New Lawsuits From Menlo Park
Some people just never give up.
Menlo Park resident Morris Brown, one of the leading HSR deniers, filed suit against the California High Speed Rail Authority last week. The full suit can be found below. The lawsuit is essentially all of Morris’s recent anti-HSR arguments collected in legal form and submitted as cause for why the Authority should be enjoined from doing further HSR work on the Peninsula.
The basic logic of the lawsuit appears to be this: since the Authority doesn’t yet have enough federal money, it can’t use any Prop 1A money to build anything on the Peninsula, especially since they plan to use some of that money to help upgrade and electrify Caltrain (since Caltrain is part of the proposed corridor). Oh, and the business plan is illegal because of the revenue guarantee.
It is certainly true that more federal money is needed to complete the system as proposed. And I agree that the purpose of both Prop 1A and the federal stimulus funds is to build HSR, and not solely to improve commuter rail. However, it seems to me that if you spend money to build HSR infrastructure that commuter services can use, then you’re fine.
Whether any of this is illegal or something a judge can block is another matter entirely. Morris Brown’s lawsuit is basically arguing that since sufficient federal money hasn’t yet been found, nothing can be done, HSR can’t move forward, and we’re stuck in limbo until sufficient funds can be found. I do not believe that to be the case, and expect the outcome of this lawsuit to be favorable to the HSR project and that Morris’s claims will be rejected.
That was the fate of the the previous lawsuit he championed, which was filed in August 2008 and ultimately became Atherton v. CHSRA. Most of the claims against the HSR project were tossed, except one relating to sharing of Union Pacific right-of-way (which would have been an issue on the Altamont alignment as well as the Pacheco alignment which the suit sought to invalidate).
The city of Menlo Park was a party to that lawsuit on the side of the plaintiffs, and last night voted to joining an effort to reopen that lawsuit:
The City Council voted unanimously in closed session to join the suit at its meeting Tuesday, April 20. Stuart Flashman, the attorney who filed the original lawsuit, is seeking to re-open it, alleging that the rail agency withheld crucial information about how it arrived at its ridership estimates.
In the original suit, the plaintiffs contended that the rail agency did not adequately analyze the impacts of the project before it decided to run high-speed trains along the Caltrain corridor. The court ruling de-certified the environmental analysis document, but by and large did not fault the agency’s environmental review of the Peninsula segment of the route.
Elizabeth Alexis, co-founder of the Palo Alto advocacy group Californians Advocating Responsible Rail Design, discovered the information that Mr. Flashman is basing the suit on.
Of course, as the article explains the ridership numbers have been publicly available, as Elizabeth Alexis (who, it should be said, isn’t a party to this lawsuit as far as I know) received a great deal of that information in response to her inquiries for public documents.
It’s not clear why Menlo Park has chosen to try and reopen a lawsuit they largely lost. It’s disappointing to see the city make this move, when there seems to be a much more productive way forward by continuing to participate in the public advocacy and design process.
Now does not seem like the time for Menlo Park, or any other city, to return to court. The CHSRA is undergoing some changes, with a new Executive Director coming on board, and with the first federal funding having been secured, it seems more valuable for Menlo Park to continue working on implementing that instead of reopening a lawsuit that didn’t go so well for them the first time.
We’re going to have a lot of legal fights between now and the first trains run between San Francisco and Los Angeles. But that doesn’t mean these lawsuits are necessary or helpful.
I am definitely not suing anyone.
I do want to clear up one thing. By no stretch of the imagination did I just ask for this information and it appeared. You do not want to know all the details, but it was quite a process to figure out that there was information to try and get and then to get it.
The latest is that the Authority is claiming that the information was available since 2007 in “another form”. That form turns out to be binary files in Cube format whose existence is undocumented in anything I can find. Cube is VERY expensive specialized transportation software. And according to the authority’s consultants who not only have Cube but created the model, it took them 20 hours of high level professional time to pull this information together.
Not my definition of public. (Unless you are talking beware of the leopard public – http://www.planetclaire.org/quotes/hitchhikers/)
Brandon from San Diego Reply:
April 21st, 2010 at 9:29 pm
But bottomline, someone is filing a lawsuit over a typo?
Brandon from San Diego Reply:
April 21st, 2010 at 9:48 pm
Assuming it does… would you be certain that the difference is not a matter of professional/expert judgement? Oh wait… you’re learning on the fly.
