WASHINGTON, District of Columbia USA — The Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) was back in court this past week to publicly admit blundering with the filing of a "Defendant's Notice of Errata," an addendum to the ATF's "Reply in Support of Renewed Motion for Partial Summary Judgment" filed on April 10th.

In their filing, the attorneys for the ATF admit they made a mistake in the filing, costing the ATF one of their points in requesting that U.S. District Court Judge Reggie B. Walton grant a summary judgment in the ATF's favor.

In their April 10th filing, ATF states in footnote 1 (page 2), "In cases under the Administrative Procedure Act, the manner of utilizing Local Civil Rule 7(h) is not entirely clear. That rule requires that an opposition to a summary judgment motion be accompanied by 'a separate concise statement of genuine issues setting forth all material facts as to which it is contended there exists a genuine issue necessary to be litigated, which shall include references to the parts of the record relied on to support the statement.' Local Civil Rule 7(h). Here, plaintiffs fail to include any opposing statement, and the Court may treat defendant’s statement of facts as conceded."

The ATF's attorneys reference several case law precedents and adds in that same footnote, "Defendant's facts, all of which are undisputed, are sufficient, in of themselves, to dispose of plaintiff’s claims on the classification of APCP as an explosive, and it is not incumbent on this Court to sift through the administrative record to locate support for plaintiff's position."

This, however, was factually incorrect. Counsel for plaintiffs Tripoli Rocketry Association (TRA) and the National Association of Rocketry (NAR) did contest several of ATF’s statements of material facts, which were summarized in "Plaintiffs' Counter Statement of Material Facts in Genuine Dispute," filed on March 16th, which was included with the submission of "Plaintiffs' Opposition To Defendant's Renewed Motion for Summary Judgment."

After the April 10th filings, counsel for the plaintiffs pointed out that fact to the ATF's counsel. The ATF stated in their May 1 filing that it failed to notice the plaintiffs' attachment when their reply brief was prepared, stating, "After defendant filed its reply, plaintiffs' counsel graciously pointed out that defendant's argument regarding the absence of plaintiffs' response to defendant's statement of material facts was unfounded. Plaintiffs' counsel is correct."

Offering an apology for the oversight, the ATF's attorneys ask in this week's filing that the judge omit footnote 1 from his consideration of the defendant's reply.

Documents:

• Defendant's Notice of Errata (27K Adobe PDF)

05-04-2007 11:46 AM  #1
mrbusdriver Certified Level One   Joined: Mar 2007 Posts: 27	"Oops" is something you don't want to hear from your surgeon, or your lawyer. Looks like a pretty big "oops" to me...considering the level of detail that goes into every word in these sort of cases. Very interesting indeed...speaks volumes.

05-04-2007 01:27 PM  #2
crontab Certified Level Three   Joined: Aug 2006 Posts: 204	Unexpected discoveries like these are obviously the fault of the defendant, but they result in additional billable hours for our legal team. In case anyone hasn't noticed the new T-Shirt of the Month design to the right, now would be a good time to click on the ad and purchase a Rocketry Planet T-Shirt of the Month. All proceeds go to the TRA/NAR legal fund, and what better way to show your support than tell the world you are a Rocket God while fighting the good fight?

05-06-2007 08:58 PM  #3
Aphyle Hot HCl and rubber @ AM   Joined: Dec 2006 Posts: 107	Quote: Unexpected discoveries like these are obviously the fault of the defendant, but they result in additional billable hours for our legal team. This seems like one more tactic in the battle of attrition. It almost seems as an act of bad faith on the part of the defendants, introducing the error on purpose, knowing that it would cost the plaintiffs that much more. I mean, the defendants did get extra time, didn't they? It seemed a pretty obvious error, reading all the documents.

06-08-2007 12:28 PM  #4
Swampworks New Member   Joined: Jun 2007 Posts: 4	This is getting so obvious that the ATF team is simply using a tactic to draw this case out as long as possible. While it is aggravating to me that it involves our hobby, what reayy infuriates me is that the justice system in this country is set up to allow such tactics and other similar ones to avoid TRUE JUSTICE. If I had some extra funds at the moment I would probably make a donation, however I do not right now. I still feel like the overall effort is a waste of time and money. In the end, I think they will prevail due to unlimited funding for their side. At what point is it best to try to reach a compromise before we're backed into a corner and lose everything?

