CHSRA Launches Preemptive Bond Lawsuit

Mar 27th, 2013 | Posted by

So, this is an interesting legal tactic:

The state of California has filed a civil case against everyone — literally, the whole world — seeking to validate $8.6 billion in voter-approved bonds for its $69 billion high-speed rail project.

The lawsuit, titled “High-Speed Rail Authority v. All Persons Interested,” is meant as a pre-emptive strike so the state can confirm that it’s definitely legal to issue some of the bonds needed to begin bullet train construction this summer. By citing a somewhat obscure California civil code, the state can use the “sue now or forever hold your peace” strategy to prevent a string of future lawsuits and, instead, deal with the legal issues in one fell swoop.

Anyone interested in trying to block the project can sign up with the court, put their endless hours of “Law & Order” watching to use, wear their best suit and show up at a hearing to argue their case. They would join lawyers who are already suing the rail authority in other cases and go toe-to-toe with the state Attorney General’s Office, which is representing the rail authority….

Lawyers say this “validation” process, while not well known, isn’t necessarily uncommon among public agencies that want to create a legal shield against future lawsuits to calm investors interested in their bonds.

The city of San Jose did it in 2009, for example, before issuing bonds to expand its convention center. Even then, that case ended up being tied up for a year because a gadfly signed up to challenge it, before the city won, said City Attorney Rick Doyle.

Attorney General Kamala Harris is the one technically filing the suit, so her office is on board with this unusual but perfectly legal strategy.

Personally I think it’s a smart approach. Rather than get bogged down by a Gulliver-style series of endless lawsuits over the project, they’re going for a battle royale – a thunderdome, if you will – over the possible legal issues surrounding the bond release. Potential opposition gets consolidated into a single case, though it’s unclear if the Peninsula NIMBY/Kings County lawsuit charging that the blended plan is illegal under Prop 1A would be folded in as well.

The downside risk is that enough people take up the challenge that the court case drags on for a year or more. But the Attorney General and the Authority were likely expecting that more legal challenges would be brought anyway, so they might as well get it over and done with in this way.

I still don’t see a strong legal argument against the HSR plan as it stands today, including the blended plan, and I expect that the Authority will prevail in court. Let’s hope that this consolidation move ensures that their court victory comes sooner rather than later.

  1. Justin N
    Mar 28th, 2013 at 01:24
    #1

    I feel compelled to point out that the Thunderdome, with it’s “two men enter, one man leaves” philosophy, was not a battle royale.

  2. agb5
    Mar 28th, 2013 at 04:23
    #2

    So lets build a NIMBY case,
    On the 30 minute travel time, the AB3034 states:

    The high-speed train system to be constructed pursuant
    to this chapter shall be designed to achieve the following
    characteristics:
    (b) Maximum nonstop service travel times for each corridor that
    shall not exceed the following:
    (3) San Francisco-San Jose: 30 minutes.

    CAHSR defense:
    1) NIMBYs can’t prove beyond reasonable doubt 30 min time will be impossible in year 2036, caltran trains could be updated to next generation fast trains, grade separations track and other improvements could be done using other funds.

    2) 30 minute characteristic only applies to high speed track designed and built by CAHSR. Existing caltran track is not high-speed or designed or build by CAHSR, so they are not held to 30 minute limit.

    3) Blended system is not the full build out, 30 minute time only applies to full build out.

    4) CAHSR is making a good faith effort to build what people voted for in accordance with global best practice.

    John Nachtigall Reply:

    1. The burden of proof is on HSR to prove it, they are the ones building the system. And you can’t just “hope” track improvements happen. There is no track improvement fairy, it takes time money and planning.

    2. The authority has already admitted the blended plan needs to hit the times

    3. See above, the 30 minutes applies to the final system. Blended is the final state

    4. They are not making a good faith effort. They know it can’t meet the law but building anyway because once it is built it’s too late to stop them. That has been the whole plan all along. That is bad faith defined.

    And they are ignoring more than the time limits

    TomW Reply:

    It’s a “balance of evidence” thing, not a “beyond reasonable doubt” thing – because this is a civil case. All CAHSR have to do is show their modelling work says 30 minutes is possible.

    Peter Reply:

    Because we’re dealing with an agency decision, the CHSRA may not even have to meet be a “balance of evidence” standard. It may just have to meet the even lower bar of the “substantial evidence” standard, i.e., does the agency have substantial evidence to back up its decisions, such as the modelling. And yes, it does.

