March 15th the brief for John Tos, Aaron Fukuda and the County of Kings vs. California High-Speed Rail Authority was filed, representing the only non environmental lawsuit concerning violations of the requirements of Prop 1A for the high-speed rail project. This is not about whether the concept of high-speed rail is good or bad, it’s not about whether this project is good for the state or the people in the state, it is a suit simply about the rule of law. Basically it will attempt to prove, that State Bond Funds cannot be spent for the high-speed rail project if it violates Proposition 1A and the governing legislation, AB 3034.
Lawyers Mike Brady and Stuart Flashman are working together on the case. Mike Brady explains a little further and says he wants to accomplish requiring High-Speed Rail to comply with the law, the voter initiative (Prop 1A). He wants to give voice to the will of the people because the California constitution states you cannot change provisions of a voter initiative. Brady explains, “This is very different than when the legislature makes laws.
Attorney Mike Brady gives an example of one of 10 violations of Prop1A. “You can’t start building until you have the money for the entire usable segment. The money must be in the bank for the usable segment which is from Merced to the San Fernando Valley. Conservatively, that segment is about $25 billion short and therefore you can’t build a subset of that Usable segment which the Authority calls the Initial Construction Segment. The danger is that after the money runs out, it will be abandoned."
Declarations in the case:
There are 14 declarations by experts all over the country who know about railroads and mega-projects but there was one big surprise, Judge Quentin Kopp offers his declaration. He chaired the High-Speed Rail Authority, was a State Senator, was instrumental in creating the governing legislation and knows the intentions behind the ballot measure and the law. As former Chairman of the Senate Transportation Committee for 12 years Kopp stated for the record. “It is my opinion the project is not lawfully eligible to receive Proposition 1A bond funds.” Quentin Kopp, not known for his warm and fuzzy demeanor, has always been a proponent of high-speed rail. Love him or hate him, he does have the reputation of being all about the rule of law. This article will concentrate just on his declaration and the reasons behind the statement and we will examine others at a later date.
Quentin Kopp states, ” The plan has been distorted in a way directly contrary to the high-speed rail plan the Authority attempted to implement while I was Chairman, namely, a true HSR system containing all the features, terms and protections desired by the Legislature and honoring restrictions placed upon use of Proposition 1A bond proceeds by the Legislature."
He offers several examples of violations, we will examine three.
The usable segment debate
He brings us back to Dec 2, 2010 at the HSR Board meeting when then Deputy Attorney General George Spanos advised that “proposed construction of a section of track between north of Fresno to north of Bakersfield was not a usable segment but a subset of a usable segment.” Kopp further stated, “That legal advice conformed to my understanding of “usable segment,” both then and at all times since.”
Judge Kopp says that “funding must be sufficient to ensure completion of that particular usable segment. He goes on to say that the purpose of such provision is protection of the State from risks that a portion of the system would be abandoned or uncompleted because of lack of money to finish construction. Such rigid funding protections are an integral part of the statutory scheme and ballot measure.” http://stateofcalifornia.granicus.com/MediaPlayer.php?clip_id=66 MM 2 hr:34min
Kopp denies the term usable segment would ever refer to conventional rail, which has been an argument of the Authority in the past. He says the construction segment cannot itself qualify as a usable segment because it is not electrified. “ Prop 1A and its statutory predicate (AB3034) require each usable segment must be suitable and ready for genuine high-speed rail operation, electrified and containing all components of a genuine HSR system.”
Blended System: using existing infrastructure in Northern and Southern California
He does not believe the blended system meets the test of IA because it cannot meet the demand of the number of trains required, that is, make the achievable operating headway time of five minutes or less between trains. According to Kopp, prior to the Authority’s plan released on April 2, 2012, the business plans were based upon 10-12 trains per commuter hour.
Note: Now the plan says 3 to 4 trains per commute hour. The end result will be fewer riders, less revenue and a high-likelihood that a forbidden state subsidy will be required to run the service.
Kopp believes in the creation of the “blended system,” that the Legislature approved seizure of approximately $1 million dollars from Proposition IA bond proceeds for use for regional and commuter rail transit purposed on the San Francisco Peninsula and in Southern California. Kopp believes no part of the $9 billion dollars reserved for high-speed rail was designated for urban or commuter rail. Such diversion of funds from the Central Valley undermines funding prospects, for that area, rendering risk of non-completion much higher.” He says in 2008 the intention was clear and that “was to build qualified (under statutory definition) usable segments, one at a time, and do not begin a new usable segment until funds are committed and sufficient for completion of the next usable segment, with electrification of every segment from the outset.”
He believes that for HSR will not succeed financially if it must share tracks with conventional or commuter rail. As noted, without its own dedicated tracks, not nearly as many HSR trains can operate per day. Judge Kopp believes the track-sharing arrangement with Caltrain represents an example (Los Angeles to Anaheim represents another) of the “Authority’s current alteration of the project from genuine HSR system to a distortion of such, using terms such as “blended system” to describe the present plan.”
He goes on to say “those concepts contravene the Authority’s representations to the public that a true HSR system would be built with all $9 billion in bond money from Proposition 1A spent for exactly that. To me, the Authority Chairman during all the planning and pre-November 4, 2008 efforts regarding the bond measure, this constitutes the greatest betrayal of all in the context of the original intent and promises to voters. The project, as now planned rather than what was promised, constitutes a distortion and mangling of California’s HSR project and promises to the voters.”
Connectivity Funds Usage:
Regarding connectivity funds, which $950 million was reserved, he believes that is where it is permissible to improve or modify conventional rail system. He believes” the separation of the connectivity funds from the HSR funds implies that the $9 billion portion was not to be used for that purpose.”
Kopp does not believe the Central Subway system in San Francisco is eligible for connectivity funds since it does not connect to HSR and in fact even worse, the project changes the route of an existing San Francisco Municipal Railway light rail line (called the T third line) and by doing so eliminates the segment of that line which would connect to the HSR system at the San Francisco Transbay Terminal. So bottom line it spends $61,300,000 of connectivity funds and” it destroys connectivity” which he believes constitutes an illegal expenditure under Proposition 1A.”
There are many other excellent declarations, 14 in total which will be written about in later articles. See the Kings County website; at the bottom of page has a link to all the declarations and legal briefs. http://www.countyofkings.com/
The Attorney General’s office will have 30 days to reply and the plaintiff, the County of Kings, John Tos, And Aaron Fukuda) will have until April 29th to file a closing brief and the court date is May 31, 2013.