter for half a year while dropping every other activity. Later on he added the witty "no hair theorem" to further boost their popularity (after a pop song from Einstein's Berlin time "Say - is it real' true -- that the frog at the ass has no hair?" - (I apologize). There exist many sci-fi stories and even crime novels about black holes. Seven new features are to be offered in the following which taken together could give one the impression of conspiring against humankind. Fortunately, however, disproving a single one will suffice to break the chain and with it the dangerous spell.

First chain link: "Unapproachability in finite time"

The fact that light takes an infinite time to reach the horizon (the surface) of a black hole, and equally long back up, is well known: "infinite radar distance" [1]. Astronauts take twice as long to plunge down and bounce up again (if a hard trampoline is assumed suspended on the horizon that [unintelligible] acknowledged in the literature [2,3]. Amazingly, it nevertheless got suppressed somehow from physicists' consciousness. The obvious reason for that is Oppenheimer and Snyder's famous finding that the proper infalling (as well as rebouncing) time is finite and quite short: From the surface of a collapsing star it makes up only about one day [4]. However, the same proper infalling-plus-rebouncing time of two days bridges an infinite time span on the clock of anyone wating on the departure-and-arrival level. This fact is trivial to demonstrate (astronauts cannot overtake light). It follows that an infinite slowdown of the astronaut's clock is responsible for the infinite difference between the travel time of two days and the infinite waiting time outside. This fact - that we here ss [sic] an extremal case of Einstein's famous twin-clocks paradox - got overlooked by the scientific community for 7 decades [4]. Note that an infinitely slowed-down clock allows any infinite distance to be bridged in finite proper time. Thus, the finite link between horizon and outside world traditionally assumed in the wake of the Oppenheimer-Snyder result unfortunately ceases to be physical.

[six other "links" omitted]

[1] Foster, J. and Nightingale, J.D., A Short Course in General Relativity, 3rd edn. New York: Springer-Verlag 2006, p. 130.
[2] Novikov, I., Black Holes and the Universe. Cambridge: Cambridge University Press 1990. Quote
(p. 24): Radio waves will travel infinitely far to the gravitational radius [horizon] and will never return to the observer who sent them."
[3] Thorne, K.S., Black Holes and Time Warps - Einstein 's Outrageous Legacy. New York: W.W. Norton 1994. Quote (p. 294): "When an infinite amount of external time has passed, the [infalling] particle has experienced only a finite and very small amount of
tirne."
[4] Rossler, O.E., "Overlooked twin paradox in Oppenheimer-Snyder theory -
greatest oversight and risk of history." (Submitted to Nature.)
Text included in: www.nature.com/news/2009/090508/full/news.2009.459.html
Original 1-page manuscript on: www.wissensnavigator.com/documents/overlooked.pdf


Why would Wagner think this helps his case at all? The references (so far) are a simple textbook on GR which the author shows no effort at mastering, two pop-science books and a blog comment the author himself left somewhere on the Internet.

[rpenner]

Still on the May 27 filing. The court clerk called his motion untimely (FRAP 28 (c) doesn't allow Wagner a reply to an amici brief, one would have to petition separately for the right). Therefore the clerk (who has received neither a motion for late filing or a motion to allow a reply to the amici brief) rightly calls it untimely, with the wrong cover, and notes that Wagner is marking it up like high school paper and not a court brief.

So now we go on to the motion to allow Wagner to file the mystery brief. There are so many things wrong, I want the court on it's own motion to deny Wagner further access to the courts.

We start with the title:
MOTION FOR LEAVE TO FILE REPLY BRIEF SIX DAYS AFTER ORDER GRANTING FILING OF AMICUS CURIAE BRIEF
This obviously crosses with the May 11 Government motion to disallow any such brief, and as the Government cites FRAP 27, FRAP 28.1(f)(3), 9th Circuit Rule 27-1 and case King v. Atiyeh, book law and precedent seem to be (unopposed) on the Government's side. But as the clerk rejected the brief for reasons other that mere untimeliness, the actual brief is yet to be seen on May 27 and Wagner is still arguing about May 5.

Pursuant to a Letter from the Clerk of the Court dated May 15, 2009, but not received by appellant Wagner until May 20, 2009, requiring a motion for leave to file a Reply Brief six days after the filing of the Order granting the Amici request for the filing of their brief, appellant Wagner respectfully moves this Court for leave to file his Reply Brief filed in response to the Amici brief. If it is in response to the amicus brief, then Wagner has no expectation to be allowed to file the brief. If it is a response to the Government's case, then it was due on April 20, and Wagner wants to use every second of time to polish it.

Let us assume it is in response to the amicus brief. Contrary to FRAP 27 (2)(a), Wagner does not offer grounds on why such a motion should be granted. Indeed, FRAP 28 (c) says the general rule is no one gets to file such a brief, even though it authorizes the court to decide to allow it. FRAP 2 gives the usual grounds to make exceptions to the rules "to expedite [the court's] decision or for other good cause." But "good cause" does not mean what is good for Wagner's ego. It is a term of art meaning in the cause of preventing injustice. One authority writes: "[FRAP 2] also contains a general authorization to the courts to relieve litigants of the consequences of default where manifest injustice would otherwise result." Wagner argues no such injustice. Instead he argues (as we will see below) that the amici are wrong which should have been argued on or prior to April 21.

Let us then assume that Wagner means this brief to be the very late reply to the Government's case and just happens to mention the amici brief in passing. Once again, there is no mention of grounds, no showing of why an exception to the timing rules is in the pursuit of justice, and does not demonstrate that reasons other than willful negligence are the reason for the late filing. All this in spite of the Government lawyer kindly showing Wagner how a formal request for late filing is obtained prior to the deadline. And as it is specifically the very issue first raised by the Government in their motion, Wagner should be filing a cross-motion.

This motion is supported by the accompanying Affidavit of Walter L. Wagner in Support of Motion for Leave to File, and the accompanying amended Reply Brief Of Appellant Walter L. Wagner with footnote font now at 14-point font as requested by the Clerk, and the cover sheet now grey rather than yellow, as requested by the Clerk. Note: No such Reply Brief was attached. This is untrue.

This motion is further based upon the Order of this Court filed April 30, 2009 in which it granted the motion of the Amici for leave to file an Amicus Curiae brief. It is argued that such order granting such leave thereby allowed appellants the right to file a brief in reply thereto, which they did six days after this Court's order, as detailed in the accompanying affidavit in support.Technically it is not argued. That is a bald assertion. No authority is cited, no law or rule of the court is referenced. And FRAP 28(c) seems to be the final word on what the rights are to file briefs. And as the Government says in its motion (quoted circa May 12), the Court's order of April 30 specifically anticipated no additional briefs being filed.

// Edit, added: Indeed, one authority writes of the amicus brief (with its specific schedule): "A 7-day period also is short enough that no adjustment need be made in the opposing party’s briefing schedule. The opposing party will have sufficient time to review arguments made by the amicus and address them in the party’s responsive pleading. The timetable for filing the parties’ briefs is unaffected by this change." So an amicus brief does not confer any change to rights to file briefs or their timings, and so it follows that a court order which grants the amici motion (which Wagner did not consent to but neither argued against), cannot change the schedule, especially after all deadlines expired.

This action of the Court rendered moot the issue as to whether or not the submitted reply brief was timely with respect to the filing of the appellee's response, which appellants nevertheless believed was also timely, as per the accompanying affidavit. Translation: "Because we assert now, out of thin air, that a never-before-seen right to reply to an amicus brief, we say that the Government and Clerk both are bonkers when they claim the brief was untimely. They did not anticipate that by asserting these just-made-up rights we actually relieve the Court of any need to hear their argument. But even if this Court wants to be so backward as to try to enforce the "rules" in that FRAP nonsense, we are now going to claim we genuinely believed that we were engaged in the more complicated cross-appeal process despite not having even the slightest shred of evidence to support this belief. Because, whether we are talking about court rules or physical theory, what Wagner believes in his mind is much more important mere pathetic evidence like the rest of humanity relies upon. Trust me, I'm a genius."

(The affidavit is a bit more than twice as long. Shall I reproduce it here?)

[rpenner]

On or prior to June 4, I expect to see the Government tear a hole in Wagner.

Well, at 8:03 am (11:03 Eastern Time) on June 2, our favorite Government attorney files this response to Wagner's motion.
On May 29, 2009, pro se appellant Walter L. Wagner filed a “motion for leave to file reply brief six days after order granting filing of amicus curiae brief.” Wagner filed this motion in response to Deputy Clerk Sumera’s deficiency letter of May 15, 2009, which noted, inter alia, that “[t]he brief was not served by the scheduled date.” Federal Defendants-Appellees United States Department of Energy, the National Science Foundation, and Fermilab (collectively, “DOE”) respectfully submit that Wagner’s May 29 motion should be denied.

1. In the affidavit to his motion (at 1-2), Wagner asserts that “the optional Reply Brief” is necessary to address the amicus brief, not the answering brief of DOE. However, as DOE previously noted in its May 11, 2009 motion to strike reply briefs (at 3 & n.3), the Court’s order of April 30 (per Judges Leavy and Bea) directed both that “[t]he Clerk shall file the amicus brief” and that “[t]his case is ready for calendaring.” The obvious implication of the April 30 order is that the Court does not wish to receive a reply to the amicus brief. A case is generally not considered “ready for calendaring” if briefing is still underway.

2. If, notwithstanding the foregoing, the Court does in fact wish to receive a reply to the amicus brief, DOE respectfully submits that the Court should enter an order along the following lines:

a. The Court should reject the reply brief tendered by Luis Sancho. [[The cover of the brief tendered by Wagner is styled “Reply Brief of Appellant Walter Wagner.” However, a second brief, styled “Reply Brief of Appellant Luis Sancho,” is stapled to the back of Wagner’s reply brief. ]] First, Sancho has not joined in Wagner’s May 29 motion; simply put, Sancho is not seeking this Court’s leave to file a reply brief out of time. Wagner and Sancho are pro se litigants, such that Wagner does not represent Sancho. Moreover, as previously stated in DOE’s May 11 motion to strike (at 3-4), the reply brief tendered by Sancho is plainly substantially over length (in addition to being out of time). Wagner’s May 29 motion does not even purport to explain why Sancho should be permitted to file a substantially over length reply brief.

b. The Court should not accept the reply brief tendered by Wagner in its present form. Despite Wagner’s above-noted assertion that a reply is necessary only to address the amicus brief, the bulk of the brief tendered by him is styled “Reply to Defendants/Appellees’ Answering Brief.” Therefore, assuming arguendo that the Court wishes to receive a reply brief from Wagner that addresses the amicus brief, Wagner should be required to resubmit the reply he has tendered, omitting the present section V (“Reply to Defendants/Appellees’ Answering Brief”) and paragraphs 2 through 4 of the present section VI (“Conclusion”).

However, for the reasons stated in paragraph 1 above, Wagner’s May 29 motion should simply be denied. Another fine day in San Francisco it was. I had a fine lunch in the Macy's basement even after being assaulted by one of Paris Hilton's minions armed with a spray bottle of celebrity perfume. ( I think it smells of dead flowers and grapefruit. Now my laptop bag smells of it. ) The court clerks are still aching from the recent federal holiday/bank holiday disrupting their weekly routine, so there is no way to know yet when the next batch of scheduled cases appear.

[rpenner]

I thought I understood what was going on, until now.

On April 30, two judges accept the amicus brief, and say the case is ready for calendaring which would be the step where the hearing date is decided.

On May 5, Wagner submits a wad of paper.

On May 11, the Government moves to strike the Wagner brief for being untimely and no showing of good reason, and the Sancho brief for being improperly filed, untimely and no showing of good reason, and over-long. http://sciforums.com/showthread.php?p=2251130#post2251130

On May 12 a deputy clerk with the court orders that motion to be examined by a panel.

On May 15, a different deputy clerk writes a letter to Wagner indicating his brief is untimely, and formatted wrong. http://sciforums.com/showthread.php?p=2254951#post2254951

On May 27, Wagner files a motion to allow the brief(s), but fails to attach them as promised.

On May 29, the brief(s) go into the mail.

On June 2, as predicted by your reporter, the Government points out that Wagner showed no good reason for anything.

On June 11, the first deputy clerk override the same clerk's earlier decision on May 12, and orders the brief(s) filed. But since the May 12 motion did not dispose of the motion to strike, isn't the motion to strike still under consideration? In the same motion the deputy clerk ignores all of Wagner's talk about amici and orders the brief(s) filed as a reply to the Government's principle brief.

But what is going on? Is the Sancho brief in or out? Is the motion to strike pending or decided? What part of Wagner's filing was persuasive? Is the clerk just waiting for the brief(s) to be filed before striking?

The Government is entitled to file (within 14 days) for reconsideration or clarification of the order, but I'm not sure that's a great idea.

So, once again, what is going on?