YesonHSR Reply:
April 22nd, 2010 at 12:02 am
Make sure of. that …I am still waiting to see what your purpose is
Two thoughts come to mind about the City of Menlo Park filign suit – statue of limiations and small town budget/staff expertise.
I don’t want to disparage Menlo Park too much; however, smaller towns seem to attract or produce staff that is ‘untested’ in real hard hitting matters. This could be an example.
Concerning a statue of limitations… perhaps I am using the wrong term; however, if you follow the intent of the term in how I am using it… it would seem potential litigants should file within a certain amount of time that a respective decision is made. If the issue is new, then I suspect the appropriate starting date in time would be when a Record of Decision was made concerning the environmental documents. The filing seems to fail on this count.
Peter Reply:
April 21st, 2010 at 9:53 pm
It’s not so much that they missed the Statute of Limitations. It’s more of a matter of ripeness, as in them not having a claim right now, as there is no certified Program EIR. They got their wish and it was rescinded. Once it has been certified, THEN they can file suit against it. Which they will with no doubt.
morris brown Reply:
April 21st, 2010 at 10:45 pm
I haven’t seen the expected lawsuit, but to make comments about what it seeks or its possibility of success, you would do well to read the suit when it becomes available.
I recall so well, Judge Kopp writing that the lawsuit was without merit and frivolous. Well the Judge didn’t think so, and the Authority didn’t appeal that decision.
Peter Reply:
April 21st, 2010 at 10:56 pm
Chill. I was simply stating that Statute of Limitations was not a likely reason for this suit to fail, more likely it would be ripeness. I wasn’t stating that it WOULD fail, just stating that it probably wouldn’t on the basis of the SOL.
It’s the subtleties in life.
YesonHSR Reply:
April 21st, 2010 at 11:57 pm
You Brown should bow your head in shame..what what a arrogant twit you are..long after your dead people will either enjoy travel and comfort or if your I/ME centered mind wins then we all suffer..and for that I will make sure your name will be know..
morris brown Reply:
April 21st, 2010 at 10:05 pm
Robert: Your statement
“The basic logic of the lawsuit appears to be this: since the Authority doesn’t yet have enough federal money, it can’t use any Prop 1A money to build anything on the Peninsula, especially since they plan to use some of that money to help upgrade and electrify Caltrain (since Caltrain is part of the proposed corridor” is not a correct reading of the lawsuit.
You do your readers a disservice with that reading of the lawsuit.
This is not a claim of the lawsuit.
The claim is that Prop 1A clearly states full funding for a segment or corridor must be in place, before Prop 1A funds can be used as matching funds for to build that segment or corridor.
Prop 1A defines the minimum size of a segment as a part of the project connecting 2 stations.
The intention of the Authority is clearly shown by the applications submitted to the FRA for stimulus funding. None of those applications, even if they had received the full amount requested, which they did not, would result in complete segments or corridors. So under the restriction clearly stated in Prop 1A, bonds funds cannot be used to match the federal dollars.
I wrote the Authority, and my note was mentioned by Judge Kopp, before the Authority submitted the applications for the stimulus funds, that those applications did not conform to this restriction. If the Authority had chosen to concentrate on a segment that could be completed with federal and Prop 1A matching funds, there would be no problem.
But the Authority, has chosen a plan that is to start construction up north, in the central valley and down south, and they haven’t identified enough funding in any of those proposed project to complete any segment. Rather they chose to just do partial construction, with the hope that further funding will become available. That is clearly illegal under Prop 1A
The suit also addresses the illegal request in the business plan that a State guarantee will be needed to secure private equity.
I hope your readers will now understand the lawsuit.
So to sum up, this suit is meant to have a court ensure that the Authority and CalTrain will conform to the legal requirements that exist in Prop 1A.
When one sees that various restrictions in the voter passed Prop 1A bond measure have already been ignored, one should understand why this lawsuit has been filed.
Spokker Reply:
April 21st, 2010 at 10:14 pm
Construction hasn’t started yet.
Joey Reply:
April 21st, 2010 at 10:14 pm
I fail to see how the authority planned to construct incomplete segments…
Nathanael Reply:
April 22nd, 2010 at 11:29 am
Exactly. Every application for funding for construction so far would in fact connect at least two stations. Some really dumb pairs of stations, sure, but at least two in each case.
Peter Reply:
April 21st, 2010 at 10:27 pm
“one should understand why this lawsuit has been filed”
Yes, because the trains go past your house.
