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Despite STB and court rulings, Ca. High-Speed Rail Chairman vows to move forward

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The last two weeks have been unusually tough for California’s High-Speed Rail project with lawsuit losses, a request by Congressman Denham and Latham asking for an investigation by the General Accounting Office (GAO) about project agreements with the FRA, and now comes an unfavorable decision by the Surface Transportation Board (STB).

December 3rd, the Surface Transportation Board (STB) ruled against an accelerated path for the Fresno to Bakersfield segment. The digest of the ruling was this:

“California High-Speed Rail Authority (Authority) has requested authorization to construct an approximately 114-mile high-speed passenger rail line between Fresno and Bakersfield, Cal. This decision denies the Authority’s request for a decision on the transportation aspects of the project before the environmental review of the project is completed. This decision also extends the time for public comment on the transportation merits of the proposed construction project.”

It’s not just the rejection, it’s the message they delivered with the decision. Vice Chair Ann Begeman states on page 4 of the Surface Transportation Board's, ”The Authority’s current petition fails to include any details about the project’s finances and “that void needs to be corrected before the Board acts further.”

She also says, “Today’s decision acknowledges the growing controversy regarding California's bond funding process. Considerable federal taxpayers’ dollars are already at stake and the recent state court decisions may very likely impact construction timing and costs.”

Kings County Commentary about the STB filing:

The Authority Board’s request to the STB progressed without public discussion at any Authority Board meeting. It appears to be a violation of the Bagley-Keene Act.

The following statement written by Kings County's County Counsel Ms. Colleen Carlson was read into the record at the December 5, 2013 meeting by Citizens for California High Speed Rail Accountability's (CCHSRA) Board Member Mr. Alan Scott:

“On behalf of Kings County whose representatives could not be here today, and on behalf of the Citizens for California High Speed Rail Accountability (CCHSRA), we would like to express our extreme but expected disappointment in your actions which continue to be deceptive. I am speaking of the secretive Petition for Exemption submitted to the Surface Transportation Board (STB) for an exemption from a construction permit relating to the Fresno to Bakersfield segment which you filed on September 26, 2013:

· without noticing any of the parties whom you KNOW to be interested

· without ever discussing this in an open meeting

· without ever reporting out from closed session your intent to file

· in violation of the open meeting laws

· and asking for all of this before ever completing your environmental obligations for this segment.

You continue to mismanage this project to the embarrassment of the Californians who are paying for it. You are supposed to be spear-heading the first high-speed rail project in the nation and you make a mockery of it. Please note for the record the specific request of Kings County and the Citizens for California High Speed Rail Accountability’s desire to be noticed on any subsequent filings with the Surface Transportation Board for any segment of the (California) High-Speed Rail project.”

Dan Richard, noted toward the end of the board meeting that he found the letter bizarre since the Kings County attorney should know the process with the STB.

The HSR Authority Board Meeting:

At the very end of the meeting, Authority CEO, Jeff Morales said the STB action was “misunderstood, misreported or misrepresented” and there was “no basis or credence” that the STB decision was a major blow to the project. Here is an eight minute discussion of the decision and countering the Kings County letter. http://youtu.be/_e0CP_ACU7I

He stated the Authority was not trying to be secretive since it was posted on the STB site and there was an invitation for interested parties to submit comments by December 24, 2013. Morales also said they expect a decision in the Spring, no doubt hoping the environmental work for the Fresno to Bakersfield segment is completed by then.

Dan Richard, the Authority Chairman made an incorrect statement during the meeting. He accused LA Times writer Ralph Vartabedian of getting the facts wrong about the recent STB issue. While it is true the latest ruling concerned Fresno to Bakersfield segment, five very important miles are in that segment. Richard said that the STB cleared the Authority to construct on 29 miles but in fact they had not. They only cleared 24 miles which were in the Madera to Fresno environmental document. Vartabedian's article in the LA Times is factually correct:

Geek Alert: Only for those willing to go in the weeds

The 29 segment refers to the segment for which the Authority signed with Tutor Perini and it crosses two environmental segments with only one cleared (Madera to Fresno) In the Authority’s plea it states that without permission to go forward from the STB, the Authority will have to pull out the five miles and negotiate the construction of that and the remaining 24 miles which would surely increase construction cost.