[rpenner]

Sent June 10, received June 12. (Deadline: May 16)
ln response to Federal Defendants-Appellee's Response to Walter L. Wagner's "Motion for Leave to File Reply Brief Six Days After Order Granting Filing of Amicus Curiae Brief" , it is to be noted that the Sancho 'Reply Brief' attached as an addendum to appellant Walter L. Wagner's reply brief complies with F.R.A.P. Rule 32(a)(7)(B)(ii), which allows for a reply brief to be either 30 pages or 7,000 words. The Sancho 'Reply Brief' is 6,994 words (excluding footnotes, addenda, cover, and certificate of compliance), and therefore not overly Iong. lndeed, it is an extremely interesting, well-reasoned read.
Untimely. Managing Sancho's case (i.e. acting as his lawyer). Not an argument, just a contradiction. Unspecific as to the issue at point (are pages of footnotes part of the word count or not). Cites no case law. Totally ignores the adjacent paragraph F.R.A.P. Rule 32(a)(7)(B)(iii).
Headings, footnotes, and quotations count toward the word and line limitations. The corporate disclosure statement, table of contents, table of citations, statement with respect to oral argument, any addendum containing statutes, rules or regulations, and any certificates of counsel do not count toward the limitation. (emphasis added)
http://www.ca9.uscourts.gov/rules/FRAP/rules.htm#frap32a7b

[rpenner]

Minor updates:
6/18 - Court files 76 pages of reply briefs for Sancho/Wagner
6/29 - Calendar check performed.

I will refer to another pro-se litigant's description of what this means:
According to the clerk's office, the suit will first be submitted to the court's staff of law clerks who will determine whether or not the suit warrants oral arguments. Once this is determined, the suit will either be sent to a screening panel which consists of three circuit judges who will rule on the suit, or it may be sent to a merits panel who will then hear oral arguments before ruling on the suit. The process of adjudication can take up to a year or more before either panel reaches a decision. http://www.article5.org/Ninth%20Circuit%20Court%20of%20Appeals%20Page.htm

Some friendly advice for all: http://www.riverbendlaw.com/persuasive.htm

[rpenner]

Well, that's been over a month since there has been any movement in the "Hawaiian Man Sues LHC" case. The San Francico clerks are trying to make sense out of the appellate filings and will eventually decide how much oral argument is needed and find time on some judge's calendar.

[rpenner]

I'll be watching this link: http://www.ca9.uscourts.gov/calendar/view_hearing_notices.php
For 08-17389 Luis Sancho, et al v. US Department of Energy, et al

I guess file this under no news is news. The October calendar for the court has recently been published, so unless the Sancho/Wagner case is added to existing schedules (like the Government appeal of the exclusion of some evidence in the perjury trial of local baseball star Barry Bonds was), the next oppurtunity to scheudule the case is November 2.

"ὄψὲ θεῶν ἀλέουσιμύλοι, ἀλέουσι δὲ λεπτ" or roughly, "The gears of justice turn slowly but grind very finely."

[CptBork]

Seeing the Daily Show poop on Mr. Wagner's head was good enough for me. For a while there I was afraid to step out my front door, I figured there was a 50/50 chance a dragon might fly by and bite my head off.

[CptBork]

I wonder if there's an atheist out there preparing a similar court case against America's churches. The charge: christian rituals are endangering the world by threatening to open a portal to hell from which zombies and other undead terrors will emerge to feast on the flesh of the living, and if such a portal isn't closed within 24 hours, it will remain open for eternity until the entire Earth is filled with the walking dead.

[rpenner]

I'll be watching this link: http://www.ca9.uscourts.gov/calendar/view_hearing_notices.php
For 08-17389 Luis Sancho, et al v. US Department of Energy, et al

On Monday, September 14th, the announcement of the November schedule for appeals was published. Still nothing.

[rpenner]

Here's your monthly update: There is still no scheduled date for the 9th circuit appeal of the dismissal of the case brought by Wagner and Sancho. The last action taken, on June 29th, was notice of the case to be be discussed by the clerks and an appropriate schedule for oral arguments to be made. I think the next window of opportunity is December 7-11.

In Hawaii, the unrelated criminal trial heats up. On October 16, Wagner's lawyer filed a motion to forestall the prosecutor from bringing up certain evidence without the permission of the judge, and what may very well be the last motion to dismiss. The trial, once scheduled for August 3, is now scheduled for November 17.

Like the LHC startup itself, these proceedings just seem to drag on much longer than expected.

[Walter L. Wagner]

In Hawaii, the unrelated criminal trial heats up. On October 16, Wagner's lawyer filed a motion to forestall the prosecutor from bringing up certain evidence without the permission of the judge, and what may very well be the last motion to dismiss. The trial, once scheduled for August 3, is now scheduled for November 17.

The motion to exclude 'certain evidence' is a motion to rely entirely upon the public record, and to exclude evidence which contradicts the public record, in particular oral evidence.

The public record was initially generated in 2001 and showed Mrs. Wagner to be a founder, Director and Secretary for the company from the time of the filing of the articles of incorporation, through and until February, 2004 when she was removed (by myself) as a Director and Treasurer, but retained as the Secretary. Thereafter, the public record show one 'Emerson' becoming the Resident Agent (for service of process) in March, 2004, becoming the Treasurer in June, 2004, and replacing Mrs. Wagner as the Secretary in September, 2004.

The motion is in essence a request that oral evidence that would be introduced years after the public record was generated and that would otherwise contradict the public record should be excluded, as required by law. The law requires persons to be cognizant of the public record, and allows them to rely on the public record.

The oral evidence that the prosecutor would like to introduce would be the oral statements of a known Liar and felon who has asserted that 'Emerson' became the Secretary in August 2003, and that therefore a document signed by Mrs. Wagner in her capacity as a corporate Secretary on January 1, 2004 were not valid, and that my use of that document as an Exhibit attached to the complaint in support of my civil suit was an "attempted theft" on my part for using documents I supposedly knew were not valid.

Since the facts are that Mrs. Wagner was the Secretary when she signed those corporate documents I used as Exhibits attached to my civil suit, and since the public record shows she was that Secretary at that time (January 1, 2004), and since the public record shows that 'Emerson' did not file to become the Secretary with her first public-record filing in March, 2004, nor with her second public-record filing in June, 2004, but not until her third public-record filing in September, 2004; therefore the public record fully shows Mrs. Wagner was that officer on January 1, 2004 when she signed that document, and the Liar's oral assertions to the contrary should be excludable.

Once those fraudulent assertions from that Liar are excluded, then there is no case.

Those facts, incidentally, have been known to the prosecutor for some 18 months, but he has chosen to maintain that prosecution for political purposes (likely to advance the agenda of his long-time friend, the Liar's personal attorney).

I mention this because we have a similar fraud with the LHC management (CERN), which now asserts that there are no safety concerns. This is not true.

The Mangano safety argument ("neutron star argument") relies A) upon an unproven assumption that the cross-section for interaction of near-relativistic micro-black-holes is not near-zero; whereas we 1) have no impirical evidence thereon, and 2) some theoreticians show the cross-section to be near-zero at relativisitic speeds (loosely analogous to diminishing cross-sections with speed for neutrons); and B) the safety argument equating proton-Lead collisions in nature as being the same as Lead-Lead collisions at the LHC for comparable COM energies is likewise unproven and appears contrary to established physics, and certainly also has no impirical evidence.

[(Q)]

Very sad, Walter. You waste the resources and monies of others to appease your delusions. I hope you'll be satisfied with your place in history as the raving lunatic of LHC. Good luck with that.

[prometheus]

The Mangano safety argument ("neutron star argument") relies A) upon an unproven assumption that the cross-section for interaction of near-relativistic micro-black-holes is not near-zero; whereas we 1) have no impirical evidence thereon, and 2) some theoreticians show the cross-section to be near-zero at relativisitic speeds (loosely analogous to diminishing cross-sections with speed for neutrons); and B) the safety argument equating proton-Lead collisions in nature as being the same as Lead-Lead collisions at the LHC for comparable COM energies is likewise unproven and appears contrary to established physics, and certainly also has no impirical evidence.

Wow. You can't even spell "empirical" and "relativistic." That doesn't bode well for the trial

[Walter L. Wagner]

relativistic, not relativisitic
empirical, not impirical

There, now corrected; loved your substantive comments. Shows how much thought you put into things.

[AlphaNumeric]

Hypocrite says what? (http://www.sciforums.com/showpost.php?p=2361333&postcount=25)

[Walter L. Wagner]

"loved your comments" was referring to the "Q" post. I don't mind corrections of spelling, but spelling errors would have nothing to do with the substantive comments regarding the "trial" that won't happen.

Nice to know some people are on the side of injustice.

[rpenner]

Without a viable physical theory all LHC disaster scenarios are bugaboos and the demand for mathematical proof of nonexistance is unscientific -- just like the sometimes heard creationist demand for a fronkey (some mosaic of features from frog and monkey clades) is a bugaboo in biology and the demand of a mathematical proof of evolution being exactly true for every event in biological history is unscientific.

But within a physical theory, one is certainly allowed to prove theorems. Likewise one is allowed to extend those theories with auxiliary hypotheses and see if theorems can be proven. If those theorems turn out to be unphysical by empirical observations, then that is evidence against the physical theory in the first case and against the auxiliary hypotheses in the latter. You do not get to whine about basic mechanics, until you demonstrate they are wrong from empirical data -- not just your unsupported wish that the LHC is dangerous.

[Walter L. Wagner]

So what you're saying is that unless we can prove that the LHC will destroy the planet, then we must test it, even if you can't prove it won't and many valid theorists have shown results that lead to that conclusion. What a science.

Isn't every other branch of science more worthy to proceed on first? Why is this so important an area that you are willing to jeopardize everyone else's work?

[(Q)]

Nice to know some people are on the side of injustice.

What is the real injustice here, Walter, is your pursuing of a three ring circus with you in the center ring.

The costs to the public? Pshaw! No need to worry about such things when ones reputation is on the line, eh Walter?

[(Q)]

So what you're saying is that unless we can prove that the LHC will destroy the planet...

Hilarious! When you can't even demonstrate a danger to the lawn outside the facility itself, you're prepared to toss in the whole world as your ante.

Again, hilarious!

[rpenner]

Yesterday the schedules for oral arguments for Dec 2-14 were published. Still nothing for Sancho vs. US (or whatever the abbreviated name for this case will be).

In other news, Orly Taitz, who, on the face of it, seems to have similar problems as Sancho and Wagner in establishing "Article III standing" (in regards to the section of the US Constitution which establishes the power and limits of powers of the Federal courts) had yet another of her lawsuits (alleging the purely unfounded and therefore racist claim that President Obama is not a US "natural citizen") thrown out of court.

http://www.scribd.com/doc/21808122/Judge-Carter-Ruling-on-MTD
http://www.huffingtonpost.com/2009/10/29/orly-taitz-lawsuit-thrown_n_338870.html
http://www.cbsnews.com/blogs/2009/10/29/politics/politicalhotsheet/entry5452727.shtml

For our Brit friends, Orly Taitz refers to herself at least sometimes as "Dr. Orly Taitz, Esquire" where the last bit just means in US usage that she is a lawyer, not a gentleman. I am not certain to what the Dr. signifies, but given that the Wikipedia pages says she is both dentist and lawyer, would I be wrong to assume a DDS ? In fact in court filings, Orly Taitz, DDS, Esquire is exactly how she is represented by the court reporter.

//Edit: Both Wagner and Taitz are products of different unaccredited Californian law schools. Wagner may have started at a more prestigious law school, while Taitz appears to be the only one who passed the bar. I'm told that the California bar exam is hard when compared to other state bar exams, so perhaps other legal bars depend more upon ABA certification of law schools than does California.

[rpenner]

The sliding scale of mootness looms its head. Even if Sancho and Wagner established standing, personal jurisdiction, legal jurisdiction, and had a non-speculative reason for actual damages, if the LHC is actually operating before a decision is made on whether to address a change or potentially halting startup, the Federal Courts will not rule on a subject where they cannot fix it by legal remedies constrained to a small fraction of the forward light-cone.
http://en.wikipedia.org/wiki/Mootness

First particle collisions at LHC predicted circa November 20.
http://blogs.physicstoday.org/newspicks/2009/11/lhc-tests-hint-that-collider-w.html
http://blogs.discovermagazine.com/cosmicvariance/2009/11/08/beam-seen-in-lhcs-cms-experiment/
http://www.symmetrymagazine.org/breaking/2009/11/09/lhc-rebounds-from-baguette-attack-sends-beam-around-half-the-ring/
http://blogs.uslhc.us/?p=2878

[rpenner]

On Thursday morning, Mrs. Wagner's attorney filed for a continuance in the Hawaii criminal proceedings. Apparently having the trial start on Tuesday is inconvenient. Now last-minute actions in a criminal trial are the norm, including plea deals on the day of trial, but since the docket leaves no evidence of the prosecution chiming in on the motion, this smacks of procrastination to me.

[Xymox]

I have a nice site for watching the LHC run -LIVE-...

CERN has gotten a little unhappy with my links pointing directly to "sensitive" areas..

www .lhcportal. com

Also a correction to the above.. The first circulating beam will be around the 20th. Collisions at low power will be able a week after that and then 1 TeV collisions a week after that.

Read the 3 week planner in Excel format from this site - remove spaces

lhc-commissioning. web.cern.ch /lhc-commissioning /

From links on my portal site you can watch the LIVE collision data and beam status.

