Appeals Court Denies Petition, Clears Way for California High-Speed Rail Trial

The appellate decision is the latest development in a complex web of litigation that threatens to stall or kill the proposed $68 billion statewide high-speed rail program.

by Tim Sheehan, McClatchy News Service / April 21, 2014

A state appeals court rejected a petition by the California High-Speed Rail Authority, potentially clearing the tracks for a trial over whether the agency's controversial and ambitious bullet-train plan can comply with state law.

Three justices with the the 3rd District Court of Appeal in Sacramento issued an order late Tuesday summarily denying the rail agency's March 21 request related to a lawsuit by high-speed rail foes in Kings County. The rail authority had asked the appeals court to overturn a Sacramento County Superior Court's decision ordering a trial on one part of a lawsuit while another portion of the case is pending an appeal.

"It's nice when you win one," said Stuart Flashman, an Oakland attorney representing Kings County farmer John Tos, Hanford homeowner Aaron Fukuda and the Kings County Board of Supervisors. "I thought this (petition) was stupid, and by issuing a summary judgment, it looks like the justices thought so, too."

The appellate decision is the latest development in a complex web of litigation that threatens to stall or kill the proposed $68 billion statewide high-speed rail program, even as the rail agency says it is on the cusp of starting construction on the first 29-mile stretch in Madera and Fresno counties.

The Kings County opponents are suing the rail authority in a two-pronged case filed in late 2011 over compliance with Proposition 1A, the $9.9 billion high-speed rail bond approved by California voters in 2008. The portion of the lawsuit affected by Tuesday's order involves assertions by Tos, Fukuda and the county that plans for bullet trains to share upgraded, electrified tracks with commuter trains along the San Francisco Peninsula (and to a lesser degree in the Los Angeles area) violates Prop. 1A in several key aspects:

• That the blended system is substantially different than a line of fully dedicated tracks only for high-speed trains that some hard-core advocates and project opponents both say was what voters were promised in Prop. 1A.

• That sharing tracks with the Caltrain commuter line between San Francisco and San Jose 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.

• That the system would not be able to operate without a public subsidy.

The alleged shortcomings collectively add up to an illegal expenditure of public funds for the high-speed rail program, according the lawsuit. In early March, Sacramento Superior Court Judge Michael Kenny denied a motion by the rail agency to dismiss this portion of the Tos/Fukuda/Kings County case.

Kenny had already ruled last fall on the first phase of the Kings County suit, determining that the rail agency violated Prop. 1A by producing a financing plan in late 2011 that failed to meet the requirements of the ballot measure.

Flashman said he expects that the rail authority will ask the California Supreme Court to review Tuesday's ruling. "I'm also guessing that review will be quickly denied," he said. "That means that the trial on the issue of the Authority's violations of Prop. 1A's requirements ... will move forward, probably some time this summer."

In a statement tinged with a hint of defiance Wednesday, rail authority chairman Dan Richard defended the agency's efforts.

"We are confident that we are complying with the law and are moving forward to create jobs and clean transportation by building Californian's high-speed rail system," Richard said. "Transformative projects historically have faced obstacles and we will continue to oppose all efforts to delay the high-speed rail program."

Richard's statement did not indicate whether the agency plans to take its appeal to the state Supreme Court.

The rail authority's plan for sharing improved Caltrain tracks in the Bay Area was spurred by opposition in communities and among some elected representatives along the peninsula to a new set of dedicated tracks between San Jose and San Francisco and a desire to reduce the costs for the statewide system. In November 2011, a draft business plan issued by the agency estimated the cost for fully dedicated tracks for Phase 1 of the system from San Francisco to Los Angeles through the San Joaquin Valley at more than $98 billion. Later phases would extend the system to Sacramento and San Diego.

By March 2012, the authority had modified its plans, calculating a savings of about $30 billion from sharing the Caltrain right of way and tracks for about 50 miles of the proposed 520-mile Phase 1.

The 3rd District Court of Appeal is also mulling appeals from the rail authority of two other rulings by Kenny over the high-speed rail project: the first piece of the Kings County lawsuit on the 2011 financing plan, and Kenny's refusal to validate the sale of Prop. 1A bonds needed to pay for the first phases of construction in the San Joaquin Valley.

©2014 The Fresno Bee (Fresno, Calif.)