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High-Speed Rail argues in court for access to Kings County land

Early start will hurt the Central Valley
Early start will hurt the Central ValleyR. Bergman, Central Valley

Back in May 2013, the High-Speed Rail (HSR) Authority filed encroachment permits to gain access to King’s County property on the eastern Route of the HSR route. This is located in the Fresno to Bakersfield Segment.

The High-Speed rail Authority is seeking access to 58 different locations in order to evaluate site access, to do geotechnical investigation, to look for wildlife sightings and to note any obstruction of habitat and sensitive sites. They’re documents show they also want to test soil by drilling deep into the land. The work is related to the acquisition and use of the property for the High-Speed Train system.

Kings County refused entrance for many reasons. This is a quote from a correspondence between the HSR personnel and county personnel.

“Your permit application is denied. Granting this permit would further a project for which we have yet to receive an underlying application, lacks sufficient detail and, based on the sketchy information provided to date, shows that the project is inconsistent with the County's General Plan and safety and planning policies. No encroachment permit will be issued until such inconsistencies are adequately identified and resolved.”

There are many other reasons that the County feels they are in the right. First the HSR Authority filed this action as a separate project different than the High-Speed Rail project, and they say that this smaller project is exempt under CEQA since it doesn’t have a permanent environmental effect.

While this seems disingenuous since they refer to the high-speed rail project in their legal briefs and correspondence, there’s another big problem, the county owns only surface rights. They do not own the property deep into the soil. Yet, King’s county was the only “property owner” served with this request. The Authority wanted to obtain access to conduct tests as much as 200 ft. into the soil. This surely would encroach on other property owners rights and those owners who were not served.

Another issue is that the HSR Authority used the eminent domain law to make their request to the county and there is a subsection under that law called pre-condemnation law. This process is exempt under California Environmental Quality Act because these are supposed to minor intrusions without permanent effects to the property but Kings County Attorney Colleen Carlson doesn’t believe drilling 200 ft. is would be minor intrusion.

Carlson also points to another big problem, “You can’t use the condemnation process unless you have a final project.” It is true; the High-Speed Rail Authority has not officially selected a route for the Fresno to Bakersfield segment. Only a staff recommendation has been made on November 17, 2013 for the board to select the Eastern route through King’s county.

A final EIR will not be approved by the High-Speed Rail Board until at the earliest their board meeting late April which is schedule to be held in Fresno County. Even after that, then there is a comment period of at least 30 days. So using a pre-condemnation process seems premature. It’s almost as if a predetermination of the route has been made.

In addition, Dan Richard, Authority chairman also made a promise to Kings County on June 4, 2013, he said, But I will make this promise to you sitting right here on the record, which is I won't vote to adoption EIR or EIS for this alignment if you're telling me that the data on which we're making that decision is still not consistent with where the county is.” Dan Richard, HSR Authority Chairman.

For the record, the County is not satisfied and has not received answers to many questions they have asked for several times. Here are a few issues that are still open. They have numerous requests filed for maps, streamlining permitting processes for dairies, Hwy 99 issues, water well counts, loss of Amtrak stations, water levels in the Hanford West Alignment and more. Yet approval of the route of the Fresno to Bakersfield segment is scheduled to being presented to the High-Speed Rail Board for approval later in April.

In Kings County Court legal brief they say that the “Petitioner’s urgency is necessitated only by its own delay and failure to communicate, 
coordinate and comply with legal requirements.” The High-Speed Rail Authority has most recently used the lack of time as one of the primary reasons it should receive special privileges in the court system. See Appeals Court Article.

In a letter dated October 30, 2013, the County sent a letter to Central Valley Regional Director, Diana Gomez, HSR Chairman Dan Richard and the board members of the High-Speed Rail Authority by Colleen Carlson, attorney for Kings County, “It is difficult to keep things professional when your organization behaves so unprofessionally. It is not our mission to embarrass, but you most certainly should be. This is the biggest transit project in California’s history yet you are consistently getting the cart before the horse. It is not our mission to get in the way of your project. This project belongs to all Californians and should be a model, not a chronicle of what not to do. We are trying to protect the County and its communities and all taxpayers from the clear ineptness you consistently portray. That ineptness will translate directly to destruction in our community and an extraordinary burden on all taxpayers. That is not acceptable here and should not be anywhere. We will not stop insisting on quality and accountability.”

Another interesting point is when the Rail Authority requested access to Kings County’s property, they only requested drilling on the East side and unless they have results for the western route, it might indicate that an early decision of some kind had been made though no final vote has been made and no Project level EIR has been certified.

On the County’s side is very recent ruling on March 13, 2014 by the Third District Court of Appeal. According to King’s County’s legal brief, the Property Reserve, Inc. v. Superior Court had “strikingly similar petitions” A governmental agency was attempting to enter someone’s property and do surveys, geographical tests and drill borings for a large-scale water project.

The court ruled that geological activities, which would leave columns of bentonite in the ground constituted a “taking.” The also noted that Environmental “takings,” were dependent on many factors including what they were doing, how long the party would be on the property and the economic damage.

But there are laws on the side of the High-Speed Rail Authority, the Appellate court ruling noted, “Finally, noting the conflict between the entry statutes and Government Code section 7267.6, the court found that the entry statutes fail to protect constitutional rights and protections by disposing of a jury determination of just compensation, shifting the burden of proof for damages onto the landowner, interjecting proof of causation into the proceeding, and requiring the landowner to bring his own suit to assert his constitutional rights.

The County agrees with the court’s most recent decision since the Authority “is seeking entry onto property in the same way and for the same reasons, the petition should be denied.”

The case is set to be heard, April 11, 2014 in Kings County, Department 4 at 9:00 a.m.