Kings County Anti-HSR Lawsuit Loses First Round in Court

Jun 17th, 2012 | Posted by

Late last week a Sacramento judge dealt a blow to a Kings County lawsuit against the high speed rail project:

In her tentative ruling, Superior Court Judge Shelleyanne W.L. Chang ruled that Tos, Fukuda and Kings County do have legal standing to sue over the project, against the objections of the state Attorney General’s Office. But she also agreed with arguments put forth by the attorney general that the suit fails to show that the rail authority either has or will receive the permission it needs to spend Prop. 1A funds for construction in the Valley.

Chang also agreed with the attorney general that the individual defendants — Brown, state Treasurer Bill Lockyer, finance director Ana Matosantos, acting Transportation Secretary Traci Stevens, Controller John Chiang and state Sen. Mark Leno — cannot be sued for exercising their discretion in their duties, and also lack the authority to spend money for high-speed rail construction.

But Chang declared that Brady will have a chance to address the deficiencies by filing an amended version of the lawsuit by June 29.

The suit is intended to show that the HSR project currently under consideration doesn’t meet the specifications of Prop 1A. The judge did grant them an opportunity to file an amended suit. But the fact that the plaintiffs screwed up so blatantly in their first version should not inspire confidence that their arguments are particularly strong. This is another catch-all lawsuit filed by longtime HSR opponents looking desperately for a judge who might help them kill a project they don’t like.

The high speed rail project has weathered similar lawsuits before. In some cases a judge may find one small technicality that requires an EIS to be reopened and revised, but no legal challenges have yet succeeded in stopping or significantly slowing the project. Of course, delays may well happen in the future due to court action, and I haven’t yet seen any tabulation of the costs to the state of California of these lawsuits.

Designing and approving a project of this kind through the courts is a recipe for disaster, and further evidence of why the state’s planning process needs to be reformed so that good, environmentally friendly projects don’t get subjected to this kind of absurd legal wrangling.

  1. Reedman
    Jun 17th, 2012 at 21:55

    A parallel situation is going on in San Francisco with the America’s Cup. Former Supervisor Peskin is part of a group that sued SF over allowing the America’s Cup race, because the group says that the sails on the sailboats will disrupt the flight patterns of birds (yes, really). In order to have the race, SF had to agree to spend $150k on a study of the flight patterns of birds on the Bay, plus give $75k to the lawyers of the group to get them to agree to not file more lawsuits.

    joe Reply:

    Mine. Mine. Mine. mine.

  2. Tom McNamara
    Jun 17th, 2012 at 22:06

    The only real legal threat left is arguing that certain expenditures of Prop 1A monies outside the IOS or permanent high speed rail alignment are illegal and can’t go forward. Saying that

    …no legal challenges have yet succeeded in stopping or significantly slowing the project…

    is on its face true, but sidesteps the impact of the lawsuits on the “blended approach”.

    joe Reply:

    I see two paths, a literal interpretation which is favored by opponents to apply the “I, Mudd” technique to stop HSR and Prop 1A. (or “The Changling” or Star Trek the Movie with VGR looking for the creator. )

    In summary, CAHSR a propsoed in the Prop1a is illogical.

    “The crew then engage in a series of illogical and clownishly silly activities in an attempt to confuse and overload the Norman android. The finishing blow comes when Mudd and Kirk pose Norman the Liar paradox, where Mudd claims he is lying and Kirk claims everything Mudd says is a lie. Short circuiting at this imponderable logical contradiction, Norman finally shuts down. Without a controlling leader, the other androids freeze up and stop working.”
    Kirk again confronts Nomad and questions its logic of destroying imperfect beings. Kirk tells Nomad that Nomad itself has made a mistake, something only an imperfect being can do. He tells Nomad that its creator is Jackson Roykirk, not himself, and that Nomad is in error. Kirk further notes that Nomad’s failure to discover its first error is a second error and further evidence of its imperfection. Finally, Kirk points out that Nomad’s delayed immediate-execution in light of these errors is a third error. Realizing the implications of Kirk’s reasoning, Nomad is caught in a logic loop, and begins to execute its primary function on itself. The machine begins self-destruction,

    A judge could decide the intention of Prop1A was to build a CAHSR system and will not interpret Prop1a as an illogical contradiction.