[Walter L. Wagner]

An interesting article that postulates that microblackholes could be formed at the LHC and grow larger inside the earth. They do, however, have a very large time for that growth some eight orders of magnitude larger than other estimates I've seen.

http://arxiv.org/PS_cache/arxiv/pdf/0911/0911.1884v1.pdf

And yes, the prosecuting attorney has been procrastinating at the dismissal. Thus, a motion to dismiss was filed (which automatically boots a trial, as the motion has to be heard first). As mentioned before, there won't be a trial because there is nothing to try. Mrs. Wagner acknowledges everything they say she did. Ditto here. It is no crime. The crime is the lying by certain individuals falsely claiming the public record would say other than it does.

[rpenner]

Most notably, we find that, under no circumstances, the black holes would reach the (hazardous) regime of Bondi accretion.
..
Also note that the evaporation rate grows with M faster than the accretion rate, which implies that the black hole cannot accrete indefinitely.
...
The first important result is that the black hole decays instantly (i.e., the decay time is shorter than 10^−10 sec) after being created for 0 < β < 1 and 1.25 ≲ β
...
First, we found that tidal black holes would evaporate (almost) instantly, except for 1 < β ≲ 1.25. (The particular case with β = 1 was studied in Ref. [14].) Two distinct regimes were then taken into consideration inside this range: large initial momentum, and small initial momentum. Numerical data for the regime with large initial momentum are presented in Tables II and III, and show that the black holes with a large value of the initial momentum would cross the Earth in a matter of seconds and come out with velocities much larger than the Earth’s escape velocity. Their mass, after crossing the Earth, is of the order of 10^−22 kg, after which accretion turns off, and the black holes just evaporate. If the black holes are created with a small initial momentum, it is possible that they are trapped inside the Earth. However, Table I shows that the maximum mass decreases for decreasing initial momentum. Therefore, the absolute maximum mass is reached for the maximum initial momentum which is still small enough to allow for trapping. Tables IV and V then show that, for black holes trapped inside the Earth, after a time comparable with the age of the present Universe, the mass is on the order of 10^−14 kg, which is still negligibly small.

R. Casadio, S. Fabi, B. Harms, and O. Micu "Theoretical survey of tidal-charged black holes at the LHC" http://arxiv.org/abs/0911.1884

The reason they have such large growth in the their tables, is they assume an infinite Earth, in which case higher momentum implies higher accretion rate for purely geometrical reasons:
"We stress that the maximum mass was calculated assuming that the black hole would travel through a medium with a density equal to the average density of the Earth all the distance from the point of creation to the point of maximum mass. For black holes created on Earth, the maximum value of the mass ME would indeed be much smaller, since after crossing the Earth, the density drops to zero and so does the accretion rate."

Ref 14 is R. Casadio, S. Fabi and B. Harms, "Possibility of Catastrophic Black Hole Growth in the Warped Brane-World Scenario at the LHC" Phys. Rev. D 80 (2009) 084036. http://arxiv.org/abs/0901.2948

But scaring yourself and other people with badly parsed unevidenced theoretical papers does not give rise to Article III standing against CERN, since they haven't been doing the bad parsing.

[Walter L. Wagner]

R. Casadio, S. Fabi, B. Harms, and O. Micu "Theoretical survey of tidal-charged black holes at the LHC" http://arxiv.org/abs/0911.1884


The "infinite size earth" is actually not a bad approximation, as a gravitationally trapped particle would repeatedly cycle through the earth, with the transit time approaching 100% of its cycle for very slow particles.

There are, of course, numerous other criticisms that can be made. For example, a particle gravitationally bound to the sun would potentially be far more serious, yet that is not treated at all.

The concept that the accretion is non-Bondi has been discussed by myself previously, with varying times to accrete the mass of the earth approaching the times suggested by the article. The truth is, we don't know. This article will be an interesting spring-board for future discussion, which I won't go into here, as others are already working on it, and I'll post their findings as they are made known.

[rpenner]

No. If you had correctly parsed the paper, a CFHM tidally charged black hole fails to grow out of the microgram weight class if it is below escape velocity. That's the content of the last lines of Table I and Table II. And it takes over 1 million billion years to grow to that maximum.

As for the Sun, these black holes can't even manage to maintain their maximum mass in a continuum of Earth density. The Sun is 10,000 Earth-diameters away in vacuum. And if you "worry" about the sun, then you admit to the validity of the cosmic ray argument.

Check and mate, counselor.

[Walter L. Wagner]

Yes. I am well aware of what the article says. Indeed, I have presented similar assertions in these threads that it might well take billions of years for a microblackhole to grow to significant size. Go back and read what I've written. That is because there is no Bondi growth initially, and the growth would be very nearly linear, one nucleon at a time, and that takes a long while to get anywhere near a gram. However, I've seen some estimates that place the time frame more on the order of millenia, rather than billions of years. And that is for a single microblackhole, not millions of them.

But that article is certainly not the last word on the subject. For one, it talks only about a single microblackhole. The time frame is reduced significantly if they are made by the millions. Likewise, the article assumes evaporation, albeit at a slower rate than Hawking's theory. And, it balances evaporation and accretion to come up with their figures. But all it takes is for a slightly slower evaporation rate (or no evaporation) to skew their figures significantly.

As to the sun, yes, if they evaporate at a fast enough rate, they'd never make it to the sun. That's the same argument I used as to why radioactive strangelets that are formed in deep space (from head-on cosmic ray impacts) are harmless (they 'evaporate', or disintegrate, before reaching stellar bodies) and can't be detected, but if created in an environment of copious amounts of low-Z material (such as liquid Helium) and their half-life is sufficiently long (microseconds or longer), they could slow, grow larger and more stable, and form a runaway fusion reaction.

[rpenner]

These are not "assertions" -- these are models based on the assumption that such modeled black holes are even possible. They (like reference 14) pass peer review when professionals in the field (which you are not) can identify the reasoning based on physics with the laid-out assumptions added. They get rebutted in peer-reviewed journals when someone correctly identifies a section of the paper's development of the assumptions as "hand-waving" or incorrect (which you have not done). When you claim "millenia", your estimates are not based on this CFH model of black holes -- indeed since you cite no paper and no calculations, we have no idea which model of black holes you are using or if the calculations are solid. It is a naked assertion in expert territory by a non-expert witness about unverifiable information. For example a massive GR black hole would accomplish that goal, but it would have to be orders of magnitude larger than LHC energies, and therefore is not of Earthly concern.

This article is the first word on CFHM tidally charged black holes with 1 < β ≲ 1.25. It incorporates various parametrized assumptions and then performs detailed calculations attempting to survey the phenomenon which would result from those assumptions. The fact that you want to add more assumptions (like quantum mechanics and/or relativity not holding true near the even horizon of (at least) a tiny black hole in such a way that Hawking radiation is greatly reduced) but don't tell us what that assumption is shows that you are doing anti-LHC apologetics -- working from a desired conclusion to the assumptions that would support that conclusion -- rather than science. If you would but tell us what this mystery model is, then we could abandon this sterile back-and-forth over your unscientific fears and made progress on determining on whether your idea is right or wrong.

For example the general claim that quantum mechanics and/or relativity are wrong might be true, but since they can be wrong in a truly infinite number of ways then at a minimum one needs to classify how they might be wrong, parametrize that model, and compare that parametrized model to evidence. I am aware of such papers on the subject of Lorentz invariance (SR) and CM Will's review of GR, with the upshot that relativity is indistinguishable from being correct. Somewhat less current is a paper by J. Ellis, J. S. Hagelin, D. V. Nanopoulos and M. Srednicki, which explores parametrization of models of quantum mechanics violation (once again, no evidence found).

So, once again, science begins with a model or parametrized model, the implications of that model are worked out, and then compared with experiment and observation. That's how Newton did it (didn't publish when astronomers claimed the moon was the wrong distance for his theory of Universal Gravitation to work -- did publish after astronomers revised their estimates), and that's how we do it today.

[rpenner]

Well, while we are waiting...
On the morning of the trial, Walter's lawyer moved to join with his wife's lawyer's motion for a continuance, which was granted -- trial now scheduled for Feb 8, 2010.

Prosecution is due to respond to the latest motion to dismiss (and possibly the request to supress evidence??) on Dec 29, 2009.

And in San Francisco Federal Appeals Court .... .... .... nothing happened.

And just outside Geneva, Switzerland, we are about two weeks from 0.45 TeV collisions.
http://topics.blogs.nytimes.com/2009/11/19/large-hadron-collider-to-restart/

[Walter L. Wagner]

Well, while we are waiting...
On the morning of the trial, Walter's lawyer moved to join with his wife's lawyer's motion for a continuance, which was granted -- trial now scheduled for Feb 8, 2010.

Prosecution is due to respond to the latest motion to dismiss (and possibly the request to supress evidence??) on Dec 29, 2009.

Since rpenner has apparently directed this away from the law involving the LHC, and into a particular case involving Mrs. Wagner (and myself), I will digress briefly for those not previously apprised:

The charge was made by a Liar (one Kenneth Francik, previously prosecuted by the Los Angeles prosecuting attorney for being a liar) that Mrs. Wagner had signed, on January 1, 2004, a corporate document involving money using a corporate title (secretary/treasurer) while no longer such officer, having been replaced some six months earlier in that capacity by one Annette Emerson. She was originally charged with identity theft (since dismissed) and "attempted theft", in that I subsequently attached that document to a civil suit I filed for monies owed to me, as an Exhibit in support of my civil allegations. That civil suit is still pending, with no final determination by the court as to whether those monies are owed to me (they are) or not.

At the hearing a few days ago, the "trial date" was continued until February, 2010 so as to first allow the hearing on the current motion to dismiss. The prosecuting attorney was given a cut-off deadline by the court of December 29, 2009 to put up or shut up. His is not an easy task.

The public record (of Nevada, wherein the corporation involved was incorporated) shows Mrs. Wagner as an original incorporator, Director and officer of that corporation. It further shows that she was not removed as an officer until a February, 2004 filing, being removed both as a Director and as the Treasurer, but being retained as the Secretary. It shows that her position as the Treasurer went to one Mr. Perkins, and no additional director replaced her directorship position.

Subsequently, Ms. Emerson, the party the Liar claimed replaced Mrs. Wagner as the corporate officer in August, 2003, filed her first document with Nevada in March, 2004 in which she did not seek to be named as an officer, but instead sought to be named as a "Resident Agent" (the party who can be served with legal process on behalf of a corporation). Thereafter, in June, 2004 Ms. Emerson filed her second document with Nevada, replacing Mr. Perkins with herself as the Treasurer, but leaving the other officer positions intact (including Mrs. Wagner's position as Secretary). Finally, in September, 2004, Ms. Emerson filed a third document with Nevada in which she replaced Mrs. Wagner with herself as the Secretary.

That is what the public record shows, which directly contradicts the assertions by the Liar. Likewise, the private record shows that corporation's attorney writing to Mrs. Wagner in May, 2004 advising her as to her then status as a corporate officer being that of corporate secretary.

The task for the prosecuting attorney is now to convince the court that Mrs. Wagner, out of the some 6 billion people on Earth who are entitled to rely upon the public record, could not herself rely on the public record in determining whether to sign a document as a corporate officer, or otherwise act in a capacity as a corporate officer, when she was aware of both the public record, and the corporation's attorney's assertions to her. And, he must convince the court that she had some form of criminal intent in signing a document for monies that were legitimately owed while signing as a corporate officer, which officer she was in fact, which she was on the public record, and which she was in the minds of her fellow corporate officers.

I suggest that the honorable course of action (if there is any honor left on their part) is to simply acknowledge that they were lied to, rather than to continue down their course of trying to prove that Mrs. Wagner knowingly signed a document knowing she was not an officer, when everything else (public record, attorneys, corporate officers) told her she was that officer.

But people of rpenner's ilk would like to continue to deceive the public, both about this and about the legitimate issues involving the LHC risk assessment currently ongoing at a management level.

[prometheus]

But people of rpenner's ilk would like to continue to deceive the public, both about this and about the legitimate issues involving the LHC risk assessment currently ongoing at a management level.

I would like to register my outrage at this. Coming from the person who refers to themselves as a nuclear physicist when it reality they are nothing of the sort grates quite a lot with me.

[rpenner]

09-24-08 The position that CERN is taking through the US government attorney is .... 09-24-08 I'm no lawyer, but wouldn't that be some sort of huge ethics violation, conflict of interest and could get the attorney both fired and disbarred if it were true? But, of course, the basis for this charge is nowhere to be found. Not everyone who disagrees with you is working for CERN. 10-29-08 Circa October 20, [Wagner] was busy on a cluster of apparently closely networked blogs where the subject was Wagner's representation of his own credentials as given to this court and elsewhere. The response has not been very positive. (http://stonekettlestation.blogspot.com/2008/10/walter-l-wagner-pitifully-insane.html) 10-29-08 Wagner has made strong claims concerning his credentials. Yet, after having been given dozens of opportunities (even in court and these very forums) to back up those claims by presenting them, he has every single time, without fail, ignored those requests and side-stepped them entirely.
...
The federal government has expended a large sum for the construction of the LHC over the course of more than a decade.The amount of money spent by the federal government is approximately DOUBLE the amount spent by each of the other countries involved in the construction project [10% versus 5%], and constitutes 100% of the Dollar commitment to the project [the other commitments were in Euros]. This long-term expenditure commitment dwarfs the expenditures of those cases in which it was found that federal involvement in a project did not constitute a major federal action. (caps in original)

02-10-09 Section VIII: Wagner argues long-windedly. (Shoot me, shoot me now.)
1. Wagner says $531 million is a lot of money. He reuses his unsupported "double" assertation. He reuses his "Dollarz iz teh onleez moneez" argument. And he says that $531 million is quantitatively different than the amounts of funds in the case law cases.
02-12-09 Anyone who is interested in reading the complete appellate brief that was filed, to see how it compares with the "analysis" by rpenner, may PM me and provide me with an email address, I will email it to them as an attachment. It's only 25 pages of a Word document. 02-13-09 Let the reader decide, eh?
...
The whole issue of "average percentage per country" is a bad argument to make, and as a biologist, Wagner should know that "average plant size" is not a figure which helps you understand how a forest looks.

