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.

“The city has met with the HSRA to identify a locally-generated potential alignment alternative for an area within the Section extending from approximately north of Seventh Standard Road in Kern County to Oswell Street in the City of Bakersfield….”

The above map (bigger version here) shows the change in the route in Bakersfield, from the purple line to the green line.

The settlement also mentioned the project still is being challenged by “six other petitioners.” They are:

• Kern County;
• Kings County, Citizens for California High-Speed Rail Accountability and the Kings County Farm Bureau;
• City of Shafter;
• Coffee Brimhall, a development company;
• The Bakersfield First Free Will Baptist Church;
• Dignity Health.

In exchange for dropping the case, the CHSRA reopened the study of a new alignment that will be less damaging to the city of Bakersfield and will promote more public engagement.  In essence, the settlement reopens a previously project-level environmental impact report and study the CHSRA board certified on May 7.

Under the settlement, the CHSRA has the right to continue with the original train route. But Bakersfield retains the right to sue again if the same damaging route ultimately is selected.

Highlights

According to settlement highlights released by the city of Bakersfield (full document is below), the CHSRA agreed:

• To develop a conceptual alignment that generally parallels the Union Pacific Railroad through downtown Bakersfield with a station generally located in the area of F Street and Golden State Avenue;
• Work with Bakersfield to co-sponsor public workshops;
• Work with with local property owners impacted by the alignment to address those impacts;
• When the conceptual alignment is refined, in good faith evaluate the new alignment along with the route that was previously certified by the CHSRA;
• Agree not to pursue additional design work or expend funds or approve or construct the previously selected route while the study is being completed;
• When the study is complete and the CHSRA is ready to decide on the alignment and station location, it will meet in Bakersfield;
• Agree not to exclusively rely on its prior certification of the hybrid alignment to approve the ultimate alignment and station location in the city.

Surface Transportation Board 

As CalWatchdog.com reported last week, “the U.S. Surface Transportation Board ruled in favor of the CHSRA in a dispute over whether the STB’s authority to green-light the project takes precedence over the California Environmental Quality Act.” The CHSRA wanted, and got, construction stoppage off the table as a CEQA remedy – at least for now, pending actions in the other lawsuits.

The San Jose Mercury News reported the CHSRA-Bakersfield legal negotiations pre-dated the STB ruling. However, Recital H in the new agreement stipulated:

“HSRA asserts that the STB Order deprives the Sacramento Superior Court of jurisdiction over the CEQA and related causes of action in the Bakersfield Lawsuit, as well as in the related Lawsuits. The City disagrees with HSRA’s assertion concerning the effect of the STB Order.” 

And “Section 4.5 Waivers” of the agreement reads:

“The City agrees it will not challenge, contest or appeal the STB Order in any way, including but not limited to via the STB itself or via any other court, board or tribunal.”

So the STB ruling certainly was part of the legal atmosphere surrounding the last days of negotiations.

Bakersfield also agreed it will not file a National Environmental Quality Act lawsuit or challenge funding prior to the study of the alternate alignment.

In sum, Bakersfield gains a couple of things from the agreement. It gets a breather from the controversy that will follow the STB decision. It gains a fresh look at a less damaging rail alignment. And in engages its local community, while retaining the right to file another lawsuit if it doesn’t like the final outcome.

The CHSRA gets one of seven lawsuits off the train table.

The CHSRA is eager to get a stake in the ground and spend $3.5 billion in federal dollars before the money’s Sept. 2017 expiration date. The Jan. 6 event also will provide a photo op for project officials and elected leaders.

More importantly, last Friday the U.S. Surface Transportation Board ruled in favor of the CHSRA in a dispute over whether the STB’s authority to green-light the project takes precedence over the California Environmental Quality Act. Several lawsuits against the project have claimed it violates CEQA.

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.

The STB’s 2-1 decision was taken by Board Chairman Daniel R. Elliott III and Vice Chairman Deb Miller. They wrote the STB will not separate the CHSRA’s request to forbid a construction injunction from other remedies under CEQA. Therefore, all of CEQA is “preempted.”

Citing U.S. Code sections, the decision found:

“The Board has discretionary authority under 5 U.S.C. § 554(e) and 49 U.S.C. § 721 to issue a declaratory order to eliminate controversy or remove uncertainty.  In this case, there is uncertainty as to whether, and the extent to which, the Board would find that CEQA is preempted with regard to the Line.  Accordingly, we instituted a proceeding to consider the issues raised in the Authority’s petition and provided an opportunity for interested persons to file replies. …

“Applying the well-established preemption principles here, the Board concludes that CEQA is categorically preempted by § 10501(b) in connection with the Line.”

