TRA/NAR & ATF file with court

Summary of TRA/NAR position:
(1) ATFE distorts the standard of judicial review
(2) ATFE advances the erroneous legal notion that an agency is free to ignore scientific data if it undercuts its pre-determined position
(3) ATFE uses legally impermissible post-hoc rationalizations to defend its decisions
(4) ATFE adopts the patently ridiculous position that APCP burns fast enough to "deflagrate" like an explosive even though it burns no faster than ordinary white office paper
(5) ATFE misrepresents the findings of its contractor and undercuts its own decision in a failed effort to reconcile the APCP burn rates it prefers with the much lower burn rates in the administrative record and in the manufacturer's own independently verified test data
(6) ATFE cannot even recognize the elementary difference between (a) "ammonium perchlorate," as an oxidizer that is used in a wide variety of applications and is classified as an explosive, but is not the subject of this lawsuit, and (b) APCP, a solid rocket propellant that includes both ammonium perchlorate and other chemicals that dramatically alter its chemical behavior and is the subject of this lawsuit.

TRA/NAR filing
Affidavit of Gary Rosenfield
ATFE filing

The filing by our side is very good this time. I have a lot of hope.

Some good stuff there. Defensible yet not playing the bad guy from our side. Seems like we should have a good shot at it.

Jason

The filings on our side have all been good. Fingers crossed.

gary's affidavit seem to despute the finding of the ATF very well. i think everyone their (including the judge) sees what the ATF is doing but the ATF The way it is looking by summer 2008 LEUP's will no longer be required for easy access and might not be for restricted thus meaning "easy access" for all!!

Ben

Originally posted by ben
gary's affidavit seem to despute the finding of the ATF very well. i think everyone their (including the judge) sees what the ATF is doing but the ATF The way it is looking by summer 2008 LEUP's will no longer be required for easy access and might not be for restricted thus meaning "easy access" for all!!

Ben

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That would be great for motors, if the judge see's it our way.

We still have that problem about igniters and BP.

We need a congressional exemption for igniters and BP use in
rocketry. Otherwise you still need the LEUP to use them unless
they were sold with a certified motor. The problem still exists.

William

Having just finished reading through all of the links provided in the first post, I will say that I don't see this thing getting settled any time soon.

I had to chuckle, however, that the BATFE made as one of its primary assertions that the plaintiffs (that's us) didn't cite enough administrative record. In other words, we didn't throw around enough BS in an attempt to confuse the court. They then proceeded to cite far more cases than I care to count.

Now here's why I say that this is gonna go on for a while yet: Every single one of those cases cited is going to have to be researched by some court staffer, along with all of the pleadings and opinions in each. That, in and of itself, is going to represent at least a couple thousand pages of reference material which has now been brought into this case. Correlating all of it is going to be an enormous task, probably on the order of 2-3 months at a minimum.

It is, in essence, the equivalent of telling someone that before they can talk to you again, they have to read the entire NY Times Sunday edition, and transcribe it by hand. If they skip part of it, you get to claim that they didn't due what they were supposed to do, and call for dismissal. It costs them nothing, it costs us a lot of time and more headache. A sleazy, slimy, but legal judiciary tactic.

I especially like the BATFE's argument that just because we have a more accurate and representative test for burn rate, they've got a burn rate test also and so they get to pick which one they get to use.

WW

Hat's off to Gary.

Good job.

Originally posted by ben
gary's affidavit seem to despute the finding of the ATF very well.

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It does that. It also seems to show that ATF's researcher was either incompetent in this field or in general, or else engaging in scientific misconduct and therefore perjury. He presented data based on an incorrect definition of the phenomenon studied. If he has the background and knows this, he lied. If he doesn't, he has no business testifying about his data or the subject and shouldn't have accepted the job. Either way he should be reported to any professional organization he belongs to.

If you want to investigate explosives, you hire an explosives expert. That's what ATF wanted to do, and that's who they hired. The failure of their hired expert to understand what he was studying indicates that he is not an expert in the field of solid rocket motor propulsion. That's what they're studying, whether or not they're explosives. If they had wanted to produce clear and accurate evidence, they would have hired someone who was capable of doing so. They didn't, because that's not what they wanted to do. Purposefully wasting the court's time is grounds for contempt charges, is it not? He or they should be held accountable.

I think we (the collective NAR/TRA we, as represented by the attorneys) should insist that his evidence and testimony be struck. His misstatements (to be kind) are so egregious that they invalidate themselves when compared to Gary's testimony, and should be inadmissible.