03-02-09 Wagner seems to be claiming that it would be possible to do a diligent appeal reply in just 20-40 hours. [Or is he boasting about how little time he spends on legal matters? That would be apples (non-lawyer) and oranges (distinguished appellate lawyer representing multiple government departments).]

....

Wagner brings the Nobel Laureate amici into this, despite the fact that they haven't filed yet in the appeal and their filings haven't been cited by specific document number. He makes a classic appeal to personal incredulity and calls them religious nuts. And tries to leverage that bit of illogic into an assertion that the US government should be ordered to "discontinue any further funding of defendant CERN's operation" during the appeal. 03-03-09 Anyone wanna buy some of rpenner's snakeoil?

04-09-09 The arrest warrant was issued based on perjured testimony of a disgruntled company shareholder.
...
Of course, you won't get these facts from rpenner, who appears to have an axe to grind.

To save rpenner the trouble, I'll likely post the response to the federal brief when it is filed. 04-09-09 All I'm doing is reading the public records and you don't dispute my reading of those minutes.
...
I put the propsition to you that your problem is with the court records and not with me. 04-10-09 Now tell us, rpenner, how that case relates to the LHC and the Law thread you initiated? Isn't this just an effort on your part for an ad hominem attack? 04-10-09 It goes to credibility and estimation of competence.
...
I have long considered the fund-raising on LHC Defense to be a claim of competence. I have seen one posted claim that they donated $2000, which is an extraordinary demonstration of confidence in the competence of the Sancho/Wagner legal team.
...
Because the question of "are LHC Defense contributers and Luis Sancho well-served by Wagner's expertise?" is raised. 05-01-09 [Wagner] argued that the destruction of the Earth for a never-before done physics experiment is always 50%. 05-04-09 We [an undefined group of unassociated people which I assume is in the majority despite the lack of collaboration] asked Wagner to discuss the physics behind his belief in the possible destruction of Earth. But he refused.
We questioned the wisdom of some of the legal actions taken by Wagner in his quest to shutdown LHC, particularly since he also attempted to shut down the RHIC. But he persisted.
We ridiculed the logic of approaching an appeal with arguments predicated on guesswork and nonsensical assertions. But he got angry.
We suggested that the media would agree with us. 10-26-09 The oral evidence that the prosecutor would like to introduce would be the oral statements of a known Liar and felon who has asserted that 'Emerson' became the Secretary in August 2003, and that therefore a document signed by Mrs. Wagner in her capacity as a corporate Secretary on January 1, 2004 were not valid, and that my use of that document as an Exhibit attached to the complaint in support of my civil suit was an "attempted theft" on my part for using documents I supposedly knew were not valid.
...
Those facts, incidentally, have been known to the prosecutor for some 18 months, but he has chosen to maintain that prosecution for political purposes (likely to advance the agenda of his long-time friend, the Liar's personal attorney).

I mention this because we have a similar fraud with the LHC management (CERN), which now asserts that there are no safety concerns. This is not true.
11-21-09 Since rpenner has apparently directed this away from the law involving the LHC You seem perfectly willing to chat about it, and I am not the only one who gets curious on the topic. I think it is perfectly valid background on the source of unevidenced claims. When you make sterile assertions that something may happen, or a numerical claim not backed by calculation, your track record is germane. If you had discussed a physics argument or if (for example) Roessler had shown his calculations, discussing the source of the claims would be largely inappropriate. The charge was made by a Liar (one Kenneth Francik, previously prosecuted by the Los Angeles prosecuting attorney for being a liar) The only Ken Francik of Los Angeles that Google is familiar with is a retired (circa 2000) LAPD Dectective and instructor. You weren't 100% clear. Was he procecuted? When was it? Did it go to trial? Was there a verdict? What source do you have? And can you show that this Ken Francik is the same as your Ken Francik. Is your Ken Francik the same as my Det. Ken Francik. In the past I have falsely accused you of having an impressive publication record, when in fact it was a different W. Wagner, so I don't want to do this again. That is what the public record shows, which directly contradicts the assertions by the Liar. Well, then they both can't be telling the truth. But as a purported officer of an organization which has all real assets in Hawaii, why should Mrs. Wagner depend on records in far away Nevada? Wouldn't local records like emails and paychecks be capable, in principle, of demonstrating that the Nevada records were fundamentally unreliable? For example, hypothetically, if the Secretary is told that she is fired and gets no (or reduced) paychecks, would that not indicate to even "a moron in a hurry" that that Secretary is no longer an officer of the company? Tch. But you are under NO OBLIGATION TO RESPOND to these hypotheticals, lest you murder your defense lawyer's case. I'm just saying that I cannot take your unevidenced side on this case as 100% reliable and am willing to exercise some skepticism. The task for the prosecuting attorney is now to ... ... to do what is best in the pursuit of justice. Dismissal is a win if it is merited. Plea bargins are a win if they are merited. Conviction at trial is a win if it is merited. But because you are understably biased against the notion that you have done anything wrong, you attribute malice to the prosecution and limit the prosecution's hypothetical goals by your own failures of imagination. In an adversarial situation, like a courtroom or a game of chess, such failures of imagination can be major defects. But people of rpenner's ilk would like to continue to deceive the public, both about this and about the legitimate issues involving the LHC risk assessment currently ongoing at a management level. I have no way of confirming that your claims against anyone you call a liar, a deciever or prejudiced individual is so. I suspect that these claims only mean that they have spend time talking with you and disagree with you on matters of fact or opinion.

[rpenner]

First, the opening brief asserts (at 10) that plaintiffs Luis Sancho and Walter L. Wagner submitted affidavits supporting the complaint in the capacity of persons who hold the title of “Dr.” In fact, those affidavits demonstrate that neither plaintiff holds a Ph.D, an M.D., or a similar doctoral degree in any scientific or science-related field. Rather, Sancho’s affidavit states that he obtained an “undergraduate degree” in an unspecified field, “followed with my post-graduate studies,” also in an unspecified field. SER 17 (¶ 1). Wagner’s affidavit states that he obtained a “graduate degree in 1978 . . . in law.” SER 12 (¶ 1).
The court then confirmed that Wagner is not licensed to practice law in any jurisdiction: [[The court was no doubt aware that, prior to the hearing, Wagner had stated, in an affidavit filed with the complaint, that he obtained a law degree in 1978. See supra, p. 8.]] THE COURT: Are you admitted to the bar anywhere, Mr. Wagner?
MR. WAGNER: No, Your Honor. SER 96.
Various rules that govern litigation in the federal courts amply illustrate the principle that, if pro se plaintiff A wishes to join in legal papers filed by pro se plaintiff B, then A must sign those papers himself and cannot rely on B’s signature as a proxy for his own. [[See Fed. R. Civ. P. 11(a) (“Every pleading, written motion, and other paper must be signed . . . by a party personally if the party is unrepresented.”); Fed. R. App. P. 3(c) (“A pro se notice of appeal is considered filed on behalf of the signer. . . .”); Fed. R. App. P. 32(d) (“Every brief . . . filed with the court must be signed by the party filing the paper. . . .”). That Sancho is not pursuing an appeal is entirely consistent with these rules. Otherwise, Sancho would be giving tacit approval to Wagner’s (continued) improper attempt to act as his lawyer.]]
Contrary to Mr. Arbab's false assertion that I am not a lawyer, and therefore cannot make pronouncements on whether he has a light caseload or not, l completed a standard 3-year Socractic [Sic] law curriculum in the 1970s, and briefly practiced as an attorney before embarking on a career in nuclear physics in an administrative capacity.

I would like to register my outrage at this. Coming from the person who refers to themselves as a nuclear physicist when it reality they are nothing of the sort grates quite a lot with me. I believe the evidence shows you are not alone in that respect.

[Walter L. Wagner]

It appears that rpenner enjoys citing selectively from public record. One wonders why he enjoys citing extensively from that case involving Mrs. Wagner, but does not cite the public documents that are in that case file that are the Nevada documents. For rpenner's information, it is irrelevant what non-public documents might say -- if you want to be recognized as a corporate officer you need to have yourself registered as such on the public record - that is a legal requirement for a corporation. Certainly one can argue a time-delay, possibly, even a few months, in not getting your documents timely filed with the State even though an officer. The situation here is entirely different. The time-delay is a full year (one full cycle, since the filing requirement is annual), plus the prior documents filed by Emerson clearly show she did not believe she was a corporate Secretary when she filed them replacing Mrs. Wagner, but rather initially a corporate Resident Agent using the proper Nevada form, secondly a corporate Treasurer using the proper Nevada form, and not until one year later, using the Nevada form, replacing Mrs. Wagner as a Secretary. So it is curious why rpenner focuses on irrelevant assertions instead of on legal requirements on a case that is irrelevant to the LHC case. I suspect that most legal scholars recognize that he is trying to sway an audience by irrelevant material - a method otherwise known as an ad hominem attack, and that others are outraged at that tactic.

[prometheus]

So it is curious why rpenner focuses on irrelevant assertions instead of on legal requirements on a case that is irrelevant to the LHC case. I suspect that most legal scholars recognize that he is trying to sway an audience by irrelevant material - a method otherwise known as an ad hominem attack, and that others are outraged at that tactic.

Not that I believe rpenner to be guilty of this, but citing irrelevant evidence is not ad hominem, it is false attribution (http://en.wikipedia.org/wiki/False_attribution). Another example of Mr. Wagner claiming knowledge that he doesn't have?

[Walter L. Wagner]

Material irrelevant to consideration of the matter at hand, but used in an effort to make the person appear to be other than he is, is 'ad hominem'. It is also 'false attribution'.

[prometheus]

Material irrelevant to consideration of the matter at hand, but used in an effort to make the person appear to be other than he is, is 'ad hominem'. It is also 'false attribution'.

It's still twisting the facts to fit your agenda.

Let's have some definitive answers to these questions Walter - Are you a nuclear physicist? Are you a lawyer?

[rpenner]

BTW, I was up very late last night writing the two posts above. "A moron in a hurry" is not meant to cast aspersions (especially upon Mrs. Wagner) but alludes to an actual legal standard in trademark law. A judge, in what may be valid case law in England and Canada (still not a lawyer, remember) and which seems to capture the sentiment of many courts, wrote that there can be no claim of confusingly similar trademarks if even "a moron in a hurry" could tell that A was not the same or backed by B. The phrasing was piquant and appropriate to my hypothetical which in no way reflects any information I have on what actually happened.

http://en.wikipedia.org/wiki/A_moron_in_a_hurry

The reason I don't have the documents in the case folder is that those documents are in a Hawaiian courthouse, not on the court's public website.

And the only person whose opinion I am trying to change is yours, Wagner. I would like to get you to engage on the physics, math and evidence. From just the immediately above quotes, a host of questions arise. Your continued silence on these issues leave me free to hypothesize and build models, and leave me completely clueless as to how you can think that you have made a positive showing.

Can you answer any of the below simple questions and fair follow-ups in a useful, reliable and verifiable manner? Ideally, I would like to see them all answered.

* Is CERN using a US Government attorney to speak for them in court?
* Did you raise the above potentially defamatory claim?
* Have you retracted it?

* Do you, as evidenced by your affidavits, plan to certify yourself as an expert witness in the arenas of high-energy physics and goings-ons at particle accelerators?
* If so, how do you plan to do this without a verifiable and reliable CV with peer-reviewed publications and textbooks in the fields listed on the record?
* If not, don't the Federal Rules of Evidence demand that your accounts of events you did not personally witness be discarded?

* Was it a simple mistake or a deliberate choice to use the phrase "approximately DOUBLE the amount spent by each of the other countries" when the facts only support "approximately DOUBLE the mean (simple average) amount spent by each of member states of CERN" ?
* Isn't it stupid and insane to assert that Dollars are the only transactions the US Government cares about? If not, can I avoid taxes by having the multinational I work for pay me in Euros?
* Even if it were true that the largest percentage of funds came from the US, why would that matter if the percentage was still on the order of 10%? Does 10% of the voting public ever get to dictate to the 90% of the voting public? If the US role is so crucial, then why does the text of the agreements say the US has no voting role?
* Are there distributions where the mean is less useful description of the distribution than the median?
* With only on the order of 20 member states in CERN, is it appropriate to use statistical summaries to characterize them, given their wide variety in land area, population and GNP?

* Did you, as other claimed, receive LHC Defense contributions in excess of $2000?
* How far along are you on getting your long-promised tax-free certification?
* Won't such tax-free certification require your books to be transparent?

