By Tim Sheehan, March 4, 2014
A Sacramento judge ruled Tuesday that Kings County and two of its residents can forge ahead with a challenge to the California High-Speed Rail Authority over its statewide bullet-train plans.
Sacramento County Superior Court Judge Michael Kenny denied a request by the rail agency to dismiss the second stage of a lawsuit that questions whether the state's proposed high-speed train system complies with state law.
The ruling appears to set the stage for a trial in which the two sides are expected to present a string of experts to argue over the design of the 520-mile line that would run between San Francisco and Los Angeles through the San Joaquin Valley and whether it conforms to requirements in Proposition 1A, the $9.9 billion high-speed rail bond measure approved by California voters in 2008.
While it's not clear when the case will be heard, the attorney representing the Kings County plaintiffs was pleased with Kenny's ruling.
"The state Attorney General argued that the case was done" following Kenny's ruling last fall over the validity of the authority's 2011 funding plan, "and we argued that it's not," said Stuart Flashman, an Oakland attorney who filed suit in late 2011 on behalf of Kings County farmer John Tos, Hanford homeowner Aaron Fukuda and the county's Board of Supervisors.
But, Flashman added, "the judge isn't saying anything about whether we can or can't prove our case."
Kenny already ruled last year on the first phase of the Kings County suit, determining that the rail agency violated Prop. 1A by producing a financing plan that failed to meet the requirements of the ballot measure. The plan did not adequately describe realistic sources of the estimated $31 billion needed to build the first operational portion of the system from Merced to the Los Angeles basin.
Kenny also determined that the authority was required, as part of the financing plan, to certify that all of the environmental reviews for the entire Merced-Los Angeles operating section were completed.
Two of Kenny's rulings are already in the hands of the state's 3rd District Court of Appeal: the first piece of the Kings County lawsuit and his refusal to OK bond sales needed to pay for the first phase of the statewide project, the Madera-Fresno line.
Key issues at a trial in Part 2 of the Kings County lawsuit are likely to be the rail agency's proposal for a "blended" train system to share improved, electrified tracks on the Caltrain commuter line between San Francisco and Los Angeles -- something that some hard-core high-speed rail advocates like former judge and state Sen. Quentin Kopp say is different than what voters were promised in Prop. 1A.
Rail opponents add that the blended system will keep high-speed trains from achieving Prop. 1A's ultimate mandate for a 2-hour 40-minute nonstop ride from downtown San Francisco to Los Angeles' Union Station.
The suit also alleges that the system will not be able to operate without a public subsidy, as the ballot proposition required.
Representatives for the rail authority said they believe the proposed system does comply with Prop. 1A and characterized the Kings County lawsuit as a tactic to stall the project.
"We will continue to oppose all efforts to delay the high-speed rail project and the jobs and clean transportation it will provide," said Dan Richard, chairman of the rail authority board. "Independent experts have concluded that California's high-speed rail system meets the time standards and other requirements of Proposition 1A. We are confident that the courts will uphold the high-speed rail authority's planning decisions."
Flashman said the suit is about holding the authority to its word.
"Our position is simply that if the authority want to use the bond funds, it has to build what it promised the voters," he said. "Judge Kenny's ruling means we get our day in court to prove our case. If we're successful, it will mean the authority can't use the bond funds to build their noncompliant project."
It's uncertain what immediate effect the ruling could have on the rail authority's plans to begin construction of the $68 billion statewide project with the 29-mile stretch between Madera and Fresno. The agency awarded a contract of about $1 billion last summer for contractors to design and build the section -- part of a $6 billion plan for a Central California "backbone" between Merced and Bakersfield.
The federal government has put up more than $3 billion in transportation and economic stimulus money for work in the Valley, for which the state is obligated to put up about $2.7 billion in matching money. While Prop. 1A bond money is tied up in court, the rail authority and Gov. Jerry Brown's administration are scrambling to come up with other funds to start matching the federal money, including a proposal for $250 million in money raised by auctioning "cap-and-trade" pollution-emission credits to industries.