Unfortunately that would probably cause the judge to require that ATF actually hire someone qualified and do the tests he required over from scratch. If they're done right, we'd be supported, but what's unfortunate is that it would stretch things out and require yet more court time and legal fees. ATF can outlast us in this respect -- they have no limit on their budget when they can wave the red flags of explosives, terrorism and Homeland SuperDuperUberAllesNineOneOneWe'reAllGonnaDie.

Uh, Security.

Originally posted by DynaSoar
It does that. It also seems to show that ATF's researcher was either incompetent in this field or in general, or else engaging in scientific misconduct and therefore perjury. He presented data based on an incorrect definition of the phenomenon studied. If he has the background and knows this, he lied. If he doesn't, he has no business testifying about his data or the subject and shouldn't have accepted the job. Either way he should be reported to any professional organization he belongs to.

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The AFRL has many divisions so it is a mystery why the Propulsion directorate wasn't hired to do this job.

The authors of the report gave no evidence of their expertise beyond one having received a Ph.D (we are left to guess the subject) and the other being a Professional Engineer. After John WIckman posted on RMR about this topic I pointed him towards the website of the Florida Board Of Professional Engineers. I have no idea if John actually filed a complaint about Mr. Hawk but he seemed pretty wound up at the time.

https://groups.google.com/group/rec...914a4/a22f4d8baee3bbed?hl=en#a22f4d8baee3bbed

Originally posted by WillCarney
That would be great for motors, if the judge see's it our way.

We still have that problem about igniters and BP.

We need a congressional exemption for igniters and BP use in
rocketry. Otherwise you still need the LEUP to use them unless
they were sold with a certified motor. The problem still exists.

William

Click to expand...

its a good start! If we get motors we are on the home stretch!

Ben

Originally posted by DynaSoar
It does that. It also seems to show that ATF's researcher was either incompetent in this field or in general, or else engaging in scientific misconduct and therefore perjury. He presented data based on an incorrect definition of the phenomenon studied. If he has the background and knows this, he lied. If he doesn't, he has no business testifying about his data or the subject and shouldn't have accepted the job. Either way he should be reported to any professional organization he belongs to.

If you want to investigate explosives, you hire an explosives expert. That's what ATF wanted to do, and that's who they hired. The failure of their hired expert to understand what he was studying indicates that he is not an expert in the field of solid rocket motor propulsion. That's what they're studying, whether or not they're explosives. If they had wanted to produce clear and accurate evidence, they would have hired someone who was capable of doing so. They didn't, because that's not what they wanted to do. Purposefully wasting the court's time is grounds for contempt charges, is it not? He or they should be held accountable.

I think we (the collective NAR/TRA we, as represented by the attorneys) should insist that his evidence and testimony be struck. His misstatements (to be kind) are so egregious that they invalidate themselves when compared to Gary's testimony, and should be inadmissible.

Unfortunately that would probably cause the judge to require that ATF actually hire someone qualified and do the tests he required over from scratch. If they're done right, we'd be supported, but what's unfortunate is that it would stretch things out and require yet more court time and legal fees. ATF can outlast us in this respect -- they have no limit on their budget when they can wave the red flags of explosives, terrorism and Homeland SuperDuperUberAllesNineOneOneWe'reAllGonnaDie.

Uh, Security.

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they should of called Gary to testify agianst his motors He could of fought better agianst himself!

Ben

Hey all, I've been trying to figure the whole situation out from various RMR/TRF posts, and have a couple questions...

-The recent file states that TRA/NAR "moved for summary judgement on count one of their third amended complaint..." (APCP). Is there more than one count? If so what would the others be?
-Not being too familiar with legal procedures...would a summary judgement (in our favour) end the issue, or would/could there be an appeal? And if so, would that create a trial after the summary judgement?
-Would more affidavits be useful? (After seeing David Schultz post earlier, I looked up John Wickman from the RMR post, and he has years of experience specifically with propellants...something to that effect would carry a lot of weight as well)

Like I said, I'm virtually clueless when it comes to legal procedures (I always thought that was a good thing!) Some help would be appreciated.

Bruce

Bruce,

While I'm not that versed in the legal system as much as others, I'll give you my opinion on how it works.

-counts:

There are multiple counts from each side. I don't recall them but they are listed in the multitude of documents filed with the court. If you go back through the history and read all the filings, you should be able to gather what all the counts are.

