The March court ruling suggests that plaintiffs could renew their legal challenge once the authority finalizes its funding plan to trigger use of state bond money. [Court ruling can be found at the bottom of the page.] Plaintiffs have not announced if they will appeal the court’s decision. The authority can use federal tax dollars to purchase land in the meantime, and has purchased more than a third of the 1,505 parcels needed, according to authority documents.

Incompatible with bond measure

Plaintiffs, including Kings County and other landowners affected by the project, argued that the authority’s plan is contrary to what was sold to the voters. Plaintiffs said the authority’s estimated train speeds, funding mechanisms and plan to use existing tracks don’t comply with the bond measure that funded the project.

Voters in 2008 approved $9.95 billion in bonds to fund the rail service from Southern California to Sacramento and the San Francisco Bay Area. The rail project faces other legal challenges focused on the state’s use of cap-and-trade proceeds.

Sacramento County Superior Court Judge Michael Kenny ruled that project opponents’ allegations were premature. The case, originally filed in 2011, questioned whether the authority was complying with the 2008 Prop. 1A bond measure.

Project opponents questioned three promises: whether an express train can travel from Los Angeles to San Francisco in two hours and 40 minutes, whether the project is financially viable and whether a plan to share existing tracks and facilities was permitted by the bond measure.

Though the judge ruled that the case was premature, he hinted that there were potential problems with evidence presented by the Rail Authority.

Attorney Stuart Flashman believes that what the judge said “fired a shot across the bow,” warning the Rail Authority that he had issues with travel times required in Prop. 1A, particularly through the peninsula between San Francisco and San Jose. Trains must be able to travel that segment in 30 minutes or less.

Revised trip times

In January 2013, the authority’s consultants estimated trip times of 30 minutes at 125 mph or 32 minutes at 110 mph, according to the court ruling. A month later, a revised memo listed a faster time, 30 minutes at 110 mph.

“There is no clear explanation for this change in conclusions,” the ruling says.

The judge also warned the Rail Authority that they used the wrong location in San Francisco.

The Rail Authority used 4th and King instead of Transbay Terminal as the northern point to measure the 30-minute travel time to San Jose. The difference from 4th and King to Transbay Terminal is 1.3 miles but a very slow and expensive gap. It has twists and turns, which will greatly restrict speed and which experts estimate could cost as much as $4.5 billion.

Deputy Attorney General Susan O’Grady argued that Prop. 1A did not indicate that Transbay Terminal was the northern measuring point for travel time. The judge disagreed.

Additional challenges

There are many other challenges that the Rail Authority must meet in the immediate future. Its newest business plan, released in February, changed construction direction. While still starting in the Central Valley, construction would now extend north instead of south.

Two lawsuits are pending concerning the rail project’s use of funds from the state’s cap-and-trade program. One, presented by the Pacific Legal Foundation, challenges the program’s existence since it did not pass by a two-thirds vote. The foundation considers the cap-and-trade proceeds an improper tax. The other suit, brought by the nonprofit group TRANSDEF, argues the project is ineligible since it will take decades for it to offset the greenhouse gases it produces as it is built. Assembly Bill 32, the state’s sweeping climate change policy passed in 2006, requires a reduction of greenhouse gases to 1990 levels by 2020, and the first high-speed rail segment will not be operational until 2025.

One workshop was held in San Francisco last week. [See the Palo Alto Online’s account for background information.] The next workshop is planned for this Tuesday, September 15, in San Jose from 4:00 p.m. to 7:00 p.m. at the Roosevelt Community Center. A one hour presentation is planned at 6 p.m. at 901 E. Santa Clara St. San Jose, CA 95116. The Morgan Hill session will be held September 23^rd. The last meeting will be held in Burlingame October 7^th. The agenda for all workshops will be identical, regardless of location.

As background, at the August 2015 board meeting, the High-Speed Rail Authority approved a Request for Qualifications to be sent out. This RFQ covers both the San Jose to San Francisco segment as well as the San Jose to Merced segment. The consultant chosen will manage the corridor activity conducting “environmental analysis and documentation, regulatory permitting and compliance, engineering and preliminary design services.”  Whoever is selected, they are expected to finish the project by December 2017, a very quick process.

Contentious Segments

In the past, both of these segments (San Jose to Merced and San Jose to San Francisco) have been problematic for the Rail Authority. Besides the Peninsula’s vehement opposition to the high-speed rail project, the Merced to San Jose segment, featuring the Chowchilla Wye, was also an area of great contention because of the use of prime farmland and destructive of sensitive environmental areas.

[See the Youtube when Ben Tripousis, Northern California regional director presented the RFQ to the board on August 4, 2015. Here is the document presented at the Rail Authority board meeting.]

Peninsula history

As a reminder, the peninsula’s environmental work stalled for a couple of years due to questions about the joint use of the Caltrain corridor with High-Speed Rail.

This is more commonly known as the blended system first introduced in 2011 by Senator Joe Simitian, Congresswoman Anna Eshoo and Assembly member Rich Gordon, also called the SEG plan. There was extreme unhappiness about the high-speed train coming through the very crowded peninsula area with the real possibility of expansion of the corridor to four tracks.

