Bul­let-train op­po­nents lose an­other round in court fight

Merced Sun-Star (Saturday) - - Livingston Chronicle - BY TIM SHEE­HAN tshee­han@fres­nobee.com

Cal­i­for­nia’s em­bat­tled high-speed rail project has sur­vived yet an­other ma­jor le­gal chal­lenge af­ter a judge in Sacra­mento re­jected claims by op­po­nents over the use of state bonds to fi­nance con­struc­tion of the project.

Sacra­mento County Su­pe­rior Court Judge Richard Sueyoshi is­sued his rul­ing on Wed­nes­day deny­ing a mo­tion by Han­ford-area wal­nut farmer John Tos, the Kings County Board of Su­per­vi­sors and other op­po­nents to block the Cal­i­for­nia High­Speed Rail Au­thor­ity’s use of Propo­si­tion 1A bond funds for the project.

It’s the se­cond time that lit­i­ga­tion over the project’s com­pli­ance with Propo­si­tion 1A, a $9.9 bil­lion bond mea­sure ap­proved by vot­ers in 2008, has been de­cided in fa­vor of the rail au­thor­ity.

Tos’ first law­suit in 2012 di­rectly chal­lenged whether the rail project could meet the re­quire­ments of the bond mea­sure – in­clud­ing pro­vi­sions that trains be ca­pa­ble of mak­ing a non­stop trip from San Fran­cisco to Los An­ge­les in two hours 40 min­utes. That law­suit main­tained the sys­tem could not re­al­is­ti­cally op­er­ate with­out a sub­sidy of tax­payer funds, and that the sys­tem was sub­stan­tially dif­fer­ent than what vot­ers ap­proved in 2008.

The lat­est case took a dif­fer­ent ap­proach, in­stead ask­ing a judge to in­val­i­date Assem­bly Bill 1889, a 2016 bill that deemed that Propo­si­tion 1A funds could be used for con­struc­tion of a “us­able seg­ment” of the rail route that is “suit­able and ready for high-speed train oper­a­tion,” such as con­struc­tion now un­der­way on about 120 miles of the line in Madera, Fresno, Kings, Tu­lare and Kern coun­ties.

At­tor­neys for Tos and Kings County ar­gued that AB 1889 was un­con­sti­tu­tional be­cause, they said, it ef­fec­tively changed the def­i­ni­tion of the rail project from what vot­ers ap­proved as it au­tho­rized the use of bond funds for con­struc­tion.

In his 10-page rul­ing, Sueyoshi said that “noth­ing in the doc­u­men­ta­tion that was be­fore the vot­ers at the time of con­sid­er­a­tion of Propo­si­tion 1A clearly pro­hibits or con­tra­dicts the lan­guage of AB 1889,” and added that “it can­not be con­cluded that AB 1889 ‘clearly, pos­i­tively and un­mis­tak­ably’ vi­o­lates voter in­tent” to ren­der it un­con­sti­tu­tional.

“The court finds (Tos, Kings County and other rail op­po­nents) have failed to demon­strate suf­fi­cient-

ly a con­sti­tu­tional vi­o­la­tion,” the judge added in a footnote.

Stu­art Flash­man, an Oak­land at­tor­ney who ar­gued the case in a hear­ing be­fore Sueyoshi on Fri­day in Sacra­mento, said the rul­ing “is very dis­ap­point­ing and frus­trat­ing.” He said that he and his co-coun­sel, at­tor­ney Michael Brady of Red­wood City, will need to talk to their clients be­fore mak­ing any de­ci­sions about their next steps. But, he added, ap­peal­ing Sueyoshi’s rul­ing to a state ap­pel­late court is some­thing “that we’re go­ing to take a se­ri­ous look at.”

The pe­ti­tion­ers in the case in­cluded not only Tos and Kings County, but also the town of Ather­ton along the San Fran­cisco Penin­sula, sev­eral Penin­sula res­i­dents, former state se­na­tor and judge Quentin Kopp of San Fran­cisco, and sev­eral non­profit rail or­ga­ni­za­tions: the Cal­i­for­nia Rail Foun­da­tion, the Com­mu­nity Coali­tion on High­Speed Rail, and Trans­porta­tion So­lu­tions De­fense and Ed­u­ca­tion Fund (TRANSDEF).

