High-Speed Rail

Judge to hear Kings County’s challenges against high-speed rail

Sacramento County Superior Court Judge Michael Kenny, pictured in a 2012 file photo, will hear arguments Thurdsay in a lawsuit by Kings County over California’s high-speed rail plans.
Sacramento County Superior Court Judge Michael Kenny, pictured in a 2012 file photo, will hear arguments Thurdsay in a lawsuit by Kings County over California’s high-speed rail plans. AP

Thursday could be another day of reckoning for California’s high-speed rail plans, as a judge in Sacramento will hear arguments in a long-running lawsuit over whether the proposed bullet-train system can comply with requirements of Proposition 1A.

Kings County farmer John Tos, Hanford resident Aaron Fukuda and the Kings County Board of Supervisors originally filed suit against the California High-Speed Rail Authority in late 2011.

The hearing before Sacramento County Superior Court Judge Michael Kenny represents a second stage of the battle by the Kings County interests to stop the rail project in its tracks by focusing on the state’s compliance with Proposition 1A, the $9.9 billion high-speed rail bond act approved by California voters in 2008.

This portion of the lawsuit focuses on assertions that the rail authority’s plans violate the proposition in several key areas:

▪ That the proposal for a “blended” system in which high-speed trains would share upgraded tracks with the Caltrain commuter rail line between San Jose and San Francisco is inconsistent with what voters approved in the ballot measure.

▪ That the proposed route will be unable to meet Prop. 1A’s requirement to provide a nonstop 2-hour, 40-minute ride between San Francisco and Los Angeles under “real world” travel conditions.

▪ That the system cannot be expected to meet the law’s mandate to cover its operating costs without any public subsidy.

It is not too late for the (rail authority and the state) to do a course correction to align the project with the voters’ intent.

Plaintiff attorneys Stuart Flashman and Michael Brady, in court briefings

The suit also argues that Kenny should issue an injunction barring the state and the rail authority from spending any Prop. 1A money, federal stimulus and transportation grant funds, or cap-and-trade money from California’s greenhouse gas-reduction program on the rail system.

The Obama administration has put up about $3 billion in federal grants, to be matched by about $3 billion from Prop. 1A, for high-speed rail construction that is now underway in the San Joaquin Valley.

The state also has pledged 25 percent of money generated by the auction of pollution credits in the greenhouse gas program, estimated to be up to $500 million per year through at least 2020.

The rail agency has said it plans to use Prop. 1A money to match that cap-and-trade money, amounting to a grand total of about $11 billion between all of the state and federal funds.

“A finding that Prop. 1A’s requirements have been violated need not kill the HSR project, which the voters intended to move forward if properly planned and executed,” wrote attorneys Michael Brady and Stuart Flashman, representing Tos, Fukuda and Kings County, in court documents. “It is not too late for the (rail authority and the state) to do a course correction to align the project with the voters’ intent.”

“The first step, however, is for the court to clearly indicate that the current path is improper, illegal and wasteful of public funds,” Brady and Flashman added.

In its opposition brief, the rail authority – represented by the state Attorney General’s Office – contends that a “blended” system on the San Francisco Peninsula is consistent with environmental planning and legislative requirements as well as with Prop. 1A. It also states that because the rail authority’s designs and plans for the statewide system continue to evolve, a challenge of the design requirements is premature.

This court should reject petitioners’ invitation to second-guess the myriad of highly technical judgments and analysis, by both the authority and its outside experts

State Attorney General’s Office, representing the California High-Speed Rail Authority

The agency’s attorneys state that the lawsuit’s assertions over travel time and operational finances are speculative and “amount to a disagreement with the authority’s experts, and do not show that the authority acted unreasonably or arbitrarily.”

“This court should reject petitioners’ invitation to second-guess the myriad of highly technical judgments and analysis, by both the authority and its outside experts, that went into the preparation and review of the authority’s financial analysis,” the state’s attorneys added.

It is almost certain that whatever decision Kenny renders after Thursday’s hearing – and a decision may not be forthcoming for weeks – will be appealed by the losing side to a state appeals court.

In November 2013, Kenny ruled in favor of the Kings County plaintiffs in the first portion of the case, agreeing that the state’s preliminary 2011 funding plan for the rail system violated Prop. 1A because it did not realistically identify all of the money needed to build an “initial operating segment” from the Valley to the San Fernando Valley, and because the authority could not certify that it would have all of the environmental clearances for an operational segment before starting construction anywhere on the route.

Kenny ordered the rail authority to rewrite its financing plan to comply with Prop. 1A. In a separate but related case, Kenny also refused to validate the sale of bonds from Prop. 1A.

Kenny’s decision was overturned in August 2014 by a three-judge panel of the 3rd District Court of Appeal. The justices also ordered Kenny to validate the bond sale. The California Supreme Court declined to review the appellate decisions.

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