LHC Safety and the Law

Discussion in 'Physics & Math' started by rpenner, Sep 23, 2008.

  1. rpenner Fully Wired Valued Senior Member

    Well, by FRAP 34(a)(2), it seems that the decision to have or not have oral argument is always in the hands of a three-judge panel.

    But by FRAP 34(a)(1) and supported by "Circuit Advisory Committee Note to Rules 34‑1 to 34‑3", paragraph (2) it looks like you were allowed to request that there be no oral argument. Not to say that I have an encyclopedic recall of all the filings, but I don't recall seeing that in a writing by any party in this appeal.
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  3. Walter L. Wagner Cosmic Truth Seeker Valued Senior Member

    A notice was sent advising a deadline for requesting oral argument. I received no response from the US attorney requesting oral argument, and I did not respond requesting oral argument. I would presume that none would be calendared, accordingly.
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  5. rpenner Fully Wired Valued Senior Member

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  7. rpenner Fully Wired Valued Senior Member

    On March 9, 2009, user udarnik informed us that Wagner lost a civil suit in Judge Nakamura's court, precipitated by a 2004 default judgement reversed in 2005 which also gave rise to criminal indictment in 2008.

    Back then, Wagner tried to get Nakamura removed from the criminal case. A hearing was held on April 8, 2009, and the reasoning behind the motion was rejected. (Appearantly, Mrs. Wagner was arrested in Judge Nakamura's court while on break during a civil trial on September 11, 2008. This is the threat implicit in any unaddressed warrant. Mr. Wagner (JD) was in Federal court on September 2, 2008 and appearantly giving his wife advice at the same time.)

    Wagner's arguments even though there was no evidence that there must have been dirty hands (repeated here and here) did not sway the court.

    Time and The Daily Show passes. The Wagners move to Utah. Paris Hilton's minions assault me.

    The fallout from the 2004 civil case continues to burn, and we hear from Wagner that it is his enemies, not himself who is the fraudster.

    Trial scheduled for November, booted to February. LHC Switched ON.

    Then they try and disqualify Judge Nakamura again, and fail. Trial for the criminal case is now scheduled for May 18, 2010. (Nearby Federal hearing dates are scheduled for June 7-11 and June 14-18, so if this May date holds there feels like a small chance of trial/hearing conflict.)

  8. rpenner Fully Wired Valued Senior Member

    We have a winner!
    1132 Bishop Street, Honolulu, Hawaii
    Thursday, June 17, 2010 9:00 am Sixth Floor Courtroom
    08-17389 Sancho v. US Dep't of Energy
    Maximum Argument Time: 10 minutes per side


    From PACER:
    Date: 04/22/2010
    Docket Item: 31
    Description: Notice of Oral Argument on JUNE 17, 2010 Calendar. Please return ACKNOWLEDGMENT OF HEARING NOTICE form to: SAN FRANCISCO Office. Attention: The Notice of Docket Activity may not list your case number. Please open attached documents to view details about your case. [7311434] (AM)

    I haven't seen PR on this yet, so this might be breaking news.

    apparently still on for May 18. Last document filed April 8. Last hearing on April 14.
    Last edited: Apr 29, 2010
  9. rpenner Fully Wired Valued Senior Member

    Happy Cinco de Mayo. Here are your Spanish/Portuguese press clippings.


    Almost no one mistakes me for a professor of physics in print. Well-done anti-LHC PR campaign!
  10. rpenner Fully Wired Valued Senior Member

    Where is Luis Sancho?
    Echoing earlier complaints by judges, attorneys and myself that the pro se plaintiff had all but disappeared, the US Postal Service could not find Luis Sancho at the Hawaiian address given in the appellate docket since October 2008. The information of non-delivery was supplied to the clerk on May 6 and appears in the docket as of May 12.

    Walter Wagner is expected in Hawaii himself on a separate matter on May 18, and may wish to update his mailing address with the court prior to the June 17 hearing.

