Research center urges block on transfer of Colorado supercomputer
Amanda Pampuro
DENVER (CN) — A leading climate research center in Boulder, Colorado asked a federal judge on Thursday to block the federal government from transferring control of the NCAR-Wyoming Supercomputing Center to the University of Wyoming.
“The timeline here from pursue transfer to final decision was eight days,” argued attorney Michael Purpura, who represents the University Corporation for Atmospheric Research. “Breakneck speed.”
UCAR manages NCAR, the National Center for Atmospheric Research in Boulder, Colorado, and sued the National Science Foundation on March 16 to block cuts to funding and a plan to transfer stewardship of the supercomputer from UCAR to the University of Wyoming in Laramie.
NCAR employs 800 scientists and engineers advancing not just weather modeling, but supercomputing and observational systems, driving hurricane forecasting and wildfire modeling, in support of federal agencies from the Department of Defense to NASA.
In the lawsuit, UCAR theorized the National Science Foundation was pursuing cuts in tandem with efforts to pressure the state of Colorado to abandon its mail-in voting program and to pardon former Mesa County elections clerk Tina Peters.
Colorado sued the federal government last year, claiming moves to transfer U.S. Space Command from Colorado Springs to Huntsville, Alabama, and changes to the SNAP program were both driven by illegal retaliation over the Centennial State’s positions on elections and Peters. The day UCAR filed its lawsuit, Senior U.S. District Judge R. Brooke Jackson issued an injunction blocking the U.S. Department of Agriculture from forcing the state to recertify recipients of SNAP benefits as the agency had demanded.
In overseeing UCAR’s request for a preliminary junction against NSF, Jackson said UCAR is not an entity of the state and couldn’t be held responsible for Colorado elections procedures. On top of that, the government said the decision to pursue transferring control of the supercomputer was rooted in the laboratory’s pursuit of research into the human-driven elements of climate change as well as policies supporting diversity, equity and inclusion.
In court, U.S. Attorney Marianne Kies**** further argued the transfer in question was still just a proposal that didn’t amount to a final agency action that could trigger court review under the Administrative Procedure Act.
While UCAR claimed it was denied the full review process including the opportunity to submit comments on the proposal, Kies countered the process hand’t been triggered because a final decision hadn’t been made.
“There is no final agency action to challenge under the APA, and plaintiff is in the wrong court at the wrong time,” Kies argued. “Decisions are made all the time on all manner of topics. Final agency action has specific meaning and must be met.”
Jackson asked Kies if she would concede the government failed to follow the correct process required for a final agency action should he find that the NSF had made a final decision. Kies walked Jackson through her counterargument: the process hadn’t occurred because a decision hadn’t been made, so there could be no violation of process.
When Jackson asked Kies how anyone would know when and if a final agency decision had been made, she pointed to the operating agreement that said the decision would be conveyed by the grants and agreements officer.
On rebuttal, Purpura pointed Jackson to a memo printed on NSF letterhead, signed by a grants and agreements officer, informing the organization of the supercomputer transfer.
Purpura said the government only characterized the “plan” to transfer control of the supercomputer as the “pursuit” of a plan after the lawsuit was filed.
“The government has no response to this, other than to double down on their assertion there was no final agency decision, but that conflates the making of the decision with the implementation of it,” said Purpura, who practices with Hueston Hennigan in Newport Beach, California.
As each party wrapped up their prepared statements, Jackson asked what would happen if the parties talked to each other and reached an agreement.
“If you seriously think NSF will decide UCAR is the best steward, if that is a possibility, then I suppose you would agree with Mr. Purpura for the two sides to sit down and see if they can leave this to UCAR at least until the end of the contract?” Jackson asked Kies.
Kies and Purpura both told the judge they would consider the suggestion after speaking with their clients.
“I hope I don’t say something that makes my client jump out and attack me, but UCAR is always open to an agreement that protects its rights,” Purpura said.
Jackson, who was appointed by Barack Obama, did not indicate how he would rule but promised an opinion “as promptly as possible.”