    Jonathan Reply:

    WTF? The modellling shows plainly that under PB’s assumptions for the “blended” plan, it’s not possible to do TBT-SJ in less than 33, 34 minutes. that’s significantly more than 30. And Prop 1A _requirees_ the SF terminus to be TBT.

    Peter, what the hell are you talking about? Or have you conflated the meanings of “maximum” and “minimum”?

    Peter Reply:

    *yawn*

    Not in the mood to argue this with you again. You say one thing and I say the other. Let’s just agree to disagree on this issue, shall we?

    Tony D. Reply:

    “The burden of proof is on HSR to prove it.” No it’s not! It’s on you and every other NIMBY obstructionist who don’t want to see this project built. Again: if you have NO facts, you have NO case!

    nslander Reply:

    John- You seem like a bright fellow. Do you find it peculiar how confident you were in misstating a basic legal principle? I’m intrigued by this lack circumspection and self-awareness inflicting so many otherwise intelligent and well-educated people regarding the law. I’ve notice people who do this are often the same people who mindlessly disparage lawyers.

    Tony D. Reply:

    Maybe he’s not a bright fellow..(?)

    John Nachtigall Reply:

    Read the above comments, I am not the one who said “beyond a reasonable doubt”. I did awkwardly phrase my response however, I should have said that HSR has some burden to show they can meet the requirements, I should not have said burden of proof because that phrase has a specific legal meaning.

    I am not a lawyer, but I have nothing against them. I was just responding to the case presented in the post above.

    And while I may not be the brightest fellow ever I do have a BS and MS in engineering so I would like to think I am brighter than average.

    nick Reply:

    who says that the blended plan is the final plan ?

    Jonathan Reply:

    CHSRA has asked their design-contractor to show that the “blended” plan meets the requirements of Prop 1A. So, CHSRA says the “blended” plan is final, in the sense of meeting Prop 1A’s requirements.

    John Nachtigall Reply:

    Ding..exactly

    joe Reply:

    And independent state legal authorities concurred. Don’t forget that fun part.

    joe Reply:

    Final as in it meets speed requrements.

    Not final as in it fails to meet the final plan’s intended capacity.

    the peer review panel explains that in thier report.

    Eric M Reply:

    Since when did Prop 1A state SF to SJ needed to be 30 minutes? Prop 1A stated SF to LA needed to be 2:40, but no defining times for each segment. Only the whole.

    John Nachtigall Reply:

    Wrong, there are several specific times spelled out

    Eric M Reply:

    Do you have any references for that?

    Paul Druce Reply:

    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.
    (b) Maximum nonstop service travel times for each corridor that
    shall not exceed the following:
    (1) San Francisco-Los Angeles Union Station: two hours, 40
    minutes.
    (2) Oakland-Los Angeles Union Station: two hours, 40 minutes.
    (3) San Francisco-San Jose: 30 minutes.
    (4) San Jose-Los Angeles: two hours, 10 minutes.
    (5) San Diego-Los Angeles: one hour, 20 minutes.
    (6) Inland Empire-Los Angeles: 30 minutes.
    (7) Sacramento-Los Angeles: two hours, 20 minutes.
    (c) Achievable operating headway (time between successive trains)
    shall be five minutes or less.

    AB 3034

    Eric M Reply:

    Thanks. I just read that section of the proposition right before you posted it.

    adirondacker12800 Reply:

    Does that mean they can’t build anything until they have funding in place for the LA-SD segment?

    Matthew B. Reply:

    Also, the Oakland-Los Angeles segment, which is not planned to be built under any plan :-) Is this the latest version of the text, and from which document?

    Eric Reply:

    “shall be constructed”
    If they’re not building a new track between SF-SJ, can they be held to this 30 minute standard? After all, it mentions Oakland, San Diego, and Sacramento, none of which are even in the blended plan.

    Paul Druce Reply:

    Those are all the defined permissable corridors, not all of which may be built, but set forth in the law so that the law does not unduly restrict the route selection.

    Eric M Reply:

    Never mind, I found it.

  3. trentbridge
    Mar 28th, 2013 at 07:36
    #3

    “shall be designed to achieve” – the key word is designed. Using Caltrain track wasn’t part of the original design. Accepting the existing ROW came from political pressure. So, the argument is a) we don’t want to add HSR tracks down the Peninsula – we want to change the design because we live here and don’t want our neighborhoods disrupted then b) since we, the residents of the Peninsula, changed the design, the original goal cannot be achieved so we should cancel it?

    Is that logical?