The SEG plan required no above ground tracks be added to the corridor unless the cities desired that design; and that the high-speed rail plan stay within the current Caltrain footprint. It also required the blended plan be done in one stage. The rail authority had pushed for phased implementation eventually leading to four tracks which is no longer part of the plan today.

Questions of Legality

The high-speed rail board was under the leadership of Curt Pringle in 2011. He and others on the board had mixed emotions about the concept. Questions about the legality of the blended program were sent to the Attorney General’s office twice back in the 2011 by then CEO Roeof van Ark.

This year a public records request was sent to the Rail Authority asking what the result of those inquiries were but they refused to release any AG response, claiming attorney/client privilege.

The question of the legality of the blended system, along with trip time questions and financial viability will be litigated in part two of the Tos/Fukuda/Kings County lawsuit February 2016. [See Tos Trial Brief II on the TRANSDEF website which gives a bit of history about this taxpayers lawsuit.]

In the July 2012 appropriation vote, the state Legislature approved an appropriation of $600 million of Proposition 1A bond funds to Caltrain’s electrification project under the premise that it is a corridor that will eventually operate high-speed rail trains in the future. They also appropriated $500 million for the Los Angeles to Anaheim route though projects were not yet identified for that segment. Neither amount was presented in a funding plan as required in the Prop. 1A ballot measure.

Many, including former Rail Authority Chair Quentin Kopp, have questioned the legality of this appropriation and the idea of the blended system. In a declaration filed for the Tos/Fukuda/Kings County lawsuit, Kopp says he believes “the “track-sharing” arrangement with Caltrain represents one example (Los Angeles to Anaheim represents another) of the Authority’s current alteration of the project from a genuine HSR system.”

Environmental Process

Regardless of that argument, another issue blocking access to the bond funds for the San Francisco to San Jose segment is the non-completion of high-speed rail environmental work required under Prop. 1A on the Peninsula — hence the rush to finish the environmental work described above.

But how they will finish the environmental process is still unclear.

Will the Authority follow the California Environmental Quality Act or use the less stringent National Environmental Protection Act? Or will they use the CEQA process unless challenged in court therefore using the Surface Transportation Board ruling as an “ace in the hole”?

Two years ago, the Surface Transportation Board, a federal agency, exempted the Rail Authority from following CEQA because it is a railroad project under their control. But the end of the story has yet to be written regarding the subject of a CEQA exemption for rail projects as it is expected to be heard, and hotly debate, in the California Supreme Court sometime this year.

There are no American Recovery and Reinvestment Act of 2009 federal grants assigned to the San Francisco to San Jose or the San Jose to Merced segments nor is there private funding available. The project in the Central Valley to the San Fernando Valley currently has at least a $25 billion gap in funding.

A court ruling is expected within weeks on whether certain documents should be considered in a lawsuit against California’s High-Speed Rail Authority.

The state has argued for limiting the evidence to documents, such as business plans and environmental reviews, from formal Authority proceedings. Project opponents are arguing for broadening the scope of evidence to documents related to decisions that they say were made outside the public’s eye.

Attempts to Halt Project

Opponents are attempting to halt the $68 billion dollar project by showing that the Authority cannot achieve the trip times promised in the taxpayer bond funding the project, that the voters did not approve the planned system of sharing tracks with commuter and freight rail, and that the financial viability of the project just doesn’t add up.

Superior Court Judge Michael Kenny is weighing whether to consider as part of the case two documents in particular: a travel time analysis prepared by opponents, and declarations submitted by the opponents in 2013. A hearing in Tos, Fukuda and Kings County v. California High-Speed Rail Authority was held late last month in Sacramento.

The Attorney General’s office argued against considering the expert declarations. The declarations, which include a statement from the former head of the high-speed rail project, question the viability of the rail’s promised travel times as well as the overall finances of the project. They also question the legality of the blended system of sharing tracks.

The AG’s office says the declarations should have been presented as commentary for the Authority’s 2014 business plan in order to be allowed in the administrative record.

Opponents said the declarations were presented to the Authority’s attorneys in 2013 and that should suffice as delivery to the Authority.

Transparency in Question

Opponents also argue that the Authority has made decisions outside the public view, through informal, or closed-door decisions, and that the public was not allowed to challenge the Authority’s thinking before key decisions were made.

Example: The Authority’s attorneys submitted a declaration from one of its chief program managers, engineer Frank Vacca. In that declaration Vacca says the authority can make the time required in Prop. 1.  This declaration was never debated and discussed at any board meeting.

The AG’s office says that the declaration was not an official decision by the Authority; it only offered proof that the Authority could achieve the two-hour, 40-minute time requirement.

Opponents have requested but not received the computer model inputs that inform the rail authority’s time analysis. They say because they have not been able to analyze those numbers, the public did not have a chance to debate or challenge the thinking behind the analysis.

Opponents gave another example of an informal decision reached without public discussion: to limit train speed to 125 mph in urban areas. The opponents said the authority decided on the speed limit, then presented the decision as a done deal to the public. Opponents submitted records of those presentations, to 40 cities, and the attorney general’s office did not oppose allowing those records to supplement the Administrative record.

