Kings County fights for its lawsuit against high-speed rail

The Fresno BeeMay 14, 2013 

An artist's rendering of what high-speed rail could look like in California.

Kings County opponents of high-speed rail are battling the California High-Speed Rail Authority to keep their legal fight on track.

Hanford farmer John Tos, Hanford homeowner Aaron Fukuda and the Kings County Board of Supervisors have a court date May 31 in Sacramento for the suit they filed against the rail agency in 2011. They say that the high-speed rail project doesn't square with Proposition 1A, the $9.9 billion bond measure approved by California voters in 2008 to help finance high-speed rail.

But in March, the rail authority filed its own court action, essentially throwing down the gauntlet to anyone wanting to challenge the state's legal authority to issue bonds for the project. The bonds would include money needed for the start of construction this summer in the Fresno-Madera area.

On Thursday, a Sacramento County Superior Court judge could decide if the two cases will be joined as one or continue as separate issues. The California Attorney General's Office, representing the rail authority, wants the cases combined. Attorneys for the Kings County interests are fighting to keep their case separate.

"One is about issuing the bonds, the other is about using the money from the bonds," said Stuart Flashman, an Oakland attorney representing the Kings County plaintiffs. "We think there's a lot to be lost by putting the two together."

One of the original points in the Kings County lawsuit was to prevent the state from selling or approving the sale of the Prop. 1A bonds, as part of the larger strategy to stop the high-speed train project in its tracks. But Flashman said there is much more to the case than just the bond sale. Because of the state's validation case, Flashman said his clients have dismissed one paragraph of their claim that specifically challenged the issuance of bonds.

That, he said, still leaves intact the underlying challenge, to the rail authority and to other state officials, that the authority's board violated provisions of Prop. 1A when it approved a funding plan for a blended system that shares tracks or corridors with existing commuter train systems in the Bay Area and Southern California. The funding plan, the plaintiffs assert:

-- Fails to completely build a fully usable segment of track for the high-speed rail line, without providing either electrification or train control systems for high-speed trains.

-- Proposes a full system that cannot meet the law's requirements for a nonstop trip between San Francisco and Los Angeles in under 2 hours 40 minutes, nor fulfill the mandate for doing so without having to change trains.

-- Falls short of building a complete statewide system by 2020 as called for in the law.

"We're claiming that the authority screwed up in approving the funding plan," Flashman said.

A key request of the lawsuit is for the judge to order that the rail authority rescind its funding plan -- an action that the attorney said would render moot the California Legislature's approval last summer of budget allocations for the rail agency as well as any contracts that rely on those allocations "because they're all based on an invalid document."

The lawsuit also seeks a trial on whether the rail authority is spending money illegally on activities not authorized by Prop. 1A, including a proposed stipend of up to $2 million to contractors who are not chosen for the initial construction contract for the 29-mile Fresno-Madera segment.

To consolidate the request for a writ of mandate, a trial on alleged illegal spending and the state's bond validation, Flashman said, "is like dragging three random things out of the refrigerator and trying to make a meal."

Attorneys for the rail authority, however, see things differently. In court documents, the Attorney General's Office states that the Kings County suit "raises overlapping issues" that require it to be consolidated with the validation case.

"Aside from upsetting the planned progress of the case, there is no particular reason why the writ hearing in Tos must take place on May 31," Deputy Attorney General Stephanie Zook wrote. "Instead, consolidation of the actions would avoid a waste of resources by the court and the parties by avoiding duplicative pre-trial preparation and trials."

In court records, attorneys for the Kings County plaintiffs expressed worry that the state's validation case might not be heard for several months -- well after the rail authority hopes to begin construction. Their underlying fear about having the two cases combined is that once construction begins, there would be little hope of stopping the project.

The Federal Railroad Administration has allocated more than $3 billion in federal stimulus and transportation funds for California's high-speed train program. The California High-Speed Rail Authority anticipates using that money, along with almost $3 billion in matching funds from Prop., to build about 130 miles of track between Madera and the northwestern outskirts of Bakersfield.

But the federal money comes with some conditions:

-- That construction begin in the San Joaquin Valley.

-- That California put up almost $3 billion from Prop. to match the federal contribution.

-- That work using the federal money be completed by Sept. 30, 2017, a little over four years from now -- a time frame that even the rail authority acknowledges is ambitious.

Based on a brief discussion between the attorneys and the court last week, Flashman said he expects Sacramento County Superior Court Judge Michael Kenny to examine the authority's anticipated award of a construction contract for the Fresno-Madera segment next month and the prospect of beginning work this summer. "The judge asked for additional information on how the authority will use federal money and when it will start construction," Flashman said.

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

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