    If you build a Ferrari to do 220 mph so it’s designed to do SFO to LA in 2 hours and 40 minutes and then say it has to use surface roads and observe speed limits – you cancel the car?

    joe Reply:

    I agree overall that the intent to STOP HSR by arguing for a higher performance standard is something a judge could consider. Demanding a full build over blended might even be used against NIMBY Cities at a later date. If I were PAMPA, I’d sit this one out.

    The rational for blended is ALSO part of the Peer Review Recommendations. Blended was recommended to provide limited capacity (TPH) service to SF way sooner than a full build.

    Neil Shea Reply:

    Good point, this is a “be careful what you wish for” moment for PAMPA. Let’s say they do get all the electrification investment in Caltrain suspended. That may not delay work in the central valley but it will not make their neighbors in the 3 counties very happy — and they will have argued for a four track system sooner rather than later.

    VBobier Reply:

    Agreed.

    Jonathan Reply:

    Exactly. That’s why I wish I had time and resources to file: to establish that ‘blended” is not a legal use of Prop 1A funds. ;)

    joe Reply:

    Just link to your comments on this blog. you made the case many times here.

    Nathanael Reply:

    Johnathan: you might actually be able to establish that the prop 1A funds should not go to the “blended” plan except to the extent that the improvements could be used for the final, high-speed plans. If you have the time, go for it….

    synonymouse Reply:

    Naah. The blend is to buy off potent Peninsula opposition. Wheeling and dealing in the same manner as that which created TehaVegaSkyRail.

    Kopp and others’ litigation does not stand a chance in a machine courtroom. Of all people ex-judge Kopp is supremely aware of this. He has to be counting on another countervailing and powerful political coalition not happy with the blend. This could and would be BART-MTC, Lee, PAMPA and Reid-Guardino et al. Refer back to ca 1991 when BART to SFO came out of the woodwork and in short order quashed Caltrain to the TBT and electrification. Improbable at this juncture but certainly not impossible in the recent historical context.

    Clem Reply:

    I dig your theories, but the odd bit is that MTC itself brokered the blended MOU and the Caltrain electrification funding, some of which even came from BART’s allocation of connectivity funds. Les dieux sont tombés sur la tête.

    Jonathan Reply:

    Clem,

    “Jerry Brown banged some heads together” is both a convincing rebuttal, and also consistent with Synon’s world-view. Though Synon would probably use words like “Crones” and “Moonbeam” and “Patronage Machine”. I can’t see where the Chandlers fit inot this, though “as any fule kno”, the Chandlers haven’t controlled the Tejon Ranch Co. for ages.

    I’d really like Synon to get into the 21st Century, on that score.

    synonymouse Reply:

    This is indeed a puzzlement and my off the top explanationfor MTC apparent collaboration is very sketchy. Essentially looking busy for their current boss(Jerry Brown)and biding time. Sorta like Pinochet going thru the motions waiting to strike against Allende.

    There may even have been staffers at MTC who disagreed with the 1991 treachery against Caltrain but had to hold their tongues. In this case it would be the reverse. I have two arguments in favor of a slealth campaign against the blend festering at MTC and and an eventual coup attempt.

    One is that the blend translates over time into a certain and complete Caltrain victory. The CHSRA will be aced out. Why? Because DogLegRail(and most definitely Deserted Xprss)will disappoint and fail to meet expectations. Markedly. And Caltrain will assuredly be an unqualfied success. Pick a number out of the hat. On l’ignore. Say 10 Caltrain passengers to every hsr ticketholder. Caltrain will utterly dominate. Can the Cheerleaders handle this truth?

    Secondly, the rout of Ring the Bay represents an enormous loss of face for BART and the Bechtelian legacy. BART continues to maintain it righteousness, corporate hubris and jealousy towards any would-be competitor, and its sense of regional manifest destiny. And its definition of its roaming territory is very broad indeed.

    Caltrains’ 100mph standard gauge OC trainsets with all the amenities and state of the art motors and controls and truck design up against BART’s crinkled aluminum beercan cattle cars. What’s not to like. The fact that I like and want it worries me. I think BART will pull out all the stops to kill Caltrain once again and for good. Yes I am afraid that does approach paranoia. But I remember 1991 all too well.

    Ted Judah Reply:

    There’s a pretty simple answer to your confusion about MTC helping CalTrain.

    Recall that in the New California State Rail Plan the Northern California Unified Service is going to gobble up every single commuter and state-supported rail route in Northern California EXCEPT CalTrain. And the Capitol Corridor’s JPA is managed by BART. So if the NCUS magnifies this arrangement, BART will control all the long distance traffic from Monterery to the South, Merced to the East, Auburn to the North, and Richmond to the West.

