California High-Speed Rail Authority CEO Brian Kelly worked over the summer to reassure anxious state lawmakers that a new management team could revive the troubled bullet-train project. He also proceeded to push out key officials overseeing contract and property decisions.

Yet the changes haven’t stopped a new wave of bad news in September for the project, which was once envisioned as a statewide network of high-speed rail but has been downsized to a 119-mile link between Bakersfield and Merced expected to cost in the range of $20 billion. 

A Los Angeles Times report outlined the huge problems still facing the rail authority’s land-acquisition efforts after seven years in the Central Valley. Not only does the agency need to buy about 300 more properties to be able to build the train, the Times reported that consultants believe at least an additional 488 parcels will need to be bought to deal with complex issues related to easements on sites with infrastructure owned by Pacific Gas & Electric and other utilities as well as AT&T, railroads and irrigation districts.

This adds new doubts about the rail authority’s projection it could finish construction of the Central Valley route by 2026.

One project manager, after warning of severe delays, told the Times that “I am going to ride this train, but I am afraid it is going to be my ashes in an urn. I told my kids to take my ashes on the bullet train.”

The Times also noted that the rail authority had been forced to buy larger lots than it needed to accommodate the rail route to such an extent that it now owns hundreds of properties – including “toxic waste sites, vacant lots and rental homes” – that it must manage. The list includes at least 466 acres of cultivated agriculture fields.

San Jose area critics push for costly elevated lanes

There was also bad news for the project from Northern California. At a rail authority board meeting held in San Jose, trustees voted unanimously to approve a route connecting the San Joaquin Valley with San Jose after the Central Valley initial segment is built. Yet testimony at the hearing showed the intensity of opposition to building any new rail route that didn’t minimize disruptions to the neighborhoods and communities it traveled through.

According to a Fresno Bee report, speakers complained to the rail board that early promises that elevated rail lines would be built had given way to plans for regular, surface rail lines. But since elevated rail costs two to four times more per mile, choosing it would make project costs explode – and Gov. Gavin Newsom has already said there’s not nearly enough funding likely to be available to complete the $78 billion statewide project advocated by his predecessor, Jerry Brown.

That argument didn’t move San Jose resident Danny Garza. According to the Bee, he said that not building elevated tracks in his neighborhood was “a bait-and-switch” given past guarantees of minimal impacts. “Please don’t use our neighborhood to balance your budget,” he told the board.

San Jose Mayor Sam Liccardo told trustees that his city could drop its support for the project if the rail authority didn’t use “best practices”  to “provide our community with the safety it deserves.”

The section of the proposed route in the San Joaquin Valley also drew complaints, according to the Bee. Rick Ortega, general manager of the Grassland Water and Resource Conservation Districts, said the staff report “contains no design detail on how the authority intends to mitigate impacts through the ecological area.” The Grassland Environmental Area is a 160,000-acre site mostly in Merced County that the U.S. Fish & Wildlife Service has repeatedly said must be preserved because of the crucial ecological importance of its wetlands.

Ortega also said elevated tracks were necessary – or that the rail authority should change its planned route.

Board members said the staff would consider the complaints, but offered no promises about the nature of possible mitigation efforts, according to the Bee.

Four months after then-California High Speed Rail Authority Chief Executive Jeff Morales told authority board members he was moving on and two months after Morales made his decision public, the agency overseeing the state’s $64 billion bullet train project hasn’t settled on his successor.

In 2012, four months after Chief Executive Roelof van Ark abruptly left following two stormy years, Morales already had the job. This time around, the same speedy selection process seemed likely. The RT&S transportation industry website reported after Morales’ decision was announced in April that the board was likely to have his replacement approved before Morales’ final day of June 2.

But the CHSRA board met in closed session on the succession issue on May 10 and June 14 without reaching a decision. The rail agency’s number two job – deputy chief executive – has also been vacant since Dennis Trujillo left in December.

The empty slots atop the CHSRA power structure come at a critical time.

According to a federal report prepared under the Obama administration, the state’s high-speed rail project is already seven years behind schedule and on its way to having a 50 percent cost overrun on the $6.4 billion, 118-mile first segment now being built in the Central Valley.

