Bullet-train foes lose another round in court fight against construction in the Valley

California’s embattled high-speed rail project has survived yet another major legal challenge after a judge in Sacramento rejected claims by opponents over the use of state bonds to finance construction of the project.

Sacramento County Superior Court Judge Richard Sueyoshi issued his ruling on Wednesday denying a motion by Hanford-area walnut farmer John Tos, the Kings County Board of Supervisors and other opponents to block the California High-Speed Rail Authority’s use of Proposition 1A bond funds for the project.

It’s the second time that litigation over the project’s compliance with Proposition 1A, a $9.9 billion bond measure approved by voters in 2008, has been decided in favor of the rail authority.

California High Speed Rail
John Tos, center, a Hanford farmer and the lead plaintiff in a lawsuit against the California High-Speed Rail Authority, talks with reporters after a hearing in the case in Sacramento County Superior Court in November 2013. Tos’ lawsuit is separate from another Kings County casef for which a settlement was announced on Thursday, Aug. 15, 2019. Rich Pedroncelli Associated Press

Tos’ first lawsuit in 2012 directly challenged whether the rail project could meet the requirements of the bond measure – including provisions that trains be capable of making a nonstop trip from San Francisco to Los Angeles in two hours 40 minutes. That lawsuit maintained the system could not realistically operate without a subsidy of taxpayer funds, and that the system was substantially different than what voters approved in 2008.

The latest case took a different approach, instead asking a judge to invalidate Assembly Bill 1889, a 2016 bill that deemed that Proposition 1A funds could be used for construction of a “usable segment” of the rail route that is “suitable and ready for high-speed train operation,” such as construction now underway on about 120 miles of the line in Madera, Fresno, Kings, Tulare and Kern counties.

Attorneys for Tos and Kings County argued that AB 1889 was unconstitutional because, they said, it effectively changed the definition of the rail project from what voters approved as it authorized the use of bond funds for construction.

In his 10-page ruling, Sueyoshi said that “nothing in the documentation that was before the voters at the time of consideration of Proposition 1A clearly prohibits or contradicts the language of AB 1889,” and added that “it cannot be concluded that AB 1889 ‘clearly, positively and unmistakably’ violates voter intent” to render it unconstitutional.

“The court finds (Tos, Kings County and other rail opponents) have failed to demonstrate sufficiently a constitutional violation,” the judge added in a footnote.

Stuart Flashman, an Oakland attorney who argued the case in a hearing before Sueyoshi on Friday in Sacramento, said the ruling “is very disappointing and frustrating.” He said that he and his co-counsel, attorney Michael Brady of Redwood City, will need to talk to their clients before making any decisions about their next steps. But, he added, appealing Sueyoshi’s ruling to a state appellate court is something “that we’re going to take a serious look at.”

The petitioners in the case included not only Tos and Kings County, but also the town of Atherton along the San Francisco Peninsula, several Peninsula residents, former state senator and judge Quentin Kopp of San Francisco, and several nonprofit rail organizations: the California Rail Foundation, the Community Coalition on High-Speed Rail, and Transportation Solutions Defense and Education Fund (TRANSDEF).

Kopp’s involvement is notable because as a state senator he authored the legislation that created the California High-Speed Rail Authority and is also a former chairman of the agency’s board of directors. But he has been critical of the project since about 2012, when the authority modified its plans on the San Francisco Peninsula from developing its own set of dedicated tracks to a cost-saving plan to help the Caltrain commuter-rail system electrify and improve its tracks and share the Caltrain tracks between San Jose and San Francisco.

Flashman said he believes that Sueyoshi’s ruling, if it withstands a possible appeal, would open the door to using the Proposition 1A bond funds on small pieces of construction that, individually, are not “usable segments” of a high-speed rail line. “They’re planning on using bond funds and frittering them away on little projects up and down the line,” he said. “And in another two or three years, when there are no bond funds left, they’ll say, ‘We’re done.’”

Technically, Sueyoshi’s ruling involves just one piece of a multi-pronged lawsuit by the plaintiffs. But, Flashman said, the other pieces “are on life support” because they effectively depended on a favorable ruling by the judge that AB 1889 violated the state constitution.

Lisa Marie Alley, a spokeswoman for the rail authority, was cautious about those remaining portions of the lawsuit. “While this ruling is a positive outcome for the high-speed rail program, the original case still continues,” she said. “Meantime, the California High-Speed Rail Authority continues to advance work on the statewide system, construction of the Central Valley segment and put people and small businesses to work.”

Prior to the passage of AB 1889, money from Proposition 1A was only being used for planning purposes by the rail authority. That ramped up considerably, with monthly spending from the bond funds averaging about $60.7 million since the start of 2017.

Much of the rest of the money covering the construction costs in the Valley, as well as planning and environmental analysis in other parts of the state, is coming from more than $3 billion in federal stimulus and railroad funds awarded in 2010, 2011 and 2012 by the Obama administration, and “cap and trade” funds from the state’s greenhouse gas reduction program.

Cap and trade money is raised through auctions at which companies buy clean-air credits from the state to offset their own emissions of greenhouse gases like carbon dioxide.

Construction of the rail line through the Valley is projected to cost about $10.6 billion, while the price for an operational Phase 1 line from San Francisco to Los Angeles is estimated to be between $63 billion and $98 billion, with a midrange forecast of about $77.3 billion.

Besides the Tos case, the rail authority still faces another lawsuit filed by Kings County under the California Environmental Quality Act challenging the adequacy of environmental documents used to justify the selection four years ago of a route for the train line from south of Fresno to northwest of Bakersfield.

The case was one of several filed over the route selection; all the others have since been settled.

Tim Sheehan: 559-441-6319; Twitter: @TimSheehanNews.