The Attorney General’s office filed a 61 page legal brief with the California Supreme Court, effectively by-passing the Appellate Court. They asked the California Supreme court to order a “stay”for the Tos/Fukuda/Kings County ruling which required the Authority to rescind it’s funding plan since it didn’t follow the law in voter bond measure. It seems to be a desperate tactic since they are running out of money with a requirement to begin spending state funds April 1st to match federal funds already spent. There is also a major problem with time since it must spend federal grants of more than $3.3 billion by September 2017 and they are more than a year late starting the project.
In the briefing filed Friday night, the Rail Authority offered this, “Since the project's inception, opponents of high-speed rail have tried to block its construction. Now, two rulings of the Sacramento Superior Court-which are otherwise unreviewable as a practical matter-imperil the project by erecting obstacles found nowhere in the voter-approved bond act. These erroneous rulings tum the requirements of the high-speed rail bond act on their head, threaten state and federal funding for the project, and urgently warrant review by this Court in an exercise of its original writ jurisdiction. (Cal. Rules of Court, rule 8.486(a)(l).)
When the Judge Kenny ruled that he required the Authority to rescind their funding plan, the Authority Chairman made the press rounds stating it wasn’t that big of a deal, the claims were greatly exaggerated. After all, they had federal funds to spend, the court didn’t require them to cancel the construction contacts and the court did not make them stop the project.
In the trial when the judge asked what the effect of a rescission of the funding plan would be, the Deputy AG, Michele Inan answered it would have no effect. But that apparently wasn’t true, it has had an effect.
Here’s what the court said in the final ruling in the Tos case.
“Issuance of a writ of mandate directing the Authority to rescind its approval of the November 3, 2011 funding plan based on the finding that the funding plan did not comply with all of the requirements of subdivision (c) thus will have a real and practical effect: it will establish that the Authority has not satisfied the first required step in the process of moving towards the commitment and expenditure of bond proceeds.” The court simply asked them to rescind their funding plan, nothing more.
But the “no problem” attitude is changing perhaps because reality is sinking in as they face an April 1, 2014 deadline to spend $180 million dollars in state funds which is the beginning of a period of catching up with the spending of state funds. Federal grant funds that were advanced early without a state match been spent since the bond money was unavailable. The state has the self-imposed requirement of a 50% match they promised in their grant application.
They can’t sell the Prop 1A bonds because in the bond validation case, the court ruled there was no evidence presented to the High-Speed Train Finance Committee that proved that the sale of the bonds were necessary or desirable. Since then the Treasury has refused to sell the bonds. The Authority did not appeal that decision.
To cure the immediate money problem, the Governor is asking for $250 million dollars to be taken from cap-and-trade revenue but that isn’t looking too promising since the environmental community is unconvinced. Why should the Rail project use precious resources when there are other worthy programs that will can better use the funds and have a far greater impact on the environment. It also won't be voted on until early summer, too late for the April deadline.
So in their brief to the Supreme Court, the AG's office admits, “The issue is time. The Authority is faced with a Hobson's choice: it can pursue appeals that may take years to resolve and incur the exorbitant costs, fiscal and otherwise, that will attend the delays, or accept and comply with the orders, likely mooting an appeal, and attempt to move the project forward on the trial court's and private parties' terms. That is not a real choice given the responsibility the Authority has to be prudent with public funds, to use federal grant funds before they expire in 2017.”
At the end of their brief they say this, “Without a stay, the Authority must, within the 60-day return date provided in the writ, choose either to comply with the writ by rescinding the funding plan, which will risk mooting this writ proceeding as well as any eventual appeal of a judgment, or decline to do so and risk sanctions for contempt of court.”
The state mentions in their brief Congressman Jeff Denham has introduced a bill that would cease rail funding on California’s project. This bill was introduced the day after the hearing on the California Rail Project held on January 15, 2014. Congressman Jeff Denham is the chairman of the House Transportation Subcommittee on Railroads, Pipelines, and Hazardous Materials.
This newest filing appears to be a Hail Mary Pass by the Governor’s office to see if they can succeed in getting the Supreme Court to issue a “stay” on the lower court’s rulings. The question is will the Supreme Court reject the Governor’s plea or will they pass it back to the appellate court to hear first. More importantly is this the beginning of the end.
The Attorney General's office is asking the court for an answer by March 1, 2014.
Court filing by AG’s office:
See highlights of the House Transportation Hearing held January 15, 2014. http://www.examiner.com/article/highlights-from-congressional-hearing-on-california-high-speed-rail-project?cid=db_articles
After the meeting: Attorney’s reaction to the new plan the Rail Authority unveiled at the hearing. http://www.examiner.com/article/after-the-house-transportation-hearing-thoughts-by-the-tos-legal-team?cid=db_articles
Kathy Hamilton has written several recent articles on the current lawsuits and many other subjects concerning the High-Speed Rail Authority. See a brief synopsis by title on her site: http://www.examiner.com/transportation-policy-in-san-francisco/kathy-hamilton