Appellate Court Postpones Ruling

On Aug. 13, 2013, project opponents received a favorable ruling for the first part of their case, which challenged the adequacy of the Authority’s funding plan. That ruling was overturned on appeal July 31, 2014, when the court said it was too early to decide the funding issues.

The appellate court determined that opponents would have to wait to challenge the funding plan when construction was imminent and money was about to be spent. To date, the Authority has used only federal funds to prepare to construct early phases of the project in the Central Valley.

A hearing on the merits of the case is set for Feb. 11.

One has a shot at passing. The other doesn’t.

Senate Bill 400 would require the California High-Speed Rail Authority to use at least 25 percent of its cap-and-trade funds for projects to reduce or offset construction emissions. The bill comes as two groups have brought legal challenges to the state’s cap-and-trade program and the state’s plan for measuring emissions from the high-speed rail project. The bill traces its origins to the powerful Hispanic caucus and is expected to pass in the largely pro-rail legislature.

SB400, introduced by Sen. Ricardo Lara, D-Bell Gardens, has been approved in the Senate and is moving through committees in the Assembly.

Last year the Legislature appropriated 25 percent of the state’s revenues from cap-and-trade auctions to the high-speed rail project. SB400 would reduce construction funds to 18.75 percent of the revenues, with the remainder going to “reduce or offset greenhouse gas (GHG) emissions directly associated with the construction of the high-speed rail project and provide a co-benefit of improving air quality,” according to a Senate analysis of the bill.

The analysis suggests that this bill might save the cap-and-trade program, which is being challenged by two lawsuits.

Lawsuits against AB32 and HSR

A suit brought by the Pacific Legal Foundation, which favors limited government and “sensible environmental policies,” claims that the very existence of the cap-and-trade program is an illegal tax. The case is on appeal and expected to be heard in the fall.

A second suit asserts that a state plan to reduce emissions improperly calculated the impact of the high-speed rail project — which the plaintiffs allege will actually contribute to greenhouse gases instead of reduce them.

The plaintiffs in their complaint say that the state’s estimates “were neither real, permanent, quantifiable or verifiable but were instead illusory because in reality the construction of the (rail) project would result in a significant increase in (greenhouse gas) emissions prior to 2030 or beyond.”

The suit is being brought by the Transportation Solutions Defense and Education Fund, a nonprofit environmental group.

Cap and trade bailing out high-speed rail project

The rail project is not slated to be operational by 2020, which is the deadline in state law to reduce the state’s greenhouse gas emissions to 1990 levels.

The Senate analysis points out that state law restricts the use of cap-and-trade funds.

“The Constitution requires that a clear nexus exist between an activity for which a mitigation fee is used and the adverse effects related to the activity on which that fee is levied. …

 

“It is important that legislation allocating cap-and-trade revenues ensure that the funds are being used to reduce (greenhouse gas) emissions. If opponents of the program can convince the courts that the revenues are not being used appropriately, the entire cap-and-trade program could be jeopardized.”

The analysis hints that the rail program’s use of cap-and-trade funds, as currently outlined, doesn’t meet legal standards, and that passage of the bill would shore up the legal standing of the program and help the state win the pending court cases.

“If opponents of the program can convince the courts that the revenues are not being used appropriately, the entire cap-and-trade program could be jeopardized,” the analysis reads.

The cap-and-trade program is estimated to bring in as much as $2 billion a year in fees.

Further analysis on SB400

An analysis in the Assembly shows that some lawmakers remain sympathetic to the aims of the bill but not as positive on its potential effects.

The bill would significantly drive up the cost of the rail project by reducing its only stable revenue stream, according to a summary of transportation committee members’ concerns. This could threaten completion and jeopardize any future environmental benefits.

“The project is already sorely underfunded,” the analysis states.

The analysis also points out that SB400 is intended to offset environmental impacts from construction but does not impose any requirement that the redirected money, approximately $125 million, be spent in communities near the construction zones. The bill could result in “millions of dollars being spent in Southern California, hundreds of miles from the high-speed rail construction sites.”

In other words, it could result in a money grab for other transit projects in Southern California, not the “disadvantaged communities” proposed in the bill.

Republicans in the Legislature have been unsuccessful for the past three years with more than a dozen bills that attempted to manage, change or end the high-speed rail program. All failed on party-line votes to get out of committee. In fact, Rep. Jim Patterson, R-Fresno, has a graveyard with little tomb stone markers set up in his backyard for failed bills he’s introduced on various subjects including high-speed rail.

Despite the fact that Senate Bill 3 has bipartisan sponsorship, from Sens. Andy Vidak, R-Hanford, and Rudy Salas, D-Bakersfield, it’s expected to suffer a similar fate.

The bill would direct the Legislature to approve putting high-speed rail back on the ballot. It would redirect high-speed rail funds to retiring the debt incurred from the issuance and sale of bonds. It would also require that unsold bonds use half the net proceeds for funding repair and new construction projects on state highways and freeways. The other half would be used to fund projects on local streets and roads.

State law requires government bodies to notify the public of closed, or executive, sessions in advance and to specify what exception under the open meetings law – such as pending litigation or personnel  matters – allows for the closed meeting. The notice for the March 10 finance and audit committee meeting made no mention of a closed session.

