Peninsula Lawyers Help Kings County File Baseless Anti-HSR Suit
In a move that should not surprise anybody at all, several Peninsula lawyers are helping Kings County file a rather silly lawsuit against the high speed rail project:
Kings County filed a lawsuit Monday against the California High Speed Rail Authority that calls for a permanent injunction against distributing funds from Prop 1A to the construction of the first segment of a statewide high-speed rail system in California.
The suit claims the plan to spend bond money from Prop 1A on the segment that would run from Fresno to Bakersfield does not fulfill the intent of the original proposition that approved the issuance of $9 billion in state bonds.
How exactly would it not fulfill that intent?
Voters never intended Prop 1A bond funds to be used “’preliminarily’ to build a non-electrified, substantially ‘conventional’ rail system, with an electrified HSR system to be constructed at a later period,” according to the text of the suit.
“No such allowance or permission for such a so-called phased system is contained in Prop 1A,” the suit states.
The suit also says the use of bond money for the construction of a rail system that is not electrified, violates the concept of a “true” high-speed rail system and “violates” Prop 1A.
The ballot label of the Safe, Reliable High-Speed Passenger Train Bond Act dated Sept. 2, 2008, does not mention electrification, or any other specific method of fueling the train system. The relevant portion of the text describes improving California’s economy “while reducing air pollution, global warming greenhouse gases, and our dependence on foreign oil, shall $6.95 billion in bonds be issued to establish a clean, efficient high-speed train service,” according to the California’s Secretary of State Office’s website.
At least the Patch reporter, Vanessa Castañeda, included the text from Prop 1A that shows how absurd this suit is. It’s as if the lawyers think they can find a judge that has never heard of the concept of “phasing.” Interstate 5, like almost every other freeway in California, was opened in pieces and completed over the course of many years (decades, in the case of I-5). The funding was for an Interstate Highway System, and a system isn’t built immediately or overnight.
Besides, as the 2012 Business Plan makes clear, a high speed train system that connects SF to LA is exactly the intent, and the Initial Construction Segment from Fresno to Bakersfield is part of how that system gets built.
The Peninsula lawyer who filed the suit for Kings County repeated the usual anti-rail talking points:
Michael J. Brady, a lawyer based in Redwood City who is representing Kings County, says the future of the entire plan is grim. Depletion of $9 billion in funds before completion of the corridor is completed is likely, he said, noting that additional subsidies would be required to complete the segments of the corridors that would end in the Bay Area, and it is not likely that people will want to invest in the plan.
“I don’t think private investors are going to be interested at all,” Brady said. “Practically no high-speed rail system in the world earns a profit. The framework in California is much worse than those of the rest of the world and it’s likely that they would have a huge loss every year.”
This is absurd. It is quite likely that the private sector will want to invest in the plan, just as they have shown interest in other HSR systems around the country and around the globe. The private sector has been consistent that they need to see more federal funding first.
It’s also interesting to see the “no HSR system in the world earns a profit” talking point spread. This is an outright lie. Systems all over the world earn a profit, from Taiwan to Russia to the Amtrak Acela, just to name a few, all turn a profit. I’m tired of that lie going unchallenged by the media when they see it.
The California high speed rail project has done well when facing these ridiculous court challenges. I fully expect a CEQA suit from Kings County as well at some point, but for now I think it is safe to say that this particular frivolous lawsuit is not going to cause any problems for the project.
@Robert:
You write
“The ballot label of the Safe, Reliable High-Speed Passenger Train Bond Act dated Sept. 2, 2008, does not mention electrification, or any other specific method of fueling the train system. ”
Prop 1A has much more than a ballot label. Prop 1A demands an electrically power system.
see:
2704.09. The high-speed train system to be constructed pursuant to this
chapter shall be designed to achieve the following characteristics:
(a) Electric trains that are capable of sustained maximum revenue operating
speeds of no less than 200 miles per hour.