    Luis Sancho cannot be easily excused from personal responsibility in this matter.

  11. rpenner Fully Wired Valued Senior Member

    Where is Walter Wagner?
    On the morning of the beginning of trial for the remaining charges of theft, the State of Hawaii doesn't know. And again the Wagner's file a "surprise" motion arguing that the delays they caused in the case by repetitive motions that went nowhere and necessary replacement of Wagner with an actual attorney should now force the state to drop charges.

    Do I know Hawaii's speedy trial law in detail with all the connected case law? No. Have I read the arguments made for dimissal by potentially both attorneys? No. But is this justice? Still, no. This is evasion of the question of justice. This is seeking to game the system.

    Last edited: May 19, 2010
  12. Walter L. Wagner Cosmic Truth Seeker Valued Senior Member

    The motion is based upon the delays caused by the prosecuting attorney, not by the delays engendered by defendants' motions (which toll the running of the clock). The prosecution delays exceed the six months allowed by statute for a right to a speedy trial. Since the 'case' is utterly bogus, based upon a claim that filing a civil suit is an 'attempted theft' if you lose the civil suit (and the civil suit is actually still pending in court, with an expected prevailing on the suit) it is appropriate to dismiss for whatever reason is available. Other motions to dismiss would be appropriate as well, but this appears to be the most straight-forward.

    The LHC case begins in earnest in Honolulu mid-June.
    Last edited: May 19, 2010
  13. rpenner Fully Wired Valued Senior Member

    emphasis added. From http://research.lawyers.com/Hawaii/Criminal-Process-in-Hawaii.html

    A review of HRPP Rule 48 (from 2000) indicates it is filled with legal "weasel words" that are open to interpretation. Time and time again, the court sets a date for trial and I have not seen the date reset due to sole action of the prosecutor that was not for good cause. So it's not going to be about accountants, but about legal argument and case law. http://www.state.hi.us/jud/ctrules/hrpp.pdf

    Also, Rule 12(c) seems completely ignored.
  14. Walter L. Wagner Cosmic Truth Seeker Valued Senior Member

    FYI, the speedy-trial clock is stautorily set in many states. In California, it is 30 days for a misdemeanor, 60 days for a felony. In Hawaii, it is somewhat longer; 6 months for a felony accusation. If a prosecutor does not have a case, they should not initiate a prosecution, hoping that they will obtain a waiver of time while they try to 'build a case'.

    In Hawaii, the clock starts running upon the filing of an indictment, and can be stopped (time tolled) by actions of the defendant, and restarted at varying times. The clock ran for 2 months when the false accusation was filed (February, 2008), and was stopped when defendants filed a motion to dismiss. The clock remained stopped for a considerable amount of time, and restarted circa July, 2009 when the court entered a denial of a motion to dismiss, setting a new trial date. Thereafter, the prosecuting attorney requested a continuance of the trial date, which was granted, but which did not stop the running of the speedy-trial-right clock. This added about 3+ months to the existent 2 months that had already run. The court minutes clearly reflect that the delay was not charged to the defendants, and did not stop the clock. There was another period of clock running earlier this year, adding about 5 weeks (until May 18, 2010). The prosecuting attorney was advised at the start of that period that this would extend the case beyond the statutory limit.

    The right to a speedy trial is a firm right which every prosecutor is aware of. It appears that the prosecution is not really interested in prosecuting a case in which there are no facts in support of the prosecution, as herein, in which the 'case' is a claim that the filing of a civil suit constitutes an "attempted theft" if you lose the civil suit at trial court. That underlying civil suit is still pending in the appellate courts, and it is expected that the trial court will be reversed for cause. Though perhaps the prosecution would consider that the filing of an appeal of a civil suit that did not prevail at trial court to be an additional "attempted theft" charge, if that appeal does not prevail at the appellate court level. Indeed, according to the prosecution's theory, one would expect that almost every civil suit should result in a criminal prosecution, because clearly the losing party owes money, and attempted to use the civil justice system to avoid payment, or to collect a payment not owed, an "attempted theft".
    Last edited: May 19, 2010
  15. rpenner Fully Wired Valued Senior Member

    Groklaw user "ak" reports that a German court has ruled on appeal that baseless fears do not amount to a concrete constitutional issue. http://www.bundesverfassungsgericht.de/entscheidungen/rk20100218_2bvr250208.html

    I struggled through the Google Translate version of this.