“It seems quite possible that the Board violated the requirements” of state open meetings law, said Gary Patton, a lawyer and former state and county official who heads a nonprofit that opposes the rail project. “The public is permitted to be present for everything, except for very specific issues, legal issues and a few other exceptions such as personnel issues.”

The rail authority, though, says what transpired was not an executive session, but a “private discussion with a member of Authority staff” attended by four board members – less than the Authority’s five-member quorum.

“The Authority’s Chief Legal Counsel was present to assure that no Bagley-Keene (open meetings law) violations occurred,” a rail authority spokeswoman said by email. “Board members are at liberty to meet privately with staff to discuss high-speed rail matters.”

A tight squeeze

On March 10, a dozen residents of the Central Valley traveled for hours to Sacramento to attend a meeting of the agency that is planning a $68 billion rail project through their community.

Since they had made the journey, they attended the Finance and Audit Committee meeting held prior to the meeting of the full board. The subcommittee consists of Michael Rossi, a retired vice chairman of BankAmerica Corporation, and Tom Richards, CEO of a Fresno-based real estate investment company.

“The room was very small, so small that you would have to jump over someone’s briefcase to leave the room,” said Frank Oliveira, co-chair of the residents’ group, the Citizens for California High-Speed Rail Accountability, which opposes the rail project.

In fact, there were people who stood around the door leading into the meeting to listen because there was no room for them to enter. According to Oliveira and another member of the citizens’ group, Alan Scott, their presence seemed to inhibit conversation.

No exception to open meeting law

Four board members were in attendance: Rossi, who chairs the committee; Richards; Lynn Schenk, an attorney; and the authority’s newest board member, former state Sen. Lou Correa.

At the end of the meeting, Rossi asked Schenk to stay and pointed to various others in the room to stay as well, Oliveira and Scott said.

Rossi told the citizens they were now going into an “executive staff meeting,” Scott said, and provided no exception under open meetings law.

Rossi, Richards and two other board members stayed behind, rail authority spokeswoman Lisa Marie Alley said. Contacted by CalWatchdog March 27, Rossi did not respond directly to an emailed request for comment but forwarded the message to Alley.

“Legally, there is no exception to the state’s open meeting law, based on the Authority’s desire to have a private meeting,” Patton said.

You can’t legally meet in a closed session because the agency “wants to have a frank and open discussion among only members on a matter of controversy, or when sensitive financial information is at issue,” Patton said. “From all appearances, the public should have been allowed in this meeting.”

Bagley Keene Open Meeting Act

Members of the public can take government agencies to court for open meetings act violations.

According to the Bagley Keene Open Meeting Act:

“Each member of a state body who attends a meeting of that body in violation of any provision of this article, and where the member intends to deprive the public of information to which the member knows or has reason to know the public is entitled under this article, is guilty of a misdemeanor.”

Court costs and fees may be awarded to the plaintiff if a state body is found in violation. However, no member would be personally liable; the state would pay from tax dollars.

“To the extent that a body receives information under circumstances where the public is deprived of the opportunity to monitor the information provided, and either agree with it or challenge it, the open-meeting process is deficient,” an AG handbook on open meetings law says.

Here is an updated 2015 guide to the Bagley Keene Open Meeting Act

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. 

The report is a serious attempt of the CHSRA to let the California Legislature know the true status of the program. It includes four pages of “Issues” and 13 pages of “Risks.”

The CHSRA highlighted the project’s groundbreaking, which occurred on Jan. 6:

“The event highlighted the work that is already underway in the Central Valley on Construction Package 1 (CP 1), and underscored the Authority’s commitment to advancing the program on multiple project sections concurrently in order to deliver statewide mobility and environmental benefits sooner.”

However, as CalWatchdog.com noted at the time, the groundbreaking was more appearance than reality, as progress on the project continues at a slow pace. 

The report was enthusiastic. “Crucial to the start of heavy construction, 105, or 28 percent, of necessary parcels have been delivered to the DB [Design Build] contractor,” it said. But that also means 72 percent of the parcels still have not been delivered.

The March 3 Los Angeles Times also reported, “The contractor building the first segment of the California bullet train system said Monday it is seeking compensation for delays in the project and is not likely to start any major construction until June or July — months later than state officials said just weeks ago.”

Lawsuits

The report took up the lawsuits against the project:

• “In December 2014, the Authority and the City of Bakersfield announced that they had reached a settlement agreement to dismiss the city’s California Environmental Quality Act (CEQA) lawsuit.”

• “In February 2015, the Authority announced that it had also reached a settlement agreement with Coffee-Brimhall LLC, a developer entity that owns land in Bakersfield.”

• The CHSRA acknowledged the five remaining lawsuits concerning the Fresno to Bakersfield segment: “While the Authority continues to work with its stakeholders and partners through the remaining CEQA lawsuits, the Surface Transportation Board’s approval of the project section’s environmental document in July 2014 allows the Authority to move forward with construction-related activities within the project section up to 7th Standard Road.”

The future of these lawsuits and other CEQA cases may be determined by a case before the California Supreme Court called Friends of Eel River v. North Coast Railroad Authority. The Legislative Report explained:

“A stay is requested to allow time for the California Supreme Court to decide the Friends of Eel River v. North Coast Railroad Authority case which is currently under review. In Eel River the Court will decide whether CEQA is preempted for a publically owned railroad that is under the jurisdiction of the Surface Transportation Board. Eel River will have implications in the CEQA cases filed against the Authority.”