So let us be clear. The train is to be powered by electricity, that is mandated in Prop 1A.
Finally lets us wait for a Judge to rule whether this suit is baseless or not.
morris
Jarrett Reply:
November 16th, 2011 at 12:22 am
I don’t know how the legal lexicon functions exactly, but it sounds like this requirement focuses more on the design of the actual infrastructure rather than the operations of the train. While the ICS will not have electrically powered trains on it when it’s completed, it’s still designed to “achieve” electrically operated trains operating in excess of 200mph.
joe Reply:
November 16th, 2011 at 6:18 am
Opponents are conflating verification with validation. They demand a operating system exist to validate HSR was built correctly. No validation test, no system money.
The requirements, such as 2704.09, can be verified, shown it is met, by several methods including inspection. Inspect the design and verify a train capable of 200 mph can operate.
Then, by analysis, verify running trains at 200 mph conforms to the approved business plan, i.e. the speed capacity it isn’t a stunt.
Peter Reply:
November 16th, 2011 at 5:37 am
“Finally lets us wait for a Judge to rule whether this suit is baseless or not.”
Why? Isn’t this the entire point of the internet?
joe Reply:
November 16th, 2011 at 6:35 am
Morris,
“Shall be designed to achieve the following characteristics”
Alan Reply:
November 16th, 2011 at 9:56 am
However, nothing states exactly *how* the electrification would be accomplished. Technically speaking, existing Amtrak service is “electric”. The only difference is that the electricity is generated on-board. Granted, current Amtrak equipment cannot achieve 200mph, but there’s nothing that says it couldn’t happen in the future. Everyone *assumes* that “electric” means “hang a wire over the tracks and put a pantograph on the train”, but that’s not locked into the law.
Being somewhat vague about the manner of electric operation is a good thing, as the CHSRA is not locked into one specific technology for the next century. If something better is developed, and the Authority and its operator find it to be economically and environmentally viable, they can implement it.
For some reason, Brady and his clients seem to believe that the ICS will be built without electrification facilities. This is quite clearly contradicted by the Draft Business Plan, which makes clear that one of the goals of the ICS is to serve as a test track for rolling stock. You can’t do that unless you hang the wire. Hang the wire, and the letter of the law has been met.
But the most likely end to this lawsuit is simple: The suit complains of alleged interference to emergency services and the like. That’s a matter to be dealt with in the EIR process. Because the EIR’s have yet to be completed, the plaintiffs have not exhausted their administrative remedies, and the case is not yet ripe to be determined in court.
Peter Reply:
November 16th, 2011 at 10:04 am
First, now you’re the one grasping at straws, at least with respect to electrification.
Second, the cost of electrification is not included in the budget for the ICS. It likely won’t serve as a test track until construction begins to link the ICS to San Jose or LA.
Lastly, you are correct regarding the impact to emergency services. However, the entire lawsuit wouldn’t be tossed just because one single cause of action gets dismissed. The other causes of action have to be addressed, too (but they will likely be tossed, too).
Alan Reply:
November 16th, 2011 at 10:22 am
Not grasping at all. Yes, “hang the wire” is the current plan, but my point was simply that the law does not require any specific mode of electrification.
The budget for hanging wire may depend somewhat on the political winds. If more funding is secured, electrification may happen sooner rather than later. But the point is still valid that not *immediately* electrifying does not render the segment a violation of Prop 1A. The only people who don’t grasp the concept of building a project this massive in phases are NIMBY lawyers.
Since this isn’t a CEQA action, it should be dismissed with relative ease. It isn’t likely that a court is going to try to enjoin the governor and legislature based on speculative arguments with no basis in fact. So you toss that cause of action and the cause based on environmental impacts, and there’s nothing left. The cause which claims that the IOS will require a subsidy are purely speculative and not supported by any evidence.