06-10-2007 06:03 AM  #5
Steve_Shannon When in doubt, ask Keenan   Joined: Aug 2006 Posts: 1820	Unlimited budget? Not really Neither the ATF nor any other government agency has "unlimited" funding. They have way more money than I do, but each agency has a budget, which is certainly finite. For every dollar that ATF spends on this court case, they have one less dollar to spend somewhere else. True, they can request emergency funds from congress, but they are already in trouble for budget overruns: (see this article in the Washington Post) which hopefully will work to our advantage.

06-11-2007 12:02 AM  #6
Kapton Certified Level Two   Joined: Oct 2006 Posts: 31	Thought I had read somewhere along the line that when the BATFE loses, if they wish to appeal they would have to get the go ahead from their parent organization, the Justice Department.

06-11-2007 02:52 PM  #7
heada Certifiable   Joined: Apr 2007 Posts: 597	Quote: Thought I had read somewhere along the line that when the BATFE loses, if they wish to appeal they would have to get the go ahead from their parent organization, the Justice Department. BATFE => DoJ => Homeland Security Do you really think HS is going to let something get removed from the list? They'll just complain to congress and get a new law passed. -Aaron

06-11-2007 09:26 PM  #8
Aphyle Hot HCl and rubber @ AM   Joined: Dec 2006 Posts: 107	Quote: BATFE => DoJ => Homeland Security Do you really think HS is going to let something get removed from the list? They'll just complain to congress and get a new law passed. Which is why we need to be prepared to request legislative relief of our own. And this includes countering the statements used by legislators that lift language from "scare sheets" that are built on the same falsehoods, innuendos, and distortions that are part the defendant's side of the APCP case. All one need do is to go to www.senate.gov and www.house.gov.

06-13-2007 12:32 AM  #9
jmiller no title   Joined: Oct 2006 Posts: 26	Remember, the whole lawsuit started long before 9/11.. I's been "in progress" that long. When it comes to getting relief from congress, that was also tried back in the early 2000's (2002 or so?) John Wickham and the Senator from WY did a great deal of work. We all wrote letters, and the bill was killed. In the post 9/11 world, the regs we got right now are probably as good as we can expect. What I'd like to see is NAR/TRA to use some of the fund/lawyers on local level to help with storage requirements and local laws (NFPA amendments?), even if it's just at the club level. Today, I couldn't have storage in the city I live, even if I had a 5 acre lot! The local laws are based on 50 year old regs involving the rail roads, and no one really wants to change them.

06-13-2007 12:53 AM  #10
Steve_Shannon When in doubt, ask Keenan   Joined: Aug 2006 Posts: 1820	Actually the bill was not allowed to come to a vote. Schumer and Lautenberg, from NY and NJ, toed the ATF line and kept it from coming up for a vote. The sponsor was Mike Enzi. It was shortly after 9/11 and people were still reacting to that panic filled day. That does not mean that the bill was not good or that it could not pass now.

06-13-2007 09:14 AM  #11
Aphyle Hot HCl and rubber @ AM   Joined: Dec 2006 Posts: 107	Quote: Remember, the whole lawsuit started long before 9/11.. I's been "in progress" that long. When it comes to getting relief from congress, that was also tried back in the early 2000's (2002 or so?) John Wickham and the Senator from WY did a great deal of work. We all wrote letters, and the bill was killed. I know - I've been following it for a long time, as well. It is a slightly different Congress now, but unfortunately, the two senators who were using the "scare sheet" about powerful rockets shooting down airliners from the back of rental trucks to counter that bill are in the majority party. Educate, educate, educate. I've been to see my representatives several times, in DC, and with materials in hand. I cannot say that I can point to a direct correlation between these visits and specific actions, but at least my side of the story was listened to. Still, I'd be happy to try on this issue, if and when the court "decides" it is necessary. Quote: What I'd like to see is NAR/TRA to use some of the fund/lawyers on local level to help with storage requirements and local laws (NFPA amendments?), even if it's just at the club level. Today, I couldn't have storage in the city I live, even if I had a 5 acre lot! The local laws are based on 50 year old regs involving the rail roads, and no one really wants to change them. It might be interesting for NAR/TRA to produce, presuming that it has not already been done, a packet for clubs/prefectures to use to that end. Is there such a thing already?

