As first steps to get ready for the November 8, 2013 remedies hearing for the Tos/Fukuda/Kings County lawsuit (Prop1A lawsuit), the plaintiffs submitted to the judge the steps needed to get the project on a legal path in keeping with the clear language of Proposition 1-A.. Recall that on August 16th Judge Kenny ruled
that the Authority's funding plan violated the provisions of Proposition 1-A in two important respects: (1) it failed to identify the funds reasonably expected to be provided to complete construction of the usable segment designated by the Authority, and (2) it failed to certify that it had completed all necessary project level environmental clearances necessary to proceed to construction on that usable segment.
Following Judge Kenny’s ruling of August 16, the plaintiffs filed a brief asking the court to make the Authority "go back to square one," and prepare a new funding plan for the project that complies with state law, instead of continuing to rely on the existing plan, which the judge said violated state law.
Plaintiffs are also asking the judge to restrain the Authority 1) from making any further construction-related expenditures or financial commitments, and 2) from commencing construction until a funding plan that complies with Proposition 1A has been approved.
Other highlights of the brief:
• They ask the court to have the Authority rescind its invalid funding plan.
• They ask the court to require the HSR Authority provide in the next 30 days a full accounting of all Prop 1A monies that have been expended and/or obligated for expenditure by category of expense. Note: Many attempts have been made to obtain these numbers but so far no one has been able to obtain this information.
• They ask the court’s consideration to permanently enjoin and prohibit expending or entering into commitments to expend, any Prop A Bond funds towards the construction of the Initial Operating Segment South without first complying with the funding plan requirements of Proposition 1-A
• They ask the court to temporarily restrain expending any of the federal American Recovery and Reinvestment Act funds granted to said Respondent and designated for the construction of the Initial Construction Segment until such time as the Court has heard and decided Plaintiff’s non-writ causes of action.
• They ask the court to direct the Authority if they submit a new funding plan, substituting for the defective one, to have all the sources of funding identified and require the completion of all project level environmental work. The court found these two items deficient in the November 2011 funding plan (the only funding plan ever prepared) on August 16, 2013.
• They ask the court to require the Authority take each step in logical sequence before the next step is undertaken. That chronological sequence is outlined in the brief.
• They ask the court to require the Authority to correct the funding plan before it can move to the updated or revised plan. The idea is that second plan is dependent on and builds upon the first plan. Example there is no environmental requirements in plan #2 because it was supposed to be completed before the first plan was proposed. It is clearly supposed to be done in the sequence provided in Proposition 1-A.
While the Authority has not done this updated funding plan required before they obligate funds and construction can begin, it signed a construction contract with Tutor Perini for a particular segment for nearly $1 billion on the very day the ruling was announced from Judge Kenny’s court. The signing of this contract obligates state and federal funds.
Plaintiffs ask the court to issue an “injunction prohibiting respondent from preparing, approving or submitting a second funding plan until it has remedied the defects in the initial funding plan to the court’s satisfaction.”
The High-Speed Rail Authority represented by the Attorney General’s office will have the opportunity to respond by October 10th. The Plaintiffs have the last word and will respond to the Authority’s brief by October 25th. The case will be argued before the judge on November 8, 2013.
For those who wish to read more on the Remedy brief by Flashman and Brady, it is provided below. The original court ruling is below as well.