HSR Litigation

Tos II Case Progresses

A hearing was held on April 26 on CHSRA’s Demurrer. The Court’s tentative ruling denied the motion for preliminary injunction and sustained the demurrer. At the hearing, the Court adopted the ruling on the motion for preliminary injunction, and took the demurrer under submission. The final ruling adopted the tentative ruling sustaining the demurrer, effectively knocking the case out of court, but granted leave to amend the Petition.

Plaintiffs filed a
Second Amended Petition on May 25, in response. After the announcement of the Federal Transit Administration grant to Caltrain for its Electrification Project in May, 2017, the Director of the Department of Finance issued a letter authorizing CHSRA to obligate $713 million in bond funds for Caltrain.

Disappointment in ARB Case

After three years of hard work, TRANSDEF’s challenge to the California Air Resources Board’s adoption of its 2014 Scoping Plan was rejected today by the Court. Disappointingly, the decision was based purely on the technical, procedural objections brought by ARB. ARB never defended its decision to include a GHG-increasing measure in a plan intended to reduce GHGs.

In oral argument, TRANSDEF’s attorney, Stuart Flashman, proposed a new way to look at CEQA GHG impacts--one that we have not heard being used before: Because of the global climate change tipping point being close to the present, he distinguished near-term GHG emissions as being far more significant an impact than emissions occurring after the tipping point has been passed. While a very strong argument, the Court ruled that TRANSDEF’s comments had not made that point, so that we were barred from litigating it. We suggest this issue be raised in future cases.

Hearing in ARB Case March 17

TRANSDEF’s challenge to the Air Resources Board’s inclusion of HSR in its 2014 Scoping Plan as a GHG emissions reduction measure is now fully briefed (see bottom of page for briefs). A hearing was held March 17, 2017 at 10:00 am in Department 24, Sacramento Superior Court.

TRANSDEF has submitted
numerous comments to ARB on its 2017 Climate Change Scoping Plan, which is scheduled for approval in April 2017.

Briefing Continues in ARB case

TRANSDEF filed its Opening Brief in its challenge to ARB’s inclusion of HSR in its 2014 Scoping Plan. It’s been a long hard slog since we filed the case back in 2014, but things will move more quickly now. See this page for a copy of the brief, for ARB’s Opposition Brief, and for a description of the case’s complicated history over the past two years. Here’s the Brief’s Conclusion: Read More...

Allies Challenge AB 1899's Constitutionality

Five individuals, three non-profit organizations, the Town of Atherton and Kings County amended their lawsuit today, seeking a ruling that the California High-Speed Rail Authority's (CHSRA) efforts to obtain construction funding from a voter-approved bond measure violate the state constitution. The case is the second one filed as Tos v. California High-Speed Rail Authority, or Tos II. Legal papers are available here.

The Third District Court of Appeal had previously ruled that Prop. 1A, the 2008 $9.9 billion high-speed rail bond measure, created a "financial straitjacket" restricting the use of the bond funds. Plaintiffs allege in their suit that the Legislature's passage of AB 1889 created a tool that attempts to evade the bond measure's restrictions.

However, because AB 1889 fundamentally alters that voter-approved measure, plaintiffs allege it is unconstitutional, as are the funding plans that rely on it. Newly added as a plaintiff is retired judge and former CHSRA Chair Quentin Kopp, who helped write Prop. 1A and has joined the case to defend that measure as the voters approved it.

CEQA Preemption Appeal Fully Briefed

The appeal of the CEQA Preemption Order by the federal Surface Transportation Board for California HSR is now fully briefed. Oral argument has not yet been scheduled. The briefs are all posted on the STB page.

Caltrain Electrification Suit Fully Briefed

The challenge to Caltrain’s Electrification EIR is now fully briefed. (See bottom of page.) Petitioners assert that the electrification project is really the first phase of the HSR Blended System on the Peninsula, making the EIR an impermissibly chopped study of the project’s overall impacts. A hearing has been scheduled for 9 AM, September 2, 2016 in Contra Costa Superior Court.