That last-mentioned section of the federal code reads:

“(b) The jurisdiction of the Board over —

“(1) transportation by rail carriers, and the remedies provided in this part with respect to rates, classifications, rules (including car service, interchange, and other operating rules), practices, routes, services, and facilities of such carriers; and

“(2) the construction, acquisition, operation, abandonment, or discontinuance of spur, industrial, team, switching, or side tracks, or facilities, even if the tracks are located, or intended to be located, entirely in one State, is exclusive. Except as otherwise provided in this part, the remedies provided under this part with respect to regulation of rail transportation are exclusive and preempt the remedies provided under Federal or State law.”

Dissenter

Of the three commissioners – all appointed by President Obama – the lone dissenter was Board Member Ann D. Begeman. She wrote the CHSRA could have gone to the STB much earlier, around June 2013, to stop the CEQA process, but did not. And it could have revised either of the two Environmental Impact Reports/Environmental Impact Statements “prior to the Board’s adoption of them.”

She added:

“After all, the Board claimed jurisdiction over the project in advance of issuing a final decision (including the adoption of the joint environmental documents) to approve construction of the first section in June 2013.  But the Authority took no such action on either segment.  The Board adopted both of the joint environmental documents, arguably making the Authority fully accountable for both CEQA and NEPA [National Environmental Policy Act] mitigation.”

She explained the CHSRA did not ask for a petition for declaratory order regarding non-injunctive remedies, such as an order requiring revised environmental analyses or additional environmental mitigation. She wrote:

“Yet the majority [on the STB] has decided to go even further than the Authority requested by finding that CEQA is ‘categorically preempted.’ In other words, there is now no means of enforcing CEQA with respect to the Project.  Authority claims of CEQA compliance will be merely claims, and deviations from any of the CEQA provisions included in the Board’s own-approved EIR/EISs will not be challengeable.”

Begeman’s conclusion:

“The Authority has come before the Board many times asserting its commitment to both CEQA and NEPA. This agency has adopted that commitment into its orders and many stakeholders have relied on the Authority’s representations over the years.  The Authority should live up to its commitments and the Board should refrain from undermining them”

Unclear

Doug Carstens represents several opponents of the high-speed rail project: Kings County, Citizens for High Speed Rail Accountability and the Kings County Farm Bureau. On their behalf, in October he filed an opposition brief to the CHSRA’s request for declaratory relief.

After Friday’s ruling, Carstens told CalWatchdog.com:

“It is unclear what impact, if any, the STB opinion will have on the state court proceedings. It is possible that California courts will adhere to California appellate law in the form of the Town of Atherton case’s decision that there is no preemption of CEQA for high-speed rail. The effort by the Authority to obtain federally-granted immunity from the state’s premier environmental law, the California Environmental Quality Act, may have the effect of introducing confusion and uncertainty into the process of developing the project. 

“Even if California courts respected the opinion of two members of the STB, and did not find more persuasive value in the well-reasoned dissenting opinion, there are several laws in addition to the California Environmental Quality Act which are also being enforced through the lawsuits and would not be preempted: Proposition 1A (directing that alignments must be along existing transportation corridors among other requirements), the Williamson Act (requiring protection of agricultural land), and Anti-Discrimination Law (prohibiting approval of projects that have disparate impacts on minority or low income populations). The STB’s opinion is disappointing, poorly reasoned (extensively relying on the now-depublished and un-citable Eel River opinion), and unpersuasive. As such, it might have little impact on California courts at all.”

Stuart Flashman, an attorney for Kings Count and two local citizens opposing the high-speed rail project, on Nov. 19 filed a brief before the STB opposing declaratory relief. After the STB’s Dec. 12 decision, he told CalWatchdog.com:

“The Surface Transportation Board’s decision to not only grant the Authority’s motion for a declaratory order, but to go further and totally exempt the High-Speed Rail Authority from compliance with the California Environmental Quality Act, is disappointing but not at all unexpected.  As the dissent by Commissioner Begeman points out, the STB’s majority has, over time, had a history of doing its utmost to ensure that there is no regulatory oversight over the Authority’s massive construction  project. This latest order simply continues the Board’s obeisance to an agency it was intended to regulate. … 

“In essence, the STB is moving toward federalizing a state project (while retaining the state funding for that project) in blatant disregard of the U.S. Constitution’s clear separation between state and federal power.  One can only hope that this poorly reasoned decision will not stand.” 