    My money is on a Judge deciding to not tie up their career micromanaging a project and therefore allow the CAHSRA to certify conditions in the proposition are/will/can be met.

    Opponents will be given an opportunity to demonstrate meeting the conditions would not be possible.

    Tom McNamara Reply:

    Although I appreciate the reference to Star Trek: The Original Series, you have skipped through the nuance of my statement.

    Part of the blended approach will require disbursing Prop 1A funds to projects that have nothing to do with the IOS and may not support a 220 mph fund system. That’s not a procedural move, but one that addresses the fact that Prop 1A dollars are set aside for the high speed rail project itself, not political back-scratching.

    Yet, using the courts to try and stop the verifiable project construction is a lost cause. I don’t see how anyone stops the IOS from becoming a reality.

    VBobier Reply:

    Part of Prop 1a is the $950 million that was to be spent on local transit projects as I remember, that isn’t HSR, still it’s in there.

    Stopping the IOS is a delusion by those sinking in quicksand, the more they squirm, the more they sink.

    Tom McNamara Reply:

    The current business plan includes spending on the “bookends” that may or may not allow the project to come to fruition. The $950 million is not what I was talking about.

    BruceMcF Reply:

    It was never planned to be a 220mph system in the blended operation areas. The challenge to the Prop1a design envelope in terms of what 5min headways means on blended operations corridors (whether theoretical or practical, the language of the Prop does not specify but the legislative record might clarify), that is something to pin down.

    However, the blended operations areas were never planned to be 220mph, even when they were planned to be dedicated HSR corridors.

    jonathan Reply:

    It’s _Nomad_ not _Norman_. Did you fall victim to a spell-checker?) And it’s not an android, it’s a deep-space probe.

    I’m still confused where the “Bookend” money is coming from; but that’s probably my own fault.

    I will say that spending the “Bookend” money on CBOSS, as currently contracted, is Bloody Stupid.
    (that’s a technical term; see Terry Pratchett’s ‘Thief of Time”.)

    BruceMcF Reply:

    There are two different classes of bookend funding ~ the $900m bonds for connecting rail system funding, allocated by formula, and the funding from the $9b in HSR bonds.

    the CBOSS funds seem to be from Caltrain’s formula share of connecting system funds. The CAHSR portion from HSR bonds seems to be for electrification.

  3. joe
    Jun 18th, 2012 at 08:01

    “Part of the blended approach will require disbursing Prop 1A funds to projects that have nothing to do with the IOS and may not support a 220 mph fund system”

    A) The CV segment is HSR so challenges that stop sepdning elsewhere just put mor efnds to the kings co segment.

    B) Prop1A requires 200 MPH sustained speed capability BUT also allows for slower speeds and IMHO places where the system is blended is exactly compliant.

    Article 1
    (d) “High-speed train” means a passenger train capable of sustained revenue operating speeds of at least 200 miles per hour where conditions permit those speeds.

    BruceMcF Reply:

    The blended approach does not bring corridors that were originally planned to have been 220mph down to a lower speed ~ it brings corridors that were originally planned to have been 125mph down to a lower capacity per hour. So it would seem that “may not support 220mph” is part of a kitchen sink approach.

    BruceMcF Reply:

    Where’s edit when you need it … joe’s above is a reply to a comment above, not the suit.

  4. Peter
    Jun 18th, 2012 at 10:06

    OT: But to the “BART Manifest Destiny” conspiracy theorists, I give you the Future BART Project, aka “Metro BART.”

    Looks like BART is planning on ending its expansion plans after the eBART, Livermore, and San Jose Extensions are completed. Just as importantly, BART is considering separating its services into “Metro Core” and “Metro Commute”, to offer more tailored service to different locations based on their densities and transit needs throughout the day.

    Is there life at BART Headquarters and the MTC after all?

    synonymouse Reply:

    Dumping AC on BART should slow down the juggernaut.

    Peter Reply:

    Did you even bother to read the material? It seems like a typical knee-jerk response.

    Richard Mlynarik Reply:

    I’m pretty sure I personally know the person who wrote the materials.

    S/he will agree that the next time some engineering consultancy with a $10 billion extension requiring its monopoly “design” services comes along, the cool groovy TOD-tastic infiill-o-riffic metro talk will be tossed under the bus in less than a microsecond.

