High-Speed Rail

Judge limits evidence for Kings County suit over high-speed rail

An artist’s depiction of a high-speed train zooming through downtown Fresno.
An artist’s depiction of a high-speed train zooming through downtown Fresno. swparra@fresnobee.com

A judge in Sacramento this week limited the kinds of evidence that attorneys for Kings County will be able to present in a trial next February in their case against the California High Speed Rail Authority.

The suit centers on whether bullet-train plans comply with requirements of Proposition 1A.

Sacramento County Superior Court Judge Michael Kenny’s ruling was a mixed bag for Hanford farmer John Tos, homeowner Aaron Fukuda and the Kings County Board of Supervisors in the lawsuit they filed in late 2011. The judge had already determined that the trial would be based solely on evidence in the California High-Speed Rail Authority’s formal “administrative record” of documents and presentations available to the agency’s board in its decisions to approve business plans in 2012 and 2014.

Kings County’s attorneys had wanted to expand the administrative record with a slew of other documents to bolster their argument that the $68 billion statewide rail project – commencing construction in the San Joaquin Valley and planned to ultimately connect Los Angeles and San Francisco – cannot meet specific requirements spelled out in Proposition 1A. Prop. 1A is the $9.95 billion bond measure that was approved by California voters in 2008.

The lawsuit contends, among other things, that the current plan for a “blended” system – in which high-speed trains share upgraded and electrified tracks on the San Francisco Peninsula with the Caltrain commuter rail system – is substantially a different project than what was promised to voters; that the system won’t be able to meet Prop. 1A’s requirement to be able to make a nonstop trip between San Francisco and Los Angeles in 2 hours 40 minutes; and that the system won’t be able to operate without a subsidy, something that is specifically barred by the proposition.

The fundamental question that the court will decide in the case is: Has the Authority made a decision that currently precludes compliance with Proposition 1A? …

Judge Michael Kenny, in his Aug. 18 ruling order on evidence to be presented

“The fundamental question that the court will decide in the case is: Has the Authority made a decision that currently precludes compliance with Proposition 1A?” Kenny wrote in his Aug. 18 ruling. “Accordingly, the record before the court will need to consist of the documents replied upon by the Authority in making the decisions being challenged in this matter.”

Kenny’s decision tossed out a thick bundle of expert declarations that the Kings County side had collected to bolster its assertions. Those included a declaration by former state senator and former judge Quentin Kopp, one of the earliest supporters of high-speed rail in California but who stated that he believes the program now being developed does not represent the original vision for the system.

Kenny did, however, allow documents that were referenced by web links in public comments presented to the rail authority for the agency’s 2012 and 2014 business plans. He also disallowed an evaluation prepared by Paul Jones, an engineer, who took issue with the rail authority’s claims on trip times between Los Angeles and San Francisco.

Michael Brady, a Redwood City attorney representing Tos, Fukuda and Kings County, said he’s not overly concerned about losing declarations from Kopp, Jones or others. “These were done in 2013, which seems like an eternity ago,” Brady said. “Since then, we have developed a mountain of evidence which has been admitted proving all the points we asserted in the declarations. So we can live without them.” He added, however, that he and co-counsel Stuart Flashman of Oakland expect to object to the judge’s exclusion of the declarations.

He was pleased that the judge allowed the other documents that had been referenced in earlier public comments to the rail authority. “This deals with major technical reports done by experts. … They contain many footnotes and references to other expert books, articles, etc. in those footnotes,” he said. Most of that information, Brady added, deals with arguments over whether the rail program can be financially viable.

Lisa Marie Alley, a spokeswoman for the rail authority, said the agency views Kenny’s order on evidence as “a positive ruling for us.”

“We’ve always stood behind the fact that we’re planning and building a system to meet all of the requirements set forth,” Alley said. “There’s still a lot of work to do on the administrative record before we go to trial next year … but we are looking forward to the trial.”

Alley added that the state continues to believe that the lawsuit “is an effort by a small group of people who are trying to drag this out … and could ultimately cost the taxpayers even more.”

Brady is also looking forward to the trial, which is set for Feb. 11 in Sacramento. “We are excited to at last, after 4 1/2 years, have a trial date,” he said. “All briefing deadlines have been set. There should be nothing to interfere with the Feb. 11 trial date.”

The trial will represent the second prong of the case filed by Tos, Fukuda and Kings County.

The first stage of the case alleged that the rail authority’s 2011 draft business plan and funding plan violated requirements of Prop. 1A because it did not detail sources of money for the first operational segment planned between Merced and Burbank and because Prop. 1A required certification of environmental clearances for all of the route sections in that Merced-Burbank stage. Kenny ruled in 2013 in favor of Kings County, but the rail authority successfully appealed that decision to the 3rd District Court of Appeal last summer. In October, the state Supreme Court declined Kings County’s petition to review the appellate ruling.

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