Your lawsuit makes no sense. You base your entire case on the fact that the federal government has not handed out more money yet. This while omitting the fact that the federal government is committed to the development of high speed rail, Obama even saying that the $8 billion was just a down payment, and that private investors, while not having yet made specific offers, have expressed interest in putting a LOT of money into the system.
jimsf Reply:
April 21st, 2010 at 11:32 pm
When one goes to court and swears to tell the truth, does that include disclosing the real motive for the suit?
jimsf Reply:
April 21st, 2010 at 11:33 pm
….publicly for all of california to hear from the horses mouth?
YesonHSR Reply:
April 22nd, 2010 at 12:09 am
We should sue you
HA!
Brandon from San Diego Reply:
April 21st, 2010 at 9:44 pm
ha is right. But, I am laughing at your html effort.
Joey Reply:
April 21st, 2010 at 9:55 pm
I am too used to bbcode (or similar language) based forums…
The changes in the model were extremely significant. And the typo just meant that one of the changes was an increase in sensitivity to headways by commuters of 5x, not 50x.
Brandon from San Diego Reply:
April 21st, 2010 at 9:43 pm
And in your estimation, did the total ridership numbers result in a change greater than 10%? Not a subset, but the total?
Brandon from San Diego Reply:
April 21st, 2010 at 9:57 pm
I meant this down here… not really meaning to b emean but… i can’t help myself right now.
Assuming it does (difference greater than 10%)… would you be certain that the difference is not a matter of professional/expert judgement?
Elizabeth Reply:
April 21st, 2010 at 10:31 pm
The changes are in three categories.
One type are changes that scream “This model has really lousy data”. This is a potentially very large source of overestimation. It also means that no one will trust any results from the model.
The next was a simple label change that revealed that they were assuming CV commuters valued their time at $64/ hour.
The final one was the arbitrary increase in the penalty people assign to the frequency of trains. It went from being a 5 to 15 minute penalty to being something that more like an hour or two for some markets. This had very large impact impact on Pacheco vs Altamont. If you go back to original coefficients, you could see really big swings.
Spokker Reply:
April 21st, 2010 at 10:41 pm
So what’s it cost to switch to Altamont? That seems to be the way things are headed.
Peter Reply:
April 21st, 2010 at 10:59 pm
Why do you think they would switch?
Because Morris filed a lawsuit? Because PAMPA want to reopen their’s? Because they want to open the same can of worms with Fremont/Pleasanton/Livermore that they’re dealing with already with PAMPA?
Spokker Reply:
April 21st, 2010 at 11:01 pm
Be on your best behavior, Peter. Elizabeth can bring down this project just like Harry Shearer brought down Katie Couric.
Unfortunately for us, Elizabeth is a lot smarter than Couric!
Peter Reply:
April 21st, 2010 at 11:08 pm
I’m just saying that lawsuits are a part of public works projects. They’re meant to keep the public entity in line. But they can also be abused. Hence this post by Robert.
I still haven’t seen anything that shows that the coefficients or whatever were changed in a manner that would intentionally change the modeling to favor Pacheco, not to mention that ridership numbers alone were not the sole reason to choose Pacheco.
Spokker Reply:
April 22nd, 2010 at 12:30 am
Early studies favored Altamont anyway, and that Pacheco became the front runner when certain politicians entered the picture.
YesonHSR Reply:
April 22nd, 2010 at 12:14 am
Good then she should understand what huge benfit this will be for PA and Stanford to have station right on the HSR line
YesonHSR Reply:
April 22nd, 2010 at 12:11 am
you know its 5 times the effort to build thru Alatmont..space cadet Tomolach aside..
Nathanael Reply:
April 22nd, 2010 at 11:28 am
It’s impossible to switch to Altamont. Just try to double-track, or even rebuild, that bridge over the Bay — it has environmental “fatal flaws”.
Spokker Reply:
April 22nd, 2010 at 11:51 am
The Altamont alternative takes advantage of a natural magnetic field in the Earth that will allow trains to levitate over the Bay. Maybe you should read EIRs sometime.
Risenmessiah Reply:
April 22nd, 2010 at 8:11 pm
Or…….
You hook the route through Martinez like the San Joquins and then dig a tunnel under the Bay….
