Kings County attorneys take aim at confidential memo in high-speed rail lawsuit

A consultant’s internal memo to the California High-Speed Rail Authority, cited last week in a Los Angeles Times analysis on the likelihood of cost overruns for the state’s high-speed train project, is at the center of legal wrangling between the agency and Kings County interests who are suing over plans for the system.

Attorneys representing the Kings County Board of Supervisors, Hanford resident Aaron Fukuda and farmer John Tos want a Sacramento County Superior Court judge to decide whether the confidential report prepared by rail consultants Parsons Brinckerhoff should be added to the evidence when their lawsuit against the rail authority is heard in February.

In an application filed with the court late last week, Oakland lawyer Stuart Flashman asked Judge Michael Kenny to order the rail authority to provide the document under seal so Kenny can examine it in private and determine whether it should be part of the record in the case.

The judge will hear arguments over the document Nov. 23.

The issue could be partially moot, however, based on the release Tuesday by the rail authority of a 22-page draft of an Oct. 3, 2013 slide presentation that agency leaders say they believe is the document referred to in the Times article. The authority provided the slide presentation to Assembly Speaker Toni Atkins late last week.

The rail authority still plans to argue in court that the document is irrelevant to the Kings County lawsuit and should not be part of the evidence in the case.

In legal documents filed by state Deputy Attorney General Sharon O’Grady before Tuesday,rail authority officials say they “do not know what document the reporter may have been given, and … because the document … was never provided to the (authority’s) board and was not considered in connection with its decision to approve the 2014 business plan.”

The state already had denied a state Public Records Act request from the Times for the Parsons Brinckerhoff report, citing a legal exemption that the document was part of the agency’s internal deliberative process, O’Grady wrote.

As reported by the Times, the report advises the rail authority’s staff that the consultants believe the cost of the agency’s initial operating segment is likely to rise to $40 billion, or about 30 percent more than the authority’s official $31 billion estimate to build the Merced-to-Burbank portion of the statewide system.

The Times reported that the document it obtained indicates that tunneling through the Tehachapi and San Gabriel mountains for the high-speed train line likely will be considerably more complex, costly and time-consuming than portrayed by the rail authority in its official business plan released several months later.

In his motion to the court, Flashman says he believes “that document, like many others included … in the record before the court, was considered during the administrative process of preparing and approving the final 2014 (business plan). However, determining whether that is indeed the case would necessitate the court’s review of the document itself to determine whether it indicates that the Times article’s claims are substantiated.”

“That cannot happen if (the authority is) allowed to withhold the document from court review,” Flashman adds.

The Kings County lawsuit alleges the state’s plan to build and operate a high-speed train system connecting San Francisco and Los Angeles violates key provisions of Proposition 1A, the $9.9 billion bond measure approved by voters in 2008. Flashman and his co-counsel, Redwood City attorney Michael Brady, contend:

▪ The rail agency’s plan for a blended system on which high-speed trains would share existing and upgraded commuter train tracks on the San Francisco Peninsula is substantially different than what voters approved.

▪ The electric-powered trains will not be able to meet the Prop. 1A requirement to provide a 2 hour, 40 minute nonstop trip between San Francisco and Los Angeles.

▪ The system and its initial Merced-Burbank operating segment cannot be viable financially and won’t be able to operate without a subsidy as required by Prop. 1A.

Demolition and construction work on the early stages of the rail line in the central San Joaquin Valley is underway in Madera and Fresno counties. The state has about $6 billion available, from a combination of Prop. 1A bond funds and federal stimulus and transportation grants, for its Merced-Bakersfield construction sections. The rail authority has hopes for the $31 billion Merced-Burbank segment to be operational in 2022, and for the entire San Francisco-Los Angeles/Anaheim Phase 1 program to be completed by 2026 at a cost of $68 billion.

No proposed schedule or cost estimates have been provided for Phase 2 extensions to Sacramento, the Inland Empire or San Diego.

Attorneys for Kings County aren’t the only ones interested in getting their hands on the Parsons Brinckerhoff report. A cadre of legislators who are steadfast critics of the high-speed rail authority also are clamoring for the document. Last week, Assembly Member Jim Patterson, R-Fresno, joined Assembly Republican Leader Kristen Olsen and several other Republicans in asking Atkins to subpoena the report and appoint a committee to investigate the rail authority with the power to question witnesses under oath.

On Tuesday, Atkins replied to Olsen that the Republicans’ call for subpoenas “is premature.” Atkins’ letter included information from the rail authority, including the draft slide presentation that authority CEO Jeff Morales and Board Chairman Dan Richard said they “assume the (Times) reporter was referring to.”

“Given (the authority’s) willingness to cooperate, both in terms of the information they just provided, their agreeing to appear at upcoming hearings, and the committee meetings that they have already opened to the public and legislative staff … subpoenas are not appropriate at this time,” Atkins wrote to Olsen.

Richard and Morales told Atkins that the Times story presented issues and information “in a misleading manner or were incorrect, resulting in a rather distorted account of the (high-speed rail) program.”

State Sen. Andy Vidak, R-Hanford, wrote to Gov. Jerry Brown on Tuesday asking him to order the rail authority to make the Parsons Brinckerhoff report public. Also on Tuesday, Rep. Jeff Denham, R-Turlock, and 11 other Republicans in California’s delegation to the House of Representatives sent a letter to Parsons Brinckerhoff CEO Gregory Kelly asking the company to provide them with draft and final versions of the report cited in the Times article, and to identify who within the rail authority was briefed on the report. The letter also asks for a 2012 Parsons Brinckeroff report cited by the Times on the complexities of tunneling through the mountains in Southern California.

The only two California GOP House members not among the signers of the Denham letter were Rep. David Valadao, R-Hanford, and House Majority Leader Kevin McCarthy, R-Bakersfield. Both are longstanding opponents of the state’s high-speed rail project.

This story was originally published November 3, 2015 at 2:36 PM with the headline "Kings County attorneys take aim at confidential memo in high-speed rail lawsuit."