* Did you not make the case on television (edited though it may have been) that the chance of any outcome of a never-before done physics experiment is always 50%? If not, will you present us with an actual LHC risk calculation?
* Regardless, are you aware of the axiom of probability theory that the sum of probabilities of outcomes of an experiment totals to one?

* Are you a lawyer? If so, why did you tell the judge that you weren't admitted to the bar anywhere?
* Would you please show us your nuclear physics publication record?

[Walter L. Wagner]

BTW, I was up very late last night writing the two posts above. "A moron in a hurry" is not meant to cast aspersions (especially upon Mrs. Wagner) but alludes to an actual legal standard in trademark law. A judge, in what may be valid case law in England and Canada (still not a lawyer, remember) and which seems to capture the sentiment of many courts, wrote that there can be no claim of confusingly similar trademarks if even "a moron in a hurry" could tell that A was not the same or backed by B. The phrasing was piquant and appropriate to my hypothetical which in no way reflects any information I have on what actually happened.

http://en.wikipedia.org/wiki/A_moron_in_a_hurry

The reason I don't have the documents in the case folder is that those documents are in a Hawaiian courthouse, not on the court's public website.

The reason they are called "public record" is because they are available to the public. If you don't want to contact the clerk of the court to obtain copies from the court file, it is also possible to contact Nevada directly to look them up. They have them on permanent file, which is where the ones in the Hawaii court file came from - copies made from Nevada and then filed in the Hawaii court file when it was claimed the facts were contrary to the records.

As to your subsequent questions, they are irrelevant or already answered previously.

The only reason I respond to this is because you keep attempting to cast aspersions where none should be cast; particularly after I provided you with reference to what the public record says. If you can't be bothered with checking the public record, I can't be bothered with your other delusions.

[rpenner]

Can you answer any of the below simple questions and fair follow-ups in a useful, reliable and verifiable manner?

Ah, so the answer is no, and you do not dispute that they are simple questions and fair follow-ups. Interviewing you is so... precious.

[Walter L. Wagner]

Dear Mr. rpenner:

I am not in the habit of casting pearls before swine.

Before I would consider even beginning to answer your questions, I would expect a full apology from you to Mrs. Wagner. But I suspect that won't be forthcoming in the near future.

Sincerely,

Walter L. Wagner

[rpenner]

Before I would consider even beginning to answer your questions, I would expect a full apology from you to Mrs. Wagner. Dear Mrs. Wagner,

I'm very sorry that you going through such troubling times and I have done my best to portray your current legal situation as neutrally and sedately as possible from the Hawaiian news reports and online courtroom minutes, even though I, as does the judge in the current criminal trial, suspect that much of it is based on getting bad advice. That is, as I have attempted to distinguish for your husband, a personal opinion of likelihood and not actually based on verifiable facts at my fingertips. But it has long seemed to me that I have no reason or cause to hurl anything at you, who remain a complete stranger to me. That was never my intention, and I'm sorry if someone may have told you different.

Unfortunately it is not my place to apologize for the anguish names like Francik, LHC Defense, Morton, Nakamura and WBGI may now bring you. I am not the author of the woes these names represent for your family. To the stated goal of neutrality and sedateness, I have tried not to add to your woes by often using your given name or Walter's home address -- even when it is according to court papers cohabited by both Walter and the often-invisible Luis Sancho. If you feel slighted by my indirect references during coverage of these past months to you as Walter's wife, I could readily adopt whatever other phraseology you would prefer, but none of calling you by name, or initial or merely as "co-defendant" would seem to be less hurtful. I would not wish your woes on anyone and I hope that you find for yourself a happy outcome.

-rpenner

P.S. I regard the above demand as fundamentally unwise, and insofar as between us we have no mutually trusted source of authentication, I will not be able to verify any communication as authentic.

[rpenner]

Fourth-generation fear-mongering by many of the same players as before.

http://www.concerned-international.com/files/UN%20Communication%20LHC%20CERN%20conCERNed%20inte rnational.pdf

Still not making any headway on the physics, but they have improved their sterile rhetoric a bit, and this time they file in English.

This time they file based on:
International Covenant on Civil and Political Rights http://www1.umn.edu/humanrts/instree/b3ccpr.htm (Widely in effect, http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-4&chapter=4&lang=en) and the newish Optional Protocol to the International Covenant on Civil and Political Rights, http://www1.umn.edu/humanrts/instree/b4ccprp1.htm (in effect, but ratified in less places http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-5&chapter=4&lang=en )

On page six, they finally get the name of CERN right! As established by international treaty in 1954, it is the "European Organization for Nuclear Research" http://documents.cern.ch//archive/electronic/other/legal/articles/LSL00000014.pdf
They do confuse the date of signing and the date that the document went into force, but for anti-LHC forces, one must pay attention to the small steps.

[T]he LHC entails manifold dangers to the authors’ lives and to the integrity of the environment. The usage of this machine therefore violates the authors’ rights assured by the International Covenant on Civil and Political Rights (UN-Doc. 2200/A [XXI]) and the Optional Protocol to the International Covenant on Civil and Political Rights, especially guaranteed in articles 2 and 6 of the International Covenant on Civil and Political Rights and the integrity of surrounding implicitly guaranteed in article 17 of the International Covenant on Civil and Political Rights. OK, once again they play fast and lose with the names of things. So what do these articles say?

1. Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

2. Where not already provided for by existing legislative or other measures, each State Party to the present Covenant undertakes to take the necessary steps, in accordance with its constitutional processes and with the provisions of the present Covenant, to adopt such legislative or other measures as may be necessary to give effect to the rights recognized in the present Covenant.

3. Each State Party to the present Covenant undertakes:
(a ) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity;
(b ) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy;
(c ) To ensure that the competent authorities shall enforce such remedies when granted.
Shorter: Signers shall pass laws to protect against bad discrimination is bad. It should be at least possible to seek relief against claims of discrimination.
No case here -- the law that created CERN predates the law that created Human Rights. As of today, no anti-CERN lunatic has suggested how fundamental forces of the universe might deprive people of right in a way that discriminates against people's gender.
1. Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.

2. In countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime and not contrary to the provisions of the present Covenant and to the Convention on the Prevention and Punishment of the Crime of Genocide. This penalty can only be carried out pursuant to a final judgement rendered by a competent court.

3. When deprivation of life constitutes the crime of genocide, it is understood that nothing in this article shall authorize any State Party to the present Covenant to derogate in any way from any obligation assumed under the provisions of the Convention on the Prevention and Punishment of the Crime of Genocide.

4. Anyone sentenced to death shall have the right to seek pardon or commutation of the sentence. Amnesty, pardon or commutation of the sentence of death may be granted in all cases.

5. Sentence of death shall not be imposed for crimes committed by persons below eighteen years of age and shall not be carried out on pregnant women.

6. Nothing in this article shall be invoked to delay or to prevent the abolition of capital punishment by any State Party to the present Covenant.
Most of this has nothing to do with CERN since CERN is not an instrument of capital punishment. The first paragraph does not apply, because no-one at CERN thinks that the LHC will deprive people of life.

Nothing in this article concerns anti-LHC forces completely unfounded and unjustified fears based on their failure to understand physics. Now if they did physics and could prove that the LHC would (not might in a hypothetical universe where up is down and laws of nature are fiercely malicious) kill people, then they would have a trivial case.

Instead, they use tobacco-industry tactics of trying to insert doubt where there is none.
1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.

2. Everyone has the right to the protection of the law against such interference or attacks.
It's not unlawful to call an idiot an idiot or to call a liar a liar, particularly when they make their status public.

Are the anti-CERN forces that incompetent?

[AlphaNumeric]

The presentation of the work instantly smacks of 'knocked up some an idiot using Word'. Surely having read so many arxiv works at least one of the LHCConcern crowd would have learnt how to write a paper using LaTeX by now?!

On only a superficial reading numerous mistakes are noticeable and not technical details, basic things.

On page 11 they say "Hadrons are heavier particles than protons or neutrons, components of atoms.". Hadrons are the class of particles made up of quarks bound by the strong force. Protons and neutrons are hadrons. Nuclei are not, but they are made of hadrons obviously. Many hadrons are lighter and smaller than protons and neutrons, plenty of mesons are. Mesons are hadrons made of quark-antiquark pairings. A pretty basic thing to get wrong.

On page 13 "However, when gravity is extremely strong and distances are extremely small (conditions that will be produced at the LHC)". Gravity isn't 'strong' until the Planck Scale, that's the definition of the Planck Scale! Extra dimensions could exist on much larger scales but that is not synonymous with gravity being strong. The LHC might see extra dimensions but it won't get close to the Planck scale.

I like how they say things like "Dr. Paul Werbos is the author of several peer-reviewed physics papers.". Doesn't say what those papers were in or how much of an impact they made in their area or what experience the author has of relevant physics. It turns out very little.

But then I suppose that kind of 'lie by omission' is precisely the kind of thing Walter is used to, eh Walter? The post of yours which Prom quotes here (http://www.sciforums.com/showpost.php?p=2420011&postcount=182) is oozing with hypocrisy. All you do is misrepresent yourself. You aren't a nuclear physicist, you aren't a Doctor, you have no education in the relevant theories and judging by things you've said on the LHC Concern forum and on The Daily Show you're profoundly ignorant of everything from basic probability through to relevant quantum field theory. The one who misrepresents himself is you.

[rpenner]

Sorry -- I was slow in commenting in my first post. Timing of this seems aligned with WLW's return to this (widely read) thread. So it seems that the anonymous cowards who posted this are just acting as press flacks and not scientists or lawyers.

[rpenner]

Article 5 of the very same law provides an absolute defense for CERN.

By the demands of the lawsuit/press release, the morons want to turn Switerzland, France, Germany and CERN into their slaves in a dictatorship of the stupid and fearful. This the court cannot do.

All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.
Nothing in the present Covenant may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms recognized herein or at their limitation to a greater extent than is provided for in the present Covenant.
1. No one shall be held in slavery; slavery and the slave-trade in all their forms shall be prohibited.
2. No one shall be held in servitude.
3. (a) No one shall be required to perform forced or compulsory labour;
[Remainder omitted]
Nothing in the present Covenant shall be interpreted as impairing the inherent right of all peoples to enjoy and utilize fully and freely their natural wealth and resources.

[Walter L. Wagner]

An interesting article on the subject:

http://www.scienceguardian.com/blog/global-concern-earth-down-tiny-plughole-remains-a-possibility-2.htm

Also, rpenner said:

"I'm very sorry that you going through such troubling times and I have done my best to portray your current legal situation as neutrally and sedately as possible ..."

A neutral presentation would have included the following facts:

1) During August, September, October, November, and December of 2003 and January, 2004, no one filed any documents with Nevada to change officers or directors of that corporation (WBGI);

2) During February, 2004 a document was filed with Nevada removing Mrs. Wagner as a Director and as the Treasurer, but retaining her as the Secretary of WBGI;

3) During March, 2004 Ms. Emerson and I jointly filed a document removing the existing 'Resident Agent' and replacing that position with Ms. Emerson;

4) During April and May, 2004 no documents were filed with Nevada for WBGI;

5) During June, 2004 Ms. Emerson filed a document with Nevada replacing the existing Treasurer with herself, and leaving the existing Director and other officers intact;

6) During July and August, 2004 no documents were filed with Nevada for WBGI;

7) On September 2, 2004 Ms. Emerson submitted for filing a document with Nevada replacing Mrs. Wagner's position as Secretary with herself.

Those facts directly contradict Francik's assertion to a Grand Jury, in which he swore up and down, hope to die, under penalty of perjury, that Mrs. Wagner was replaced as the Secretary by Ms. Emerson in August, 2003, and which grand jury returned an "indictment" against her based solely on his testimony and without any written documents presented to them, such as copies of the public record or private corporate record.

Not on the public record of Nevada, but contained in the Hawaii case file, are additional WBGI records which show:

a) On September 2, 2004 Francik, along with Emerson and others, voted to remove Mrs. Wagner as the Secretary and replace her with Emerson, as per the written minutes of that meeting, and Ms. Emerson was directed to file an appropriate public record document with Nevada reflecting that vote (which she apparently did, as per 7) above;

b) In August, and earlier in May, 2004 Francik requested orally and in writing for Mrs. Wagner to sign two separate corporate documents in her capacity as a corporate officer;

c) In May, 2004 Francik was hand-delivered (in my presence) a letter from the WBGI attorney advising him as to the identities of the corporate officers and directors, which attached copies of the public Nevada record referenced above (to the date of March, 2004) to that hand-delivered letter, in which Mrs. Wagner was identified as a WBGI officer.

Clearly, because Mrs. Wagner has been victimized by Francik's felony, she is troubled by his name. Likewise, she is troubled by persons who serve as his lapdog who do nothing to present the facts, but instead seek to hide the facts and paint a picture along the lines of the picture Francik painted of her to the Grand Jury.

[AlphaNumeric]

she is troubled by his name. Likewise, she is troubled by persons who serve as his lapdog who do nothing to present the facts, but instead seek to hide the facts
But she decided to marry you. :confused:

[rpenner]

http://press.web.cern.ch/press/PressReleases/Releases2009/PR18.09E.html

1.18 TeV and climbing. Fastest protons in a man-made accelerator.

[rpenner]

I'll be watching this link: http://www.ca9.uscourts.gov/calendar/view_hearing_notices.php
For 08-17389 Luis Sancho, et al v. US Department of Energy, et al

The Mid-January 2010 schedule has been posted. No new news.

