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The Public awaits Court of Appeal decision on the high-speed rail project

Stuart Flashman and Mike Brady battle the "System"
Stuart Flashman and Mike Brady battle the "System"
K. Hamilton

First of all, it’s still alive but the theatrics with the HSR project have been lately like the Netflix’s House of Cards series. Instead of Francis Underwood playing the powerful US House Majority Whip with seemingly boundless power to make or break political careers, Governor Jerry Brown enters the stage. He seems willing to do anything to keep his train project together by keeping a tight grip on his democratic legislature so his vision can be realized despite common sense.

But Brown’s dream is not going on behind closed doors nor on TV but in real life, in plain sight for the public to see. Election time is around the corner and there may be repercussions for those who are afraid to say the train project is a folly. Fiduciary responsibility is a key duty for legislative members to demonstrate.

Signs of breaking ranks have been obvious lately with Lieutenant Governor Newsom saying we shouldn’t be building this train. Perhaps signaling others it’s ok come out and finally say, “the Emperor has no clothes.” But perhaps everyone is waiting for the court to end it since no one wants the responsibility of ending the Governor’s dream or to catch the political wrath that might befall traitors who break the party line. Timing is everything. Chris Reed from Cal Watchdog has his own theory. He heard, “that there was about to be a revolt, but then the Governor directed this writ to be filed and told everyone to shut up,” and insider told me in an email.” Others have speculated that the Legislature is waiting for the answer on the Appeals before they'll stray from the Governor's pet project.

Since Brown’s rail cases have lost in the courts, his administration is attempting to overturn those decisions by first filing a Supreme Court Brief, which was promptly pushed down to the Appellate court.

New win in court:

There was a new win of sorts for project opponents in a March 4th decision by the same Sacramento Superior Court Judge Michael Kenny to allow Part B of the Prop 1A case to move forward. Note this was only permission to move forward and hear the case, not a decision.

According to an article with Cal Watchdog.com the state attorney’s notified co-counsel Stuart Flashman within days of that decision that they intended to file an opposition brief with the Appellate court.

They filed what is known as an Extraordinary Writ to the Appellate Court. Flashman wondered what could be the rationale for an extraordinary writ. Flashman said he doesn’t understand the need for urgency and explains it’s like someone yelling, “My house is on fire! My house is on fire! You have to do something!” Yet when firefighters arrive, they find the fire is only on a barbeque grill.

“There’s no fire here,” Flashman said. “Nothing has been decided. What is the damage? What is the harm? There is no decision. It’s not as if there is an injunction in effect.” It is unclear if the Appellate court will take this newest appeal from the Brown administration.

Let’s examine why the Attorney General’s office representing Brown and the High-Speed Rail Authority might have sent this 2nd Extraordinary appeal to the Appellate court. According their brief:

There is no time: The brief says we can’t go through the normal course of appeal.

“These issues cannot wait appeal. Like High-Speed Rail I, this petition concerns a matter of great public importance- the commencement of construction of the largest infrastructure project in the State’s history and the potential loss of billions of dollars in federal grants to build it.”

Let’s be real here, there is no emergency, this tactic has always been the MO (modus operandi) of the Rail Authority. While it’s true there is a race to build something, anything using ARRA funds for the September 2017 end date or they will lose the ARRA portion of the $3.24 billion dollars in federal grant funds.

See an example of this rush tactic in 2010. Look at those environmental completion promises.

A blast from the Past:

April 15, 2010- Senate Budget Sub Committee #2- with then Senator Simitian and then HSR board member Rod Diridon are in an exchange before the committee.

Simitian: Two issues, Environmental work has to be completed on certain segments in order to get Federal Stimulus funds by September 2011. Is that correct? Can you make the deadline?

Diridon: We can meet it on the 4 corridors if we lose no time.

Simitian: Let me weigh-in with an opinion of this issue of time and delay. I appreciate the fact that people have a sense of urgency, I understand time is money. I was among those members of the legislature that voted against a four-year delay in placing a measure on the ballot some years ago.

That being said, that sense of urgency cannot be an excuse for failure to fully perform or to deliver or not provide information. I worry that folks think they can hustle us along by using whatever is deadline is handy for that purpose. My judgment is more important to get it done right, than to be timely and wrong. Timely and wrong is not a place I want us to be.