    I believe the gist of the decision is that you need a factual basis and a worked out scientific argument to properly present a theoretical claim for risk evaluation. The court agrees that a pillar of that basis is that the discovered physical laws are not known with certainty, but the remaining uncertainty by itself does not allow you to assert that specific dangers need to be considered. Or as I would put it: "That scientists admit that they don't know everything is not sufficient grounds to assert anything."

    The court was clearly unimpressed by naked claims that scientific papers were unsatisfying to the plaintiff(s) and therefore not sufficient. Likewise, that the German constitution orders the government to promote science raises the bar for a more worked-out casual relationship between experiments and trouble or loss of life. And the tactic of including, without evaluation, a laundry list of ideas of how the LHC might pose dangers seemed to make the plaintiffs less credible.

    But if your German is better than mine, please correct any misapprehensions.
  16. rpenner Fully Wired Valued Senior Member

    Less than 14 hours remain until the earliest that the hearing for the appeal of the September 2008 dismissal of Sancho and Wagner's case can be heard. Prior to being dismissed it was whittled down considerably from the grand design. The US Attorney expressed doubt that Sancho remained part of the case. The Swiss mission expressed their position that nothing like lawful service was performed on CERN, and Wagner seemed oblivious to the point raised that the treaty that establishes his ability to serve CERN puts limits on how it is done.

    So the trial will begin. Will Wagner show up? Will Sancho show up? Will the US Attorney show up and argue unopposed? If Wagner and Sancho both show up, will their mutual understanding of how time is allocated in the hearing agree with that of the panel of 3 judges? Will Wagner emphasize the "Dollarz iz teh onleez moniez" argument? What questions will the judges have for Wagner?

    Does the complete absence of a physical model (not just a laundry list of named ideas) agreed upon by the plaintiffs mean the case was filed prematurely and therefore has no Article III standing? Does the actual operation of the Large Hadron Collider mean that the asked-for-remedy is now unachievable and therefore moot? (US use of term. The UK usage may be nearly opposite in meaning.)

    Still no sign of the promised tax-free status for Wagner's organization. Did an original donor really donate $2000 USD, and as per the public records of a tax-free organization, where did that money go? Was the last update to Wagner's website the one that resurrected it after I posted it was down? Will Wagner ever admit that going on the Daily Show (April 30, 2009) was my idea?

    These questions (perhaps) and more (somewhat doubtful) will be answered in the near future. Same bat-time, same bat-channel.
  17. phlogistician Banned Banned

    Given that the LHC is operational, and the Earth hasn't been sucked through it's own belly button, shouldn't Wagner just quietly walk away?
  18. prometheus viva voce! Registered Senior Member

    You'd think wouldn't you?
  19. Pete It's not rocket surgery Registered Senior Member

    Not for that reason, no.

    If some project has a one percent chance per year of an Earth-destroying catastrophic failure, then that project is a bad idea. It might run for decades without incident, but that in itself doesn't prove its future safety.

    I don't think Walter is right (I strongly suspect he's wrong, but I'm not qualified in that field. Even less qualified than Walter.) But, he never said that an LHC disaster is certain, only that it is an unacceptable risk.

    Also, the LHC is only running at half power. It won't ramp up to full power for a couple of years yet.
  20. phlogistician Banned Banned

    All cyclotrons are an unacceptable risk based on that criteria. We didn't know what to expect until we started smashing matter.