Press Coverage of HSR Hearing

The hearing on the Tos Part II challenge to CHSRA compliance with the requirements of Proposition 1A was held on February 11, 2016. For a listing of the press generated by the hearing, see the bottom of this page.

High-Speed Rail Dragged Back to Court

The California High-Speed Rail Authority, along with the Governor, the State Treasurer, State Controller and others are back in Department 31 of the Sacramento Superior Court on Thursday, February 11 at 9:00 am. They are fighting a motion by the Tos plaintiffs for an injunction that would shut off all funding for the construction of the current HSR project. A full description of the case, along with the briefs, is available here.

No One Wants To Invest in CA HSR!

The California High-Speed Rail Authority put out a Request for Expressions of Interest in getting involved in the funding of the HSR project. The 36 replies that came back said, in effect, “No thank you. We will need a guarantee of revenue before we will be willing to do that.” See the Los Angeles Times coverage.

Because an operating subsidy is prohibited by Proposition 1A, that means that the proposed HSR system cannot be built. It also means the project should not be in construction now, because there is no way enough sections can be funded for there to be a viable system. For a discussion of the issue of adequate capital to construct the project, see
What’s Wrong?

Opening Brief Filed in STB Appeal

TRANSDEF and its allies Kings County, Kings County Farm Bureau, California Citizens for High-Speed Rail Accountability, Community Coalition on High-Speed Rail, California Rail Foundation, and Dignity Health today filed the Opening Brief in their appeal of the federal Surface Transportation Board’s Declaratory Order. That decision eliminated the California High-Speed Rail Authority’s need to comply with CEQA, due to the STB’s assertion of federal preemption of all federal, state, and local regulations pertaining to interstate railroads. See the Briefs.

Taxpayer Challenge to High-Speed Rail Files Devastating Brief

The legal team challenging the California High-Speed Rail Authority's compliance with the 2008 Proposition 1A High-Speed Rail Bond Measure filed a
supplemental brief today. It explains the legal significance of a secret document recently uncovered by the Los Angeles Times. The Authority had resisted releasing it. Pressure from the State Assembly Republican Caucus and several Republican congressmen eventually forced the Authority to make it public. After the Authority capitulated, the court allowed the plaintiffs to file a supplemental brief.

Plaintiff Aaron Fukuda said "We hope this brief puts a stake in the heart of this boondoggle. The Authority's goal line defense to keep this document secret tells you just how damaging they knew it was."

Attorney Stuart Flashman said, "It’s understandable why the Authority wanted this evidence kept hidden. It directly contradicts the cost estimates in the Final 2014 Business Plan. The Business Plan’s deceptively lowered costs successfully pulled the wool over legislators’ eyes. Two months later, they gave the Authority billions of dollars in a multi-year gift of climate change mitigation funds. It’s hard to believe that would have happened had they known what a bottomless money pit the project had become."

A verdict for the plaintiffs would not only prevent HSR bond funds from being used for construction, it would shut off federal grants and state climate change funds as well.

CHSRA Releases Blockbuster Document

News broke late Tuesday that the HSR document reported on by the Los Angeles Times has been released by CHSRA.

Editorials in the
Los Angeles Times and San Diego Union-Tribune called it out as a red flag for the HSR project. See the Taxpayer Lawsuit for further details on how this affects the challenge to CHSRA.

TRANSDEF Files STB Challenge

In the second of two lawsuits filed today, TRANSDEF joined a coalition of non-profits and Central Valley county governments to challenge the decision of the federal Surface Transportation Board (STB) preempting the application of CEQA to California’s HSR project. In what we consider to be a shocking use of state power, the California Attorney General has previously sought to eliminate the application of CEQA to the state’s HSR project.

On October 9, 2014 the CHSRA
petitioned the STB to block California courts from issuing injunctions that could stop construction of the HSR project. In an ugly turn of events, the STB issued a ruling on December 12, 2014 that blocked not only injunctions but all application of CEQA to the HSR project. Read More...