06-13-2007 07:43 PM  #12
ddmobley Administrator   Joined: Jul 2006 Posts: 2585	Quote: It might be interesting for NAR/TRA to produce, presuming that it has not already been done, a packet for clubs/prefectures to use to that end. Is there such a thing already? Apparently not. If so, I don't think people like Tim Lehr and Burl Finkelstein would be trying to do it by themselves. The topic has been been brought up again and again and while it is apparent that everyone would be interested in this, I suppose for the national orgs to produce this information it would be considered a sign of weakness in the fight with ATF.

06-14-2007 05:01 AM  #13
jmiller no title   Joined: Oct 2006 Posts: 26	Quote: Apparently not. If so, I don't think people like Tim Lehr and Burl Finkelstein would be trying to do it by themselves. The topic has been been brought up again and again and while it is apparent that everyone would be interested in this, I suppose for the national orgs to produce this information it would be considered a sign of weakness in the fight with ATF. NAR/TRA leadership should not consider this a sign of weakness in the court case with the BATFE, but instead, a way of supporting members! Many folks seem to forget that even if the ruling is 100% in favor of the hobby, there's still an issue with ematches and BP. (I know, some will say "xmas tree lights and smokeless, but many wont!). Plus, if NAR/TRA does win, Congress could just pass a law that reverse the whole thing. Imagine if NBC/CBS/ABC/CNN/FOX do a story - "Judge rules that anyone can buy rocket propellent and build their own rockets that fly miles"! I think the "weakness" that doesn't want to be displayed is that NAR/TRA leadership is that they didn't start this effort 7-8 years ago, and during that time have spend huge sums of money in the fight against the BATFE, where much less could have been spent by helping clubs/prefectures become legal, with the existing rules from the BATFE. Since 9/11/2001 many things have changed - the "Patriot Act", SEA, etc., but the way that NAR/TRA is handling this issue has remained basically unchanged. The general public would not be happy with the "anyone can buy rocket propellent.." story.

06-14-2007 08:52 AM  #14
Aphyle Hot HCl and rubber @ AM   Joined: Dec 2006 Posts: 107	Quote: Plus, if NAR/TRA does win, Congress could just pass a law that reverse the whole thing. Imagine if NBC/CBS/ABC/CNN/FOX do a story - "Judge rules that anyone can buy rocket propellent and build their own rockets that fly miles"! You know full well that is what some might just do. Given this prospect, we really ought to have some PSAs or podcasts or some other outreach ready to go. Anyone on the list do any podcasting?

06-14-2007 09:48 AM  #15
Steve_Shannon When in doubt, ask Keenan   Joined: Aug 2006 Posts: 1820	Quote: You know full well that is what some might just do. Given this prospect, we really ought to have some PSAs or podcasts or some other outreach ready to go. Anyone on the list do any podcasting? Waiting for a negative reaction would be way too late. We need to do several things, starting now: Start working the media so they won't do that slanted news report, Start informing our lawmakers so that if/when they hear that slanted news report they know the real story, More public outreach involving larger rockets, showing how safe we are when we launch them and explaining why they cannot be easily weaponized. Right now if you ask the average person on the street about rocketry, his or her impression is of model rockets. When you show that person a large rocket they are impressed by the size but they also probably have reservations about that size of rocket. How many times have we heard questions like "What are you going to shoot down with that thing?", or "Wow, that's a real missile." We need to relate more to the common person. The unfortunate impression held by some people who have seen large rockets is that unusually intelligent people engage in the hobby and that they would not fit. Somehow we need to let them know they would fit in. Obtain more members in our two national organizations. The most important thing the NRA did in order to keep gun control from being enacted was to recruit, recruit, recruit. They offered incentives to existing members to recruit new members. Gun manufacturers did the same through gun dealers. "Sign up a new member and receive a free ball cap" promotions were commonplace and so they went from 1 million members to 2 million, then 3 million. I don't know how many members they have now, but you get the idea. We each need to be recruiting more members. One way our leadership could stimulate that is with incentives, but even if they don't we need to do it. Next time each of us attends a launch we should invite a neighbor or co-worker. If we can accomplish the last three things, we will be well on our way to public acceptance. I would argue that once we have public acceptance we can get legislative relief much more easily.