    There was concern that the first atom bombs could have started a chain reaction fusing atmospheric gases, and consuming the planet. Didn't materialise, it was an unfounded fear. Wagner is being speculative without reason too.

    I think I trust the scientists at the LHC, and their predictions from the analysis of the collider data so far, over Wagner.
  21. Pete It's not rocket surgery Registered Senior Member

    Based on what criteria? I did not state any criteria for "unacceptable risk", only that "has operated for a while without incident" does not necessaily imply that the risk is acceptable or nonexistent.

    I disagree. We do and did know what to expect, to within a very tight range. That is what makes risk acceptable.

    I agree with this argument, and with its conclusion that the LHC is safe.

    I disagree with your previous argument - the safety of the LHC is not necessarily implied by the fact that it has been operating without incident for a while.

    Bad arguments for correct conclusions are still bad arguments.
  22. rpenner Fully Wired Valued Senior Member

    At 9:00 am HST (4 hours, 21 minutes ago), the hearing for Walter Wagner's appeal of the September 2008 dismissal of his federal lawsuit against DOE, NSF and purportedly other entities began. It ended at 9:25 HST.
    This was alluded to at the hearing.
    This was alluded to at the hearing.
    And again at the hearing.

    Yes to all three.
    The were allowed 10 minutes to speak with that time to be shared between them. They used, by the wall clock, close to 18 minutes.
    Surprisingly not. Nothing in my memory or notes suggests he addressed the central question of whether NEPA even applies to construction and operation of the LHC.
    Many of the same ones I have, cousin.

    The lead judge asked if these disaster scenarios are speculative. Wanger said certainly not, quoted some statement for a poorly cited source that actually said LHC Disaster was highly speculative, and then repeated, to my surprise, the famous "fifty-fifty" claim as from The Daily Show.
    Walter Wagner actually started off his time with a geography lesson, a distorted description of the quench failure and set back which he portrayed as a serious "accident" and then went on to try to claim that his case isn't moot because if the court gives different relief than what was asked they could still mess up the US side collaboration while the LHC is working at "half power".

    Notes from Honolulu
    7:52 Arrival at 1132 Bishop Street, a red-stone-faced business tower in the middle of Honolulu's downtown area, distinguished largely from other business districts by the large numbers of tropical trees and plants in evidence. A black, blacked-out SUV with US Government license plates drives past me to enter the parking garage. Perhaps a Judge and/or US Marshal.

    7:57 On the 6th floor, the question is where is the hearing. None of the signs exactly match the wording in the court papers. But Suite 601 "United States Courts Ninth Circuit" is a good bet on this deserted floor. After loitering about, I reach out to check the door.

    8:00 Room still locked, an unrelated US Attorney appears. She brings her daughter in tow.

    8:02 When asked why I was here, I point out on a list of hearings that I'm for Sancho vs. D.O.E. although I expected Walter Wagner to appear. At that moment, from around the corner of the elevator foyer comes Walter Wagner with Luis Sancho in tow. (From his appearances on Hawaiian news video and The Daily Show I recognize Wagner on sight.) Awkward! Introductions are had. Wagner seems upbeat.

    8:10 Another US Government Attorney spreads the rumor in the hallway that they thought they spotted a judge. Wagner and Sancho have wandered off.

    8:12 A US Marshal arrives, verifies the door is locked, and sets to waiting with the rest of us. Eventually he wanders off. Even the bathroom doors of this floor are locked. We chat with the (well known) Marshal. Apparently he is being rotated to San Francisco and those of us with the knowledge of the area describe the 9th circuit's courthouse's relation to other San Francisco landmarks.

    8:20 With the Marshal having left to check on progress, I have a break to review a page of notes.

    8:22 Wagner and Sancho return with 3 US Marshals from the elevator foyer. The Marshals unlock the door revealing a security center and begin to setup behind the again-closed door. Wagner and Sancho wander off as they are not needed at this time.