Electrical connectivity    

Another issue involved the California Public Utilities Commission. The matter was included in the Legislative Report’s lawsuits section, but not in all aspects. According to the CHSRA:

“On March 21, 2013, the PUC issued the Order Instituting Rulemaking (OIR), at the request of the Authority, which initiated a rulemaking proceeding. The stated goal of the OIR was to ‘determine whether to adopt, amend or repeal regulations governing safety standards for the use of 25kv electric lines to power high-speed trains.’”

Under actions taken, the CHSRA wrote:

“The Authority has reached agreement with all parties to the proceeding on all terms of the General Order. The Authority presented the settlement General Order to the PUC on January 26, 2015. The General Order is currently pending adoption by the PUC, with an anticipated adoption at the March 2015 PUC Commissioners meeting.”

However, the CPUC must conduct an environmental report for electrifying the project, which could in fact have implications for the project.  Permits at the earliest are not expected until 2017.  According to the CPUC Report:

“The Initial Operating Segment of the High Speed Rail line is Madera to Bakersfield with a targeted operation date of 2022. This requires electrical connectivity at least 2 years prior, with permits to construct facilities by 2017. To grant such permits, the Energy Division needs to start work no later than 2014-2015 to complete environmental review (usually takes at least a year) and permit review by mid-2017” 

It is not a simple process. The CPUC report described the required involvement of the CPUC, Pacific Gas & Electric, Southern California Edison and the CHSRA for the purpose of carrying out environmental review.

New lawsuit

Absent from the CHSRA’s Legislative Report is the newest suit, filed on Feb. 9, against CalTrain, the Bay Area commuter system. The suit was filed by the city of Atherton, the Transportation and Education Defense League and the Community Coalition on High-Speed Rail.

Among other things, the lawsuit, as CalWatchdog.com reported at the time:

• Seeks to force the board to acknowledge the impacts CalTrain’s project, and the closely associated high-speed rail project, will have on the San Francisco Peninsula. Specifically, it questions the effect of electrification for the high-speed rail project will have on the peninsula.
• Asserts that, by 2040, CalTrain will not be able to accommodate more passengers. Surplus capacity that would otherwise be available to run more CalTrain trains would instead be committed to the high-speed rail project.

Kit Fox

The CHSRA Legislative Report also did not include its alleged violation of the National Endangered Species Act involving the San Joaquin Kit Fox, at least not directly. As CalWatchdog.com reported last month:

“The environmentalist group Defenders of Wildlife labels it ‘one of the most endangered animals in California.’ 

“On Jan. 26, the Sacramento office of the Fish and Wildlife Service of the U.S. Department of the Interior sent the CHSRA a letter about the kit fox’ habitat in the project’s 29-mile-long Construction Package 1. The letter charged the CHSRA and the Federal Railroad Authority with causing ‘the loss of nine acres of suitable habitat for the San Joaquin kit fox, located outside the project footprint … and the destruction of a potential San Joaquin kit fox den.’”

Although not addressing the Kit Fox directly, the CHSRA’s Legislative Report said as a retroactive response:

“The Authority released an RFP for Habitat Mitigation Services in January 2015. The habitat mitigation services will satisfy environmental approvals and federal and State permit requirements related to habitat for federally and State-listed endangered or threatened wildlife and wetlands and waters of the United States…. With the habitat mitigation services contract in place, anticipated in spring 2015, the federal and state regulatory agencies will have the mitigation assurances needed to issue permits for CP 2-3 and CP 4.” 

Cap-and-trade

Finally, the lawsuit over using $250 million of cap-and-trade money to build the high-speed rail project also was not disclosed in the Legislative Report. As CalWatchdog.com reported:

“TRANSDEF charged that cap-and-trade revenues, according to AB32, only can go to reduce greenhouse-gas emissions. TRANSDEF President David Schonbrunn said in the statement, ‘The claimed GHG [greenhouse gas] emissions reductions are a very expensive fantasy,’ because the California High-Speed Rail Authority depends ‘on $30 billion of project funding that the Authority doesn’t have and can’t get.'” 

In sum, although the CHSRA included a great deal in its latest Legislative Report, it also did not include some important information. However, outside the report, it is lawsuits, the state’s financial position and the facts on the ground that will determine the project’s fate.

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. 

California’s high-speed rail project now is acquiring the land needed for construction, but is meeting resistance from property owners who charge the process is being rushed.

At is Feb. 13 meeting, the California State Public Works Board approved condemning private property for the rail project. The parcels are listed beginning on p. 18 of the board’s agenda. The agenda explained:

“The site selections took place after an extensive environmental review process where it was determined that any alternative alignment would include the selected parcels, or where a preferred alignment had already been approved by both the High Speed Rail Authority Board and the Federal Railroad Administration. Acquisition of these properties will allow the High Speed Rail Authority to move forward with construction of the HSTS.”

Objections

The charges of rushing the property takings came in a Feb. 10 letter to the California High-Speed Rail Authority, which runs the project. The letter was from Frank Oliveira, co-chair of Citizens for California High-Speed Rail Accountability, which opposes the project.

