Appellate court seems to OK high-speed rail
May 29, 2014 - By Kathy Hamilton
This is Part 1 of a two-part series.
Is a green light ahead for California’s high-speed rail project?
In a crucial hearing on May 23 before the Third District Court of Appeal, questions asked by the justices seemed to lean toward a reversal of a lower-court decision on March 4 by Superior Court Judge Michael Kenny that would delay the rail project from moving forward.
The lawsuit contended that the project’s funding plan did not comply with the requirements of Proposition 1A, the 2008 initiative that gave voter approval to the bonds for the project. If the lawsuit eventually is upheld by the California Supreme Court, it would require the California High-Speed Rail Authority to rescind its Nov. 2011 funding plan and start over.
At the latest hearing, California Attorney General Kamala Harris was represented by Deputy Attorney General Ross Moody. He argued that Kenny erred in interpreting Proposition 1A. Moody said the California Legislature had the right to change what was being done.
And he said what are called the “A-K requirements” for the funding plan from Prop. 1A, now listed in Section 2704.08 of the California Streets and Highway Code, were meant as informational reporting for the Legislature.
Arguing for Kings County and two residents who have brought suit to stop the project was Stuart Flashman. He said Kenny’s decision should stand because the CHSRA’s plan didn’t follow Prop. 1A.
Presiding Justice Vance W. Raye agreed with Moody that, if objections are to be made to the project, they ought to be made in the future when the CHSRA’s second funding plan comes out just prior to construction. But that could be some time. The design for the smallest segment, Madera to Fresno, is not complete yet; nor is that for the second segment, Fresno to Bakersfield.
A proposed second funding plan also has to be studied by an independent financial company and prove it meets many other requirements. Then the CHSRA sends it forward to the director of finance and the chairperson of the Joint Legislative Budget Committee. Next, the Surface Transportation Board must approve the Fresno-to-Bakersfield EIR for construction. Another critical component is the CHSRA must have agreements in place with Union Pacific Railroad and BNSF railroad before construction begins.
All this could take many months, possibly until 2015 before construction can begin in earnest for the first leg of California’s high-speed rail project. Although it’s also possible the CHSRA could approve this the second funding plan while other work is being done concurrently.
Moody also insisted that it was the responsibility of the Legislature, not the courts, to accept or reject the plan, even with deficiencies. The Legislature conducted months of hearings listening to opinions from both sides.
Flashman responded that the Legislature is bound to follow its own law, Assembly Bill 3034 from 2008, which included the same information from Prop. 1A. He added that these fiscal protections were added as assurances to get votes in favor of Prop. 1A, and that the courts now were required to uphold the people’s will at the ballot box, not what the Legislature might do in the future.
AB3034 stipulated that each usable segment built by the CHSRA must, before construction, complete all environmental permits, identify all funding and be high-speed rail ready – including electrification.
Doing so would be a problem because the CHSRA has not even covered electrification in its Environmental Impact Report for the first segment of the project in the Central Valley.
Separation of Powers
Other discussions centered around the separation of the legislative and judicial branches of government. Flashman told the Appellate Court that Kenny did not require the Legislature to reverse its appropriation decision.
But Associate Justice Ronald Boyd Robie said the effect was the same. At one point Robie, who challenged many of Flashman’s points, said the lawyer “was trying too hard.”
Both sides were extensively questioned by the justices. But the tone of many of the questions or statements, particularly from Robie to Flashman, seemed argumentative. As a result, it seemed Flashman had less time to make his arguments than Moody. Flashman had to take extra time to answer the questions and to counter Robie’s statements.
In addition, Flashman had to share his time with others who were party to the case such as the Howard Jarvis group and Union Pacific Railroad. These other arguments will be covered in Part 2 of this series.
Moody also was asked many questions. But for the most part the exchanges carried a more cordial and conversational tone. At times some of those questions even helped his arguments. Moody also had a full 30 minutes to present his side.
After the hearing, Flashman said:
“The justices have been confronted with a stark dichotomy. On the one hand, they have Gov. Brown demanding, by way of the attorney general, that the court let him move ahead with building his ‘legacy’ high-speed rail project.
“On the other hand, they are faced with having to emasculate the clear language of a bond measure that had been placed before and approved by the state’s voters. If they do Brown’s bidding, I fear they will do long-term damage, not only to the court’s reputation as a fair arbiter of justice, but perhaps even more importantly to voters’ trust in the meaning of language placed before them on the ballot. The potential damage to Californian’s confidence in state government could perhaps be compared to that done to the integrity of national elections by the U.S. Supreme Court’s 2000 Bush vs. Gore decision.”
Legal scholars sometimes contend that what justices in appeals courts say from the bench doesn’t necessarily reflect what their decisions will be. But the tone from the Third District Court of Appeal certainly indicated flipping the green light on for the high-speed rail project.
The hearing can be heard in it’s entirety at https://www.youtube.com/watch?v=twdcDrKBBVY&feature=youtu.be
Kathy Hamilton is the Ralph Nader of high-speed rail, continually uncovering hidden aspects of the project and revealing them to the public. She started writing in order to tell local communities how the project affects them and her reach grew statewide. She has written more than 225 articles on high-speed rail and attended hundreds of state and local meetings. She is a board member of the Community Coalition on High-Speed Rail; has testified at government hearings; has provided public testimony and court declarations on public records act requests; has given public testimony; and has provided transcripts for the validation of court cases.