    After all, that’s what the agency has done the last four iterations. That’s why the agency exists.

    flowmotion Reply:

    Not AC, Muni.

    I’d bet the term “Metro” isn’t a coincidence. Geary Subway is finally on the way, and hopefully the Twin Peaks tunnel takeover is in the cards.

    Jon Reply:

    Yep, this stuff is promising. From the One Bay Area plan it looks like the first project under the ‘BART Metro’ concept will be a turnback platform at Bay Fair station. This could be use to provide direct Livermore – San Jose service by reversing the train at Bay Fair, or as a terminus platform for some trains from SF or Richmond in order to improve frequency in more urban areas.

    Richard Mlynarik Reply:

    Wow. Super promising! Enabling a BART commuter from Dublin to San José, the Capital of Silicon Valley, via Bayfair and a direction reversal. Shit, you’d almost think that I-680 didn’t exist, and that MTC’s inexplicably-as-yet-inindicted CEO wasn’t spending hundreds of millions of your tax dollars on widening the freeways and guaranteeing that they will always be faster and cheaper than an insane round-about train ride.

    Sign me up! This is SUCH a fresh breath of air! This time for sure! A turnback platform at Bayfair really shows that BART and MTC have turned over a new leaf. Those nattering nabobs of negativism will surely have to eat their words now. Soon pastel-stuccoed two story TOD condos will sprout at Warm Springs, the new heart of the Bay Area.

    How could we have doubted the purity and urbanity of their intentions?

    Jon Reply:

    See, this is why you should never be put in charge of anything, ever. If you were in charge of BART or MTC, a worst-case scenario would be the mass suicide of all your employees; a best-case scenario would involve you being lynched by a feral horde of transit workers desperate never to hear your sarcasm ever again.

    Eric M Reply:

    Why do you think no one takes him seriously at transit board meetings anymore. You should ask him.

    Joe Reply:

    I have another thought. What if people take him seriously?. I do, including the harrassing and belittling.

    Eric M Reply:

    I will admit, he has some good ideas, but his approach is completely wrong, to the point where no wants to listen anymore.

    Neil Shea Reply:

    These conversations repeat themselves. The people who most surprise Richard by taking him seriously are the people on this blog. “OMG did he really say that?!”
    “Did he really say TOD-tastic and make fun of San Jose again?!”
    “Doesn’t he realize he’s going to far?”
    Save your breath. It doesn’t matter. And rest assured that the Richard’s co-workers only meet the nice, professional Dr. Jeckyll and are never excoriated for failing to meet one man’s aspirations to doing things the right way. But on a blog, after work, we can joke around a bit.

    BrianR Reply:

    I remember listening to an interview on NPR with a comic book artist (think it was Daniel Clowes) explaining why he wasn’t into the conventional “Marvel comics scene”. He said something like because “it is full of middle-aged men re-enacting their adolescent power fantasies.”

    I don’t know why but that keeps popping into my mind whenever reading Richard’s posts. I guess he feels the need to remind everyone who the biggest villains in his universe are. Maybe goes to sleep dreaming some errant nuclear missile will wipe San Jose and the south bay off the map and whatever else floats his boat.

    Miles Bader Reply:

    Wait, he actually acts like that at transit board meetings too?

    I thought it was just one of those “well people are weird online” things…

    Richard Mlynarik Reply:

    I haven’t killed any time or brain cells at a “transit board meeting” since June 2005.

    So, anonymous troll, do tell more. Have you stopped beating your wife yet?

    Eric M Reply:

    Bla bla bla. You are just proving people cannot expect anything more than idiotic, trailer trash responses from a disgruntled old man. Poor Richard.

    VBobier Reply:

    trailer trash??? I resent that insult, take that back, I live in a mobile home park, I am not trash, You JERK… You should be banned for that prejudiced remark Eric M…

    D. P. Lubic Reply:

    Easy, V, he wasn’t talking about you!

    Eric M Reply:

    Just because you live in mobile home park does not mean you are trailer trash. It’s called slang genius

    Eric M Reply:

    And enough of the politically correct BS!!

    BruceMcF Reply:

    I wonder if I am catching the faintest whiff of snark on the board.

    IAE, trailer trash are neither all residents of trailers nor, indeed, limited to trailers. In places where houses go cheap enough you can find plenty of trailer trash in stick built houses.