The project also continues to face legal challenges which argue that it violates the terms of Proposition 1A, the 2008 ballot measure providing $9.95 billion in bond seed money for the project. The rail authority has won most recent judgments. But opponents remain confident they eventually will prevail because of a 2014 state appellate court ruling that held the project still was subject to a financial “straitjacket” that would require it to show short- and long-term financial viability without public subsidies before the project could significantly proceed. The project’s struggle to attract private investment shows that at least in the private sector, there are many doubts that the bullet train could operate successfully without such subsidies.

Obama administration rules could haunt project

But the election of Donald Trump as president in November also has led to a huge new headache for CHSRA. All 14 California House Republicans have urged Transportation Secretary Elaine Chao to reverse Obama administration actions that loosened federal rules to give California access to about $3 billion in federal dollars for the project.

Rep. Jeff Dunman, R-Turlock, and his colleagues have focused their harshest fire on a 2012 decision that gave the state the go-ahead to spend about $200 million in federal funds but not have matching state spending. The decision went against longstanding Washington precedent.

Withdrawing all federal funding could also be justified by citing the Obama administration’s 2009 regulations for projects that were to be paid for or partly paid for with money from the economic stimulus bill passed a month after President Obama took office. The Federal Railroad Administration rules said projects that didn’t demonstrate “reasonableness of financial estimates” and “quality of planning process” would get no funding.

That’s the same agency which recently concluded the project was seven years behind schedule and on course for a 50 percent cost overrun on its initial segment

The California High Speed Rail Authority board’s next meeting is July 18 in Sacramento.

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.

“The state rail authority is studying an alternative to build the first segment in the Bay Area, running trains from San Jose to Bakersfield,” the Los Angeles Times reported. “If the plan does change, it would be a significant reversal that carries big financial, technical and political impacts, especially in Southern California.” Local officials and residents have argued that the area’s transportation needs and challenges far outweigh those in the San Francisco Bay Area, where public transportation is dense and plentiful.

Moving the goal posts

The controversial, last-minute shift hinted at pessimistic calculations within the state’s High Speed Rail Authority as to how best to mitigate cost pressure and environmental constraints faced in the south, where any rail line will have to navigate — and penetrate — the area’s rugged natural terrain. “This new interest in building from the north first comes just one week after announcing an $800,000 effort to find a suitable starting location in Burbank, near L.A.,” Business Insider noted. “The hope is that the north-first plan would be less risky, making it more likely that construction can begin before the project becomes politically nonviable.”

In addition to changing the project’s starting line, the new plan also shifted its destination — another concession to the dramatic obstacles posed by a scheme routed directly into the L.A. basin. “The alternative being examined would run from Silicon Valley to Bakersfield and be less costly than the current proposal to connect the Central Valley with Burbank because it wouldn’t entail expensive tunneling costs,” as the San Jose Mercury News observed. “The outcome of the new evaluation will be known in the coming weeks, when the state unveils its 2016 business plan. The document will be the most comprehensive update for the $68 billion project in four years.”

At the same time, however, local officials in Bakersfield have yet to warm to the new proposal. “Connecting California high-speed rail between Kern and the Bay Area before building south toward Los Angeles would not resolve the touchier issues surrounding the project’s local impacts, but it would provide more time for planning the route south from Bakersfield,” they have informed the Bakersfield Californian. “There have been contentious discussions about different proposed alignments through Kern and how they would affect local homes, businesses, schools and churches, as well as Kern’s prospects for landing a maintenance facility that would bring more than 1,500 good jobs.”

Feet to the fire

The changes have come hot on the heels of a sharp escalation in lawmakers’ displeasure toward rail authority officials. Since October of last year, when the Los Angeles Times broke news of the authority’s secrecy over anticipated cost overruns, the project’s fortunes have fallen under increasing scrutiny in Sacramento. In the story, the paper recalled, it “found that the years remaining before the deadline were not enough to construct 300 miles of track, bore 36 miles of mountain tunnels, build six train stations, erect high-voltage electrical systems and construct a heavy maintenance facility. The story was based on comments by tunnel engineers, construction experts and geologists.”

