High-Speed Rail

In major win for high-speed rail, judge rejects claims by Kings County foes of bullet train

In a major setback to foes of the California high-speed rail project, a Sacramento judge rejected claims by opponents in Kings County that plans for the bullet train system violate state law.

The ruling by Sacramento County Superior Court Judge Michael Kenny is a blow to efforts to stop the project and boosts California’s $64 billion plan to develop a system of high-speed electric trains to ultimately connect Los Angeles and San Francisco, by way of Fresno and the San Joaquin Valley. But Kenny’s ruling still could be appealed to a state appellate court.

Kenny, who heard oral arguments from attorneys Feb. 11, issued the ruling late Friday, but the court didn’t release it to the public until Tuesday morning.

The attorney for Kings County farmer John Tos, Hanford resident Aaron Fukuda and the Kings County Board of Supervisors said Kenny’s ruling was disappointing, but said he sees hope there still is room to contest how the California High-Speed Rail Authority uses state bonds.

“Though the high-speed rail authority may have won this round, the ruling  provides ominous signs about the authority’s future use of bond funds,” said Oakland attorney Stuart Flashman. “It notes that while the court considers it premature to find the system non-compliant, in its present stance it does not appear that use of bond funds would be permissible.”

The plaintiffs argued that the California High-Speed Rail Authority’s plans for the system violate Proposition 1A – the $9.9 billion high-speed rail bond measure approved by the state’s voters in 2008 – in several key areas:

▪ That a proposed “blended” system in which high-speed trains would share upgraded and electrified tracks with the Caltrain commuter rail line between San Jose and San Francisco is inconsistent with what voters approved in the ballot measure. A switch from dedicated tracks only for high-speed trains on the San Francisco Peninsula was dropped in 2012 in favor of shared tracks to dampen opposition in the Bay Area and to trim about $30 billion from the overall system cost.

▪ That the proposed route would 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 would not be financially viable and could not be realistically expected to meet the law’s mandate to cover its operating costs without any subsidy of public funds.

Kenny rejected those points.

“It appears at this time that the authority does not have sufficient evidence to prove the blended system can currently comply with all of the Bond Act requirements,” Kenny wrote. However, he added, “the authority may be able to accomplish these objectives at some point in the future. This is an ongoing, dynamic, changing project.”

“There is no evidence currently before the court that the blended system will not comply with the Bond Act system requirements,” Kenny ruled. While the judge acknowledged that the lawsuit “raises substantial concerns” about whether the plan ultimately would comply, “currently all that is before the court is conjecture as to what system the authority will present in its request for Bond Act funds.”

Throughout his ruling, Kenny noted that the rail agency has yet to seek Prop. 1A bond funds for construction that is now underway in the San Joaquin Valley, instead relying on about $3 billion in federal transportation and stimulus funds as well as cap-and-trade money from the state’s greenhouse gas-reduction program.

He added that until the rail authority submits a new financing plan that meets the bond act’s requirements, none of it can be used for construction.

On travel times and whether the system eventually would be able to operate without a subsidy, Kenny said the continuing evolution of the route means it is too soon to prove or disprove Prop. 1A compliance.

“The key question at this time is whether the authority has taken any action that precludes compliance with the Bond Act,” he wrote. “Plaintiffs have failed to provide evidence at this time that the authority has taken such an action. This is because, as of today, there are still too many unknown variables, and in the absence of a funding plan, too many assumptions that must be made as to what the authority’s final decisions will be.”

The rail authority board, meeting Tuesday in Sacramento, declared Kenny’s decision as a vindication of its plans.

“Today’s ruling confirms that we are indeed delivering a fast, modern and environmentally friendly high-speed rail system that meets the voter-approved requirements under Prop. 1A,” board chairman Dan Richard said. “This five-year lawsuit wasted taxpayer dollars and delayed implementation, but we are moving forward and redoubling our efforts to build this transformative, job-creating investment in California’s future.”

The state Attorney General’s Office represented the rail authority and other state officials named in the lawsuit.

Flashman said, “I thought it was interesting that Judge Kenny fired another shot across the bow” of the rail plan. “He basically told the authority, ‘You’re heading toward the cliff, but you could still turn. It’s basically a loaded mousetrap there, and if they go for the bait, it’s going to snap on them.”

Flashman said that he had not yet had a chance to discuss with his clients whether they wish to ask a state appellate court to review Kenny’s decision.

Plaintiff Aaron Fukuda, who is also a co-chairman of the grassroots Kings County rail opposition group Citizens for California High-Speed Rail Accountability, said Kenny’s ruling “is not the end of the world.”

“I’m not saying we won’t go there (to an appellate court).  But we have to rely on the advice of our legal team. We certainly have the right to go to the appeal court,” Fukuda said. “The situation does not change for the authority (because) they still don’t have a plan that allows them to use the bond funds.”

This was the second portion of the long-running Kings County lawsuit Kenny has ruled on since it was filed more than four years ago. In November 2013, Kenny ruled in favor of the Kings County plaintiffs in the first part of the case, agreeing the state’s preliminary 2011 funding plan for the rail system was flawed and violated Prop. 1A because it did not realistically identify all of the money needed to build an “initial operating segment” from the San Joaquin Valley to the San Fernando Valley, and because the authority could not certify it had all of the environmental clearances for that operating segment before starting construction anywhere on the route.

Kenny at that time ordered the rail authority to rewrite its financing plan to comply with Prop. 1A. His decision was overturned in August 2014 by a three-judge panel of the 3rd District Court of Appeal. The California Supreme Court declined to review the 3rd District decision.

Even as the rail agency continues with construction in the San Joaquin Valley, it still faces additional legal challenges over its plans. Several lawsuits filed under the California Environmental Quality Act challenge the adequacy of the authority’s environmental-impact reports for its Fresno-Bakersfield section. A separate lawsuit against the California Air Resources Board seeks to overturn the use of cap-and-trade money from the state’s greenhouse gas-reduction program for the high-speed rail project.

The authority’s latest cost estimate for the statewide project, issued last month in a draft 2016 business plan, is $64.2 billion. It includes plans to begin operations by 2025 from the San Joaquin Valley to San Jose – a segment with a cost of about $20 billion.