Supreme Court Turns Us Down

In a very disappointing decision, the California Supreme Court today denied the Petitions for Review by the Tos petitioners, the Howard Jarvis Taxpayers Association and the First Free Will Baptist Church on the Third Circuit High Speed Rail rulings in a case titled California High-Speed Rail Authority v. Superior Court.

Supreme Court Hears from Far and Wide

After receiving an Answer from the California High-Speed Rail Authority, petitioners for review filed their replies. A large group of distinguished organizations, elected officials and governmental entities filed amicus curiae letters with the Supreme Court, requesting that it review the HSR cases. See this page.

CHSRA Declares Independence from CEQA

In a move that screams desperation, the California High-Speed Rail Authority filed a petition with the federal Surface Transportation Board for a declaratory order that would prevent any California court from issuing an injunction to stop the construction of the Fresno-Bakersfield portion of the project. CHSRA wants to hide behind federal preemption. See this page.

By running to the feds for protection, CHSRA has told the world it cannot and will not play by California rules.

In an earlier move seeking to protect its claim to federal preemption of environmental laws, CHSRA asked the Supreme Court to depublish the appellate decision in
Town of Atherton II. See bottom of this page.

Wall Street Journal Editorial on HSR Case

In a stunning editorial entitled California's Democratic Derailment, the Wall Street Journal calls upon the California Supreme Court to save democracy by overturning the appellate decision that declared the CHSRA’s violation of Proposition 1A unenforceable: Read More...

CHSRA Tries to Ditch CEQA

After losing part of an appellate decision, the California High-Speed Rail Authority filed a request with the California Supreme Court today, asking it to depublish the 7/31/14 ruling. That would mean no other court could consider the ruling to be precedent, thereby making it easier to argue that CEQA doesn’t apply to railroad projects that are under the jurisdiction of the Federal Surface Transportation Board. All the papers are posted at the bottom of this page.

HSR Opponents Seek Supreme Court Review

Attorneys challenging the California High-Speed Rail Authority's bond funding presented a press conference today to explain the petition they filed or will be filing with the California Supreme Court. The petitions ask the Supreme Court to review the Third District Court of Appeal decision overturning two trial rulings that had hamstrung Californiaʼs High-Speed Rail project. The Appellate Court had ruled that "The Legislature appropriated the bond proceeds based on the preliminary funding plan, however deficient, and there is no present duty to redo the plan."

The Court also held that no evidence was needed to show that it was “necessary or desirable” to issue bonds, reversing the trial court ruling that had prevented the sale of bonds and effectively erasing that provision from the ballot measure.

Michael Brady, representing John Tos, Aaron Fukuda and Kings County, said "The Authority is now on life support; it has been granted a stay of execution by the Court of Appeal. Today's filing seeks to lift that stay." Stuart Flashman, co-counsel added, "The Court of Appeal ruling overturns long-standing precedents in the interpretation of bond measures. If these decisions stand, voters will lose trust in future bond measures."

The documents and related case materials are all available at the bottom of this
page.

Opponents of HSR Strike Back

After the Court of Appeal decision was released, HSR opponents didn’t take the defeat lying down. Instead, they filed two Petitions for Rehearing, asking the Court to reopen the case and allow further briefing and a hearing. Specifically, they claimed that the Court had used legal arguments and case authorities that hadn’t been briefed by the parties. Under these circumstances, they are entitled to a rehearing. See the petitions at the bottom of this page.

Court of Appeal Hits HSR Critics Hard

The Third District Court of Appeal issued rulings in the Atherton II appeal and the Authority’s Extraordinary Writ petition recently. Both of them were very hard on HSR critics. See the posts at the bottom of the pages for links to the rulings and brief explanations.


The Third District Court of Appeal late yesterday overturned two trial rulings that had hamstrung California’s still-embattled High-Speed Rail project. The Court ruled that "The Legislature appropriated the bond proceeds based on the preliminary funding plan, however deficient, and there is no present duty to redo the plan."

Plaintiff's lead counsel, Michael Brady, was disappointed with the ruling. He said "The voters approved Proposition 1A only because it included stringent requirements to protect the state from financial risk. The Court ruled that although the project did not meet the requirements, taxpayers have no remedy now. They can only sue after many more tens of millions of dollars are spent on design and analysis.”