    8:25 Wagner is still pushing his "this case was not likely to be heard in Honolulu" hypothesis to anyone that will listen.

    8:27 Wagner seen shaking hands with thin short man from Washington with the least papers of any US Attorney. This turns out to be John Arbab, handing the case for the DOE and NSF.

    8:29 Door opens. Security screening and check-in begins.

    ??? A Timeless void without internet access or clocks. We have to give up electronic noise makers and cameras to get past security. Then, fortuately, I notice a tiny clock on the rear of the courtroom.

    8:37 Wanger and Sancho seated. Bailiff was seen explaining to Sancho how time works in the courtroom. "Surely," I thought, "This could not be the first that they've heard of this?"

    8:40 With nothing to do, Wagner gets up and steps into the audience area to approach the (teenage? I dunno, I'm old) daughter of the first US Attorney mentioned. Bleagh. 気持ちは悪い。Apparently Wagner wants to act fatherly and ask if the young woman feels like following in her mother's footsteps and pursue law.

    8:41 OK, there really isn't anything to do right now. I don't know enough about furniture to describe the 3-seat bench and the plain-if-modern-looking accouterments of the courtroom. Looks like a medium grain wood or veneer, stained cherry. Lots of rounded corners and few decorations.

    There is a central podium with a microphone, a fancy countdown clock (which can be controlled by the bench) and green, yellow and red lights.

    A large silver on black seal of the 9th circuit is on the back of the court, behind the judges.

    Above the entrance to the court, and therefore not in a position to easily be kept track of by the audience or attorneys is a tiny, low-contrast analogue clock, labeled in Roman numerals. It may be the second most ornate thing in the courtroom.

    8:44 John Arbab (Mr. Skinny in this courtroom) is seated at the US Government side. Oh, yeah, baby. It's on.

    8:45 Bailiff re-enters. Lays out paperwork for lead judge.

    8:47 Sancho is amusing himself by turning back and forth in the provided swivel chairs. More people enter the audience.

    8:50 Clerk begins layout of paperwork at the judges' seats. Bailiff calls for check-in of remaining attorneys.

    8:57 A rush to fill the room. WW still seems excited and upbeat.

    9:00 We start...

    Wagner gives geography lesson (Arbab from Washington, CERN in Switzerland, suit filed in Hawaii) -- is he still whinging that the appeal is not being heard in San Francisco? Wagner gives story about LHC "accident." (Scare quotes deliberate.) Wagner gives testimony from the podium that LHC is only operating at "half energy" which, he says, makes his case is not moot provided that you assume that he works with quantitative models.

    Judge One asks why this is a US problem. WW confirms 10% contribution to LHC. (Is he dropping the "dollarz" argument??) Wagner claims that two "experimental chambers" will shut down if further funding is withheld. Wagner claims US "Patriot Act" gives US authority to intervene.
    Lead Judge severely questions if Wagner believes judges are literally going to order the troops to seize Swiss soil. The Lead Judge thinks it is unlikely that they have right to order military strikes. Wagner seems to back-track, leaving reporter confused as to his whole theory of law.
    Wagner says that there is no NEPA review, and that's want he wants. He's not even saying that LHC can't pass a NEPA review.

    8:05 Sancho begins by claiming NEPA gives authority and he wants to make four points. (I really don't know that he delimited his points at all, and I was left confused.) LHC is an "experimental weapon," says Sancho. Huh? "Supernovas" are bad, the very emotional Sancho tries to convey. Sancho claims standard science is on his side. Huh?

    Judge Three asks what judges can do. Sancho nearly explicitly wants a political solution, and accuses them (unclear if politicians, real scientists, or just CERN) of lying.

    The Lead Judge addresses the Doctrine of Standing which leaves Sancho sort of flat-footed. Wagner steps up. Wagner states simply that they have standing because he is a citizen and Sancho is a resident of the US. The Lead Judge scoffs at this. Wagner goes on to say that they have standing because they imagine that LHC might kill them. The Lead Judge asks if this is all speculation. Wagner responds that it is by no means speculation and that there is a 50%-50% chance.