    Alon Levy Reply:

    Eric, if there’s one group the mainline politically correct types think it’s okay to stereotype, it’s poor whites. This is why it’s okay to call people guidos or trailer trash.

    jonathan Reply:

    Trailer trash don’t usually tell open-source volunteers that someone should reach their hands out through the screen and cut their interlocutor’s hads off. “Literally” was added, f i remember correctly.

    D. P. Lubic Reply:

    D. P. Lubic Reply:

    Seriously, Richard, you should consider yourself among friends here; I would hope that would include me. With a few really notable and noisy nuisances (i.e., certain NIMBYs), everybody here wants to see this project built, everybody here wants to see it succeed.

    Why do you treat those here who should be your friends so badly?

    Peter Reply:

    Putting “lessers” down probably makes him feel better about himself.

    Richard Mlynarik Reply:


    A slew of executive staff suicides at MTC and the local CMAs would indeed be a good thing for the world as a whole.

    But in this, as in all their “professional” actions, the right thing is never the thing that happens.

    Perhaps you could take the Initiative as a Concerned Citizen and Attend a Public Meeting and bring this up in Public Comment as a Future Agenda Action Item for Board Action? We Value your Input!

    Tom McNamara Reply:

    Jon, the turn-backs will probably be used for both purposes. BART is trying to follow its ridership pattern to profitability: longer commuter routes at rush hour, with short jaunts and dedicated SFO to Market Street runs…

    Tom McNamara Reply:

    The “Metro concept” and further expansion aren’t mutually exclusive, Peter. Furthemore, if BART to SJ, eBART, and Livermore happen you already have all the intermodal connections that are currently lacking and could be replaced by BART when the time comes….

    Peter Reply:

    “could be replaced by BART when the time comes”

    If you’re referring to Caltrain, it’s never going to happen. Never, with a capital “N”.

    Tom McNamara Reply:

    Not so. As I have said many times, a two track Peninsula solution is possible if BART is built above the CalTrain ROW from Milbrae and San Jose.

    I know that it’s inconceivable, but it’s important to remember that a) every person on the Peninsula will die someday and leave behind someone with less intransigent views to begin with and b) if the Bay Area continues to be the economic engine of California, access and convenience are going to trump fear.

    Peter Reply:

    And Caltrain will continue to better serve the Peninsula for a LOT less than BART ever could. Especially in terms of capital cost and level of service.

    joe Reply:

    In a possible future, when HSR needs addition capacity, Caltrain would cede to HSR greater use of the ROW. In that future BART would expand but not necessarily along the ROW.
    Since some Caltrain stations are near old downtown areas, shifting away from Caltrain might require the El Camino 522 BRT service capture additional trips.

    I’m sure a hyper-critical technical rail expert might have model and time table handy – I don’t. I speculate the political pressure to cap the ROW and expand HSR would give BART an opportunity to ring the bay. Deadlock plays to BARTs favor.

    Another future might have today’s NIMBY teenage children grown and demanding the Caltrain system to stay and instead offer to co-pay for a HSR expansion, with trench, so these forward thinking, next-gen PAMPA residents can use the infrastructure and prop up property values.

    A final future, the world is overrun by apes – they travel by jet pack.

    Peter Reply:

    Hehehe, I just had a vision of apes riding an HSR train. You’d need extra-wide seats even for second class.

    flowmotion Reply:

    If they wanted to spend a gazillion dollars on a new peninsula rail ROW, they could shut everyone up by putting HSR on top of US101. (It would be closer to job centers, developable real estate, parking facilities, etc.)

  5. Dan Lombard
    Jun 18th, 2012 at 10:48

    Just published my new book “Midnight Departure” on Amazon. It is an action/thriller/political conspiracy work of fiction that has as its plot the building of the high speed rail in California. Great summer reading!

  6. D. P. Lubic
    Jun 18th, 2012 at 19:24

    Off topic, but interesting for the anger that comes through from someone who normally doesn’t have it–William Draves, at Nine Shift, on the subject of self-driving cars:

  7. D. P. Lubic
    Jun 18th, 2012 at 19:35
  8. thatbruce
    Jun 19th, 2012 at 11:05

    As an avid LA Times Reader, I couldn’t fail to notice that no whiff of this bit of legal news has appeared in articles authored by our fave reporter, Ralph Vartabedian.

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