Stuart Flashman, co-counsel added, "The court has essentially allowed the Authority to ignore promises it, and the legislature, made to California’s voters. It bodes ill for voters’ willingness to trust such promises in the future. Supreme Court review appears warranted.”

Suit Challenges HSR Funding: Says It Worsens Climate Change

TRANSDEF, the Transportation Solutions Defense and Education Fund, announced that it filed suit in Fresno County Superior Court today challenging the Governor's fallback funding scheme for High-Speed Rail (HSR). HSR was included in the list of measures to reduce greenhouse gas (GHG) emissions contained in the Update to the Scoping Plan recently adopted by the California Air Resources Board (ARB). The Scoping Plan is California's master strategy for responding to climate change.

TRANSDEF’s attorney, Stuart Flashman, commented: “As a former scientist, I was disappointed that ARB ignored the scientific evidence. The huge spike in cement production needed to build all the viaducts and trackways for the Governor’s high-speed rail line will result in greenhouse gas emissions far outstripping any potential benefit from the line. Including high-speed rail in the Scoping Plan runs directly counter to the legislature’s intent in AB 32 and violates the direct mandate of the law."

Six Challenges to Fresno-Bakersfield FEIR

TRANSDEF has collected the six petitions that challenge the Fresno-Bakersfield project level FEIR. The show begins...

Appeals to be heard in May

Oral argument on three cases involving the CA HSR Authority will be heard by the Court of Appeal in Sacramento in May. The Town of Atherton appeal will be heard at 2:00 on Tuesday, May 20. The Extraordinary Writ for both the Tos case and the Validation case will be heard at 9:30 on Friday, May 23. The Court is located at 914 Capitol Mall, Sacramento.

A Flurry of Amicus Briefs Hit Court

Transportation agencies, worried that they could lose their funding from the HSR Bond, filed amicus briefs with the Court of Appeal, as did Sen. Galgiani, the author of AB 3034. The briefs and their replies can be found here.

Court of Appeals to CHSRA: No Way

The Court of Appeal summarily dismissed the CHSRA’s second Petition for Extraordinary Writ of Mandate, saying in effect that there were no legal grounds upon which to grant relief. It is expected that the desperate CHSRA will attempt to get relief from the California Supreme Court, where success is exceedingly unlikely. See all the legal papers.

Authority Appeals Yet Another Decision

In a fascinating demonstration of desperation, the Attorney General filed a second Petition for Extraordinary Writ on behalf of the CHSRA, challenging the March 4, 2014 ruling in Tos that denied its request to end the Tos proceedings. CHSRA had requested a judgment on the pleadings already filed in the case. The Court ruled that a trial be held to determine whether the Authority’s HSR project complies with Proposition 1A.

The Court of Appeal will decide in the near future whether to call for further briefing or dismiss the petition.

The same Court of Appeal has ordered oral argument in the
Atherton II appeal for May 20, 2014. It is possible the oral argument for the two Extraordinary Writ Petitions will be held then as well, as the cases are related.

Court Rules Against Authority, Again

Sacramento Superior Court Judge Michael Kenny ruled today that the CHSRA had to stand trial on the question of whether its HSR plan complied with the requirements of Proposition 1A. The Authority had sought to end the case.

Three Cases Await Decisions

Filings are now complete in the three currently pending HSR cases:

The Sacramento Superior Court, Department 31, will hold a hearing on Friday, February 14 on the Defendant’s Motion for Judgment on the Pleadings. (See bottom of
page for filings.)

The Court of Appeal has a
Petition for Extraordinary Writ (initially filed with the Supreme Court) before it. A Preliminary Opposition was filed by the Tos Plaintiffs and Kern County. The Court of Appeal will decide in the near future whether to call for further briefing or dismiss the petition.

And finally, the Court of Appeal is also considering the issue of
federal preemption of CEQA raised by the HSR Authority. Oral argument will be held, either prior to or consolidated with its hearing on the appeal of Atherton II.