Alan Reply:
November 16th, 2011 at 12:07 pm
Since my previous reply, I’ve done a little more research–specifically, section 526a of the Code of Civil Procedure, which is what the plaintiffs rely upon to achieve standing. The sections says:
“526a. An action to obtain a judgment, restraining and preventing
any illegal expenditure of, waste of, or injury to, the estate,
funds, or other property of a county, town, city or city and county
of the state, may be maintained against any officer thereof, or any
agent, or other person, acting in its behalf, either by a citizen
resident therein, or by a corporation, who is assessed for and is
liable to pay, or, within one year before the commencement of the
action, has paid, a tax therein…”
What’s missing from the list of entities who could be sued under this section? The State, the Governor, the legislature, and agencies of the state. In other words, the section is completely inapplicable to this situation. Since that’s what the plaintiff’s hang their hats on to achieve standing, that makes it very easy to toss the whole suit very quickly.
Also note that there’s no authority for a county to sue the state, so Kings County is also SOL.
Peter Reply:
November 16th, 2011 at 12:23 pm
That’s an excellent point.
Can’t believe I missed that (I was relying on my recollection from a previous lawsuit using 526a as its basis).
Bye bye lawsuit.
Alan Reply:
November 16th, 2011 at 12:58 pm
Thank you! Mr. Brady may have missed that little point when he was drafting the suit, but I think we can rest assured that the Attorney General’s office won’t…
Joey Reply:
November 16th, 2011 at 10:09 am
That definition of “electrification” won’t hold up in court.
Alan Reply:
November 16th, 2011 at 10:29 am
And how can you be so sure of that? Exactly where is the term defined in the law? I was quite clear that the “hang wire” concept of electric trains is what is currently expected and being planned. But I also tried to point out that the somewhat vague definition of “electric train” does not preclude other technologies as the state of the art improves. I don’t expect to see that happen before the currently planned system begins operation, but by the time the first-generation equipment comes due for replacement in 30 years or so, it’s entirely possible.
I suppose you’re hoping that my definition “won’t hold up in court” as a way of blocking non-HSR services on the ICS, but as I pointed out elsewhere, the law not only specifically authorizes such services, it requires the Authority to consider that possibility when they decide where to start building. So it’s a bit tough to sue the Authority for doing something the law requires it to do…
joe Reply:
November 16th, 2011 at 11:23 am
You’re walking into a semantics trap.
If the system must be designed to achieve a required capability then that capability has to be verified – Authorities need to see and document that the CAHSRA met the requirement for the design and finished product.
Requirements can be met by inspection and analysis. Inspect that the design will allow for electric train service at 200 MPH speeds. After inspection, check off that requirement and go ahead with construction. When accepting the work, inspect that the construction met the design and check it off. Done.
If CAHSRA bids and builds the tracks and delays electrification, it’s still compliant.
By analysis, CAHSRA can use the business plan and derive a compliant schedule that shows trains which are compatible with the design can operate with passengers and achieve the required 200 mph during some portion of that segment.
Opponents will need to litigate how requirements are tested and accepted – they have to sue to require CAHSR run a demonstration test of a finished system. They’ll need to litigate how the project is phased and bid and built. That’s suing to be the Project Manager and Chief Engineer of the CAHSRA.
2704.09. The high-speed train system to be constructed pursuant to this
chapter shall be designed to achieve the following characteristics:
(a) Electric trains that are capable of sustained maximum revenue operating
speeds of no less than 200 miles per hour.
Alan Reply:
November 16th, 2011 at 11:55 am
Joe, I think we’re in agreement on your points. I’m not trying to set myself up in a “semantics trap”, but I *am* trying to point out that lawyers who live by the split-hair die by the split-hair. Trying to stop an interim Amtrak service on the ICS on the grounds that it isn’t “electric” is such a split-hair. I think it’s just an indication of the absolute desperation of the Peninsula opponents.