[rpenner]

Snarky?
http://blog.foreignpolicy.com/posts/2009/12/17/can_we_say_that_the_lhc_isnt_going_to_destroy_the_ world_yet

[AlphaNumeric]

I saw a talk by John Ellis about the first LHC data earlier in the week. He's the guy who was on The Daily Show with Walter and who said 1.5K is 'fuckin' cold'. Big grey beard and a messy office.

He joked "Here's the first analysis of the collisions..... and no black holes!". Everyone in the room laughed, a fair few probably thinking of Walter since the clip of The Daily Show got emailed around the department when it was on.

[rpenner]

John Ellis is also one of the authors of one of the few papers I found online attempting to model violations of quantum physics. (Y'know -- that unevidenced thing which has to be added to similarly unevidenced GR violations to begin the work to model long-lived TeV-scale black holes which no physics based on empirical observations suggests could be dangerous.) I get the idea that some people once thought neutral kaons were such violators, but I guess the consensus might be that flavor and mass eigenstates aren't the same, which would be confirmed by neutrino experiments.

[rpenner]

February 2010 dates have been set in the appellate court and still no sign of Wagner's appeal going forward. (Wagner currently has a Feb. 8 data in Hawaiian State Court, so right now it doesn't look like he'll have to be in two courtrooms at the same time.) But even if he wins, the most he asked for was a trip back to District Court.

No sign of anyone with relevant expertise that would survive voir dire chiming in on Wagner's side. No sign of a physics argument. No sign of an evidence-based argument.

Finally, LHC is in standby, ready to resume in Feb. 2010.

http://press.web.cern.ch/press/PressReleases/Releases2009/PR20.09E.html

[Walter L. Wagner]

I saw a talk by John Ellis about the first LHC data earlier in the week. He's the guy who was on The Daily Show with Walter and who said 1.5K is 'fuckin' cold'. Big grey beard and a messy office.

He joked "Here's the first analysis of the collisions..... and no black holes!". Everyone in the room laughed, a fair few probably thinking of Walter since the clip of The Daily Show got emailed around the department when it was on.

That is a rather silly comment. The LHC was operating at about 110% of the Tevatron energy. Most of the theories that suggest a possibility of mbhs from proton-proton collisions occur at a minimum of some 350% of the Tevatron, which might not be reached for some 2 years. Most theories of mbh production suggest it would have to be beyond the 700% design maximum. And, the theories of trouble simply show that mbhs can't be detected; only the evaporating ones would be detectable. Of course, one psychological way to face one's justifiable fears is to laugh at them or poke fun at them.

Here's a good link to John Ellis doing just that:

http://cdsweb.cern.ch/record/1229427

One can only hope that their physics is better than their acting.

[AlphaNumeric]

I love how you're trying to come off as the informed voice of reason when you're nothing by a fraudulent hack. It's quite funny.

[Seeking Truth]

Well Wagner since you have completly FAILED to answer or show any physics of your own on the subject (still waiting for those answers btw), it's fair to say his physics is indeed better than yours, and come to think of it so is his acting...

Why wont you answer the questions? why wont you show us the theories that say 350%, why dont u tell us your real credentials and what you are a doctor in???

[Read-Only]

Well Wagner since you have completly FAILED to answer or show any physics of your own on the subject (still waiting for those answers btw), it's fair to say his physics is indeed better than yours, and come to think of it so is his acting...

Why wont you answer the questions? why wont you show us the theories that say 350%, why dont u tell us your real credentials and what you are a doctor in???

Sorry, you're just wasting your efforts - really. He will never answer ANY questions regarding his credentials for one very simple reason - he has NO credentials.;)

He's nothing more than a glory-seeker that likes to see his name in the news, a lot like the couple that crashed the White House dinner. In truth, he's nothing but a waste of an individual AND wastes the government's money (yours and mine) on court actions that can't go anywhere.

[lucio]

Dear all,
I am not a lawyer and I also have some difficulties understanding the american processes, but I would like to understand if the process against LHC is now over or not, and whether it is who "won".
I tried reading this thread, but I didn't understand.
Thanks

[rpenner]

Winning in US court is not final until the US Supreme Court is given the chance to weigh in on every argument or the opposing side gives up. That being said, there are no victories for the Wagner side, but a couple times where the judge said both sides should follow the court rules. Wagner lost at least 1) the claim that certain European documents and laws governed the behavior of the US 2) the claim that the US law covered US behavior in the funding of LHC 3) the demand for an order preventing the US from paying science teams.

Here is how it is supposed to go:

[Team A makes (written) claims and demands]->[Team B makes reply]->[Team A responds to the reply and argues it should still get its demands]->[Hearing of both sides in court]->[Written order of the court granting or denying demands]

Then either side can appeal on any issue and we try again, potentially repeating until the Supreme Court.

March 21, 2008 Sancho and Wagner advance many arguments and claims. But it is not until April 25, 2008 that Sancho and Wagner bother to tell the US Government that it is being sued. On June 24, 2008, the US Government moves to dismiss the case against the US Government based on things like the law does not say what Wagner says it does, and that the facts are not what Wagner says they are, and that suing the US over monies already spent can have no effect on what happens on the French-Swiss border.

On September 2, 2008 a judge held a hearing and orders both sides to follow the rules of the court better.

Separately, on May 28, 2008 Wagner tries to legally tell CERN that they are being sued in US Court, but chooses to hide this from the court until June 30, 2008 when Wagner produces documentation (including an opinion that the service was not legal) and ask the court for a finding of default against CERN. On September 5, 2008, the US Government argues that a finding of default against CERN would not be proper. On September 9, 2008, the Judge thinks that Wagner has skipped a step and requests that Sancho and Wagner address the Hague convention which governs aspects of international lawsuits.
http://www.physforum.com/index.php?showtopic=4830&view=findpost&p=374248
Wagner requests (and gets) a timeout (continuance) to read up on the subject and move from Hawaii to Utah. This slows down Wagner's pursuit of a default judgement against CERN, which I argue is doomed.
October 14, 2008 -- Hearing on default judgment versus CERN
* Wagner's own process server says that the service was illegal
* The Swiss Embassy says the service was illegal
* The US Government says the service was illegal
* Wagner points out that some form of service was physically accomplished, which was not the point at issue and while he seems to have cut-and-pasted an essay on Rule 4(f) and the Hague Convention he cites no cases giving leave for him to ignore them.
This is where we stood as of page one of this thread.

But the court never gets around to addressing the issue since it ruled on the US motion to dismiss first.
http://sciforums.com/showthread.php?p=2029021#post2029021

The court said as a matter of U.S. law Sancho and Wagner had no right to bring this suit against any party. (The only law that might have applied does not apply when the US Government is not at least a 10% funder of the project.) The Court did not address two other arguments made by the US Government (that the claims of being hurt by the LHC were purely "conjectural [and] hypothetical” dreaming and not “concrete and particularized” and that the US does not control what happens outside of the US with monies long since spent.

So says the US District Court.

So when Wagner (some say Sancho and Wagner) appealed this to the US Circuit Court, they were arguing against this dismissal. The US Government called them on a number of points, including reiterating claims made to but not considered by the District court as additional reasons to uphold the decision to throw out the case. (Sancho and Wagner, not being actual lawyers looked surprised by this tactic, though it seems spelled out plainly in the rules of the court.) So again we had the pattern of:

[I should be allowed to continue my case]->[No you shouldn't, here's why]->[Argh! That's not what I want to hear!]->....

The next steps are a hearing and a court order. But right now no hearing is scheduled. It is the duty of the court clerks (who are expected to also be lawyers, and have authority to rule on some motions) of the appellate court to read the papers, research the case and laws cited, determine how much time is needed for a hearing, and to schedule it. Wagner's filings have been a little weird (at times he marks up the papers of others with a pen that does not photocopy well and files that as an exhibit and he advanced the argument that US Dollars are the only funding source that US law cares about, without citation) and he never asked for an expedited appeal, so we have waited since June 29, 2009 for the court to schedule a hearing in regards to the appeal of throwing out Wagner's case.

If Wagner wins, he gets to go back to the District court (who could throw out the case again on as yet unaddressed grounds). So a "Win" in this appeal case just cancels out a previous "Loss."

I am not a lawyer. (IANAL)

I'm pro-LHC, but not affiliated (even indirectly) with any plaintiff, defendant, affidavit submitter, funding source, press agency, law school, etc, and know of no basis where I might be a potential witness, jurist or added party to the covered case. Nor do I have academic or equivalent credentials which would relate to any facet of this case as a first-rank expert witness. (Some physics and math Ph.D. students think I'm well-versed for a layman, but a layman I am.) Nor am I a member of the Union of Collaborating Founders (UCF), a group which some anti-LHC websites describe as a pro-LHC think tank, a depiction which I feel is unfair.

I've been replying to scare stories about the LHC since about March 29, 2006 and got my interest peaked in legal proceedings by being a regular reader on groklaw.net -- which focused largely on one Unix/Linux vendor's suits against the Linux-using world and eventual Chapter 11 bankruptcy. I think I first became aware of Walter L. Wagner with his posts of September 3, 2007, and attempted to engage him in plain physics discussion. Until 2008 television coverage, I have never seen his face or heard his voice. And if there is any organized opposition to him, I have never met with them either.

[lucio]

Thanks rpenner, very kind of you.
Still, it's hard to me to understand what is now the request by Wagner, hasn't he had time to review the LSAG report? At least the Scientific Community had. I read the reply to the LSAG by Sancho, but I can't believe they are still working on those points, that's crazy.
Thanks again

[Walter L. Wagner]

An interesting legal analysis of the case can be found at:
76 Tenn. Law Review 819 (2009)

For those who do not have ready access to a law library, the author (Assistant Professor of Law, University of North Dakota School of Law. B.A.,
University of Texas at Austin, Plan II Honors Program; J.D., Harvard Law School.) also posted it on arXiv at:

http://arxiv.org/ftp/arxiv/papers/0912/0912.5480.pdf

[rpenner]

Often repeated in Professor Eric Johnson's analysis is this sentiment that mischaracterizes science.

For every potential expert witness has a personal stake in the matter—whether it is a desire to maintain a viable career in the sciences, or a fear of falling into an astronomical abyss.

To this end, it clearly mischaracterizes the progressive nature of science and the ascribes unevidenced motives to every single scientist who does not subscribe to the theories of Roessler and Plaga. As Plaga does not subscribe to the theories of Roessler and vice versa, this is clearly a false dichotomy.

As first seen on his website, http://prawfsblawg.blogs.com/prawfsblawg/2008/10/planet-eating-b.html , which in many ways is a preview of this article, we also see Johnson is hung up on confirmation of scientific theory and not the actual role of experimentation in invalidating them.

The lesson of the SSC was clear. To keep projects safe from cancellation in the future, physicists would have to pull together and work to stay one step ahead of political threats—lest particle physics be plunged into darkness.

What, really? I thought Motl was on noone's side but his own. :)

No one would have expected what happened next. In a plot twist worthy of The Twilight Zone, a problem arrived straight out of the fifth dimension.
Literally. I'm pretty sure 4+1 was ruled out experimentally, and only large dimensionalitys of 6..11 were still being considered.

Embarking on that examination, the report conceded that, under the new theory, black holes “will be produced.” Mischaracterizes which theory is being discussed. It's not generic string theory, or a generic theory of extra dimensions, but a class of theories of extra large dimensions tuned to be just barely touched upon by the TeV scale.

Black holes evaporating? According to the classical account of black holes, evaporation is impossible—a black hole ingests everything and allows nothing out.187 This is the same 1916-1974 classical account of black holes which does not allow them to be created at any collider. By changing the theory, you change the object you are talking about in theoretical physics. What follows is a correct summary of Hawking evaporation. (Beauty is now usually called the bottom quark.) He then pooh-poohs it as "never been observed or experimentally confirmed" and throws in a paper by Adam D. Helfer, who appearantly had Penrose as an advisor at Oxford. "But few did take it seriously."

Bearing this in mind, Rössler ran some numbers to calculate how long it would likely take black holes to grow to the point where they would be a threat. According to his calculations, LHC-produced black holes might grow fast enough that the world might end slightly more than five years after the LHC’s first full-energy collisions.228 http://www.wissensnavigator.com/documents/spiritualottoeroessler.pdf
Nothing like a reviewable basis for calculation was presented, however, so there is nothing to support the claim that "Rössler ran some numbers" through anything like a reasonable physical theory. Indeed, his misunderstandings of even 1916-era black holes are those of a man out of his depth.

In point of fact, no one could look less like a mad scientist hell-bent on building a doomsday machine than Mangano. What, really? When was this the criteria?

According to their analysis, the answer depends on how many hidden dimensions there are in the universe.254 How many large hidden dimensions.

Thus, the old argument—that the Earth is still here despite all the cosmic rays, so we must be safe from the LHC—failed in the view of Giddings and Mangano to provide adequate assurances of safety. Only when the new hypothetical embellishment that such black holes have no electric charge is added on top of the other hypotheses. For charged black holes, the Earth and Moon stop them just fine.