    BART will align the NCUS to maximize traffic and to limit access to downtown San Francisco. So they very much want CalTrain to be an orphan system with limited regional connectivity while they are busy finishing up connections to San Jose, Livermore, Martinez, Larkspur, Stockton…etc… before swooping in and seizing the Peninsula.

    Michael Reply:

    You forgot the “Bah, ha, ha, ha, ha….!”

    synonymouse Reply:

    Your political analysis may very well be more astute and correct. But I will have to fall back to a more fundamental, albeit crude, political hierarchy. The machine is pre-eminent and in NorCal, imho, MTC is the machine’s transport face. BART falls lower on the pecking order. Ergo MTC’s symbolic move to SF, titular capital of the North.

    Caltrain is guaranteed to be an enormous success and a tremendous defeat for BART and BART retrograde eccentritech. Caltrain will best BART overwhelmingly in every category and every respect. The advent of state of the art Caltrain marks the high watermark of BART and the beginning of its long steady descent into ignominy. An ever dwindling broad gauge empire.

    Of course BART, and in keeping with your political schema, could attempt to subsume Caltrain and sabotage, sandbag it. A very real possibility. But against the tide of history and technoogy – 3rd rail is in decline and limited to urban subways. Cattle cars will always be a magnet for crime.

    A triumphant Caltrain will need all four tracks of the SP ROW and hsr will be kicked to the curb. But the Cheerleaders asked for this with the scabbed together route scheme they are now locked into.

    Kopp, MTC, BART recognize Caltrain as their natural enemy and will try to kill it. But they will need Lee, PAMPA gentrifiers and San Jose officialdom in on their plot to have any chance to bring around Brown and the party machine.

    Either way hsr loses and effectively terminates in San Jose with Pacheco.

    adirondacker12800 Reply:

    Once Caltrain electrifies why wouldn’t HSR trains go to Caltrain’s San Francisco terminal?

    synonymouse Reply:

    Capacity issues and catering to demand, vastly more for Caltrain than hsr.

    Effectively hsr on the Peninsula will be dumbed down to Caltrain. As in usurped. Good show.

    The rationale behind inviting hsr to use the Caltrain ROW was to use Prop 1A money as a club to protect Caltrain against Imperial BART depredation. Kopp must have been quite aware of this trasnsparent strategy, given his longtime hostility to Caltrain and support of BART. One of several mysteries Kopp is carrying as baggage. Another is his apathy towards the DogLeg. I mean he claims to be so worried about slowing speeds and travel times and losing sight of true hsr. The potential time savings gained by returning to Tejon dwarf by orders of magnitude the few minutes potentially gained by 4 track berms on the Peninsula.

    For now Kopp is inscrutable. Maybe he has indeed turned thumbs down on BART and so with MTC. Fascinating.

    adirondacker12800 Reply:

    Four tracks would easily handle 20 trains an hour in each direction. Many places in the world with four tracks get many more than that. Unless cars are banned theres more than enough capacity for Caltrain and HSR. Even if cars were banned.

    synonymouse Reply:

    Well you won’t get 4 tracks right away or complete grade separation. The extra tracks will be to accommodate express Caltrain schedules. The ChSRA is just there to provide the monies and to scare off BART.

    This development represents a wonderful victory over the Bechtels and Billy Ray Stokes who repudiated OC 25kv AC for a bastardized version of the NYC subway. Of course the OC was exactly what the SP had had and didn’t want to ever see again. Capiche?

    State of the art tech to upstage BART. No doubt as to who will win the beauty contest. Crush the clyclops cars like beercans.

    adirondacker12800 Reply:

    No I don’t uderstand how things work on your planet. Explain to us why HSR trains won’t be able to go to San Francisco if Caltrain is electrified. Just how many passengers an hour can a two track railroad, on your planet, carry?

    synonymouse Reply:

    All tracks will be built to Caltrain specs. HSR trains will be a rare sighting, an endangered species.

    If you don’t like that, get your own ROW. Like Dumbarton.

    adirondacker12800 Reply:

    Why would tracks built to Caltrain specs be unable to convey HSR trains?

    synonymouse Reply:

    An excellent question, but I gather PB is working up something proprietary. Sounds like CBOSS might be a good start.

    Too bad Bechtel is not still around – they were expert at incompatibility.