Peter Reply:
April 22nd, 2010 at 9:09 pm
Why do that if you can use a natural magnetic field. Fields are free, tunnels are expensive.
adirondacker12800 Reply:
April 22nd, 2010 at 10:21 pm
And have the trains discharge passengers????? There isn’t going to room for them in Transbay and the parking lots across the street will have nice tall office towers on them by the time the tunnel could be finished…..
jimsf Reply:
April 22nd, 2010 at 10:42 pm
There aren’ going to be any new bay crossings, period, until 2050. When bart will likely pursue its next large project. Locally, there will be a larger reliance onWETA (ferry) service being instituted for transbay travel. Remember the east bay will access hsr via altamont overlay. West bay will access hsr via peninsula corridor. HSR is not designed for taking people from the east bay to the west bay. That’s done locally.
Risenmessiah Reply:
April 22nd, 2010 at 11:29 pm
adirondacker12800 Reply:
April 23rd, 2010 at 12:08 am
Jim, How do people get from Sacramento or Stockton to San Francisco? You are the one who will be explaining to them that they can get to Los Angeles faster than they can to Sacramento. Ans its forever going to be a bus ride or maybe if the stars align right a BART ride to a station in Oakland if they have the temerity to insist on going to Sacramento.
jimsf Reply:
April 22nd, 2010 at 9:07 pm
yes the Union City Mystery Spot
Robert Cruickshank Reply:
April 22nd, 2010 at 12:00 pm
Plus it’s not as if Fremont and Pleasanton will go quietly.
jimsf Reply:
April 21st, 2010 at 11:43 pm
I just want to know if, when such a lawsuit is filed, and the plaintiff claims that the reason for the lawsuit has do with concern over bad data etc, the plaintiff is obligated to tell the truth if asked, about the real motive behind the lawsuit and state that truth publicly under oath so that the public and the press can be clear on why these people are really suing… which is not because they are concerned about correcting inaccuracies for the sake of the projects success and the public interest, but in fact, to further their particular cause. I mean I just want to make sure that when other cities and the rest of the california public here’s of these lawsuits that its reported clearly that the plaintiffs have ulterior motives and are lying about why they are suing. know what I mean?
Peter Reply:
April 22nd, 2010 at 10:42 am
No, that doesn’t happen, as it’s unfortunately not strictly relevant. If he has a point, then he has a point. I happen to think he’s grasping at straws with this one, but we’ll see.
Spokker Reply:
April 21st, 2010 at 9:55 pm
BUT DID YOU PERFORM AN F TEST AND COMPARE IT TO YOUR CRITICAL VALUE???//
Haha, just kidding, I have no idea what I’m talking about.
YesonHSR Reply:
April 21st, 2010 at 11:58 pm
HOW about a big petter test??
We have more new information btw. Just posted at our website, http://www.calhsr.com/resources/ridership-forecast/ are the headways and travel times used in the model.
Brandon from San Diego Reply:
April 22nd, 2010 at 10:03 pm
The decision to select Pacheco was based on more than ridership estimates. My fav observation was that – assuming equal resources – Altamont provided less service, not more or equal. The Devil has to do with all northbound trains needing to split once they get to the Bay Area and head to either SF or to SJ.
adirondacker12800 Reply:
April 22nd, 2010 at 10:20 pm
Brandon, you have to remember that your audience in the Bay Area thinks that BART to Millbrae and BART to SFO was a good idea.
This suit is bogus. The attorney above doesn’t know jack about transportation projects, or CEQA/NEPA. The nonavailability of federal matching funds does not mean CAHSR cannot continue with planning, preliminary engineering, acquisition of property, etc. — all of which are manifestations of an intention to construct HSR. Transportation agencies do this all the time without the full federal matching grant. The only way this suit doesn’t get thrown out is if it’s sent to a judge with half a brain.
Jathnael Taylor Reply:
April 22nd, 2010 at 8:53 am
Well it is California after all….
If I lived in Menlo Park I would be contacting my city councilor, the mayor, and the city attorney to let them know that they are wasting my taxpayer dollars and I will be watching their actions as I decide whom to vote for in their next election. But, I live in San Diego where they’re all on board.
Victor Reply:
April 22nd, 2010 at 12:36 pm
Me too, In these tough times their being totally stupid and/or blind as It must be hurting their budget real bad as the lawyers/attorneys always win and the city would lose no matter what the outcome of any such suit.
Brandon, you have to remember that your audience in the Bay Area thinks that BART to Millbrae and BART to SFO was a good idea.