The letter included what went on during a Jan. 23 workshop in Laton the CHSRA held with Fresno County Farm Bureau, Fresno Economic Development Corporation and County of Fresno. The workshop affected “right of way” property owners in Fresno County between American Avenue and Kings River.

The letter charged:

“The consensus of the audience was that most of their properties had been ‘Flash Appraised’ without their input or knowledge. The resulting Offers rendered by the ROW [right of way] Agents did not account for factors such as water delivery systems, wells, infrastructure, leases and other business agreements associated with the property to be acquired as well as the after effect on the remainder of the affected parcels and associated Agro Businesses. 

“The result of the Flash Appraisals are offers that logically are grossly undervalued and do not offer proper compensate to those affected by the project. 

“Offers in some cases were probably 100’s of thousands of dollars below value.”

The CHSRA insists it is paying fair value for the properties. CHSRA Spokeswoman Lisa-Marie Alley told CalWatchDog.com in an email, “We continue to work with impacted property owners along the alignment in the Central Valley. It’s our commitment to move the right of way process forward, in accordance with the law, and in a respectful manner that results in a positive outcome.”

Abuse alleged

But Oliveira told CalWatchDog.com he was not satisfied with the CHSRA’s response. “We are aware of the widespread abuse of agricultural landowners within a 10-mile portion of the Right of Way (ROW) between Fresno and Hanford,” he said. “These landowners have been Flash Appraised and had their properties intentionally undervalued for acquisition by the Authority’s contracted ROW agents.”

He said the CHSRA’s ROW agents have made appraisals without much consideration that these properties are not just raw real estate. He charged: 

“These properties are Agro Businesses that are being destroyed. There are so many complications when you are talking about irrigation. If the farmers’ land is cut diagonally, watering is a challenge.  Does the Authority have to build new wells or will they allow lines to be built under the right of way at certain junctures. Some Authority agents say yes, some say no. There doesn’t seem to be a consistent answer.  

“The cost of water wells has also been grossly undervalued in appraisals.  In one case in the appraisal the Authority provided, it noted $40,000 replacement value for a well. But a more realistic value might be $100,000 to $150,000. There also is a wait list up to one year because of water shortages and there is no mention of that in the appraisal.”

At the Feb. 10 board meeting, CHSRA Chairman Dan Richard, promised he would look into Oliveira’s complaints.

Delays

Ongoing legal challenges are a major reason the CHSRA now is rushing the property condemnations. But the legal challenges over the condemnations also could add to the delays.

Although courts have upheld the right to take property, “just compensation” is open to legal dispute.

The Owners’ Counsel of America, which represents property owners in eminent domain disputes, lists 12 “considerations” that may come up, including, “Is the property designed for a special use, giving rise to unique valuation techniques?” And, “How are fixtures treated in condemnation?”

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. 

Both actions have the same goal: forcing those involved in the high-speed rail project to follow the California Environmental Quality Act.

The first action was a lawsuit filed against the Peninsula Joint Powers Board, which runs CalTrain. The lawsuit was filed by the town of Atherton, the group Transportation Solutions Defense and Education Fund and the Community Coalition on High-Speed Rail.

Among other things, the lawsuit:

• Seeks to force the board to acknowledge the impacts CalTrain’s project, and the closely associated high-speed rail project, will have on the San Francisco Peninsula. Specifically, it questions the effect of electrification for the high-speed rail project will have on the peninsula.
• Asserts that, by 2040, CalTrain will not be able to accommodate more passengers. Surplus capacity that would otherwise be available to run more CalTrain trains would instead be committed to the high-speed rail project.
• Alleges CalTrain’s $600 million in Proposition 1A bond funds, exclusively dedicated for the development of high-speed rail, is vulnerable to legal challenge.
• Alleges CalTrain did not seriously consider less expensive alternatives that offer less environmental damages to the communities.

Alternatives

A further contention is that California law mandates that proposed projects such as this must be compared to viable alternatives, as well as to not building a project.

The intent is to see if there is a less damaging way to accomplish nearly the same result; or that “no project” is best to avoid severe environmental damage.

In this case, plaintiffs insist there was inadequate study of alternatives, such as diesel multiple-unit trains that wouldn’t require destroying trees, which would happen under electric trains’ overhead electric lines.

The DMU alternative was dismissed by the Joint Powers board as inadequate, though it met most project requirements.

Participants in the Lawsuit 

“The town met with CalTrain in an attempt to reach commitment on a number of remaining issues,” explained Atherton City Manager George Rodericks in a statement of why the lawsuit was brought. “CalTrain’s response did not contain sufficient commitment to deter the town from a legal challenge to the” Final Environmental Impact Report.

TRANSDEF explained on its website why it’s joining the lawsuit. And it wrote a letter to the Joint Powers Board, explaining:

“Much of the work of raising top speeds involves straightening curves. If curves are straightened, that means that the catenary [overhead lines] installed for the PCEP [Peninsula Corridor Electrification Project] will be in the wrong location, so it will not work for HSR. Ergo, it is incompatible, thus defeating any claim that the Project meets its Purpose and Need: ‘providing electrical infrastructure compatible with future high-speed rail service.’ …Compatibility with something that has not yet been designed is impossible.”