    But still if Kopp has mellowed on Caltrain why is he so burnt at the blend. He has to know that the same primacy of regional power politics that dictated the DogLeg also dictate the blend. He was in on all the fix.

    adirondacker12800 Reply:

    do the people on your planet think you concoct conspiracy theories too?

    synonymouse Reply:

    My take is that PB’s 4 track berms were to enable two totally segregated and effectively non-interoperative systems. Was PB concocting a conspiracy?

    adirondacker12800 Reply:

    I thought they only knew how to design hollow core elevated that would turn Palo Alto into the West Oakland overnight.

    Ted Judah Reply:

    Caltrain is guaranteed to be an enormous success and a tremendous defeat for BART and BART retrograde eccentritech. Caltrain will best BART overwhelmingly in every category and every respect. The advent of state of the art Caltrain marks the high watermark of BART and the beginning of its long steady descent into ignominy. An ever dwindling broad gauge empire.

    Is that the peyote talking again?

    DC is expanding its Metro. Miami is linking their system to the Airport down there. Light rail popped up in the last thirty years because it was cheaper than BART and it allowed politicians to look they were “doing something”.

    John Nachtigall Reply:

    So lets say you are right and extend your argument. Your argument is that the restrictions in the law are invalid because the base assumptions for the law are no longer true. so the law can be ignored.

    So can I build a train system that makes the trip in 3 hours?
    How about 4 hours?

    Why a train at all, can I use the money for highways instead?

    Where does it end?

    Your premise is flawed. The requirements are the requirements until the law is changed. If you don’t like them then change the law, not just ignore them.

    adirondacker12800 Reply:

    Where does it end with “they aren’t electrifying it!!!, that makes it illegal!!!” does it mean they have to string catenary before they lay tracks? Does it mean they have to string catenary within a month of laying tracks? Does it mean they have to think about releasing a request for proposals five years after laying the tracks?

    Tony D Reply:

    Damn! Do these NIMBY idiots ever stop with their constant REACHING!? NO FACTS, NO CASE!!

    joe Reply:

    They never stop but they don’t win either. When NIMBYs are arguing for MORE HSR infrastructure, they’ve lost.

    wdobner Reply:

    No, you cannot use the money for a highway, because as has been previously noted 2704.03.4 requires that the construction funded not have an “adverse impact” on travel imes in the future. Using the money on highways (so good of you to finally recognize they’re not self-supporting) would clearly have an adverse impact on the eventual HSR travel times by doing nothing at this stage to lay any sot of groundwork for high speed operation. Thus the blended plan is perfectly allowable because it enables electrified operation on the Penninsula, while your outmoded dream of highways conquering those areas that got away in the revolts against freeways, is not.

    Last week you were committed to the idea Prop 1A’s travel times were absolutely binding despite the proposition wording on the matter being extremely vague itself. Now you insist the law is vague enough to allow a complete change to the mode you favor. But your insistence either way only illustrates that you have a vague understanding of the laws involved. There is a broad middle ground where the CHSRA can build he project without your unreasonable demand it erupt simultaneously from the ground intact without violating any rules.

  4. Reedman
    Mar 28th, 2013 at 11:10
    #4

    Besides the travel time argument, I would expect HSR opponents to also argue that using HSR money for Caltrain/Metrorail updates violates the Prop 1A protections against misuse of HSR funds.

    Keith Saggers Reply:

    The MOU also proposes a $1.5 billion funding plan with a mix of local, regional, state, and federal dollars to pay for the electrification and advance signal system projects needed for the so-called blended service that would accommodate both electrified Caltrain operations and long-distance high-speed rail trains. Of this amount, roughly half, or $706 million, is expected to come from statewide high-speed rail sources. The remaining funds would include local sales taxes, Proposition 1B transit bond funds, Federal Transit Administration funds

    Keith Saggers Reply:

    …bridge tolls and BAQMD funds.

    Keith Saggers Reply:

    BAQMD=BAAQMD,

  5. Keith Saggers
    Mar 28th, 2013 at 13:31
    #5
  6. Ted Judah
    Mar 28th, 2013 at 21:22
    #6

    It’s too bad Robert bumped this story down so fast–because this approach is what I think they will do for CEQA as well. File a preemptive lawsuit and clear the EIRs past any sort of legal challenge, and then start building.

    However, this is not a great development because it puts us fully at the mercy of America’s Finest Transportation Planning professionals. I fear this is a big hit to the state’s progress in urban planning and a throwback to the days of bulldozing historic neighborhoods under to build freeways. This tactic allows the State to move fast, but not necessarily prudently.

    NIMBYs have to be careful what they wish for, they might just get it.

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