One consideration is whether the expert’s asserted theories are testable, falsifiable, and refutable.468 Despite this, Prof. Johnson seems to have a much more comfortable relationship with the idea of "confirming" theories.

The theories of Rössler469 and Plaga470 can only be confirmed through the obliteration of the court, the parties, and the planet. But they fail to rise to the level of scientific theories in most cases, such as the claimed calculation of 50 months without basis.

In discussing the indirect evidence relied upon by Carlos Rubbia and CERN physicists in 1981 for claiming discovery of the W and Z bosons, science historians Lloyd Motz and Jefferson Hane Weaver wrote, “One cannot avoid a feeling of uneasiness about this kind of physics, since so much of it is based on the assumed existence of particles that cannot be observed.”477

Given such a state, it is not clear that any particle-physics testimony should be allowed in the courtroom. The singular and perhaps dubious methodological pedigree of the particle-physics discipline might require its exclusion from the courtroom if it were somehow offered as proof of causation in a personal injury case or to identify the assailant in a murder trial. But Prof. Johnson correctly rejects that position for the current issue. The correct method is obviously is for both sides to educate the judge as was done in the Dover school board case where both sides raised the question of whether ID was science or "junk."

Daubert instructs that another pertinent, though not dispositive consideration is whether the scientific theory at issue has been subjected to peer review and publication.478 Prof. Johnson takes it that the relevant standard should be peer review of any outcome and publication even if not conditioned on positive peer review. The tone seems frankly hysterical in trying to bend over backwards to not heavily favor CERN's experts and particle physicists of good reputation not associated with CERN over Roessler and Plaga.

[Seeking Truth]

I personally did feel an uneasy bias in this paper, but curiously, (unless i missed this), did he not note that not one of the 7000 ppl that dont directly work for cern are concerned enough to feel a paper is required?.

I mean didnt the LSAG report regardless of who made it get approved by every scientific council on earth?

Or are those respected institutions omitted for drama's sake?

Not to dis Prof. Johnson but it seems only logical you would include such approvals for the legal council?

note i may have missed it if he did include remarks for this, i just couldnt find them

[rpenner]

No news in US Federal Appellate Court. 08-17389 has no trial before March 15.
In Hawaii State Court, Criminal Case 3PC08-1-000097 continues.
Jan 19 Court starts to consider Wagner's motion to put a leash on some "inflammatory" and/or "misleading" evidence, State asked to delay trial, more time was asked for.
Jan 22 Court considers the two motions. Wagner's motion denied. State's motion granted. Trial moved to Feb 16
Feb 2 Mrs. Wagner's attorney requests a transcript; perhaps an appeal or request for reconsideration is being written.

[Walter L. Wagner]

The below copied from an email I received:

CERN / LHC recent news: “Science Insider”:February 2, 2010 “Europe’s LHC to Run at Half-Energy, Tightening Race for Higgs The world’s highest energy atom smasher, the Large Hadron Collider (LHC), will run at half its maximum energy through 2011 and likely not at all in 2012. Officials at the European particle physics laboratory, CERN, had previously planned to run the gargantuan accelerator at 70% of maximum energy this year. […]” http://blogs.sciencemag.org/scienceinsider/2010/02/european-atomsm.html Short explanation: This means that the new phase of operation planned to start mid February 2010 with energy increase up to 3.5 TeV per beam (resulting in 7 TeV centre of mass energy) - which would 3.5 times exceed the highest energies of other colliders – is planned to be expanded through 2011. The reasons given are technical concerns and problems. Obviously further adjustment and replacement of elements for higher energies are complex and costly. Critics claim that the LHC should not start operating at all before completion of properly constituted neutral and multidisciplinary safety studies including newest theoretical and empirical research. “Colliding Particles Can Make Black Holes” in: “Science NOW”, 22 January 2010http://sciencenow.sciencemag.org/cgi/content/full/2010/122/1 ”Does that mean the LHC will make black holes? Not necessarily, Choptuik says. The Planck energy is a quintillion times higher than the LHC's maximum. So the only way the LHC might make black holes is if, instead of being three dimensional, space actually has more dimensions that are curled into little loops too small to be detected except in a high-energy particle collision. Predicted by certain theories, those extra dimensions might effectively lower the Planck energy by a huge factor.” Thus, the computer simulation gives another evidence that black holes could be produced at the LHC according to widely respected theories. This newest experiment cannot show that black holes produced at the LHC would be harmless or short lived. Prof. Eric E. Johnson’s recent paper is in continuous discussion: “The law and the Large Hadron Collider: who should have jurisdiction?”By Lena | Published: February 4, 2010 “After court cases seeking to halt the Large Hadron Collider (LHC) were thrown out of Swiss and Hawaiian law courts, one US lawyer is arguing that it and other hypothetically destructive experiments should not expect to be beyond the rule of law.In February’s Physics World, journalist Edwin Cartlidge looks at the argument put forward by lawyer Eric E Johnson in the Tennessee Law Review that courts must assert their jurisdiction over these large experiments — or face rendering the rule of law obsolete.[…]”http://iopblog.org/law-large-hadron-collider-jurisdiction/———– “Physics World”IOP - A website from the Institute of Physics “Law and the end of the world”Feb 2, 2010 “Edwin Cartlidge examines the case of a US lawyer who believes that the courts must step in if required to halt experiments like the Large Hadron Collider”http://physicsworld.com/cws/article/indepth/41564 Pdf. see attachement.

[rpenner]

Yes, Eric E Johnson has a bee in his bonnet about bugaboos, but his position is contradictory. This he should have realized himself once he started manipulating infinity as if it were a number.

US courts cannot require person X to do task Y -- that is tantamount to slavery or indentured servitude. In the absence of law, you cannot require X to do Y before doing Z when Z is something not even controlled by law. Indeed Congress is ordered by the US Constitution to help do Z. (Article I, Section 8, Paragraph 8)

US civil courts decide on the basis of a preponderance of the evidence and criminal courts decide on the basis of reasonable doubt. These are impossible burdens for someone who doesn't know the state of the frontiers of physics to overcome. Neither Wanger, Sancho, nor Roessler is anywhere near that frontier, and the proof is in the lack of maths. Wagner, in his most visible public calculation misapplied Bayesian statistics and admitted his own personal complete ignorance of if the LHC poses a threat or not. Sancho has never presented a calculation. Roessler makes freshman physics mistakes and doesn't show his work.

There is no such thing as a permanent injunction of lawful activity. You might apply for a temporary injunction on the basis of a balance of harms and the likelihood of winning. And since in the absence of being anywhere near the frontier of physics, all the doom saying in the world is physically equivalent to claiming in court that the LHC will produce miniature pink unicorns which will magically cause loss of life.

While Choptuik and Pretorius don't add much evidence, they just restate long-assumed and argued-for results computed numerically on a machine. They reconfirm with automated arithmetic what had been long the status quo of math-educated intuition. Because they did no further work, their work likewise adds no evidence that black holes, even if they formed, would be dangerous. Notably, they don't discuss any quantum effects, fermions, or even cases with finite net angular momentum and/or charge. http://arxiv.org/abs/0908.1780

[prometheus]

You do realise that extra dimensions large enough to enable the LHC to create black holes would have been experimentally accessible for a long time at other colliders don't you?

[quantum_wave]

You do realise that extra dimensions large enough to enable the LHC to create black holes would have been experimentally accessible for a long time at other colliders don't you?
How large do those extra dimensions have to be Prometheus?

[prometheus]

To produce black holes at the LHC I think they have to be of order mm.

[Seeking Truth]

Indeed the plan for the LHC in 2010/11 is to run @ 7 TeV at the centre of mass, further details about the workshop that took place is available below.

The email confirmation:

Last week, the Chamonix workshop once again proved its worth as a place where all the stakeholders in the LHC can come together, take difficult decisions and reach a consensus on important issues for the future of particle physics. The most important decision we reached last week is to run the LHC for 18 to 24 months at a collision energy of 7 TeV (3.5 TeV per beam). After that, we’ll go into a long shutdown in which we’ll do all the necessary work to allow us to reach the LHC’s design collision energy of 14 TeV for the next run. This means that when beams go back into the LHC later this month, we’ll be entering the longest phase of accelerator operation in CERN’s history, scheduled to take us into summer or autumn 2011.

What led us to this conclusion? Firstly, the LHC is unlike any previous CERN machine. Because it is a cryogenic facility, each run is accompanied by lengthy cool-down and warm-up phases. For that reason, CERN’s traditional ‘run through summer and shutdown for winter’ operational model had already been brought into question. Furthermore, we’ve known for some time that work is needed to prepare the LHC for running at energies significantly higher than the 7 TeV collision energy we’ve chosen for the first physics run. The latest data show that while we can run the LHC at 7 TeV without risk to the machine, running it at higher energy would require more work in the tunnel. These facts led us to a simple choice: run for a few months now and programme successive short shutdowns to step up in energy, or run for a long time now and schedule a single long shutdown before allowing 14 TeV (7 TeV per beam).

A long run now is the right decision for the LHC and for the experiments. It gives the machine people the time necessary to prepare carefully for the work that’s needed before allowing 14 TeV. And for the experiments, 18 to 24 months will bring enough data across all the potential discovery areas to firmly establish the LHC as the world’s foremost facility for high-energy particle physics.


Steve Myers

The first results *may* be published at ICHEP2010 in france.

Sorry that i am unable to link the video or other links my post count is still too low.

P.S

Sorry to bug you on this prometheus, but other current colliders were also within the range of black hole creation from the same theories that Mr Wagner has gone to court over with the LHC?.

[prometheus]

Sorry to bug you on this prometheus, but other current colliders were also within the range of black hole creation from the same theories that Mr Wagner has gone to court over with the LHC?.


Possibly. You'll have to ask Walter why they have a bee in their bonnet about the LHC.

[rpenner]

You do realise that extra dimensions large enough to enable the LHC to create black holes would have been experimentally accessible for a long time at other colliders don't you?

Possibly. According to G&M, a single extra-large dimension and no "warping" would have to be ruled out, but a conspiracy of large dimensions could not be ruled out by them.

Assuming a 1 TeV scale, 2 extra dimensions would require R to be characterized by 0.5 mm, in the absence of warping. (eqn 3.8 of http://arxiv.org/abs/0806.3381 )

But for just one extra large dimension and no warping, R is 7-8 AU (1.17 \times 10^{14} \textrm{cm}) which is obviously excluded.

For people that find this paper indecipherable, here are the calculations for
1 extra-large dimension: http://www.google.com/search?q=what+is+%28h*c%2F%282+pi+*1+TeV%29%29+%28 %28h*c%29%2F%2816+pi%5E2+*G%29+%2F+%281+TeV+%2F+c% 5E2%29%5E2%29
2 extra-large dimensions: http://www.google.com/search?q=what+is+%28h*c%2F%282+pi+*1+TeV%29%29+%28 %28h*c%29%2F%2816+pi%5E2+*G%29+%2F+%281+TeV+%2F+c% 5E2%29%5E2%29%5E%281%2F2%29
3 extra-large dimensions: http://www.google.com/search?q=what+is+%28h*c%2F%282+pi+*1+TeV%29%29+%28 %28h*c%29%2F%2816+pi%5E2+*G%29+%2F+%281+TeV+%2F+c% 5E2%29%5E2%29%5E%281%2F3%29

[Seeking Truth]

thanks for the input guys

[rpenner]

Does anyone have word on what's happening in 3PC08-1-000097 in Hawaii today?
A trial was scheduled and there was noise about a motion which would delay said trial.
But neither the document list nor the minutes listy has been updated.
So is the trial further postponed, or is the trial ongoing with the Wagners, or did the Wagners fail to appear? Maybe check back at close of business for the records to be updated.

//Edit:
CONVENED@ 8:12 A.M. ...