Difficulties

Despite the STB ruling, the CHSRA still will have difficulty building much of the project, for numerous reasons:

• The CHSRA must race to spend most of the $3.5 billion in federal money by Sept. 2017.

• The project will get one-quarter of the cap-and-trade funds administered by the California Air Resources Board. But that will amount to only $250 million a year. James E. Moore II, a professor with USC’s Industrial and Systems Engineering program, told the Orange County Register the money would pay for only about three miles of track construction a year. “At the rate it’s currently funded, it would take 80 years to complete a route from Merced to San Fernando,” he said.

• There are doubts because of time requirements the project can properly conform to the National Environmental Policy Act, which is still in force despite the STB’s ruling, as was pointed out in October by Assemblyman Andy Vidak, R-Hanford.

• The CHSRA has not determined a viable route over the Tehachapi Mountains, as the Bakersfield Californian reported in September.

• The STB cannot provide direct funding for the HSR project. California’s Republican delegation in the U.S. House of Representatives remains strongly opposed to the project. With the Republican majority in the House rising in numbers after the Nov. 4 election, and Republicans taking over the U.S. Senate in January, the chance any more federal money will flow to the project is zero.

• The project has no final rail agreements, as required by the Federal Railroad Administration.

• Less than 20 percent of the land has been acquired for even 29 miles of the 300 miles for the initial operating segment.

• There are zero private investors.

• There has been no filing of the second funding plan, as required by the 3rd Appellate District Court of California.

In short, the STB action only removes one of many roadblocks remaining for constructing the high-speed rail 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. 

In his 2013 State of the State address, Gov. Jerry Brown quoted “The Little Engine That Could”: “I think I can. I think I can.”

One thing the California High-Speed Rail Authority, which runs the project, thinks it can do is get around the California Environmental Quality Act. As noted in the first article in this series, it started with two attempts:

• Attempt 1: During the California Legislature’s closing days in August 2012, the CHSRA tried to pass more lenient measures to comply with CEQA. The Legislature didn’t cooperate.
• Attempt 2: In June 2013, the CHSRA filed a request with the 3rd District Court of Appeal in the city of Atherton’s suit against the project. The CHSRA wanted the court to recognize the federal pre-emption of jurisdiction, getting around state laws, such as CEQA. The court refused.

Attempt 3

Attempt 3: De-publication. Now, in its third attempt to get around CEQA, on Sept. 22 California Attorney General Kamala Harris asked the California Supreme Court for the de-publication of the 3rd District’s decision in the Atherton case. If granted, it would have meant future cases would have been restricted in using this case for precedent. Harris is representing the CHSRA.   

Basically, what Harris and the CHSRA said was that, regardless of the language in Proposition 1A in 2008, they instead wanted to put the project into federal jurisdiction. And that, any interpretation to the contrary, such as that by the 3rd District Court of Appeal, had “misinterpreted” those facts, and ought to be de-published.

De-publication would have offered a quick way to minimize the damage of the 3rd District Court of Appeal’s decision. If the Supreme Court had agreed to de-publish the decision, it would have blocked that decision from being used as a precedent for other cases.

Stuart Flashman, an attorney for Kings County and two residents who have brought suit to stop the project, filed a brief against the de-publication, arguing:

“If the Attorney General wished to press these points, her proper recourse was to petition for review, and the other agencies could have supported review….

“If the parties seeking de-publication feel that major state transportation projects should not be subject to CEQA review, that argument should be addressed to the Legislature, which clearly knows how to exempt classes of projects from CEQA review when it feels such exemption is warranted.”

On Oct. 29, the Supreme Court denied the de-publication request. Therefore, the 3rd District Court of Appeal’s decision is now final and conclusive.

Attempt 4

Attempt 4: the Surface Transportation Board. Private attorneys Nossaman LLP have a $17 million contract to represent the CHSRA. An Oct. 9 petition by Nossaman asked for declaratory relief, that is, an official declaration of the status of a matter in controversy to expedite a court case.

In this case, the CHSRA is specifically asking the STB to take off the table any request for a injunction against construction for any party suing under CEQA. The CHSRA want federal laws to preempt state laws.

(The STB is a federal agency under the Department of Transportation. A year ago, on Dec. 3, 2013, the STB declared it held federal jurisdiction because California’s tracks would also be used by Amtrak; and the tracks cross state lines.)

