Merced-to-Fresno high-speed rail opponents rethink legal strategy

The Fresno BeeNovember 24, 2012 

Stung by a judge's ruling, opponents of California's proposed high-speed rail route between Merced and Fresno are reassessing their legal strategy -- but not their resolve.

"We're not going to give up; we're not going to let these guys just roll over us," said Kole Upton, a Chowchilla farmer and member of two organizations that sought to stop work by the California High-Speed Rail Authority until their lawsuit is heard next spring.

When Sacramento County Superior Court Judge Timothy Frawley refused on Nov. 16 to block the authority from any planning, land-buying or contracting efforts before construction begins in mid- 2013, he also indicated that the plaintiffs suing the agency may be building their legal case on unstable ground.

Three separate lawsuits are being heard in one trial by Frawley: one filed by the Farm Bureau organizations in Madera and Merced counties, the county of Madera, Preserve Our Heritage, the Chowchilla Water District and farm property owners in Madera and Merced counties; one by the city of Chowchilla; and one by companies that own property along the route in Madera and Fresno counties.

The suits challenge the adequacy of environmental impact reports that the authority certified last May when approving the Merced-Fresno portion of the statewide rail project.

Besides the environmental challenge, the suits allege that the high-speed rail authority members violated provisions of the Bagley-Keene Act, an open-meeting law that governs state agencies, when they approved the route in May.

The plaintiffs were shaken, however, when Frawley said in his ruling that their case seems weak and they seemed unlikely to prevail. Frawley will hear arguments in April.

Based on briefs submitted for the injunction request, Frawley said he believed the rail authority "acted reasonably and in good faith to analyze, disclose and mitigate the project's environmental effects."

While he acknowledged "questions and concerns" about the authority's analysis, Frawley deflected arguments by attorneys that the agency failed to fully address the project as required by the California Environmental Quality Act.

The authority expects to receive bids by mid-January from as many as five contracting teams to build a section of the rail line from east of Madera to the south end of Fresno -- the first segment of what is planned as a 520-mile, $68.4 billion system connecting the San Francisco Bay Area and the Los Angeles Basin within a decade.

An early review

Opponents are giving Frawley's words careful consideration as they weigh their next moves.

The judge's remarks "were not lost on us," said Anja Raudabaugh, executive director of the Madera County Farm Bureau. "We're looking at it as a positive thing because we have an opportunity to assess our merits, and how often do you get to do that in a lawsuit?"

While not tipping her organization's hand, "we will not be pursuing the same strategy going forward," she said. "The Farm Bureau has made a commitment to see the case through because we believe the merits are so strong."

But Raudabaugh said that if the Farm Bureau had known that the start of construction would be delayed to at least July -- by which time the legal challenge may already be decided -- "we never would have spent tens of thousands of dollars on the legal work; we would never have made that strategic decision" to seek an injunction.

Upton, a board member of both the Chowchilla Water District and Preserve our Heritage, said those organizations have no plans to quit the lawsuit, but have yet to consult their attorneys and examine their options since Frawley's ruling on the injunction.

"It doesn't make sense to go back in with the same strategy," Upton said. "If there's something else that seems to work, that's fine."

Kings Co. watching, too

Farmers north of the San Joaquin River aren't the only ones with a keen interest in the lawsuits. High-speed rail opponents from Kings County also are keeping a close eye on developments, and a handful of them traveled to Sacramento for the Nov. 16 hearing and Frawley's ruling.

Kings County is ground zero for a lawsuit that alleges the high-speed rail project violates provisions of Proposition 1A, a bond measure that was approved by California voters in 2008.

But Frank Oliveira, a Kings County farmer and member of Citizens for California High-Speed Rail Accountability, said his organization anticipates bringing its own CEQA lawsuit against the state rail authority after the agency adopts environmental reports for its Fresno-Bakersfield section. That approval is expected in early 2013.

"We're going to eventually get to this point after the environmental process is done in our part of the Valley," Oliveira said. Many of the same issues and concerns in the Madera-Fresno suit also exist in Kings County, he added, including the rail line severing farm parcels along the route without satisfactory solutions for farmers to get from one side of their land to the other.

The California High-Speed Rail Authority has no plans to slow its efforts after winning this legal round.

"We're pleased we can keep moving forward," said Jeffrey Morales, the agency's CEO. "This keeps us on track for meeting our obligations for delivering the project that the Legislature approved."

Morales said the authority is on track to begin dealing with property owners, farmers and businesses to buy right of way along the Merced-Fresno route and to negotiate solutions with farmers who worry about the train line's effect on their operations.

But the agency also is gearing up for the next legal hearing.

"We have to address the merits in the April hearing," Morales said. "We're comfortable that we can answer those questions, and we will at that point. We'll have to satisfy the judge, but we feel good about where we are in the process."


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

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