Flash Bulletin

The California Supreme Court has ordered the transfer of the California High-Speed Rail Authority’s Extraordinary Writ petition to the Court of Appeal, thereby demonstrating its independence and commitment to the law, not to mention its unwillingness to do the bidding of the Governor.

Ken Orski Nails It!

The very best writing on HSR:
Orski 1

Authority Pleads for End to Beating

The California High-Speed Rail Authority filed a Motion for Judgment on the Pleadings, seeking to have the Sacramento Superior Court put an end to its losses in the Tos case. See the papers filed on this motion at the bottom of this page.

Desperate Governor Petitions Supreme Court

In a rather shocking act of desperation, Governor Brown has had the Attorney General file a petition for an extraordinary writ with the California Supreme Court. The petition seeks to get around the two rulings of the Sacramento Superior Court, which have tied up the California High-Speed Rail Authority in knots.

Interestingly, both the Governor and the Chair of the Authority
discounted the significance of the Superior Court ruling when it first came out, and continue to do so. Meanwhile behind the scenes, deputies in the Attorney General’s office were busily working away at a 50+ page brief: “The trial court’s approach to these issues cripples government’s ability to function. The rulings thwart the intent of the voters and the Legislature to finance the construction of high-speed rail...” (p. 2)

The petition is notable for its whining “the world is coming to an end” tone.

See the legal papers here.

Dan Walters: the Beginning of the End

In a column that is amazingly aligned with plaintiffs’ legal positions posted on this site, Dan Walters observes the desperation in Governor Brown’s move to request the California Supreme Court to give relief to the California High-Speed Rail Authority. [Please note that Judge Kenny is erroneously identified as Judge Kelly in this piece.]

Judge's decision also endangers $3.3 billion in federal funds

Great press coverage:
Judge's decision also endangers $3.3 billion in federal funds
California high-speed rail plans stopped in tracks
High-speed rail financing struck down by judge, project in jeopardy
Bullet train snag could affect Transbay Terminal
Sacramento judge's ruling throws bullet train's future in doubt
Locals Participated in High-Speed Rail Court Case
EDITORIAL: Pump the brakes on ‘bullet’ train
Dan Walters: High-Speed Rail 'blended system' may help derail it: It’s time for a backspace-delete. Brown should acknowledge that the project as now planned is doomed and either kill it or go back to the voters with a revision that includes realistic routes and costs and lays out how it will be financed.
“If it's worth doing -- a debatable point -- it's worth doing right and not with legal sleight-of-hand and pie-in-the-sky financing.”

Famous Last Words Department:
High speed rail chief says lawsuits won't stop project: Jeff Morales, Californiaʼs high speed rail chief, says heʼs confident lawsuits filed by South Valley local officials will not stop the project.

Best British Understatement Department:
The Economist: California’s high-speed rail authority emphasised what the judge did not do, telling reporters it was "important to stress" that Mr Kenny did not cancel the project altogether. But if that is a victory, it is not clear how many more wins California high-speed rail can handle.”

TRAC Proposes Plan B for HSR

In the wake of the collapse of the Central Valley project, the Train Riders Association of California has issued its Plan B for High-Speed Rail:

1. The Train Riders Association of California (TRAC) strongly supports a modern High-Speed Rail (HSR) system for California. HSR will be critical in providing interregional mobility to a growing population at a lower environmental impact than widening highways and adding runways. Successful HSR should greatly benefit the economy.

2. Even if the currently proposed $6 billion Merced-Bakersfield project were successfully completed, no funding is available to build the rest of the HSR system. This would leave this very expensive track unused and unusable, except perhaps by Amtrak to save a few minutes on the San Joaquins.

3. Funding is a problem because the California High Speed Rail Authority's plans are not attractive to private investors. The Authority hopes that $26 billion of federal grants will lead to private investment, but the Sacramento Superior Court ruling found that “there is, in reality, no reasonably anticipated time of receipt for any of the potential new federal funds."

4. TRAC is grateful for the Sacramento Superior Court's ruling that the Authority's project does not meet the taxpayer protection requirements of the 2008 voter-approved HSR bond measure, Proposition 1A. Preventing the current project from spending bond funds illegally will preserve the potential for successful HSR in California.


