Joint Statement from Ken Good & Trip Barber

[troj]

March 13, 2009 -Today Judge Reggie Walton, presiding in our case before the US District Court, heard arguments from both legal counsel for NAR/TRA and the BATFE. At the conclusion of the hearing, Judge Walton stated that he was inclined to agree with our position. While this is extremely encouraging, there will be no formal written ruling until April, and BATFE may attempt to file additional information before that date. We expect that this ruling will provide some form of relief from the current regulatory situation.

We thank our members for their continued patience and their generous financial support. We will provide members with immediate status reports as this case reaches its conclusion.

Ken Good
TRA President

Trip Barber
NAR President

[sunward]

.... At the conclusion of the hearing, Judge Walton stated that he was inclined to agree with our position. ....

That is very good news!

[evil ed]

Best "Friday the 13th" I've had in a long time!:)

[JimmyL]

Great news........especially since I got my LEUP Tuesday the 10th.........

[kgholloway]

I feel like I've been underwater forever and can finally take a breath. Thanks to Ken, Trip and everyone else involved!

Ken Holloway
NAR #78336, L-II

[Adam Selene]

it ain't over yet.

[DAllen]

it ain't over yet.

No it's not but I do distinctly hear the fat lady clearing hear throat for her for her grand entrance. I think I see her wearing an NAR shirt with a TRA hat.

:D

FINALLY!

-Dave

[MarkM]

No it's not but I do distinctly hear the fat lady clearing hear throat for her for her grand entrance. I think I see her wearing an NAR shirt with a TRA hat.

:D

FINALLY!

-Dave

Let's hope! But, I wouldn't start holding my breath, yet. I' won't believe anything until it's in writing. Even then, couldn't the BATF appeal a decison against them?

[gpoehlein]

Let's hope! But, I wouldn't start holding my breath, yet. I' won't believe anything until it's in writing. Even then, couldn't the BATF appeal a decison against them?

Precisely - I think Yogi Bera said "It ain't over 'till it's over!"

[powderburner]

But I also have to remember that the ATF guys are very good at coming up with goofy ways to convolute, deviate, and confuse things to make sure they get their way in the end.

I mean, aren't these the same guys that came up with the gem that a rocket motor is NOT a propellant-actuated device?

Let's hope the judge has the wisdom to make a good choice here, and cares enough to take time and phrase his ruling so the ATF cannot twist things back on us again.

[dave carver]

I think ATF is in for a major judicial spanking, this case is setting precedence that will be used against the government many times in the future. When ATF dumped that 7000 page elephant into the judge's lap with all it's smoke screens and voodoo science I think part of the problem was the judge actually read the whole thing and probably has almost as many pages of notes as is in the filing.

The wall of misinformation and out-and-out lies took a while to see through but in the end will cost them dearly and is most likely the best thing ATF could have done for us!:rolleyes:

[GuyNoir]

When ATF dumped that 7000 page elephant into the judge's lap

2,199 to be precise, but who's counting?

[Peartree]

It *is* possible that the delay is due to the judge being careful so that BATFE can't appeal to the Supreme Court (or at least so the Supreme Cort would refuse to hear an appeal because his decision was well researched and well written).

[Gus]

This is the first hopeful sign in a long time and I will keep my fingers crossed. But I would like to take a minute to thank those who invested so much time and effort in putting forth our case. Unlike the government's case, our side's argument has been one we can all be proud of.

I just donated money, but people like Guy Noir contributed much much more. However this turns out, folks like Bunny and Trip and Ken, truly deserve our respect and gratitude.

Thanks, guys.

[jadebox]

It *is* possible that the delay is due to the judge being careful so that BATFE can't appeal to the Supreme Court (or at least so the Supreme Cort would refuse to hear an appeal because his decision was well researched and well written).

The BATF would have to appeal to the Court of Appeals, but since this decision is based on our successful appeal to that court, I doubt the Court of Appeals would reject Judge Walton's ruling. If the BATFE then appealed to the Supreme Court, I doubt the Supreme Court would hear the case since it isn't the kind of case they usually review - no constiutional issues are involved.