On page 7 of the June STB decision, the report shows, "a commenter asserts that a portion of the 29 miles for which the Authority seeks immediate construction authority does not fall within the 65-mile Merced-to-Fresno section before us.46 We note that any proposed portion that falls outside of the 65-mile Merced-to- Fresno section that was the subject of environmental review of this Project is not authorized for construction in this decision."

Another fact is that the Authority wants to have all 29 miles ready to go those five miles in the next segment includes the new Amtrak connection which is essential to the claim of independent utility required by the Federal ARRA fund grant. The Fresno to Bakersfield EIR is in enemy territory going through County of Kings. Independent counsel has already asked for a redo of the EIR/EIS due to inadequate facts. No way it will be completed by even the first quarter of 2014.

So not getting this STB approval is a rather large kink in the plan though Morales tried to minimize it in the board meeting. Morales, in a political ploy, also told the STB in the filing, they were concerned about an upcoming STB vacancy which would occur January 1, 2014. The very presence of this comment shows the political angle the Authority was attempting to work, which didn’t work.

STB controls the project:

Under the auspices of the STB, the Authority has claimed that the California Environmental Quality Act (CEQA) does not have to be followed, only the National Environmental Protection Act (NEPA) has to be followed. If they received that clearance even subject to the NEPA clearance, they could well declare later they did not have to go through the more rigorous state process, thereby avoiding the treacherous King’s County area. Presently the board appears to be following both state and federal law but if their arguments in court are successful to eliminate CEQA, they could change that at any time. http://www.examiner.com/article/the-hsr-authority-attempts-to-skirt-state-environmental-laws

The Authority’s view of the project moving forward:

At today’s board meeting, in reference to praising the work CEO Jeff Morales was doing, Dan Richard claimed in a very positive tone, “We now have, in my view, a plan, a set of partnerships and an organization that can work. And whatever our are current vicissitudes [ups and downs] are, which we will get past, we are moving into the construction phase of high-speed rail, with a team that can actually deliver this project. “

Final commentary:

Chairman of the California Senate Transportation committee, Senator Mark DeSaulnier stated this past weekend in a 3 ½ minute video interview with Phil Matier of CBS that he gives the project a 1 in 10 chance of moving forward.

In addition to the STB decision, with a couple of court decisions going against project and an investigation requested by Congressman Jeff Denham and Tom Latham that the General Accounting office (GAO) to review funding documents, this project seems destined to die “a death by a thousand cuts.” It is becoming increasingly ok to be against this project publicly and one doesn’t want to be last one to say so either.

Source Documents:

STB Decision:: http://denham.house.gov/sites/denham.house.gov/files/FD%2035724%20CA%20High%20Speed%20Rail%20Procedural%20Order.pdf (December 2013)

STB Decision: June 2013 Page 7 of the June 2013 STB Decision: http://www.stb.dot.gov/decisions/readingroom.nsf/UNID/3DA3D75A2453DD2685...$file/43070.pdf (must cut and paste) Page 7

For more information about background of the STB see: http://www.examiner.com/article/surface-transportation-board-rules-against-rail-authority

Denham/Latham Letter: http://denham.house.gov/sites/denham.house.gov/files/11-25-13%20Denham%20GAO%20Letter.pdf

Here are the rulings: Tos/Fukuda/Kings County: http://www.saccourt.ca.gov/general/media/docs/tos-v-ca-high-speed-rail-authority-ruling2-112513.pdf

The Validation Case: http://www.saccourt.ca.gov/general/media/docs/tos-v-ca-high-speed-rail-authority-ruling-112513.pdf

Links to all legal briefs can be found at http://transdef.org/HSR/Taxpayer.html

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

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