Kings County high-speed train challenge gets court hearing

The Fresno BeeMay 29, 2013 

A Hanford homeowner, a farmer and Kings County have a court date Friday in Sacramento in their legal battle to block California's efforts to build a high-speed train system.

Several other lawsuits that sprang up in the San Joaquin Valley -- and were subsequently settled -- challenged environmental certification for the Merced-Fresno portion of the proposed statewide line. This case, however, focuses on allegations that the California High-Speed Rail Authority's plan violates Proposition 1A, the $9.9 billion bond measure approved by voters in 2008.

The wide-ranging suit was filed in late 2011 by attorneys for Aaron Fukuda, whose home east of Hanford stands in the path of one potential route for the rails through Kings County; farmer John Tos, who has farmland that would be disrupted by a rail route; and the Kings County Board of Supervisors, whose members have long been irked by what they say is the rail authority's refusal to coordinate planning efforts.

Oral arguments in the case are set for Friday morning in Sacramento County Superior Court.

Attorneys Stuart Flashman of Oakland and Michael Brady of Redwood City, representing the Kings County plaintiffs, assert in the suit that the rail authority was required to adopt a funding plan for its initial operating segment -- a stretch from Merced to the San Fernando Valley -- in which it would certify that all environmental work was complete and that money had been identified for the full section. The suit claims those requirements were not met.

"Proposition 1A included an elaborate set of requirements to protect taxpayers from having to pay for a money-losing unfinished project," Flashman and Brady said in a written statement. "By ignoring the statutory requirements, the authority has set in motion a project likely to become incomplete and stranded."

The attorneys are asking Judge Michael Kenny to find that the rail agency's funding plan -- which provided the basis for a legislative vote authorizing $8 billion to the project last summer -- was deficient. "If the court rules that the authority did not comply" with Prop. 1A, "the next step would be to invalidate the funding plan and the $8 billion appropriation," Flashman and Brady said. "That would block the expenditure of high-speed rail bond funds and bring the authority's project to an abrupt halt."

A potential decision by Kenny comes at a potentially critical juncture for the rail authority. The agency's board is expected next week to authorize awarding a $985 million contract for the design and construction of the first stretch of the rail line, a 29-mile section from east of Madera to the south end of Fresno. Work on the line could begin later this summer.

The Federal Railroad Administration has allocated more than $3 billion in federal stimulus and transportation funds for California's high-speed train program. The federal money requires that construction begin in the San Joaquin Valley, that the state put up almost $3 billion in matching funds from Prop. 1A, and that work using the federal money be completed by Sept. 30, 2017.

The California High-Speed Rail Authority expects to use the money to build about 130 miles of track between Madera and the northwestern outskirts of Bakersfield.

The California Attorney General's Office, representing the rail authority and other state officials named as defendants, stated in court documents that the Legislative Counsel "concluded that the first funding plan satisfactorily addressed all of the requirements imposed by the bond act, except the requirement that the authority certify the completion of all project-level environmental clearances to proceed to construction." The state contends that even without those full certifications, the Legislature was believed to be free to allocate the funds.

Among expert declarations prepared by the Kings County attorneys in support of their case is one by longtime high-speed rail champion Quentin Kopp of San Francisco. The former state senator and ex-Superior Court judge, Kopp also was chairman of the rail authority from 2006 to 2009.

As a senator, Kopp was instrumental in legislation to form the rail authority.

In his declaration, Kopp said he believes a "blended" high-speed rail project in which high-speed trains would share upgraded Caltrain passenger rail tracks between San Jose and San Francisco "is no longer a genuine HSR system" as promised to voters and legislators. The blended system was developed by the agency last year, in part as a way to shave about $30 billion off the price, compared with a fully-dedicated, stand-alone train system with an estimated cost of more than $98 billion.

Kopp, however, said that by creating a blended system, the plan "has been distorted in a way directly contrary to the high speed rail plan the authority attempted to implement while I was chairman." He added that he believes the blended system "is not lawfully eligible to receive Proposition 1A bond funds."

Kopp also objects to using about $2 billion in Prop. 1A money on upgrades to conventional commuter rail tracks that the rail authority proposes to share with Caltrain on the San Francisco Peninsula.

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

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