-summary judgment/appeals:

If the judge grants summary judgment then it is over unless there is an appeal to a high court.(summary judgment is kind of like saying "theres no need to hear the rest because {this} proves our point" Basically, appeals are like jello...theres always room for more. The appeal has to be based on something that the lower court did wrong or one side feels like they didn't get justice. As for going to trial, I don't think so. This is one of those cases that after hearing both sides and reading the evidence, the judge just decides for one side or the other and that is that.

-affidavits:

There are times when more is better and there are times when less is better. I'm not a lawyer so I can't tell which is this case. I leave that up to them. I think they know that if they need an affidavit from someone in the rocketry world that has knowledge on the subject, they need only ask as we're all in this together.

As always, I'm not a lawyer nor do I play one on TV. If you want to know how things really work, ask a lawyer as they're the only ones really qualified to answer.

-Aaron

The ATF is depending, nay, pounding on the unsuitability of the court to determine and gain expertise on the subject at hand. The case is clear...the ATF contracted testing (maybe for the first time??) and they came up with erroneous, invalid numbers pertaining to APCP burn rates. They keep saying that, even in the face of inaccurate or conflicting data, they should get the preferred treatment in the case. Their data is beyond just wrong.
The question is will the court recognize this very clear gamesmanship? Or will they bow to the "reputation" of the Bureau and it's "reasoned" and "rational" decision? Can common sense prevail?
The ATF has to know the burn data is false, if they have the slightest expertise, which I assume they do. There is a real power game afoot here, one they don't need to be playing in the present world climate.
They have much, much bigger fish to fry. The small hobby rocketry community, and our propellants, aren't the threat.

Even though the evidence is in our favor, a Judge, will often side with the government and homeland security no matter what. I think we have a strong chance at winning this but I still think that the governement (meaning judge) is going to rule what they think will be the safest for everyone, even if it is a real PITA. The problem is the ATFE doesn't have to try hard to have a chance at winning the case, just because they are on the feds side and homeland securities side. And even if we did win, what is stopping the from creating a LPUP (low propellant users permit). It is something that would be easy for them to do. I think, as much as it is a real PITA, now that we move into new, safe minded American population, I think we have to live with what is put on us. I honestly don't think in the long run things will get better. America is turning more and more into a strict but equal minded society, we can't expect to get away with now what we could get away with 20 years ago. Sometimes things will go our way but later they will just get worse.

Originally posted by UhClem
The AFRL has many divisions so it is a mystery why the Propulsion directorate wasn't hired to do this job.

The authors of the report gave no evidence of their expertise beyond one having received a Ph.D (we are left to guess the subject) and the other being a Professional Engineer. After John WIckman posted on RMR about this topic I pointed him towards the website of the Florida Board Of Professional Engineers. I have no idea if John actually filed a complaint about Mr. Hawk but he seemed pretty wound up at the time.

https://groups.google.com/group/rec...914a4/a22f4d8baee3bbed?hl=en#a22f4d8baee3bbed

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He doesn't have to wait to be invited to participate. He can file an Amicus Curiae brief with the court any time he wants, covering the technical issues, the researcher's behavior & credentials, or both and more. I really hope he does. It'd be a very good showing if more pros in the field got involved. If he does this, sending a copy to that regulatory body along with his specific complaints to them would be a treat. Multiple people could file multiple briefs or complaints to FBPE, or get together and write one.

ASTM oversees testing things and the standards used. I wonder if they have a testing standard filed for APCP? Also, if the DoD has one, it'd be in mil-spec.

It'd be interesting to know why AFRL allowed someone not in propulsion to do this job. If ATF specifically asked for someone to test explosives, then they were hobbling the research from the start. In any case, Mr. Hawk should have bowed out when faced with testing something outside his field. He didn't, and in a critical case -- a federal court case. That alone should earn him sanction from his professional board.

Keep in mind this is an administrative case, and not a criminal trial. Rules are different.

Originally posted by UhClem
The AFRL has many divisions so it is a mystery why the Propulsion directorate wasn't hired to do this job.

The authors of the report gave no evidence of their expertise beyond one having received a Ph.D (we are left to guess the subject) and the other being a Professional Engineer.

Click to expand...

Here's what I posted last Nov. on the NAR Sections Yahoo group about Hawk and Dinan (the bumbling BATFE experts)...

