The plaintiffs in Kings County's lawsuit against the California High-Speed Rail Authority hope they can convince a judge that the agency's headlong construction effort should be stopped in its tracks.
In legal documents filed Monday, attorneys for Kings County farmer John Tos, Hanford homeowner Aaron Fukuda and the county Board of Supervisors asked Sacramento Superior Court Judge Michael Kenny to order the agency to rescind contracts for construction in the Madera-Fresno area until the rail authority prepares a funding plan that meets the requirements of Proposition 1A, the $9.9 billion bond measure approved by California voters in 2008.
Kenny already ruled last month that the rail authority fell short of complying with Prop. 1A because:
- A funding plan adopted in late 2011 failed to spell out in detail how the agency would secure the entire $31 billion it says will be needed to build a 300-mile "initial operating segment" from Merced to the San Fernando Valley. The rail authority has about $6 billion in hand, including more than $3 billion in federal stimulus and transportation money, to build a stretch of the line from Madera to north of Bakersfield.
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- The proposition required that environmental approvals be completed for the entire initial operating section before any construction begins. To date, the only portion of the route that has been environmentally certified by the authority is the Merced-Fresno section -- and even that omits the area around Chowchilla, where a Y-shaped junction would merge the Merced-Fresno line with tracks connecting to the Bay Area.
But Kenny's ruling stopped short of ordering an immediate halt to the authority's work. Instead, he asked attorneys for the rail authority and for Tos, Fukuda and Kings County to submit arguments on what legal remedies he should impose for the Prop. 1A violations. Monday's filings in Sacramento represent the first step toward a Nov. 8 hearing in Kenny's courtroom. The state Attorney General's Office, representing the rail authority, has until Oct. 11 to file a responding brief.
Any injunction or order that forces the rail agency to retrace its steps and creates a delay would put increasing pressure on an already formidable project schedule. The federal stimulus money provided by the Obama administration for construction in the San Joaquin Valley comes with strings that require work using that money to be completed by Sept. 30, 2017 -- just four years to build an estimated 130 miles of track, along with bridges, tunnels and over- and underpasses from east of Madera into Kern County.
Bay Area attorneys Stuart Flashman and Michael Brady, representing the Kings County contingent, argue that because the faulty funding plan provided the foundation for a string of subsequent approvals, Kenny should force the agency to essentially start over by creating a plan that fully complies with Prop. 1A. They also ask that the agency be barred from approving a required second funding plan until the first plan passes legal muster; and that "none of the events intended to follow upon ... approval of its second funding plan can occur" until Prop. 1A has been satisfied.
Those subsequent events include submitting the second funding plan to the state finance director and legislative budget leaders, findings that the plan is likely to be successful, and authorization for the rail agency to enter contracts to spend money from Prop. 1A bonds.
The rail authority last month signed a $985 million contract with Tutor Perini Corp. of Sylmar, Zachry Construction of Texas and Parsons Corp. of Pasadena to design and build the first stretch of the proposed statewide high-speed train network -- a 29-mile segment from east of Madera to the south end of Fresno.
When the contract was approved in June, officials with the rail authority anticipated breaking ground this summer and starting some of the earliest work on clearing land, building demolition and relocating utilities by the end of this year.
The Tutor Perini/Zachry/Parsons consortium is busy setting up a Fresno base of operations in the Grand Tower, the former San Joaquin Power building at Fulton and Tuolumne streets in downtown Fresno. Right-of-way agents for the rail authority are negotiating with property owners along the line in Fresno and Madera counties to purchase land needed for the rail route.
The agency also has a $226 million agreement with the state Department of Transportation to relocate a 2-mile portion of Highway 99 through central Fresno to make way for the high-speed line.
Flashman and Brady, however, want the judge to order the rail authority to rescind both the Tutor Perini/Zachry/Parsons and Caltrans contracts "because the required preconditions had not been met when these contracts were approved."
At the very least, the attorneys argue that Kenny should bar the rail authority from using Prop. 1A money on any construction work, asking that spending be limited only to property acquisition for the railroad right of way or for project design work.