The CHSRA has not begun an environmental assessment at what is called the project-level Environmental Impact Report/Environmental Impact Statement, and said it would not do that until the CalTrain electrification EIR was buttoned up. The project level EIR for high-speed rail was specifically stopped at the July 2011 CHSRA board meeting.

Said Community Coalition President Jim Janz, a former mayor of Atherton, “The petitioners in this lawsuit want CalTrain to study the impacts, and to study the alternatives, before plunging ahead. That is not only prudent policy-making, it’s what the law requires.”

Appeal

The second action was an appeal filed in the U.S. Ninth Circuit Court of Appeal against a December decision by the Surface Transportation Board exempting California’s rail project from CEQA.

The appeal was made by King and Kern counties, TRANSDEF, the Community Coalition, the Kings County Farm Bureau, the Citizens for California High-Speed Rail Accountability and the California Rail Foundation.

As CalWatchdog.com reported in December:

“In its October Petition for Declaratory Order, the CHSRA had asked the three-member STB to short-circuit ‘state-law-based lawsuits pending in California state court.’ It sought only to stop any court-ordered construction injunction. “The CHSRA added it would abide by any mitigation ordered because of the CEQA process.

“The CHSRA got what it wanted – and more.”

If the STB loses this appeal, California’s state environmental laws will be protected. That precedent could well affect other rail projects, including those by CalTrain, which declared it was under STB rules and not obliged to follow CEQA.

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.

The California High-Speed Rail Authority faces a new obstacle on its railroad track to construction: the endangered San Joaquin kit fox. The environmentalist group Defenders of Wildlife labels it “one of the most endangered animals in California.”

On Jan. 26, the Sacramento office of the Fish and Wildlife Service of the U.S. Department of the Interior sent the CHSRA a letter about the kit fox’ habitat in the project’s 29-mile-long Construction Package 1. The letter charged the CHSRA and the Federal Railroad Authority with causing “the loss of nine acres of suitable habitat for the San Joaquin kit fox, located outside the project footprint … and the destruction of a potential San Joaquin kit fox den.”

The nine-acre land take violated the federal Endangered Species Act “and its implementing regulations.”

The contractor allegedly expanded outside the approved footprint of the Merced-to-Fresno Section for staging building materials and machinery. These project-related activities included:

• “grading the first few inches of soil to level the surface”;
• “installation of earthen berms for containment and stormwater pollution control”;
• “installation of road base and other measures for dust control”;
• “installation of a perimeter fence for security”;
• “mobilization of equipment and materials.”

The CHSRA is working under a tight time frame to spend the $3.5 billion in federal money from the American Recovery and Reinvestment Act of 2009 and any delay would be unwelcome at this stage.

The CHSRA must turn in to federal authorities its bills for the project by March 2017, six months before the Sept. 2017 deadline to spend all the money. So the deadline now is just over two years away.

‘Better job’

CHSRA spokesperson Lisa Marie Alley told the Fresno Bee the kit fox issue was a minor problem. “I think this is an example,” she said, “in undertaking one of the largest infrastructure projects in decades in this country, to make sure that we’re streamlining and coordinating with all of our partners. We are looking for ways to do a better job in the future.”

And the Los Angeles Times reported that, despite the FWS letter, “the effect of the violations may be limited. The wildlife service said that the rail authority and its partners had initiated a formal consultation on the project, which was the ‘appropriate’ action, and that no fines were being considered.”

The kit fox habitat also could be moved to a different location by the CHSRA, “which wildlife service officials deemed adequate in an email exchange over the weekend.”

Rushed project

But opponents saw the FWS letter as a major problem for the project. Aaron Fukuda is a key litigant in a new lawsuit against the project and co-founder of Citizens for California High-Speed Rail Accountability.

“When you rush a project,” he said, “you don’t have your plans ready, you use shoddy engineering and you hire the least technically competent contractor you get these sorts of incidents, which I believe is simply the first of numerous to take place. The Authority will try and minimize the importance of this. However, it clearly highlights the rough road ahead.” 

Doug Carstens is an attorney suing the CHSRA for filing an insufficient environmental report for the Fresno-to-Bakersfield section of the project. He said:

“In the Authority’s haste to begin construction, they and their contractors have violated the federal Endangered Species Act.  Without a permit, they destroyed nine acres of suitable habitat, including collapsing a potential San Joaquin kit fox den without a permit.  The Federal Fish and Wildlife Service should be commended for calling on them to comply with the ESA and reinitiate consultation.  But the Authority never should have let the damage happen.” 

Validation

Jason Holder is an attorney who represented litigants challenging the environmental reports for the Merced-to-Fresno section of the project. Now he represents Kern County in pending litigation on the Fresno-to-Bakersfield Section concerning the environmental reports. He said:

“The notification letter from the Fish and Wildlife Service validates what close observers of the HSR Project have been saying for several years now — that you cannot conduct legally sufficient environmental impact analysis based on only a ’15 percent’ level of design 

“The Rail Authority’s ‘design-build’ approach, where the agency completes only a general level of design for purposes of environmental review and permitting and the contractor refines the design post-approval, is simply inadequate. 

