High-speed rail ruling leaves door open for Kings County lawsuit

The Fresno BeeJune 14, 2012 

A Sacramento Superior Court judge's tentative ruling appears to lean against a legal challenge of California's high-speed rail plans but also gives Kings County and two of its residents a chance to fix deficiencies in their lawsuit against the state.

"I guess you could say the court split the baby," said Michael Brady, a Redwood City attorney representing Hanford farmer John Tos, homeowner Aaron Fukuda and the county. "The worst news would be if the court [ruled against us] without leave to amend our complaint."

The tentative ruling doesn't take effect until after both sides present oral arguments in a hearing June 22 in Sacramento.

Tos, Fukuda and the county are suing the California High-Speed Rail Authority, Gov. Jerry Brown and other state officials in hopes of derailing the start of construction of the statewide high-speed train system in the central San Joaquin Valley. Unlike other lawsuits over the $68.4 billion project -- which focus on whether there has been sufficient analysis of the system's environmental effects on cities, homes, businesses, farms and wildlife habitat -- this case attacks the legality of the project under Proposition 1A, the $9.9 billion high-speed rail bond approved by voters in 2008.

The suit, filed last November, alleges that the high-speed rail plan is ineligible to receive money from Prop. 1A because it fails to live up to the law's requirements.

Among the complaints: that the system cannot meet Prop. 1A's mandate for a 2-hour 40-minute nonstop ride from San Francisco to Los Angeles; the lack of electrification on the proposed first section to be built between Madera and Bakersfield; the lack of money to complete a $20 billion, 300-mile operating segment from Merced to the San Fernando Valley; incomplete environmental certification for work between Fresno and Bakersfield; a plan for completion of a statewide system in 2028 that fails to meet the requirement for "no later than 2020"; and that Prop. 1A forbids subsidizing train operations, but the plaintiffs don't believe the system can pay for itself without taxpayer support.

In her tentative ruling, Superior Court Judge Shelleyanne W.L. Chang ruled that Tos, Fukuda and Kings County do have legal standing to sue over the project, against the objections of the state Attorney General's Office. But she also agreed with arguments put forth by the attorney general that the suit fails to show that the rail authority either has or will receive the permission it needs to spend Prop. 1A funds for construction in the Valley.

Chang also agreed with the attorney general that the individual defendants -- Brown, state Treasurer Bill Lockyer, finance director Ana Matosantos, acting Transportation Secretary Traci Stevens, Controller John Chiang and state Sen. Mark Leno -- cannot be sued for exercising their discretion in their duties, and also lack the authority to spend money for high-speed rail construction.

But Chang declared that Brady will have a chance to address the deficiencies by filing an amended version of the lawsuit by June 29.

"Since we filed the complaint in November of last year, a lot of things have happened, and I think we'll be able to make an even stronger case," Brady said Thursday. "I think we'll be able to show that state funds are about to be imminently spent."

Legislators in Sacramento continue to wrangle over the state's 2012-13 budget. Brown and the High-Speed Rail Authority have asked for about $2.7 billion in Prop. 1A money to start construction in the Fresno area later this year or in early 2013. That money would be used in combination with about $3.3 billion in federal transportation and stimulus money that the Obama administration has committed to starting work on the train system.

The reporter can be reached at (559) 441-6319, tsheehan@fresnobee.com or @tsheehan on Twitter.

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