VBobier Reply:
November 16th, 2011 at 1:32 pm
Agreed.
thatbruce Reply:
November 16th, 2011 at 5:09 pm
Exactly where is the term defined in the law?
Where something isn’t clearly defined by previous case law or the cited statue (AB3034), common usage is frequently used. In the CAHSR context, ‘electrically powered’ refers to the common overhead wire which appears in all of the CAHSRA-supplied materials both in the lead-up to the Prop1A vote and since.
The current Amtrak services are, in common parlance, ‘diesel-electric’ or just plain ‘diesel’ powered. Any lawyer who tried to wriggle out of that clause on those grounds is just playing games.
I do not think you will see any judge that will rule against the Pelosi political machine. It is that powerful. But think on the fact that it was the senior Brown who imposed the Embarcadero Freeway on San Francisco. It was loathed and and came to represent all that was and is bad planning. PA stilts will have the same fate.
I believe there is now majority sentiment that Prop 1A should be put to a revote, but I don’t see that will be realized.
StevieB Reply:
November 15th, 2011 at 11:31 pm
I do not believe the majority sentiment is that there should be a vote and do not think that 504,760 qualified voters signatures can be collected to qualify for a ballot initiative. Any California voter can put an initiative on the ballot by following a simple process but there is no popular outcry for a petition.
Brandon from San Diego Reply:
November 16th, 2011 at 6:20 am
Concur. HSR has more advocates than detractors. People are by and large willing to break some eggs to make an omelette… and take a step away from dependence on oil and gas…. And sending our military to protect supply lines. And for lots of other things too.
Alan Reply:
November 16th, 2011 at 10:10 am
Maybe a majority among the Atherton country-club set, but not in the real world.
Other Bay Area cities have BART “stilts”. The world didn’t stop turning. Comparing the BART aerials with the architectural abominations of the Embarcadero and Cypress structures is absurd. Eventually, people learn that the value of the transportation provided via those “stilts” is worth it.
A few people in PAMPA think they’re better than the rest of the world. They aren’t. Their perceived “right” to not have an aerial structure is outweighed by the need of the entire state to have a modern transportation system.
synonymouse Reply:
November 16th, 2011 at 10:37 am
BART stilts are not popular but those blighted and noisy venues were and are cheap charlies vis-a-vis Berkeley.
The Pelosi machine has its way thru threat of retaliation like a mafia. That’s how it can ram thru boondoggles like the botched Central Subway and Stilt-A-Rail:
http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2011/11/16/MN5G1LVF3Q.DTL&tsp=1
In the same paper you will learn that uber-liberal Oakland voters turned down a tax increase and the paper’s straw poll on a re-vote on Prop 1A favors going back to the voters for a re-affirmation.
The Repubs are not much motivated on the re-vote as they are payola’d by the consultant-contractor complex just like the Demos.
morris brown Reply:
November 16th, 2011 at 11:34 am
The reality is that a re-vote being initiated by the Legislature seems impossible. Gov. Brown would have to sign. There hasn’t been a Governor veto over-ridden in over 40 years.
If the Republicans were as beholden to the unions as you claim, why are almost of them opposing the project?
Peter Reply:
November 16th, 2011 at 1:32 pm
“If the Republicans were as beholden to the unions as you claim, why are almost of them opposing the project?”
You’re looking for logic from the synonymouse? Unlikely.
Alan Reply:
November 16th, 2011 at 12:00 pm
* I never mentioned Berkeley. I also never mentioned the names of other cities with BART aerials, which you label as “cheap charlies”. I think that Walnut Creek, for example, may resent the comparison.
*Please cite your sources for the “unpopularity” of the BART aerial structures.
What on earth does that link have to do with either Pelosi or HSR? The article discusses an alleged whistleblower and San Francisco city politics. There also is nothing in that link that mentions Oakland.
synonymouse Reply:
November 16th, 2011 at 12:53 pm
It is not the unions that have a handle on the GOP but very well-heeled PB, Kiewit, etc., etc.