06-14-2007 09:53 AM  #16
DumasBro2 I Felta Thi Frat Boy   Joined: Aug 2006 Posts: 215	If....could...if some more. You can speculate until the cows come home and drive yourself nuts in the process. On another note LEUPs are available with a contingent storage plan.

06-14-2007 08:08 PM  #17
bsexton New Member   Joined: Oct 2006 Posts: 5	Quote: If....could...if some more. You can speculate until the cows come home and drive yourself nuts in the process. On another note LEUPs are available with a contingent storage plan. If you have access to or know someone with storage...

06-14-2007 10:23 PM  #18
jmiller no title   Joined: Oct 2006 Posts: 26	Quote: If....could...if some more. You can speculate until the cows come home and drive yourself nuts in the process. On another note LEUPs are available with a contingent storage plan. Contingent Storage is not always a good option either. I had a LEUP for a while, with "contingent storage" - the only legal storage available within 50 miles. The owner made me sign a deal where I would be charged for each checkin/checkout ($5 per motor). With the LEUP, I could "buy and fly", but I sure wasn't going to be held to the "highway robbery" for storage! I don't think that's it's unfair that the owner of the storage be paid something for his trouble, but this was a case where he was ripping off people! As far as "public education", Podcats, PSA's, I really don't think that would do a darn thing. Reality is, as a guy that does fly, I don't want the wacko down the street or across town to have access to L1/L2/L3 motors. I'll buy my motors legally, store them legally, fly them legally, without any problem! But as I said before, even if NAR/TRA wins right now, all it would take is a one-line admendemnt to a bill on "Saving ducks in national forests" to nullify the whole lawsuit. It's as simple as "9.1.c - The BATFE also should regulate and restrict the use of all rocket propellents as defined in appendix q". Since 9/11 I've contacted both NAR and TRA about "help the clubs get legal, as the world has changed!" and been ignored, or gotten responses such as "we'll win so that's not an issue!"

06-14-2007 10:52 PM  #19
Steve_Shannon When in doubt, ask Keenan   Joined: Aug 2006 Posts: 1820	Quote: ... As far as "public education", Podcats, PSA's, I really don't think that would do a darn thing. Reality is, as a guy that does fly, I don't want the wacko down the street or across town to have access to L1/L2/L3 motors. What makes a person a wacko? Educating the public does not mean handing out rocket motors like candy anyway. We currently have a system that does not allow selling high power motors to un-certified people who are not NAR or TRA. Are you saying that the government should be regulating us more than that? Quote: ... I'll buy my motors legally, store them legally, fly them legally, without any problem! But as I said before, even if NAR/TRA wins right now, all it would take is a one-line admendemnt to a bill on "Saving ducks in national forests" to nullify the whole lawsuit. It's as simple as "9.1.c - The BATFE also should regulate and restrict the use of all rocket propellents as defined in appendix q". Exactly why we need to get legislative relief. If that amendment said: [html>9.1.c - excluded from explosive regulations are ammonium perchlorate composite propellant, igniters expressly designed to ignite rocket motors, and electric matches with less than xxx grams of pyrogen[/html> we could just as easily be the beneficiaries of a one line amendment as the victims.

06-14-2007 10:55 PM  #20
ddmobley Administrator   Joined: Jul 2006 Posts: 2585	Quote: Since 9/11 I've contacted both NAR and TRA about "help the clubs get legal, as the world has changed!" and been ignored, or gotten responses such as "we'll win so that's not an issue!" That is such a myopic and retarded position for the orgs to take. If a corporate entity in this country was run by that approach to a similar situation, the officers would be run out of town on a rail. We have to have contengencies covered, or we'll end up finding ourselves blindsided. Unfortunately, we may just get the opportunity to see that play out. Quote: we could just as easily be the beneficiaries of a one line amendment as the victims. Steve, your optimism is overwhelming!

