SoCal Backlash Against HSR Getting Heated

High Speed RailPERSPECTIVE – Farmers and family businesses in the San Joaquin Valley have been fighting the High Speed Rail Authority’s efforts to acquire property through eminent domain.

That battle will continue.

Now, local residents of communities along the foothills of the Angeles National Forest and Monument are opposing all route options for the Palmdale-Burbank leg of the expensive project. They have allies in key elected officials at all levels of government, including Congressman Adam Schiff and State Senator Carol Liu.

It is not that these two representatives are against the project as a whole, but their reticence on HSR’s route through this strategic passage could force planners into studying equally controversial routes, including one through the Tejon Pass following I-5.

The in-fighting between communities will create political havoc for the HSRA. Undoubtedly, courts will become involved.

This is actually good news.

The more obstacles the bloated project faces, the longer the delays and the more likely support and money will dry out before the state blows the full $68-billion that could be applied to far more critical capital improvements. Regardless, $68-billion is probably a lowball estimate with or without the cost of extensive tunneling through the Angeles Mountains.

Already, the prospects of long-term federal financial support are weak. While Congressman Jeff Denham’s amendment that would force the HSRA to prove they have the funds required for federal matching against the current commitment may or may not make it through the US Senate, it is evidence that future federal support will not be forthcoming.

Diversion of cap-and-trade tax revenue – an important piece of the state’s funding plan – will not be enough to complete the train in anyone’s lifetime. The only benefit will be to whisk untold thousands of commuters between the vital Bakersfield to Modesto corridor.

Don’t get me wrong – I like trains. Some of my commutes through the greater LA metro area have relied on MTA, Metrolink and Amtrak.

But as I pointed out in a widely-read article a few years ago, capital investments in intra-regional rail systems will yield a far greater reduction in road congestion and pollution.

HSR is simply Governor Brown’s vanity project, but we are the ones paying for it.

Originally published by CityWatchLA.com

(Paul Hatfield is a CPA and serves as  President of the Valley Village Homeowners Association.  Heblogs at Village to Village and contributes to CityWatch.The views presented are those of Mr. Hatfield and his alone. They should not be construed to represent the opinions of the VVHA or the residents of Valley Village, individually or as a group. He can be reached at: phinnoho@aol.com. )

Bullet train puts California’s future in the hole

high speed rail trainThe California High Speed Rail Authority is in damage-control mode in Southern California.

Planning is underway for the Palmdale-to-Burbank section of the $68-billion bullet train, and the rail authority is required to solicit community input on proposed routes. On Monday, Team Bullet Train was at the Santa Clarita Activities Center to comply with that legal mandate.

The strain was evident. “Santa Clarita has been very effective at vocalizing its concerns to the High Speed Rail Authority,” a rail official stated with cool irritation.

“I will lead the City Council to file a lawsuit if it goes through Santa Clarita,” Councilmember TimBen Boydston said later.

Public meetings usually feature members of the audience asking questions of a panel of officials and experts. Everyone can hear the answers.

Not this time. The rail authority’s meeting took place in two large rooms, with chairs set up in one room and computer displays in the other. Two officials gave a presentation in the room with the chairs but would not take questions from the people sitting in them.

“We prefer that people ask their questions individually of the experts at the open house,” an information officer said, referring to the room where engineering and environmental consultants stood near their displays like bored vendors at a trade show.

So none of the other people attending the presentation heard the experts tell me that the automobile was “a 50-year experiment that did not work out well,” or that “Ansel Adams opposed the Golden Gate Bridge, and one day opposition to high-speed rail will seem just as ridiculous,” or that “we will learn from the Europeans” how to safely evacuate train passengers from a tunnel 60 feet underground in the event of a fire or explosion.

Actually, automobile sales have been rising since 1892, Ansel Adams was a photographer of nature’s untouched beauty, and the CHSRA’s own literature on project pros and cons lists “Fire & Life Safety” as one of the “cons” of the “HSR deep tunnel.”

In another questionable assertion, the team insisted that the bullet train is financially viable and won’t need taxpayer subsidies to operate. They offered up a stack of year-old letters from private sector companies as evidence.

But the letters are about construction loans, not financial self-sufficiency. In the very first letter a CEO writes, “we believe that long-term funding by the State is needed.”

The second letter says the project could be completed “with funds from the state” in combination with private financing, if the state provides “a multi-year source of repayment.”

The would-be private sector partners were offering to help us borrow money, which we would then give to them to build the bullet train. They were pleased that the state would be able to make loan payments using money collected from cap-and-trade fees assessed on gasoline, diesel fuel and industry.

At a news conference in May, Gov. Jerry Brown was asked about the cap-and-trade spending. A reporter wondered if he had a long-term plan, “because as pollution goes down, the revenues will go down.”

“No, not quite,” Brown answered. “Pollution — we’re not as successful with reducing carbon pollution as we are with what they call ‘criteria’ pollutants, like sulfur, carbon monoxide, NOx, things like that. Carbon pollution is still rising. Worldwide. And so one of the principal strategies is to put a price on carbon. And a price that will rise. To increase the burden of using carbon.”

The reporter asked again, “But these revenues will taper off at some point and begin to go down, yes?”

“I don’t think so,” Brown answered.

“Spending will continue,” the reporter said.

“Spending will continue,” Brown confirmed. “There will be a gradual rise. And I would imagine as, assuming climate change becomes more evident, there will be efforts to ramp up even further the price of carbon.”

The governor is widening the definition of pollution so the penalty fees can go up. The only way to maintain public support for this scheme is to incite guilt and panic with endless warnings that climate change is about to become “more evident.”

Meanwhile, production and transportation will grow more expensive, and California will lose businesses, jobs and revenue. But limits on greenhouse gas emissions can always be tightened further to generate higher penalty fees. Spending will continue.

The bullet train is worse than an unnecessary expense. Funded by debt and fines, it will be a permanent leech on California’s economic lifeblood.

Save the future. Take Southwest.

Susan Shelley is a columnist for the Los Angeles Daily News.

High-Speed Rail Report Fraught With “Issues” and “Risks”

Risk, time and money remain the major problems for the construction of California’s high-speed rail project. That’s seen in the biannual Legislative Report of the California High-Speed Rail Authority released this month, as required by law.

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.

Originally published by CalWatchdog.com


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. 

Property Owners Fight High-Speed Rail Land Grab

Building public projects often involves acquiring land. That usually means using eminent domain to take private property with “just compensation,” as mandated by the Fifth Amendment.

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 approvedcondemning 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?”

Endargered Fox Could Halt High-Speed Rail in Its Tracks

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.”kit fox

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 $1
2,000 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.

Originally published on CalWatchdog.com

Bakersfield Drops High-Speed Rail Lawsuit

As 2015 approaches, California’s high-speed rail project keeps barreling down the track. On Dec. 19, the city of Bakersfield dropped its lawsuit against construction. The city’s settlement with the California High-Speed Rail Authority stipulated, among other things:

“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.

Bakersfield settlement highlights


 

This articles was originally published at CalWatchdog.com. 

High-Speed Rail Takes Two More Swipes at CEQA

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.

This piece was originally published at CalWatchdog.com


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.