Arbitrary, Capricious & above-the-law

http://joytiz.com/2010/arbitrary-capricious-above-the-law/

Most lawyers, upon finding themselves on the receiving end of a judicial rebuke as scathing as the one handed down by Judge Martin Feldman in Hornbeck v. Salazar, would be spending the next few days in a dark bar. At the very least, a few sick days would be in order to avoid having to face co-workers until somebody else screws up a big case.

Not in this administration. Ken Salazar wasted no time announcing the administration’s plans to appeal Judge Feldman’s well reasoned and easily understood ruling. Salazar would like us to believe that with a little tweaking, he can craft a new, improved moratorium that will pass legal muster. After that, he will spend some time relaxing at his unicorn farm.

There’s no disgrace in losing a case when it’s been well researched and argued in good faith. Reasonable minds will always differ on legal issues. When the judge decries agency actions action as arbitrary and capricious—someone needs to be fired.

On the record now before the Court, the defendants have failed to cogently reflect the decision to issue a blanket, generic, indeed punitive, moratorium with the facts developed during the thirty-day review. The plaintiffs have established a likelihood of successfully showing that the Administration acted arbitrarily and capriciously in issuing the moratorium.



That didn’t quite cover Judge Feldman’s disdain for the manifestly deficient, in fact, counterfeit case presented by Salazar.

The court is unable to divine or fathom a relationship between the findings and the immense scope of the moratorium. The blanket moratorium, with no parameters, seems to assume that because one rig failed and although no one yet fully knows why, all companies and rigs drilling new wells over 500 feet also universally present an imminent danger.



If a plane crashes and the government immediately orders all flights grounded for six months, it would make about as much sense as Obama’s oil moratorium. The Court correctly pointed out that nobody yet even knows why the BP rig exploded, making it impossible to form a lucid argument as to why a moratorium is necessary to prevent imminent harm.

Displaying an ambrosial sense of humor, Judge Feldman pointed out the absurdity of defendants’ argument that the incompetence and corruption of government experts enabled BP to operate its rig in an unsafe manner while asking the court to take their conclusions as incontrovertible proof that the ban is urgently needed.

Then there is the vexing issue of outright fraud upon the court. Salazar tries to hoodwink the judge by presenting evidence that his seven experts identified by the National Academy of Engineering were recommending the ban. The Court graciously referred to this argument as a “misrepresentation.”

‘None of us actually reviewed the memorandum as it is in the report’, oil expert Ken Arnold told Fox News. ‘What was in the report at the time it was reviewed was quite a bit different in its impact to what there is now. So we wanted to distance ourselves from that recommendation.’

Lying to the Court is a serious ethical violation.

The plaintiffs, in contrast to the government, proffered compelling arguments entirely consistent with the law. They also made plain the harm to be caused by the moratorium in clear, concise and well supported language.

The plaintiffs assert that they have suffered and will continue to suffer irreparable harm as a result of the moratorium. The Court agrees. Some of the plaintiffs’ contracts have been affected; the Court is persuaded that it is only a matter of time before more business and jobs and livelihoods will be lost. The defendants trivialize such losses by characterizing them as merely a small percentage of the drilling rigs affected, but it does not follow that this will somehow reduce the convincing harm suffered. Furthermore, courts have held that in making the determination of irreparable harm, ‘both harm to the parties and to the public may be considered.’

The Obama administration has no intention of abiding by Judge Feldman’s ruling. Obama’s boss, George Soros, has too much invested in Brazilian oil. Brazil needs those idle rigs.

Obama’s war against America will continue and increase in scope. Judge Feldman should be prepared for the Sarah Palin treatment. This regime, like all dictatorships, cares nothing about the rule of law. Our allegedly Harvard trained genius of a president can’t grasp the most basic principles of Constitutional law, nor does he care. That said, Judge Feldman’s ruling is a worthy read.