[LW's Lawyer]: WAIVE DEFT LINDA'S PRESENCE; CURRENTLY RESIDING IN UTAH.
[WW's Lawyer]: ALSO WAIVE; ALSO IN UTAH.
[LW's Lawyer]: YESTERDAY ASKED TO BE HEARD RE: TRIAL DATE SET FOR 2/16; AWAITING CONFIRMATION FROM [LW] RE: POSITION TO TAKE ON HER BEHALF; BELIEVE SOME MISCOMMUNICATION BECAUSE E-MAILING OLD MEMOS; NOTHING ADD'L TO PRESENT TO COURT TODAY UNDERSTAND THAT [LW] WISHES TO FILE OR RENEW MOTION TO [Disqualify] THIS COURT; BASES OF THAT MOTION IS JUDICIAL COMPLAINT MADE BY EITHER [LW] OR [WW]; BELIEVE [LW] DOES NOT WISH TO WAIVE ANY TIME RE: SPEEDY TRIAL & RULE 48; HOWEVER, ADVISED HER THAT MOTION BE BROUGHT AS WELL AS ADD'L MOTION TO [Dismiss]; THAT WOULD TOLL RUNNING OF RULE 48 & SPEEDY TRIAL; NOT AUTHORIZED AT THIS POINT TO WAIVE ANY TIME; HOWEVER, UNDERSTAND THAT BOTH DEFTS WISH TO FILE ADD'L MOTIONS.
[WW's Lawyer]: SAME UNDERSTANDING.
COURT: TRIAL DATE OF 2/16?
[LW's Lawyer]: UNDERSTAND SHORT WINDOW ACCORDING TO [Prosecutor] FOR RULE 48 & SPEEDY TRIAL; ASK LEAVE TO FILE MOTION TO [Disqualify] & BY DOING THAT, TAKING OFF TRIAL FOR 2/16; DEPENDING ON DISPOSITION OF MOTION TO [Disqualify] OR MOTION TO DISMISS, THEN TRIAL CAN BE RESET; REQUEST TRIAL W/IN RULE 48 ONCE MOTION DISPOSED OF; REQUEST TO TAKE OFF TRIAL DATE; 30 DAYS TO FILE MOTION; REQUEST [LW] PRESENCE BE EXCUSED ON 2/16 AS LONG AS EXECUTE NOTICE OF NEXT COURT DATE AS WELL AS ACKNOWLEDGMENT THAT DURING PENDENCY OF MOTION THAT RULE 48 & SPEEDY TRIAL RIGHTS WAIVED & NOT TOLLED.
[WW's Lawyer]: JOIN.
[Prosecutor]: NO POSITION ON MOVING TRIAL DATE FROM 2/16; JUST WOULD LIKE TO KNOW SOONER RATHER THAN LATER; MAINLAND WITNESSES COMING IN; WOULD LIKE TO CANCEL THEM ASAP; NO PROB W/ DEFT FILING MOTION TO BE SUPPLEMENTED LATER BY REQUIRED AFFIDAVIT.
COURT: KEEP TRIAL DATE IN PLACE W/ UNDERSTANDING THAT TRIAL WILL NOT COMMENCE; WILL MAKE CALLS; DEFTS WILL HAVE OPPORTUNITY TO FILE FURTHER MOTIONS; SHOULD BE FILED BY 2/16; AS [Prosecutor] OFFERED, CAN BE JUST BASES OF MOTION & SUPPLEMENTATION TO FOLLOW.

RECONVENED@ 8:39 A.M. ...

[WW's Lawyer] NOT PRESENT; HAD TRIAL IN ANOTHER COURT.

[LW's Lawyer]: ASKED THAT MATTER BE RECALLED; DO NOT BELIEVE COURT RULED ON REQUEST TO ALLOW BOTH DEFTS TO WAIVE PRESENCE ON 2/16 ON CONDITION THAT BOTH DEFTS ACKNOWLEDGE IN WRITING NEXT COURT DATE MUST APPEAR AT; FILING OF MOTION TO [Disqualify] WILL TOLL PERIOD FROM FILING DATE TO DISPO OF MOTION.

COURT: THOUGHT SAID THAT WOULD MAKE CALLS FOR DEFTS ON 2/16; IMPRESSION THAT THEY HAVE BEEN GIVEN NOTICE TO APPEAR & ACKNOWLEDGED RECEIPT OF THAT NOTICE; NO PROB IN THE FUTURE IF THEREAFTER SIGN FURTHER NOTICE & ACKNOWLEDGMENT TO APPEAR & THEY ACTUALLY APPEAR.

[LW's Lawyer]: LAST NOTICE TO APPEAR WAS FOR TRIAL DATE ON 2/8; DID NOT FILE ADD'L NOTICE TO APPEAR FOR 2/16 BECAUSE OF SHORT TURN AROUND PERIOD.

COURT: WILL BE RELYING ON NON-APPEARANCE ON 2/8 IF PROBLEM IN THE FUTURE.

[LW's Lawyer]: REQUEST DEFT BE ALLOWED NOT TO APPEAR ON 2/16 BECAUSE TRIAL WILL NOT GO.

COURT: THAT'S FINE PROVIDED THAT IN THE FUTURE SIGN NOTICE & ACKNOWLEDGMENT; STILL THINK SHOULD
HAVE STATUS CONF ON 2/16 W/ COUNSEL.

[LW's Lawyer]: WILL LET [WW's Lawyer] KNOW.
CONVENED @ 9:17 A.M. ...
3 CALLS MADE FOR DEFTS [LW] & [WW] AT 9:00 A.M.; NO RESPONSE. COURT FOUND DEFTS HAD FAILED TO APPEAR.
[LW's Lawyer]: DID SPEAK TO [LW]; AGREES THAT THE FILING OF MOTION FOR DISQUALIFICATION OF THIS COURT WILL SUSPEND RULE 48; NO HEARING DATE OR JUDGE ASSIGNMENT FOR HEARING ON MOTION.
[WW's Lawyer]: AGREE W/ [LW's Lawyer's] STATEMENTS.
COURT: SO EITHER JUDGE IBARRA OR JUDGE STRANCE WILL HEARING MOTION.
[LW's Lawyer]: THIS IS THE 2ND TIME THIS MOTION HAS BEEN FILED; JUDGE HARA ALSO DISQUALIFIED.
[WW's Lawyer]: AGREE W/ STATEMENTS MADE BY [LW's Lawyer].
[LW's Lawyer]: CAN WAINT TO RESET TRIAL UNTIL AFTER DISPOSITION OF MOTION.
COURT: WILL HAVE JUDGE IBARRA MAKE THE CALL AS TO WHICH JUDGE WILL HEARING THE MOTION; SET A CONTROL DATE IN 30 DAYS, TO 3/19/10 AT 8:30 A.M. TO SEE WHAT HAPPENS W/ MOTION
Of course by March 19, the Federal Appeal will also not have gone to a hearing. In regards to earlier comment about paint drying, I think it's time for a new coat.

[Walter L. Wagner]

http://www.newscientist.com/article/mg20527485.700-cern-on-trial-could-a-lawsuit-shut-the-lhc-down.html

[rpenner]

Hardly the first time New Scientist has published or promoted the viewpoint of a dunderhead. And it's the same self-promoting dunderhead, with the same stupid arguments as before.

[rpenner]

Does anyone have word on what's happening in 3PC08-1-000097 in Hawaii today?

Aha -- Late appearing on the docket are two motions to disqualify a Judge, the same judge they wanted to disqualify on January 29-April 2, 2009. The web indicates they were filed on Feb 11, in between the two hearing minutes, but they were slower to appear on the web than the hearing minutes.

[rpenner]

I'll be watching this link: http://www.ca9.uscourts.gov/calendar/view_hearing_notices.php
For 08-17389 Luis Sancho, et al v. US Department of Energy, et al

The schedule for April 5-16 has been posted, with no news of Wagner's appeal, last updated on June 29, 2009.

No idea how 3PC08-1-000097 would have been impacted by today's Chilean Earthquake. (Does a tsunami evacuation toll against Hawaii's "Speedy Trial" law?) But since we have a defendant-requested delay, that doesn't immediately matter. And fortunately, virtually no damage was reported in Hawaii, although bay sediments were certainly stirred vigorously with Hilo bay emptying and filling on about a 20-minute cycle, and the tiny island called Coconut Island going underwater.

[Walter L. Wagner]

Coconut Island is about 150 meters by 200 meters in size, relatively flat with a foot-ball sized level grass field in the center, about 2 meters above sea level, and is primarily a sand-bar added to a lava outcrop in Hilo bay, with its edges buttressed from wave actions by a series or rock-wall additions added over the past century. It is connected to the Big Island by a pedestrian bridge that is about 100 meters long. It is a favorite picnic place for children and their families, and is notable for its Rock Tower which was built more than a century ago (as a lighthouse?). The Rock Tower has served as a jumping/diving tower for children (and adults!) for generations, as it rises some 6 meters above the water, and overlooks water that is some 6-8 meters deep, allowing a safe jump into the warm ocean water below. Coconut Island also serves as a fishing area, and swimming area with a sandy beach.

Tourists from all over the world visit Coconut Island due to its prominence adjacent to Hilo's Liliuokalani's Japanese-Themed gardens.

3PC08-1-000097 is indefinitely delayed pending a dismissal motion to be heard by another judge. Dismissal is to be based on the fact that a known liar, one "Ken" Francik, appeared before the Hilo grand jury and perjured himself to obtain an indictment. At that time of his appearance, he had in his possession official government records showing Mrs. Wagner as a corporate officer when she signed a corporate document, official government records showing one "Annette" Emerson as a corporate official other than the position held by Mrs. Wagner and not until a time long after Mrs. Wagner signed that document, and a corporate record from the corporate attorney addressed to "Ken" and myself advising us that Mrs. Wagner, I, and a third person were corporate officers. Instead of revealing those facts, he lied and claimed that I "knew that Linda Wagner was no longer" that corporate officer and that it was "common knowledge" by myself that she "had absolutely no position with World Botanical Gardens" and that instead that position was held by "Annette" Emerson. That unadulterated lying by a person who had sworn to tell "the truth, the whole truth, and nothing but the truth" is known to appropriate government officials, and will likely result in his indictment, prosecution and conviction.

[David_Untel]

Hardly the first time New Scientist has published or promoted the viewpoint of a dunderhead. And it's the same self-promoting dunderhead, with the same stupid arguments as before.

It may be obvious to you that Eric E. Johnson is a dunderhead
and that his arguments are stupid. Nevertheless, it's not at
all obvious to me.

In fact, I've read half of his 90-page article published in
the Tennessee Law Review. The reference is:
Volume 76, Summer 2009, Number 4 , first article.

There are 683 footnotes, which basically serve the
same purpose as URLs or links in web-pages. So far
as I can tell, it's a exemplary case of backing up
claims of what others said or wrote through methodical
references to primary sources.

In my opinion, Eric Johnson has raised significant issues
about the impartiality (or lack thereof) of the
CERN-mandated LSAG safety review.

There are other issues raised essentially about
the meaning-fullness of these reviews, as they have been
updated (re-written might be a better term) as
new articles by physicists, often in peer-reviewed journals,
reflect new developments in theoretical particle physics.
When the theoretical thinking changes, the CERN safety
reviews (the published papers) are "updated" to take
into account the new facts in the theoretical literature.

David Untel

[rpenner]

In my opinion, Eric Johnson has raised significant issues about the impartiality (or lack thereof) of the CERN-mandated LSAG safety review.

That's not the heart of the article. The key idea is an argument from personal incredulity plus a abuse of arithmetic.

The key of any experiment is to find out what happens, which is to say every experiment has in principle an element of uncertainty. But since the same conflict between the incomplete human physics knowledge and actual workings of the universe applies not just to physics experiment but to every volitional and involutional human act, and even to natural events. Next time you enter a room you may be causing the death of a child, but unless you have knowledge of how that might be the case no blame can attach. Unless it can be explained how you particularly are prone to opening doors in a manner that slays children, no judge is going to order you to stay out-of-doors.

So the safety papers to date have taken bugaboos, which are necessarily completely hypothetical creatures of imagination, and attempted to show that if such lab-created disasters were possible, then the fundamental nature of physical law is as capricious as ancient Greek cosmology. Japanese mythology includes goblins in the form of backpacks and umbrellas which seek to mislead, but if there is no test between a true backpack and a goblin, then you can't blame the backpack-wearer for his own demise. Likewise, unless the fundamental physical law is fair then you can't demonstrate negligence in any physics experiment and if nature is fair the safety papers are fair.

Such fairness is not an untested assumption, but follows from Galileo's studies of motion, to Newton's Universal Gravitation, to Einstein's General Relativity -- all different theories, with progressively wider domains of applicability. Now while none of the objects formed at the collider (dangerous and hypothetical, or innocuous and long-known) are in the domains of validity of these theories, the objects do obey the conservation laws and all new objects are expected to as well. So we do not expect magic unicorns to form at the LHC.

But (playing by Eric Johnson's rules) we cannot rule out that the LHC will produce magic unicorns which will save the future of humanity. Eric Johnson does not argue that unknown is unknown, but argues that unknown is unbounded risk -- yet it could also be unbounded benefit. Neither is expected.

So EJ takes the whole of his ignorance of what will happen everywhere in the world, throws away hypothetical events that don't have a LHC tie-in, parameterizes this on the real number line, and throws away the positive numbers and then sloppily inserts (negative) infinity into the discussion. That's the abuse of math I was speaking about. What he would really want to do is integrate a probability distribution over the whole of the real line. Such a thing is done all the time in math and often with finite results, but when you start with only ignorance, of course your answer is going to be meaningless.

The question of balancing risk versus reward is meaningless until you have numbers all-around.

Without an assumption that physical law is regular in the unknown parts as it has always been in the discovered parts, then there is no physics of what might happen at the LHC. Without physics of what might happen at the LHC, then total ignorance remains, and thus the injunction-seeking plaintiff can never prevail. If the assumption that physical law is regular is assumed, then expert physicists become the best source of expert opinion of what will happen at the LHC. So it is required to prevail for the anti-LHC to present expert testimony on why the LHC is dangerous to (Geneva/Switzerland/Humanity/Planet Earth/Milky Way/Universe).

So I established this thread because such expert testimony will always be needed if Walter L. Wagner is to prevail, and he has not in all these years brought it. It is Wagner, with his shifting hypothetical bugaboos who is adding confusion as to which object is being addressed by what safety report, because much like the magical unicorns listed above, when experts publicly rule out one hypothesis, the anti-LHC crowd invents perverse new features, like magical, invisible, pink unicorns, in-heat.