“The story also reported that the agency’s primary consultant, Parsons Brinckerhoff, had submitted a cost estimate in October 2013 that projected a 31 percent increase in the cost of the initial construction segment and a 5 percent increase in the cost of the full 500-mile system. The estimate, which was the culmination of a two-year effort by a team of engineers, was not used when the state issued its 2014 business plan several months later.”

At a recent hearing called to address that and other issues, lawmakers were told that the Times had made a mistake about the ballooning cost of construction.

“Rail Authority CEO Jeff Morales said that’s not accurate,” KQED reported. “There was no 31 percent increase in the cost of the program,” according to Morales. “We did not withhold information about a cost increase in the program because there was no increase in the program.”

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.

These developments put project supporters on the spot in two different ways.

The Los Angeles hearing suggests attitudes about the bullet train in Los Angeles County are moving against the project. That’s what happened in Silicon Valley, where voters supported Proposition 1A in 2008 to provide $9.95 billion for a statewide bullet train system but shifted to intense opposition when the real-life effects of building a high-speed rail system through wealthy communities triggered a powerful, well-financed campaign to force the state to back off.

This and $30 billion in cost savings led Gov. Jerry Brown and the rail authority to adopt a “blended”plan in which high-speed rail would extend from Fresno to northern Los Angeles County, with slower rail on each end connecting riders to downtown San Francisco and downtown Los Angeles, respectively.

But after the rail authority decided last year to accelerate construction in Southern California, community opposition began to build. This has helped fray the loose coalition of the region’s politicians who have long supported the idea of a bullet-train system but are uncomfortable with the emerging specifics.

Is Antonovich’s proposal actually a ‘poison pill’?

Los Angeles County Supervisor Mike Antonovich — who once lobbied to make sure the bullet train’s route went through his district — now is the leading proponent of minimizing disruption to his district by tunneling through the San Gabriel Mountains for the train’s 15-mile Palmdale-to-Burbank link. Given that this would add billions of dollars in construction costs to a project that already can’t identify how it’s going to pay for its first $31 billion segment, that’s close to asking the rail authority to do the impossible. Such “poison pills” are one way for politicians to oppose a project in indirect fashion.

Antonovich’s 2014 proposal, in turn, led to concerns in January from two other elected Democrats who previously backed the bullet train project enthusiastically. This is from the Los Angeles Business Journal:

Rep. Adam Schiff came out in opposition on Thursday to a proposed alignment of the state’s high-speed rail project that would require a tunnel beneath the Angeles National Forest – damaging chances the plan will be carried out.

 

In a letter sent this month, Schiff, D-Burbank, and Rep. Judy Chu, D-El Monte, told California High Speed Rail Authority Dan Richard to scrap any consideration of a route under the San Gabriel Mountains between Palmdale and the San Fernando Valley because it would be harmful to the environment.

Wealthy environmentalists don’t like Antonovich’s plan. But some poor and middle-class homeowners of the San Fernando Valley don’t like the rail authority’s alternative, and they depict their fight as akin to David vs. Goliath. This is from Glendale resident Stephen Mills’ letter in Friday’s L.A. Times:

California High Speed Rail Authority board member Lou Correa said that he detected “a little bit of NIMBYism” regarding the reaction to bullet train plans. He should get used to it.

 

Affluent neighborhoods have successfully fought intrusive development that would have affected their quality of life, and now working-class neighborhoods are doing the same.

How much is CA project an Obama priority?

Meanwhile, in Washington, the House’s action to pull back federal funds from the state’s high-speed project may prove as consequential as the developments in Los Angeles County. The provision was included in the Transportation, Housing and Urban Development, and Related Agencies Appropriations Act for fiscal 2016, a multibillion-dollar measure that includes many provisions the White House supports.

If the Senate approves this funding bill, would President Obama actually veto it in the name of preserving federal grants to an embattled, increasingly unpopular project that would help only one of the 50 states?

That’s not clear. Doing so would likely prompt a sharp reaction from the Washington Post’s editorial page. It has long been a harsh critic of California’s project.

A 2011 editorial, headlined “California’s high-speed rail system is going nowhere fast,” noted that the state “hasn’t credibly identified a source of funds for the system” and questioned Gov. Jerry Brown’s enthusiasm for the project.