“Commenters noted during the EIR/EIS [Environmental Impact Report/Environmental Impact Statement] process for the Merced to Fresno Section that the vague level of project design precludes full assessment of its environmental impacts.  They pointed out that the design omitted critical details, including, among other things, the specific locations of construction staging areas.  Now, the ramifications of the inadequate level of design are beginning to come to light.  Here, because the Authority did not identify staging areas, the contractor selected the two sites with no agency guidance or oversight. The result: a major violation of the federal Endangered Species Act and the potential to further delay Project construction.”   

Holder concluded, “This is a case where the proverbial chicken, or here the endangered kit fox, has come home to roost.”

Penalties 

If the critics are right and the charges of environmental violations are severe, the penalties imposed on the project could be severe. The Endangered Species Handbook of the Animal Welfare Institute detailed:

“Stiff penalties may be imposed for violations of the Endangered Species Act.  Felonies may be punished with fines up to $50,000 and/or one year imprisonment for crimes involving endangered species, and $25,000 and/or six months imprisonment for crimes involving threatened species.  Misdemeanors or civil penalties are punishable by fines up to $25,000 for crimes involving endangered species and $12,000 for crimes involving threatened species.  A maximum of $1,000 can be assessed for unintentional violations.  Rewards of up to $2,500 are paid for information leading to convictions.” 

However it turns out, the FWS letter is another twist in the long and winding road of attempting to start the controversial project.

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.

Yesterday in Fresno the California High-Speed Rail Authority officially conducted the groundbreaking ceremony for its bullet-train project – but no dirt actually was turned.

After an hour of speeches, a “ceremonial signing” of a railroad tie was conducted by dignitaries from the federal, state and local governments. Not a shovel was in sight. The ceremony is online here.

Speaking first was Fresno Mayor Ashley Swearengin, a Republican and major project supporter, who two months ago lost a campaign to become the state’s controller. “This is the day we officially commemorate the beginning of the nation’s first high-speed rail project,” she said. “A project that promises to connect Northern, Central and Southern California together like never before. This project establishes Fresno as the Central Cog, the essential connection point for Northern and Southern California. This day has been in the making for 30 years.”

Next spoke CHSRA Chair Dan Richard, the master of ceremonies:

“Today we’re gathered here to celebrate a demarcation, a new phase for the high-speed rail program for California. The conceptualization, the environmental analysis, the appropriations, the litigation, the planning, the site preparation, and the demolition…. They’re all behind us. Now we build. We’re entering a period of sustained construction on the nation’s first true high-speed rail system and for the next five years here in the Central valley and for the decade beyond that we will be building across California.”

Gov. Brown

Gov. Jerry Brown spoke last and dug into his dictionary to call project opponents “pusillanimous,” which Merriam-Webster defines as, “weak and afraid of danger; lacking courage and resolution; marked by contemptible timidity.”

But he did concede a question, “Where the hell are we going to get the rest of the money?” To which he quickly replied, “Don’t worry about it, we’re going to get it.” More detailed answers may come Friday when he releases his state budget proposal for fiscal year 2015-16, which begins on July 1.

The shovel-less groundbreaking was for the initial segment, 29 miles between Madera and Fresno. But even for this initial segment, many obstacles remain across the tracks.

As CalWatchdog.com reported two weeks ago, although Bakersfield dropped its lawsuit against the project, six other lawsuits remain.

The CHSRA has not finished an environmental analysis on all the required segments to build the initial operating segment.

And the CHSRA has obtained only about 20 percent of the properties needed for the first segment. It still needs to get 80 percent of the properties, then demolish any structures on them.

Appearance

Several attorneys CalWatchdog.com talked to said the groundbreaking ceremony was more appearance than reality.

Stuart Flashman is an attorney for Kings County and two local citizens opposing the high-speed rail project. He said:

“My clients understand that the Authority, having promised the Federal Railroad Administration that construction would start in 2012, are feeling that they need to put a spade in the ground, at least for show. That is all this groundbreaking is. It is certainly not earth shattering, or even ‘groundbreaking’ in terms of actual progress of the Authority’s plans.”

Said his colleague, Mike Brady:

“Instead of a groundbreaking, this should be called a ‘breaking of faith’ with Central Valley residents, who are being treated very shoddily. Only a fraction of the land value is being offered to landowners, despite past promises; their rights are being stepped on.  Overall, the Authority is two years behind in its critical schedule. Very little ‘contiguous’ land has been acquired. That has not allowed the Authority to make real progress in laying track. The groundbreaking is a charade.”

The Sacramento Bee reported another irony:

“Despite the downtown Fresno setting for Tuesday’s ceremony, the first major construction on the Madera-Fresno segment is anticipated to be at the eastern edge of Madera, where an elevated bridge will be built to span the Fresno River, Highway 145 and Raymond Road just west of the existing BNSF Railway freight tracks.”

Another problem is the clock is ticking rapidly on the expiration of President Obama’s 2009 American Recovery and Reinvestment Act, which provided money nationally only for “shovel-ready” projects.

Those federal funds of $3.3 billion must be spent by Sept.  30, 2017. An accounting of the spending is due 6 months prior to that deadline.

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.