If you’re trying to persuade the legislature on these issues, I understand that there are federal requirements. I understand they are real. They are tangible. I understand the dollars are significant but they pale in comparison to the tens of billions of dollars that could be misspent if we make bad decisions. (http://www.examiner.com/article/california-high-speed-rail-budget-request-state-senate-subcommittee-on-finance-part-2

There is another reason the Rail Authority does not want Part B of the Tos case to be heard, one theory is, they are not prepared to go to trial. They do not want outside evidence coming in that shows violations of Prop 1A. Actually Judge Kenny had not ruled concerning what evidence he would allow to be argued.

The Authority could lose the case because according to Attorney Ray Carlson who filed an Amicus Brief for the Kings County Water District (friend of the court document], it failed to properly prepare for the second part of the case.

The Rail Authority submitted only two declarations, Rail Authority engineering manager, Frank Vacca and Deputy Attorney General Denae Aitchison. Vacca's declaration is an attempt to counter opponents’ claims that the rail project cannot make the required 2 hour and forty minute time between San Francisco to Los Angeles and 30 minutes between San Jose and San Francisco. Deputy Attorney General Denae Aitchison's declaration was about an older ridership number challenge. They filed a total of 7 pages for both declarations.

The plaintiffs, on the other hand, submitted 14 declarations covering 279 pages of sworn written testimony about the inadequacy of the project costs, travel time, operating costs and the strong likelihood that the train will require an operating subsidy.

The declarations include Quentin Kopp's former State Judge, State Senator and Chairman of the High-speed Rail Authority. He declares that the project does not meet Prop. 1A requirements. Judge Kopp’s is the first declaration of the previous link.

Ray Carlson, Attorney who filed an Amicus Brief for the Kings County Water District summed it up at the February 14th hearing.

“Money is being spent now. This phase of the case is not moot. The defendants could have brought this motion, many, many, many months ago and instead they decided to test the waters and they didn’t like the waters. They are bringing this motion now at the last minute in order to avoid consequences of the choice that was made by not proffering any evidence in support of an opposition to the 526A claims. We would submit your honor that the motion should not be granted as an equitable matter for those reasons.”

Another reason they do not want the second half of the Tos/Fukuda/Kings County case to move on is that the Rail Authority does not want an open case challenging Prop 1A. The Authority’s goal is to wipe out all current battles concerning Prop 1A and prevent others from being filed. They'd have a shot then at starting construction if they can finish all their environmental work and get their master rail agreements completed. In their brief it says: `

“Unless this Court intervenes to correct the superior court’s error, there will be a multiplicity of suits every time the Authority issues or revises a plan.”

In regard to the second half of the Tos/Fukuda/Kings County case and future cases, the Authority's attorneys plead this to the Appeals Court:

“This Court’s immediate intervention will prevent a needless and expensive trial on non-justiciable claims.” They say that the “if the court does not take this writ, it will inevitably face an appeal following a final judgment in Tos.”

Conclusion:

What’s at stake is the destruction of farms, dairies, orchards that provide food for the nation. It’s a price that most are unwilling to pay. There’s not a nickel of private investment, no more federal funds in sight to complete even the first legal segment, why should the Rail Authority be able to start any construction?

Here’s a rather frank view, Union Pacific and BNSF Railroads view of the Rail Project in a Public Utility filing made January 31, 2014 about electro-magnetic fields. It doesn't sound like they're ready to sign master agreements for the entire HSR project.

“The California High-Speed Train Project (“CHSTP”) is a project that has been defined by its uncertainty: uncertainty about when construction will start, how it will be paid for, where it will run, and how it will achieve its statutory performance requirements. This proceeding is adding to the list of uncertainties and creating the probability that the project will cause unreasonable safety risks and conflicts with other railroad systems.”

And last, in the Attorney General’s failed attempt to convince the California Supreme Court to hear their case, they included on page 20 of the first extraordinary writ filing a reference to a Washington Post Editorial from Charles Lane. The first line reads, “Who is more powerful, the President of United States or Michael P Kenny.”

This isn’t about Judge Kenny. It’s about the principles he represents and who he protects. Whether you agree or disagree with any issue at hand, the rule of law should be above any partisan issue or above the desires of any politician even the President of the United States.

Legal observers expect the Court of Appeal will take the case after reading the legal briefs and hear the pleadings late April, early May with a decision shortly thereafter.