06-15-2007 12:14 AM  #21
jmiller no title   Joined: Oct 2006 Posts: 26	Quote: That is such a myopic and retarded position for the orgs to take. If a corporate entity in this country was run by that approach to a similar situation, the officers would be run out of town on a rail. We have to have contengencies covered, or we'll end up finding ourselves blindsided. Unfortunately, we may just get the opportunity to see that play out. Steve, your optimism is overwhelming! No doubt on the "myopic" part.. Many may recall that when Wickham and Enzi started their effort at "legislative" changes, both NAR and TRA told members not to take part in no uncertain terms! After the membership told NAR/TRA that they were wrong, the nationals kind of backed off, but still wouldn't really lend support. We lost the chance of legislative reform at that point! Quote: What makes a person a wacko? That, my friend, is a big part of the problem! Can you tell me if the guy on the pad next to you is a wacko? Does he have a "strange" criminal behavoir? Does he have explosive charges in his past for doing something he shouldn't? Does he have "other problems"? But someone would sell him a motor. Real case in point. One of the first folks I ever met at an orginized launch was a really nice guy. He was L2 at the time, and I was L0. Knew him for the next few years, as I moved to L3. Turns out he had some serious "off hobby" problems, and was shot by the cops when he stopped taking his meds and was waving his gun at them. He ALWAYS seems like a good, mellow guy to me... I don't always know a "wacko", nor do you, but with some overview from the folks that have access to more info than you or I do, things might be better off than doing nothing... Look at the shooter at VT. The guy was a bit odd, it seems, but was in reality a "real wacko". In VA, there was no requirement that mental evals be passed on to the gun folks, and the result was, well, the result. That's what I mean - if some "wacko" gets a l3 load and launches it into a crowd, who would you blame? Like I've said, having "restrictions" isn't itself a bad thing.. But, I'd hope that NAR/TRA gave information as to how to work within those restrictions, at the national and local level. Steve - I can't believe that you really think that allowing anyone to buy large rocket motors, with no restrictions, is actually a good thing. I know of a few vendors in the past that could have cared less about NAR/TRA cert level when selling a motor, as long as you had a valid CC number.

06-15-2007 02:36 PM  #22
Steve_Shannon When in doubt, ask Keenan   Joined: Aug 2006 Posts: 1820	Quote: Steve - I can't believe that you really think that allowing anyone to buy large rocket motors, with no restrictions, is actually a good thing. I know of a few vendors in the past that could have cared less about NAR/TRA cert level when selling a motor, as long as you had a valid CC number. Jim, I don't, but I think the EUP requirement is worse. Steve

06-15-2007 02:49 PM  #23
ddmobley Administrator   Joined: Jul 2006 Posts: 2585	Restrictions are a small deterent for those intent on doing harm. Even with the restrictions on handguns today, thousands of people die every month as the result of handgun violence, but most are from handguns attained outside of the restrictions imposed on the market. If you completely did away with legal possession of rocket fuel except by government agencies, criminals would still find a way to get it, just like they would get guns if they were outlawed. You can't legislate criminal activity out of existence, you can only legislate what produces criminal activity.