John DeMar wrote:
Hawk is a contractors who works for Applied Research Associates at AFRL at Tyndall AFB. He appears to study blast protection and effects. Publications for John Hawk:
https://www.stormingmedia.us/authors/Hawk__John.html

Dinan is employed by AFRL. He is apparently an expert in concrete wall blast effects: Publications: https://tinyurl.com/y849py

Neither seems to be propellant or rocket motor experts. You can read into that what you want, but it might not be a coincidence.

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-John

I like the last page.

Giving ATFE an unlimited number of tries makes a mockery of judicial review and encourages agency incompetence. After all, why put much effort into getting it right the first time, or even the second or third time, if a reviewing court will allow an unlimited number of tries while keeping the classification in effect and exhausting the limited resources of injured Plaintiffs.

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As my astro teacher said yesterday in class... "Oh. Burn."

Never forget that what it comes to the
gov exercising its powers over 'We the People'

'If it can - it will...'

Lou Dobbs,
CNN 2006

Originally posted by daveyfire
I like the last page.



As my astro teacher said yesterday in class... "Oh. Burn."

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Yeah, I liked that one too...lol

Folks,

I will, as I have after every step in this legal process, caution folks against speculation about our case. BATFE actively monitors rocketry forums on the Net, and the less said about the particulars of the NAR / TRA legal strategy the better.

Ken Good, TRA President, and I hope to have a joint statement about the litigation out shortly.

Thanks for your ongoing moral (and financial) support:

https://blastzone.com/nar/NARfrompres9911.html#donorform

Originally posted by narprez
Folks,

I will, as I have after every step in this legal process, caution folks against speculation about our case. BATFE actively monitors rocketry forums on the Net, and the less said about the particulars of the NAR / TRA legal strategy the better.

Ken Good, TRA President, and I hope to have a joint statement about the litigation out shortly.

Thanks for your ongoing moral (and financial) support:

https://blastzone.com/nar/NARfrompres9911.html#donorform

Click to expand...

no problem. Do keep up the good work!

Ben

Does anyone know if a strand burn like what Gary described has been done with APCP? I'd be interested in seeing the burn rate that is obtained from that as it is widely accepted as a valid test setup and it would give a linear burn rate for APCP which the ATFE is so bent on using. I don't know if it would be better, worse or the same as the radial burn rates that we (the rocketry community) use.

-Aaron

This is the most (favorably) lopsided set of motions I've seen. Nice job.

However, here's one point that could be made clearer.

BATFE claims "linear" rates are needed for comparison to safety fuses, etc., and therefore "radial" rates can't be used. Plaintiff gives a convincing argument about how motors burn radially, but this doesn't directly counter the comparability argument advanced by BATFE.

The comparability argument can be countered simply by noting that "radial" rates are linear rates: they happen to be rates of burn in the linear direction of the burn path. In this sense, they are directly comparable to other linear burn rates. In fact, using the BATFE approach (length of motor) introduces incomparability for the same reason: safety fuses would be measured in the linear direction of the burn but rocket motors would be measured in a direction perpendicular to the linear direction of the burn.

Geof

A strand burn test has been the standard for decades. It keeps the pressure constant and removes other variables present in a cored motor burn, especially erosive burning.

Another burn rate test is to use an endburning motor with steps in the diameter. As the burning surface decreases, the pressure decreases, giving a point-on-the curve for each step in pressure.

Using a standard Bates-grain motor, especially with AT's erosive resin nozzle, only gives the effective burn time of the motor without isolating the burn rate at constant pressure. By dividing the burn time by the "web thickness" (difference of ID and OD of the grain) gives the average burn rate. This is a nice number to use for the court case because it represents the burn rate under its "intended use". But the strand-burner values are best for independent comparisons of a variety of formulas and materials.

-John

I read it as if taking the burn times found by the ATFE and then dividing them by the true web thickness as measured by the manufacturer. If it is as you suggest, the strand burn rates, then the numbers all fall well below the threshold set by the ATFE. That would be very good news.

-Aaron

Thread closed.

Originally posted by narprez
Folks,

I will, as I have after every step in this legal process, caution folks against speculation about our case. BATFE actively monitors rocketry forums on the Net, and the less said about the particulars of the NAR / TRA legal strategy the better.

Ken Good, TRA President, and I hope to have a joint statement about the litigation out shortly.

Thanks for your ongoing moral (and financial) support:

https://blastzone.com/nar/NARfrompres9911.html#donorform

Click to expand...