Kopp’s in­volve­ment is no­table be­cause as a state se­na­tor he authored the leg­is­la­tion that cre­ated the Cal­i­for­nia High-Speed Rail Au­thor­ity and is also a former chair­man of the agency’s board of di­rec­tors. But he has been crit­i­cal of the project since about 2012, when the au­thor­ity mod­i­fied its plans on the San Fran­cisco Penin­sula from de­vel­op­ing its own set of ded­i­cated tracks to a cost­sav­ing plan to help the Cal­train com­muter-rail sys­tem elec­trify and im­prove its tracks and share the Cal­train tracks be­tween San Jose and San Fran­cisco.

Flash­man said he be­lieves that Sueyoshi’s rul­ing, if it with­stands a pos­si­ble ap­peal, would open the door to us­ing the Propo­si­tion 1A bond funds on small pieces of con­struc­tion that, in­di­vid­u­ally, are not “us­able seg­ments” of a high-speed rail line. “They’re plan­ning on us­ing bond funds and frit­ter­ing them away on lit­tle pro­jects up and down the line,” he said. “And in an­other two or three years, when there are no bond funds left, they’ll say, ‘We’re done.’”

Tech­ni­cally, Sueyoshi’s rul­ing in­volves just one piece of a multi-pronged law­suit by the plain­tiffs. But, Flash­man said, the other pieces “are on life sup­port” be­cause they ef­fec­tively de­pended on a fa­vor­able rul­ing by the judge that AB 1889 vi­o­lated the state con­sti­tu­tion.

Lisa Marie Al­ley, a spokes­woman for the rail au­thor­ity, was cau­tious about those re­main­ing por­tions of the law­suit. “While this rul­ing is a pos­i­tive out­come for the high-speed rail pro­gram, the orig­i­nal case still con­tin­ues,” she said. “Mean­time, the Cal­i­for­nia High­Speed Rail Au­thor­ity con­tin­ues to ad­vance work on the statewide sys­tem, con­struc­tion of the Cen­tral Val­ley seg­ment and put peo­ple and small busi­nesses to work.”

Prior to the pas­sage of AB 1889, money from Propo­si­tion 1A was only be­ing used for plan­ning pur­poses by the rail au­thor­ity. That ramped up con­sid­er­ably, with monthly spend­ing from the bond funds av­er­ag­ing about $60.7 mil­lion since the start of 2017.

Much of the rest of the money cov­er­ing the con­struc­tion costs in the Val­ley, as well as plan­ning and en­vi­ron­men­tal anal­y­sis in other parts of the state, is com­ing from more than $3 bil­lion in fed­eral stim­u­lus and rail­road funds awarded in 2010, 2011 and 2012 by the Obama ad­min­is­tra­tion, and “cap and trade” funds from the state’s green­house gas re­duc­tion pro­gram.

Cap and trade money is raised through auc­tions at which com­pa­nies buy clean-air cred­its from the state to off­set their own emis­sions of green­house gases like car­bon diox­ide.

Con­struc­tion of the rail line through the Val­ley is pro­jected to cost about $10.6 bil­lion, while the price for an oper­a­tional Phase 1 line from San Fran­cisco to Los An­ge­les is es­ti­mated to be be­tween $63 bil­lion and $98 bil­lion, with a midrange fore­cast of about $77.3 bil­lion.

Be­sides the Tos case, the rail au­thor­ity still faces an­other law­suit filed by Kings County un­der the Cal­i­for­nia En­vi­ron­men­tal Qual­ity Act chal­leng­ing the ad­e­quacy of en­vi­ron­men­tal doc­u­ments used to jus­tify the se­lec­tion four years ago of a route for the train line from south of Fresno to north­west of Bak­ers­field.

The case was one of sev­eral filed over the route se­lec­tion; all the oth­ers have since been set­tled.

CON­STRUC­TION OF THE RAIL LINE THROUGH THE VAL­LEY IS PRO­JECTED TO COST ABOUT $10.6 BIL­LION.

RICH PEDRONCELLI AP

John Tos, cen­ter, a Han­ford farmer and the lead plain­tiff in a law­suit against the Cal­i­for­nia High-Speed Rail Au­thor­ity, talks with re­porters af­ter a hear­ing in the case in Sacra­mento County Su­pe­rior Court in Sacra­mento, Calif., Nov. 8, 2013.

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