Although, judges are always careful to document the rationale behind their decisions, in this case, I'm sure you're right that Judge Walton is going to be extra careful since he already had the case sent back to him by the Court of Appeals.

We have a good reason to be optimistic. The fear that the BATFE will find other ways to harass us may have some validity, but with this victory we'll have a powerful tool to fight that. The BATF will have a much harder time justifying any actions they take if they don't have any jurisdiction over rocket motors.

-- Roger

[sunward]

.... If the BATFE then appealed to the Supreme Court, I doubt the Supreme Court would hear the case since it isn't the kind of case they usually review - no constiutional issues are involved.....
uhm, nope.

The court hears other types of case. From
findlaw (http://public.findlaw.com/abaflg/flg-2-3f-8.html) which quotes Chief Justice William H. Rehnquist in which he:

'describes the process of selecting which petitions to grant as being influenced by the justices' views on three major factors:

1. if the decision is from one of the federal courts of appeal, whether it is in conflict with the decisions of other circuits;
2. the general importance of the case; and
3. whether the lower court's decision may be wrong in light of the U.S. Supreme Court's previous opinions.'

[GuyNoir]

I just donated money

Without which we would not have been able to conduct the fight for an unregulated hobby. You and the thousands (yes, thousands) of others who sacrificed for this case have my eternal gratitude.


people like Guy Noir contributed much much more. However this turns out, folks like Bunny and Trip and Ken, truly deserve our respect and gratitude.

Thanks, guys.

You are most kindly welcome, sir.

Please do not forget that past TRA Presidents Bruce Kelly and Dick Embry also were involved in the process and certainly Bruce deserves tremendous thanks for the work he did here.

We are not yet done with this, but I'm cautiously hopeful that a good end is in sight.

[evil ed]

But I also have to remember that the ATF guys are very good at coming up with goofy ways to convolute, deviate, and confuse things to make sure they get their way in the end.

I mean, aren't these the same guys that came up with the gem that a rocket motor is NOT a propellant-actuated device?

Let's hope the judge has the wisdom to make a good choice here, and cares enough to take time and phrase his ruling so the ATF cannot twist things back on us again.

If you can't dazzle them with brilliance.............:rolleyes:

[jadebox]

uhm, nope.

The court hears other types of case.

I know they hear all kinds of cases. But, as I said, I don't think our case is the type of case the Supreme Court usually chooses to hear. I didn't say they couldn't choose to review the decision of the lower courts, just that I don't think they would.

-- Roger

[GuyNoir]

I know they hear all kinds of cases. But, as I said, I don't think our case is the type of case the Supreme Court usually chooses to hear. I didn't say they couldn't choose to review the decision of the lower courts, just that I don't think they would.

Folks, do the math.

About 3,000 cases annually get submitted to the Supreme Court requesting a hearing.

They hear maybe, MAYBE, 80 of them, under 3%.

Now go look at the case record, and find the Constitutional question in our case that would make them think this is a case worth hearing.

The proof is left as an exercise for the student.

[Fuddrucker]

But I also have to remember that the ATF guys are very good at coming up with goofy ways to convolute, deviate, and confuse things to make sure they get their way in the end.

I mean, aren't these the same guys that came up with the gem that a rocket motor is NOT a propellant-actuated device?

Yea, just like how they claim that an Estes IGNITER is not an igniter and does not fall under the same rules as other igniters?!?!?!?????

...Fudd

[troj]

Yea, just like how they claim that an Estes IGNITER is not an igniter and does not fall under the same rules as other igniters?!?!?!?????

That's because it's a political thing.

Going after the HPR portion of the hobby affects a small proportion of the hobby. If they apply things consistently and go after the Estes & Quest igniters, then suddenly they've affected rocketry entirely, and every hobby store selling Quest & Estes products suddenly has to have an LEDP, ShopKo, Target, etc can no longer sell them, and so forth.