Mercury News Editorial Pronounces Death of HSR Project

The Mercury News published the editorial below on the Court’s rulings. Note the sentence in bold on the Read More page.

Mercury News editorial: High-Speed Rail ruling is right on

A Superior Court judge Monday slowed the California bullet train boondoggle to a crawl.

It's about time. For more than two years, Gov. Jerry Brown and his puppet leading the California High-Speed Rail Authority board, Dan Richard, have overstepped their legal authority and disregarded the will of the voters by pushing ahead full-throttle.

Judge Michael Kenny had ruled in August that the authority "abused its discretion" by failing to secure funds and complete environmental reviews before authorizing expenditures.

This week, he sent the project back to the start by blocking the authority from implementing its 2011 spending plan and refusing to provide necessary legal blessing to the misguided issuance of $8.6 billion of construction bonds.

By any reasonable interpretation, this should put an end to Brown and Richard's bait-and-switch. But, when it comes to high-speed rail, those two aren't reasonable.

In a statement issued after the ruling, Richard tried to deceptively spin what the judge had said. True, as Richard notes, the judge did not stop the project. Rather he left it with no funding plan and the inability to borrow money.

Court Delivers Dual Body-Blows to High-Speed Rail Project

Judge Michael Kenny of the Sacramento Superior Court placed two major roadblocks today in front of the California High-Speed Rail Authority's Central Valley project. The judge had ruled back in August that the Authority's funding plan for the project had not complied with the requirements of the Proposition 1A High-Speed Rail bond measure. His ruling today will prevent the Authority's project from spending bond measure funds for construction until the funding plan is brought into compliance. Because that would require finding at least $26 billion in grants, compliance seems virtually impossible.

In addition, the judge declined today to validate the issuance of High-Speed Rail bonds. The Authority had sought validation, a legal maneuver to protect bond investors from lawsuits challenging the issuance of bonds. Without validation, state Treasurer Bill Lockyer will not allow bonds to be issued, putting the future of the project even more in doubt. With today's ruling on non-compliance with 1A, it is questionable whether the requirements to authorize selling bonds can be met.

The Authority had assured the Court that it would be spending only federal funds to start construction, and that no state bond funds would be used on the project. However, because the federal funds must be matched with state funds, today's rulings mean that state bond funds will not be available to provide that match. That could cause the federal government to rethink whether to put its funds at risk. If the federal government withholds its funds, the project will never break ground.

New HSR Briefs Filed

A Reply Brief by the HSR Authority was filed in the Validation Suit, prior to the hearing held on September 27. Validation briefs are available here.

The Authority asserted at the very last moment in the
Atherton appeal that the Surface Transportation Board’s assertion of jurisdiction over the HSR project has resulted in the federal preemption of CEQA. The Authority is asking that the appeal be dismissed, because it claims that CEQA cannot be enforced. These claims have led to the filing of amicus briefs by prominent environmental organizations. Briefs in the Atherton appeal are available here.

Taxpayer Lawsuit
A series of briefs were filed in the
Tos case which dealt with proposed remedies for the violation of the requirements of Proposition 1A. Plaintiffs have asked that funds for the HSR project be shut off by the Court. Amicus briefs supported that proposal. The Authority’s Opposition Brief in effect claimed that no remedy was needed or even possible, as the construction contracts under way would be fully paid for using federal funds. Plaintiffs filed a devastating Reply Brief which proved that most of the federal funds could not even be used for the two contracts. It must have been extremely embarrassing for the HSR Authority. Read More...

Hoisted on their own petard

After shocking the state by asserting that the California Environmental Quality Act, CEQA, did not apply to the High-Speed Rail project, the California High-Speed Rail Authority is about to taste comeuppance. The Tos plaintiffs, who challenged the HSR project’s compliance with the HSR bond measure’s taxpayer protection provisions, have struck back. They filed papers to join in a motion seeking to halt the state’s validation proceedings. The rationale is priceless: Because the expectation of CEQA compliance is written into the HSR bond measure, plaintiffs claim that the project cannot use bond funds if CEQA compliance is abandoned. Since the preemption issue will be determined in the appeal process, plaintiffs asked that the validation suit be put on hold until the applicability of CEQA is determined by the Court of Appeal.

