Lawsuit may slow high-speed rail

July 11, 2012

By Dave Roberts

With legislative passage last week of $4.7 billion in bonds for the California High-Speed Rail Authority. And with conductor Jerry Brown yelling “all aboard.” It seems like this expensive train to nowhere has left the station.

But farmers in the Central Valley have a legal bullet aimed at the bullet train: a lawsuit that is threatening to delay, and perhaps derail, the project before it breaks ground next year.

The lawsuit was filed in Sacramento Superior Court last month by the Madera and Merced farm bureaus along with Merced County, Chowchilla Water District, the agricultural organization Preserve Our Heritage and the Fagundes Dairy. It seeks to shut down the rail project’s 65-mile segment from Merced to Fresno and reverse the California High-Speed Rail Authority’s approval in May of that segment’s environmental impact report.

“We’ve been saber-rattling for months trying to get the Authority to heed our concerns seriously,” said Madera County Farm Bureau President Tom Rogers in a press release. “Now the time has come to show the Authority that we are deadly serious about protecting our way of life as well as our bedrock agricultural economy.”

Merced County Farm Bureau President Jean Okuye said in a statement, “It is MCFB’s duty to protect and preserve the welfare of farmers and ranchers in Merced County. Currently, we have exhausted all avenues of communication with the Hig- Speed Rail Authority and we believe it is time to jointly move forward with litigation.”

They are concerned that the rail line will hurt the area’s agricultural economy, affecting some 1,500 acres of prime farmland, hundreds of homes and agribusinesses, wildlife habitat and the water supply.

The lawsuit argues that “due to myriad analytical deficiencies, [the Environmental Impact Report submitted by the CHSRA] failed to disclose and analyze the full scope and severity of impacts … [and] failed to avoid or mitigate the … impacts to the extent feasible as required under CEQA [the California Environmental Quality Act].” It also contends that the authority violated the state’s open meeting law by not providing proper notice to the public before the May 2 EIR hearing of new information in the form of an errata and addendum to the EIR.

Authority Board Chairman Dan Richard acknowledged to the Wall Street Journal that the lawsuit could delay the Merced-to-Fresno segment, but that other segments could still proceed. “We have to take it one step at a time,” he told the Journal. “You can’t be afraid to take the first step.”

First Step

The problem is that this segment is the rail project’s first step, having been chosen for its relative ease in approval and construction. The authority had hoped to begin awarding construction contracts by the end of this year. The lawsuit threatens to trip up the project as it takes that first step.

Richard had been jubilant after the approval of the EIR on May 3, saying in a statement, “Today we reached a major milestone toward making High-Speed Rail a reality. These documents and decisions represent our response to hundreds of comments sent to us from residents, elected officials and business owners as well as feedback shared in nearly 150 public meetings.”

The board, after considering three potential alignments, chose one that generally follows the Union Pacific railroad tracks and Highway 99 between Merced and Fresno. To avoid impacts to downtown Madera, the alignment swings east of Madera and generally parallels the Burlington Northern Santa Fe railroad corridor. The board also selected stations in downtown Merced and downtown Fresno. That alignment deemed to have the fewest adverse impacts and is the most cost-effective: $450 million to $1 billion cheaper than the other two alternatives.

The problem with any major project, however, is that there are going to be impacts on something somewhere. The EIR acknowledges that the project could affect air quality, increase noise and vibrations, displace a mobile home park, convert farmland to nonagricultural use, affect parks, block views with sound walls and affect historic buildings.

Despite that, many people told the board at the May 2 hearing that they welcome high-speed rail.

“We feel that the economic benefits, connectivity and improvement in safety are so important,” said Fresno County Supervisor Susan Anderson. “We are so supportive of this project.”

Madera County Supervisor Max Rodriguez acknowledged that it’s a “very controversial project” and that he’s in the minority in Madera County in supporting the project. But he does so, he said, because “the economics are so great. We have a large number in the community that are not making it. Jobs are the most important thing we should be thinking about.”

Fresno Councilman Larry Westerlund is also in support, saying that 2,300 lawsuits were filed in an attempt to stop the building of the Golden Gate Bridge. “I know this is controversial — I hope you don’t reach 2,300.”

That prompted Richard to joke: “I wonder what the proportion of lawyers was then compared to today. It’s not a good prospect.”

Plaintiffs speak

But it was no laughing matter to several of the lawsuit plaintiffs who spoke at the hearing.

Brad Samuelson, general manager for the Fagundes Brothers Dairy, said that after providing tours of his dairy to numerous rail-project officials, “Initially we were elated to see that the authority was taking our community’s suggestions seriously. That elation quickly turned to disgust upon reading the horribly prepared and inaccurate [EIR] document. It is obvious the High-Speed Rail Authority is hurrying through the environmental review process so they can meet the federal timelines [for funding].”

Said Scott Birkey, a lawyer representing Preserve Our Heritage, “Farming is more than a means to make a living and support our families. It’s a way of life passed down from generation to generation. And it’s an integral part of our area’s economy supplying revenue and significant support for our school, water and special districts. We believe the EIR/EIS is woefully inadequate in painting a proper picture of what kind of impacts will flow from the decision you are about to make. The authority can and should do a better job.”

Amanda Carvajal, Merced County Farm Bureau executive director, said that the concerns they raised about the project’s impacts on “several animal facilities and operations were never even mentioned in this report — which is just asinine for a project of this scope.”

Anja Raudabaugh, Madera County Farm Bureau executive director, said that the farm bureaus are “pleading for the quality of life in our two counties. Citizens, businesses and local governments in our two counties rely on agriculture for their prosperity and way of life. To disrupt this bedrock system of food production in such an unnecessarily destructive manner as this segment of the project sets out to do, is to seal a permanent economic blight and ensure a poor, substantially diminished quality of life.  We recognize the need for this project in this state is very great. But so too is the need to continue living as productive citizens in our unique, one-of-a-kind Central Valley.

“There is an historic opportunity here. You can be forward thinkers trying to solve a transportation crisis by sabotaging a few, or cautious deliberates proceeding slowly in the best interests of all involved. If you approve the EIR it will effectively sabotage the entire project. The question of the project’s legality has reached an apex of consequence — consequences that will be foreboding in the court of public opinion.”

The court of public opinion, as measured in polls, has already turned against what many consider a major boondoggle. It remains to be seen what Superior Court has to say.