That’s why Los Angeles County Supervisor Michael Antonovich, who represents much of the affected region, has long pushed rail officials to build a 15-mile-long tunnel under the San Gabriel Mountains for the Palmdale-Burbank link. Rail officials have agreed to consider the request, but no one familiar with the project’s finances considers that feasible because of the extreme cost. Underground rail lines built in recent years around the world cost from $400 million to $600 million per kilometer — or about $650 million to $975 million a mile. And that’s for projects that are far less daunting than tunneling through a mountain in an area of frequent seismic activity. Such a tunnel would balloon the project’s present $68 billion estimated cost.

But local opposition grew even stronger a year ago this month when state officials pushed up construction plans for the Burbank-Palmdale link. This was hailed by former Assemblyman Richard Katz, a Los Angeles Democrat, as a “game changer” that would build support for the project: “The visibility will make it real and people can see where their tax dollars are being spent.”

Elected officials lead furious protest

The decision may indeed have been a “game changer” — but not in the way Katz expected. At a raucous community hearing last week in the city of San Fernando, rail authority officials were overwhelmed by the vehemence of community opposition. This is from the Los Angeles Times:

Protestors … took over an open house meeting held by the California High-Speed Rail Authority. They demanded that state officials answer questions about the project’s impact on their community.

 

But unlike typical protests, this one was led by elected officials. Seventy people, headed by the city’s mayor pro tem and other current and former city officials, marched into a city auditorium and set up their own public address system.

 

With their Police Department on hand, they confronted state officials with anger that has not been seen even in the virulent opposition to the project in Northern California or the Central Valley.

 

“The bottom line is you are not really welcome,” Mayor Pro Tem Sylvia Ballin told state officials, whose plans call for bisecting the small working-class city with high sound walls that the city fears will become an eyesore and magnet for graffiti.

 

“We will lose in the city $1.3 million annually as a result of your brilliant planning,” she said, referring to projected losses of tax revenue when businesses shut down. “We are here to tell you we will not accept it quietly, not one bit.” …

Protesters rip refusal to answer questions

San Fernando Valley residents’ objections went far beyond the California High-Speed Rail Authority’s plans.

Stunned state officials stood stone-faced at the protest, refusing to answer questions that Ballin and other city officials and residents asked.

 

“The route would destroy this community, splitting it north to south,” City Manager Brian Saeki said in an interview. …

 

Protesters said they would not accept the state’s way of conducting meetings on the project, which includes refusing to allow residents to ask questions during an open forum.

 

“We say no,” San Fernando Councilman Jaime Soto told state officials from his microphone. “This is not your regular meeting. You are a guest here.”

‘You are not going to displace our families’

The intensity of the opposition isn’t the only factor that Gov. Jerry Brown, the California High-Speed Rail Authority and the trade unions backing the project have to fear. It’s the likelihood that this fight will be framed as David vs. Goliath — specifically Latino David vs. white, establishment Goliath. The cities of San Fernando and Pacoima have been hotbeds of the most intense opposition to the project. San Fernando is nearly 90 percent Latino; Pacoima is 86 percent Latino. Activists like Xanaro Ayala characterize the fight as being a continuation of the indignities Latinos have faced: “We have seen this before when they’ve built the freeways and divided up our community. We are saying, “[No to the state government], you are not going to displace our families,” he said at the rail authority open house.

This framing and rhetoric touches on an open wound in Los Angeles’ civic history: What happened in the 1950s some 20 miles southeast of San Fernando in the then-semi-rural Chavez Ravine community, a scenic area of rolling hills just south of Elysian Park. Beginning in 1950, the city started using eminent domain to clear out the 1,000 mostly Latino families in the community to allow construction of a federal public housing project, with promises that they would have the first chance to move into the new units when they were built.

But in 1958, the Dodgers moved from Brooklyn to Los Angeles, and team owner Walter O’Malley thought Chavez Ravine was an ideal site for a new baseball stadium. This led L.A. officials to renege on their promise of a public housing project with homes for displaced Latino families, clearing the way for the construction and then the 1962 opening of Dodgers Stadium — prompting years of bitter protests and creating what is widely seen as one of the darkest chapters in L.A. history.

This history is likely to be invoked regularly by residents of San Fernando, Pacoima and other mostly Latino communities in fighting a state project that they believe would destroy their way of life.

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.