The bottom line result of all this may be that the CHSRA badly miscalculated in trying to get around an ongoing CEQA appeal, and threw away the entire project. With three interrelated cases simultaneously before the bar, HSR’s legal status is complicated. Please
contact us if you feel further explanation is needed.

Validation: It's a Funny Concept

Fearing an infinite number of lawsuits challenging the issuance of High-Speed Rail bonds, the California High-Speed Rail Authority filed an arcane legal maneuver in the Sacramento Superior Court, seeking to force anyone wanting to sue to put up or shut up. The maneuver is called a Validation Suit. After the Authority has filed its Opening Brief, it asks all persons that are interested in challenging the issuance of bonds to come forward to file an Objection. After the Authority files a reply brief, the Court will then rule on whether challenges to the issuance of bonds are forever banned.

An especially fascinating aspect to this validation suit is that the defendants are identified as “All Persons Interested in the Matter of the Validity of the Authorization and Issuance of General Obligation Bonds to be Issued Pursuant to the Safe, Reliable High-Speed Passenger Train Bond Act for the 21st Century, and Certain Proceedings and Matters Related Thereto.”

Interestingly, the Authority asserts that a validation ruling will not affect the ability of a taxpayers’ suit to challenge the expenditure of bond funds.

here to see the major papers filed in the case.

Killer Ruling on HSR Compliance

Court Rules High-Speed Rail Not Compliant with Bond Measure

Sacramento Superior Court Judge Michael Kenny issued a ruling Friday that the Funding Plan for the $8 billion High-Speed Rail project in the Central Valley is legally defective because it fails to meet the requirements of Proposition 1A, the High-Speed Rail Bond measure. The landmark case, Tos v. California High-Speed Rail Authority, was filed by a farmer, a rural homeowner and Kings County.

The Court agreed that the Authority’s Funding Plan failed to validly certify that for the Merced to San Fernando Valley segment of the project, all environmental clearances had been completed and that sufficient funding sources to complete the segment had been identified. Further briefing was ordered to determine the appropriate remedy.


HSRA seeks federal protection from lawsuits

The California High-Speed Rail Authority filed a brief today asking the State Court of Appeal to dismiss the Atherton petitioners’ appeal on the grounds that the federal Surface Transportation Board had asserted federal jurisdiction over its project.

This brief involved a massive amount of gall, seeing as the High-Speed Rail Authority had not applied to the STB for permission to construct its project until very recently, long after all the briefing in this case had been filed. All materials related to the appeal are available

Historic Court Hearing on May 31

Department 31 of Sacramento Superior Court will be the location of the oral argument scheduled for 9 am on Friday, May 31, 2013 in the case Tos v. California High-Speed Rail Authority. The Tos plaintiffs, two farmers and Kings County, are asking the Court to declare that the Authority has failed to meet the statutory requirements of Proposition 1A.

Two out of ten claims asserted by the plaintiffs will be argued on Friday, with the balance to be considered after a decision is issued. Plaintiffs assert the Authority’s Funding Plan failed to validly certify that for the Merced to San Fernando Valley segment of the project, all environmental clearances had been completed and that sufficient funding sources to complete the segment had been identified.

Proposition 1A included an elaborate set of requirements to protect taxpayers from having to pay for a money-losing unfinished project. By ignoring the statutory requirements, the Authority has set in motion a project likely to become incomplete and stranded.

The case carries great consequence for the High-Speed Rail project. If the Court rules the Authority did not comply with the Proposition, the next step would be to invalidate the Funding Plan and the appropriation. That would block the expenditure of high-speed rail bond funds and bring the $8 billion project currently being pursued by the Authority to an abrupt halt.

Click here for access to all the briefs filed in the case.

A ruling is expected within 90 days.