There is no aerial on BART whose removal would not cause a rise in property values.
Big news today in Oakland is the tax measure failure at the polls.
Lee, Gavin, Willie B., Rose Pak, Moonbeam and the 3 crones in DC are all joined at the hip politically.
To the same degree the patronage machine is invincible in initiating projects it is incompetent in executing them:
http://www.sfexaminer.com/local/transportation/2011/11/muni-spending-extra-90m-due-project-delays
“The Peninsula lawyer who filed the suit for Kings County repeated the usual anti-rail talking points…”
Good ‘ol U.S. of A- produces plenty of know-it-all lawyers, but also plenty of know-nothings about effective passenger rail.
VBobier Reply:
November 16th, 2011 at 3:09 pm
Sounds like a bunch of Bullwinkle Mooses(Know It alls), but then talking points don’t mean doodly squat last I looked. Low rising stilts/berms where needed won’t hurt anyone, don’t like It? Tough, get used to It. As pessimistic as the business plan sounds, $98.5 Billion is still less expensive than $300 Billion any day and all large projects don’t get full funding all at once, Large Freeway projects got funded for construction Year by Year, not all at once, so It is with HSR, a rail and job friendly Congress is what the USA needs. Not radical Repugs whose only goal is power by any and all disingenuous means…
Orange County Transportation Authority headed towards formal opposition to the HSR project.
http://voiceofoc.org/blogs/article_0e69577a-1014-11e1-b1e2-001cc4c002e0.html
“The Orange County Transportation Authority is considering sending state high-speed rail officials a memo urging them to “pull the plug” on the proposed $98-billion Anaheim-to-San Francisco project”
StevieB Reply:
November 16th, 2011 at 1:59 pm
Orange County will probably be the last segment completed during Phase 1 which will be tens of years away and politicians cannot see past their next election campaign.
Paulus Magnus Reply:
November 16th, 2011 at 2:07 pm
By the time Phase I gets built, we’ll already have 90 minute service between LA and San Diego with less than an hour for OC to LA or San Diego. There’s no point to it with the timelines and expenses the Authority has put forth.
joe Reply:
November 16th, 2011 at 2:53 pm
Hilarious.
In the current State Budget, Gov Jerry Brown eliminated the 34 million a year payment CA sent to help Orange County to pay for the costs of their 90′s bankruptcy.
I’m sure he’ll frame their memo, if OC decides to draft and send him one.
Alan Reply:
November 16th, 2011 at 3:14 pm
It would be even funnier if the governor took OC’s money and redirected it to HSR…
VBobier Reply:
November 16th, 2011 at 3:49 pm
That would be ever so good, but why stop with just the OC? Anyplace that opposes HSR, move their State funds to HSR instead.
joe Reply:
November 16th, 2011 at 6:16 pm
Gov cut OC bankruptcy support in response to their GOP State Reps rejecting all taxes, and demanding cuts in government spending. Period. The Gov obliged them and cut a perk for OC.
VBobier Reply:
November 16th, 2011 at 3:16 pm
Sounds good to Me, OC should pay for their own bankruptcy, right on Jerry. Less money should be sent to the OC, and more money should be sent to cooperative areas. Does the CHSRA need to go through snobby Kings County? I’d hope not, plus If there are State jobs in Kings County that can be relocated to other Counties I’d do that too.
joe Reply:
November 16th, 2011 at 6:19 pm
FWIW, wikipedia , via citations that are traceable, shows big bad government employment contributes more to residents’ income than Ag jobs. Then you add milk price supports/subsidys, ag payments and water.