06-15-2007 05:39 PM  #24
Steve_Shannon When in doubt, ask Keenan   Joined: Aug 2006 Posts: 1820	That is exactly right. The self-regulation of our hobby may not be perfect, but it is much better than having a government regulate us. We do not want to give up our rights, however well intentioned, to a bureaucracy, falsely thinking that we are going to be safe. Quote: That, my friend, is a big part of the problem! Can you tell me if the guy on the pad next to you is a wacko? Does he have a "strange" criminal behavoir? Does he have explosive charges in his past for doing something he shouldn't? Does he have "other problems"? But someone would sell him a motor. Quote: snipped example That's what I mean - if some "wacko" gets a l3 load and launches it into a crowd, who would you blame? The guy who launched the motor of course. I'm tired of others being blamed when somebody does something wrong. The same thing could happen, with much more precision, if that person drives his car into the crowd or flys an RC plane into the crowd. Legislation will never totally prevent bad people from doing bad things. Legislation just prevents law abiding people from doing those things that other people deem bad. Quote: Like I've said, having "restrictions" isn't itself a bad thing.. But, I'd hope that NAR/TRA gave information as to how to work within those restrictions, at the national and local level. On this we agree. If restrictions are to be placed, then I would hope that NAR/TRA and members would have input. However, so far none of our comments to the NPRMs that ATF has circulated have made any difference. They just don't listen. Quote: Steve - I can't believe that you really think that allowing anyone to buy large rocket motors, with no restrictions, is actually a good thing. I know of a few vendors in the past that could have cared less about NAR/TRA cert level when selling a motor, as long as you had a valid CC number. You keep saying that no restrictions exist as if it is fact. There already are legal restrictions in NFPA and CPSC. Forcing a person to obtain an explosive user permit (ATF appears to be doing away with the low/high explosive differentiation) causes greater problems. Once a person has an EUP, what is to keep that person from getting real explosives and going on a rampage? Is it better to increase the number of people who have access to high explosives? That M load that you visualize being launched into a crowd is much less of a threat than high explosives or my other examplse: a car, or an RC plane. What it boils down to is the fact that right now getting "licensed" to buy rocket motors is more difficult than buying a gun, yet no other activity has been safer than this hobby. I would begrudgingly support some kind of rocketry permit that allowed a person to buy motors, igniters, and electric matches. Getting the permit should be not harder than buying a handgun; in fact the same NICS setup could and should be used to clear the permit. The permit should be $30 for three years and could be renewed via mail, with no on-site inspections, no magazine requirements, and no record keeping requirements.

06-17-2007 05:01 PM  #25
Aphyle Hot HCl and rubber @ AM   Joined: Dec 2006 Posts: 107	Quote: What it boils down to is the fact that right now getting "licensed" to buy rocket motors is more difficult than buying a gun, yet no other activity has been safer than this hobby. I would begrudgingly support some kind of rocketry permit that allowed a person to buy motors, igniters, and electric matches. Getting the permit should be not harder than buying a handgun; in fact the same NICS setup could and should be used to clear the permit. The permit should be $30 for three years and could be renewed via mail, with no on-site inspections, no magazine requirements, and no record keeping requirements. I agree - it should be no harder than purchasing a hand-gun. But it's not like you should need a concealed carry permit for a J350 any more than you would need one for a box of .30-30 ammunition. Neither is much good without the supporting device, both could get you hurt if you misuse them, and for the latter, well, they are behind the sporting goods counter at Wxx-Mxxx.

06-17-2007 06:17 PM  #26
Steve_Shannon When in doubt, ask Keenan   Joined: Aug 2006 Posts: 1820	Please don't misunderstand. I would prefer that no kind of government issued permit be required in order to buy rocket motors, but if that is not possible, then it needs to be crafted such to make it very easy to get, very easy to use, and not require a large infrastructure of yet more government.

06-18-2007 04:57 PM  #27
Aphyle Hot HCl and rubber @ AM   Joined: Dec 2006 Posts: 107	Quote: Please don't misunderstand. I would prefer that no kind of government issued permit be required in order to buy rocket motors, but if that is not possible, then it needs to be crafted such to make it very easy to get, very easy to use, and not require a large infrastructure of yet more government. Oh, no! I agree with you fully. Perhaps I was overly obtuse. My point is that you don't need a permit to even buy a box of .30-30 ammunition. You only need ask the clerk behind the the counter. He might need to make sure you are 18 years old, but that is it. Heck, you don't even have to ask for Pyrodex or smokeless powders. That is how easy it ought to be with a rocket engine.

06-18-2007 10:57 PM  #28
Steve_Shannon When in doubt, ask Keenan   Joined: Aug 2006 Posts: 1820	Exactly right. A TRA or NAR card showing certification level and a driver's license to establish identity should be all that is needed. I don't think we will see that any time soon, but Matt Steele is exactly right when he says we need to educate the public (including our legislators!) so they understand how wasteful and foolish ATF's war on hobby rocketry is.