    Sancho, who can't rub two legal sticks together, knows Wagner is speaking with a forked tongue, elbows Wagner aside and insists there is no speculation. Einstein, claims Sancho, says we will destroy the Earth.

    Wagner then claims to quote someone (with improperly inserted commentary) saying something that suspiciously sounds like Wagner's source is saying, in a roundabout fashion, that LHC can't kill us via stranglets.

    Well, that took us well-beyond Sancho and Wagner's 10 allocated minutes. And that time was time that they were supposed to argue and then re-argue their side. Now it's the Government's turn.

    8:14 The Lead Judge jokes about the excess of time spend since after all this case concerns the End of the World and Einstein said time is relative. Chuckles all around.

    Arbab begins addressing (US Constitution Article III) Standing by saying there are clear and serious standing issues including Redressibility and Causation. (i.e. What the US cannot do is actually stop LHC from operation, and so any court order will not have the desired effect as stated in the suit.) CERN is not even a defendant of this case, Arbab summarizes.

    Judge One wants to know what is the US involvement. Arbab says DOE and NSF funded a very small amount. Judge Three quibbles that Arbab should say small percentage rather than small amount, since $0.55 billion is not trifling. Arbab sticks with the claim that percentage is what matters in case law in determining that this is not a "Major Federal Action."

    Judge One directs for more from Arbab who says DOE has in the past (FY 2008) allocated funds to the detectors (he does not use Wagner's language of "experimental chambers", perhaps because he thinks the term is suspect), but that that US doesn't control LHC operation as given by Strauss' statement.

    Neither plaintiff has standing, says Arbab. In addition, NEPA -- the only law cited in this case -- is not applied unless the LHC is a Major Federal Action.

    And CERN, the only people who can switch the LHC off, is not a defendant.

    Wagner then requests 1 minute to rebut, and is given 3.

    Wagner says CERN is not only a defendant but CERN defaulted. The Lead Judge steps on this claim and says CERN was not properly served. Wagner flounders around and mutters that they can always correct that in the future if this case is reinstated.

    Wagner states, with again nothing in the record, that US funding is integral to the operation of LHC. Without US-operated detectors, Wagner claims, operating the LHC would be pointless. (This would seem to contradict the claims made by Sancho that the LHC is an "experimental weapon.") But, Judge Three points out that the US does not have a finger on the on/off button. Wagner stumbles and repeats the hollow claim that if the US withdraws, the LHC would not continue to operate.

    Sancho elbows Wagner out of the way to give a rambling statement which seems predicated that the US 9th Circuit could go back in time and unspend the $0.5 billion dollars.

    Wagner returns to close with "we don't know what the outcome of NEPA will be" and admits that if NEPA is done he might have nothing to complain about but he nevertheless insists that NEPA procedures be done.

    The Lead Judge then questions Wagner where he went to school. After a fuzzy CV (better ones are online by third parties) the Lead Judge states that he had (correctly) suspected a Berkeley connection was in there somewhere. Wagner was nonplussed. And then turned nasty and tried to assert authority in determining what was best for all America by claiming without basis (Wagner's genre of choice) that he had served the US Government since before the Lead Judge had. OUCH. Compared to Wagner's fooling around with clerical duties in a hospital somewhere in the late 1970's -- a career he left behind, the Lead Judge was serving his country since 1941. While not as cut-and-dried as Orly Taitz's calling a judge a traitor in filings made to that judge, this might be a gambit "that will live in infamy."

    9:25 It is OVER. And now we go back to the waiting game.
    Last edited: Jun 18, 2010
  23. prometheus viva voce! Registered Senior Member

    Wagner's still touting this outrageous lie? I guess none of the judges are Jon Stewart fans...

    Actually, since Wagner must know this is false, if from nothing else than from the discussion on here, shouldn't he be cited for perjury?

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