They've backed themselves into a corner on that one, and now that the legal precedent has been set that they must come up with legitimate methods for determining what is and is not an explosive, they'll run into problems on the igniter front.

-Kevin

[jadebox]

Yea, just like how they claim that an Estes IGNITER is not an igniter and does not fall under the same rules as other igniters?!?!?!?????


Estes ignitors are not used to ignite "explosives" (model rocket motors are exempt from BATF regulation) so they aren't regulated. Once this ruling passes, our larger motors won't be explosives either, so the ignitors we use shouldn't be regulated either.

This is just my opinion, of course, and IANAL. :-)

Maybe we should start using "initiators" to initiate lift-off ....

-- Roger

[Fred22]

If you can't dazzle them with brilliance.............:rolleyes:

ED hats off :) Funnier then he double hockey sticks and in the park for the guidelines :)
Cheers
fred

[Initiator001]

Maybe we should start using "initiators" to initiate lift-off ....

-- Roger

I am a big fan of Initiators. :D

[sunward]

4 pages of victory. Judge's decision.

http://www.rocketryplanet.com/images/pdf/ATFE-03-16-09.pdf

[Mikus]

Wow, we won???

So a LEUP is no longer required?

[sunward]

Wow, we won???....
YES


....So a LEUP is no longer required?
who knows.

[sunward]

A very quick read at 4 pages.

Summary at the end sums it up very nicely:

ORDERED that the plaintiffs' motion for summary judgment is GRANTED. It is further
ORDERED that the defendant's motion for summary judgment is DENIED. It is further
ORDERED that the defendant's decision to classify APCP as an explosive under 18 U.S.C. § 841(d) is VACATED. It is further
ORDERED that the remaining counts of plaintiffs' third amended complaint are DISMISSED as moot and therefore this case is dismissed in its entirety.
SO ORDERED this 16th day of March, 2009.
Plaintiff is TRA/NAR

[Ford Prefect]

Let's all not go too crazy it also says this

"Should the defendant choose to reinstate the policy that ACPC is properly classifiable as an explosive within the meaning of 18 U.S.C. § 841(d), nothing in this decision prevents it from redrafting the rule in accordance with the tenets of the APA or from seeking an explicit statutory classification from Congress."

So they can still go back and follow the rules and have it classified again or ask congress to put it on the list. This just means the rule making they had was faulty.

Hate to say it but knowing the BATFE it will be hard to keep them from trying something else to keep us from flying. Why you ask, Because they need to justify their existance to continue to get funding and grow the agency. The more they regulate the more money they get. Call your members of congress today!

[troj]

So they can still go back and follow the rules and have it classified again or ask congress to put it on the list. This just means the rule making they had was faulty.

Hate to say it but knowing the BATFE it will be hard to keep them from trying something else to keep us from flying. Why you ask, Because they need to justify their existance to continue to get funding and grow the agency. The more they regulate the more money they get. Call your members of congress today!

Keep in mind that while that's easy in theory, the practice will be more difficult.

One of the things the appellate court said was that they had failed to justify why it's an explosive, provide data to corroborate that. This meant the ATF had to identify a specific burn rate, and say "anything above this is an explosive." So, they picked a burn rate, then used faulty science to say APCP burned faster than that (motor length rather than web thickness).

To overcome this, they would have to demonstrate, scientifically, that APCP when used for "its primary and intended purpose" burns faster than that burn rate. Not gonna happen; the stuff we use just doesn't meet that requirement, based on the number they picked.

So, what if they try and change the number? Not only will that risk putting other materials on the explosives list, which generates all sorts of additional nightmares, this would also require them saying in court, "Ooops. We screwed up. We were wrong on the burn rate."

The obvious question to ask in court? "So, you got it wrong the first time? You expect us to accept your number this time? You lost a case, so you now expect us to accept your new number?"

They've got a problem.

-Kevin

[Adam Selene]

What a great way to celebrate the anniversary of the launch of the first liquid fueled rocket!