A Sacramento Superior Court judge ruled that the California High Rail Authority “abused its discretion by approving a funding plan that did not comply with the requirements of the law” based on wording of the Prop 1A. That bond measure, passed in 2008, required the Authority to not only specify where the money was coming from but to have all environmental clearances in place before breaking ground on a segment says Judge Michael Kenny in his August 16 ruling.
The crux of the dispute is over what is a “usable segment” as it applies to the wording of Prop 1A. The Authority has argued that they need only have money in hand and environmental clearance for the first 130 mile segment in the Central Valley from north of Fresno to Bakersfield, what they have called the Initial Construction Segment (ICS).
But Judge Kenny says the term applied to a larger corridor – the Initial Operating Segment (ISO ) – either from Fresno to the Bay Area or Fresno south to Los Angeles.
“The funding plan explicitly addressed, and was required to address, the entirety of the chosen ISO, and not merely the ICS” he claims.
The Authority has never claimed to have either all funds or environmental approvals for the longer route to either metro area yet.
It does have the $6 billion in hand to complete the 130 mile Valley segment.
Critics says the judge has this wrong and that Prop IA does not define what the usable segment has to be and merely says “corridor,or usable segment thereof.”
If the mandate for both funds and environmental clearance includes the ISO and not just ICS – the start of construction that has been set for this summer in the Central Valley would be years away at best.”This will derail the project” a number of headlines have asserted.
So now what?
The judge’s ruling is clearly a big victory for Kings County landowners and Kings County itself who joined the suit filed in 2011.”It’s a great feeling” says rural land owner Aaron Fukada who with Kings farmer John Tos launched the suit against the train that might impact their properties if the route chosen comes their way.
Clearly they would win big if the bullet train was stopped cold and did not recover from this legal blow like critics hope.”Some of the violations are so serious that the project will never be able to commence.” said the plaintiffs’ attorney Michael Brady back in March,
On the other hand the Authority’s chair Dan Richard says they are still planning to build this line that no matter which route is selected – runs through Kings County.
Indeed the judge while finding for the plaintiffs did not stop the train.
Judge Kenny said he could not rule to to invalidate the legislative appropriation.”Proposition 1A appears to entrust the question of whether to make an appropriation based on the funding plan to the legislature’s collective judgement.The terms of Proposition 1A itself give the Court no authority to interfere with that exercise of judgement.”
So it appears the judge will not try to throw out the legislature’s approval of $2.6 billion for the train as had been requested in the suit.
What Remedy?
Judge Kenny has asked lawyers for the two sides to offer briefs for a proposed remedy.How will the plaintiffs get relief? The judge has offered no time table on how this phase of the case will play out.
Plantiffs have already called for a “permanent injunction that since Proposition 1A has been violated, it would be appropriate to enjoin any effort by the Authority to commence construction, since to do so would involve the illegal expenditure of public funds.”
There is no injunction in place now.
Kings County Counsel Colleen Carlson calls the judge decision”positive” requiring “accountability by the Authority” but doubts the judge would grant an injunction.”We are working hard to craft a remedy” she says.Carlson adds the ruling is “just one small victory in a larger battle.”
What will all this confusion do to the Authority’s’ plan to break ground this September around Fresno?
Kings County Route Up In The Air
The wording of Prop 1A – even if it only applies to the 130 mile Valley segment – makes it clear that environmental clearance must be in place on the entire segment before the 28 mile subsection from Fresno north can break ground.
The Authority has yet to identify the alignment through Kings County – the Fresno south to Bakersfield section – that may plow through Tos and Fukada’s properties on the east side of Hanford. That would happen unless the Authority selects the western route that will impact Mr Tos ,who owns land here too, and other farmers west of Hanford.The Authority has appeared to postpone this hot button issue for months now but will have to choose sooner than later or wait even longer to break ground north of Fresno. The clock is ticking on a federal rule to spend the money.
Now it appears construction will be postponed because of engineering issues anyway a contractor told the media a few days ago.That may move slower to ensure the Authority’s plan to cross the San Joaquin River with a bridge is well reviewed. Construction work may be delayed over this issue until early 2014.
That assumes Judge Kenny allows construction to begin even then or the Kenny case is appealed to higher court.
Then there is the confusion over environmental clearance.Is it possible the CHSRA must only complete federal NEPA clearance rather than California CEQA clearance?
To help the CHSRA board sort all this out the State Senate just appointed Richard Frank to fill up the Authority Board of Directors. Mr. Frank is currently a Professor of Environmental Practice and Director of the California Environmental Law and Policy Center (CELPC) at the University of California at Davis School of Law.
Sounds like they will need his advice. The next CHSRA meeting is set for September 10.