The CHSRA wants to prevent the chance of a construction injunction being granted for a Central Valley case represented by  Attorney Doug Carstens from Chatten-Brown & Carstens LLP. He represents  Kings County, Citizens for High Speed Rail Accountability and the Kings County Farm Bureau.

The reason his clients are suing is because of alleged CEQA improprieties in the Fresno-to-Bakersfield segment. The CHSRA said that, if the injunction was granted, it could endanger the start of building the high-speed rail system; and the CHSRA has a tight time frame on the use of $3.5 billion in federal funds.

But there is no emergency. The actual case is not expected to be heard until mid-summer 2015. Moreover, there are six other CEQA cases filed against the project and not one of them is ready to go to court this month.

A decision from the STB is expected soon. If the STB grants declaratory relief, basically preempting CEQA with a federal supremacy claim, the next step will be the U.S. 9th Circuit Court of Appeals.

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.

Republicans’ triumph last week in the U.S. Congress already is rippling across the country. Does that bother Gov. Jerry Brown and his push for getting more federal funding for California’s high-speed rail project? So far, Congress allocated only $3.5 billion as part of President Obama’s 2009 economic stimulus plan.

Apparently not. The Los Angeles Times reported:

“Gov. Jerry Brown played down concerns Thursday about Republicans killing the state’s $68-billion bullet train, saying that ‘they’re going to join the chorus’ in support of high-speed rail once construction around Fresno and Bakersfield gains momentum.”

But he’s going to need all his skills to convince them.

Even with Democrats in control of the Senate, for three years no additional funding was passed for the project. That majority included California’s two powerful, high-seniority senators. Sen. Dianne Feinstein even sits in the powerful Committee on Appropriations. And Sen. Barbara Boxer sits on the Committee on Commerce Science and Transportation and on the Committee on Environment and Public Works.

In the House, if anything the situation is worse. Rep. Kevin McCarthy of the 23rd Congressional District, who became the majority leader in the House earlier this year, just was re-elected with 75 percent of the vote. He staunchly opposes the high-speed rail project.

Other Central Valley Republicans also oppose it. Rep. Devin Nunes of the 22nd District branded it a “trillion-dollar boondoggle.” He just was re-elected with 62 percent of the vote.

On Nov. 7, McCarthy and Nunes were joined by two other California Republicans, Reps. David G. Valadao of the 21 District and Jeff Denham of the 10th District, in writing a letter to Daniel R. Elliott III, chairman of the Surface Transportation Board of the U.S. Department of Transportation. They wrote (full letter reproduced below):

“This project has changed drastically from what was promised to voters, and this is another attempt by the CHSRA to skirt the law.  On behalf of our constituents, we urge you to reject the CHSRA petition and require CHSR to adhere to state and federal laws, as well as any judicial determinations, as it continues to develop and construct high-speed rail in California.” 

Trouble ahead from Union Pacific Railroad

Part of the plan of the California High-Speed Rail Authority, which is constructing the train, was to use some existing infrastructure to cut the cost to the current estimate of $68 billion from $98 billion to $117 billion. It’s called the “blended plan.”

The CHSRA proposed this for the San Francisco-to-San Jose segment by using the Caltrain tracks, instead of building dedicated tracks for high-speed rail. That modification also would save billions by not having to buy pricey properties along the peninsula stretch.

The catch is, Union Pacific Railroad has vestige rights on that track and has not agreed to the blended system. They have exclusive rights to say yes or no to new interstate passenger rail systems along that corridor. As outlined in the CHSRA’s April 2014 Business Plan, it has been unable to get Union Pacific permission for the blended system.

Union Pacific Railroad filed a commentary with the STB:

“In some locations, most notably the San Francisco Peninsula, CHSRA contemplates operating high-speed trains on the same tracks as freight and conventional passenger trains. Blended service would interfere with UP’s existing and future freight operations, including access to existing and future customers.”

Construction

In sum, no significant construction has begun for the high-speed rail project because the CHSRA doesn’t have the money, the land, the railroad approvals or the environmental clearances to go forward.

And it also doesn’t have the second funding plan mandated by the July 31 ruling of the 3rd Appellate District Court, which allowed the first segment of the project to go forward.

Such funding is not on the CHSRA’s agenda for November. And the CHSRA is not planning to meet in December.

So unless the CHSRA calls a special meeting in the waning weeks of 2014, the project is bumped into 2015, seven years after voters approved it with Proposition 1A in 2008.

Meanwhile, other priorities Brown is seeking to tackle – especially water, education and pension reform – will make increasing demands on a limited state budget.

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.