I have posted on YouTube some excerpts of the HSR hearing in Palo Alto yesterday (Nov 15, 2011)
Presentation of business plan
vanArk, Richard, Rossi (30 min)
http://www.youtube.com/watch?v=BsYrs3WzjLw
William Grindley presentation. (5 minutes)
“mountain of debt”:
http://www.youtube.com/watch?v=3nP8X0ccLbU
questions from David Valadao (5 minutes)
http://www.youtube.com/watch?v=wskY8oeCtM8
Will Kempton (5 minutes)
http://www.youtube.com/watch?v=K2pty49oD1U
StevieB Reply:
November 16th, 2011 at 5:57 pm
I watched the HSR hearing and saw the room full of construction workers and their representatives pleading to work. Do you have a video of Elisabeth Goldstein Alexis asking for another year to analyze the HSR project before funding?
morris brown Reply:
November 16th, 2011 at 5:59 pm
@StevieB:
Actually I just got it posted: See:
http://www.youtube.com/watch?v=-C4VHcqXpHQ
joe Reply:
November 16th, 2011 at 6:14 pm
“Do you have a video of Elisabeth Goldstein Alexis asking for another year to analyze the HSR project before funding?”
Seriously?!
I though the project was obviously flawed. A cursory reading would show the ridership projections wrong. The Business Plan Kaput. FAIL is just around the corner.
Now another year for analysis.
I suppose CARRD has more unanswered questions.
The price tag; 3+ billion dollars.
Eric M Reply:
November 16th, 2011 at 8:38 pm
CARRD will always find something wrong. Remember, their goal is to look like they support the project, but ultimately want to kill it. Another year of analysis will kill the federal funding, something they feel will take all the wind out of the sails, then complain the project should be scrapped because there is no federal funding at all. The charades and smoke screen from CARRD will not stop.
Joey Reply:
November 16th, 2011 at 9:53 pm
CARRD will always find something wrong.
The Authority isn’t making it difficult for them.
StevieB Reply:
November 16th, 2011 at 7:06 pm
Did you post a video of the young man from Palo Alto who said those who will not be alive in 30 years should not have a say opposing HSR? That was an absurd unethical statement that received laughter. I believe it was a response to the perception of the advanced age among those opposed to the project.
It may be true that a substantial number of those opposed at public hearings are of the senior generation. The cause of this is unclear. It may be that a large number of seniors are resistant to change so that they represent a large percentage of opponents. It may be that those opposed are more motivated to attend public hearings and seniors have the time to attend.
Tony d. Reply:
November 16th, 2011 at 7:53 pm
Kudos to that young man! Sometimes I wish these folks would think of their children and grandchildren.
swing hanger Reply:
November 16th, 2011 at 9:19 pm
Nah, they are going to enjoy things as they are now, dammit! Let the kids fend for themselves:
http://articles.latimes.com/2011/sep/05/business/fi-la-boomer-inheritance-20110906
swing hanger Reply:
November 16th, 2011 at 9:26 pm
And lol at the boomers sense of entitlement. It was actually their parents generation that gave them the unprecedented opportunity to prosper (the so-called “greatest generation”, though that group would never call themselves that, they were too modest and no-nonsense). Ah, to have my grandparents generation still around (90+ years of age) to kick the selfish butts of these boomers up between their shoulders (as my dear Granddad would say…)
StevieB Reply:
November 17th, 2011 at 12:57 am
The man, Leonardo Hochberg, from Palo Alto said he was speaking for his infant son who would benefit when he came of age from HSR across the street on which he lives.
joe Reply:
November 16th, 2011 at 8:41 pm
The economic gap between youth and elderly is widening. The older you are, the more likely you own a home.
Mike Rosenberg brings it all home:
StevieB Reply:
November 17th, 2011 at 12:52 am
Do you have video of Kathy Hamilton from the anti-rail CC-HSR denying the independence of the review of the ridership model because the reviewers were paid for their work?
StevieB Reply:
November 17th, 2011 at 1:24 am
I see you posted video of Kathy Hamilton saying federal money would never be available. Who was it that challenged the independence of the ridership review?