Atherton Appeal Now Submitted

The briefs in the Town of Atherton v. California High-Speed Rail Authority appeal have now been submitted to the Court of Appeal. They are posted at the bottom of this page.

The next step will be Oral Argument at the Court of Appeal.

This case is significant, in that a victory for Appellants could invalidate the ridership model, which is the foundation of all the EIRs the CHSRA will rely on for its Central Valley project. It could also force a whole new EIR, which would review the alternative of an Altamont Corridor in a less-biased manner.

TRANSDEF Presents at Annual TRAC Meeting

The 2012 Annual Conference of the Trainriders Association of California was held in Berkeley today. TRANSDEF was invited to co-present the keynote address, along with the Californians Advocating Responsible Rail Design (CARRD) on the topic of Where is High-Speed Rail Going in the Near Term? Elizabeth Alexis of CARRD began with a presentation which laid out the complete picture of what is funded to proceed in the next few years. David Schonbrunn of TRANSDEF then delivered an explanation of why rail advocates are suing CHSRA, entitled Fighting for What Could Be. Read More...

Our Legal Team Has Been Busy

Round 2
On October 15, 2012, petitioners in the
Atherton I and Atherton II cases filed their Appellants Opening Brief, challenging several elements of a largely favorable court ruling back in February. For the brief, and details, see the bottom of this page.

Round 3
Two days later, our team filed an Objection to the Authority’s Return on the Writ. This is a procedure in which the High-Speed Rail Authority, represented by the Attorney General’s office, is seeking to demonstrate that it has completed a series of actions ordered by the Court, back in February. The Authority claims that its April 2012 Partially Revised Final Program EIR complies with CEQA. Our Objection claims that the EIR violates CEQA because it refuses to analyze as an EIR alternative the Blended System described in the Revised 2012 Business Plan. For details, see
this page.

Taxpayer Lawsuit Against HSRA Files New Complaint

Attorney Michael Brady, representing plaintiffs John Tos, Aaron Fukuda, and Kings County, filed a lawsuit back in November 2011, asserting that no Proposition 1A funds could legally be spent on the proposed Central Valley project by the California High-Speed Rail Authority. The Authority struck back and asked the Court to dismiss the lawsuit in a motion called a Demurrer.

After the Court sustained the Demurrer with leave to amend on June 22, Attorney Brady filed a Second Amended Complaint on July 6. Because the State Senate was debating a funding measure for High-Speed Rail that afternoon, he brought with him one version that included a reference to the Senate passing the measure, and a second one that did not. With the Clerk’s Office at the Court closing at 4:00 pm, and the Senate vote occurring at 3:59 pm, Attorney Brady filed the latter version. He will likely supplement the Complaint after the Governor signs the bill into law.

The Amended Complaint includes allegations that funds are currently being expended in support of construction, in violation of Proposition 1A and that adoption of the Funding Plan also violated Prop 1A. Now that the Legislature has actually appropriated bond funds, the Authority will have a hard time arguing that the suit is premature.

All the associated documents are available on
this page.

HSRA Approves Pacheco Yet Again

On April 19, in accordance with writs issued by the Sacramento Superior Court in response to litigation by TRANSDEF and its allies, the CA High-Speed Rail Authority rescinded its previous certification of the 2010 Revised Final Program EIR for the Bay Area to Central Valley portion of its HST project, and rescinded its approval of the Pacheco route.

After that action, the Board certified a Partially Revised Final Program EIR and adopted the Pacheco route. While the result was the same as its 2010 action, this time was different. Authority Board members went to great lengths to appear to seriously consider the Altamont route. This was a striking change from the arrogance of past Boards. Nonetheless, the outcome was the same: nothing has changed.

The Board heard strong testimony from environmentalists as to the merits of the Altamont route. The Board heard strong testimony from environmentalists as to the merits of the Altamont route. TRANSDEF provided this testimony, which criticized the EIR and called out the EIR preparers’ underhanded tricks:

Yet Another HSR DEIR

TRANSDEF, the Planning and Conservation League, the California Rail Foundation and the Community Coalition on High-Speed Rail filed comments on the Partially Revised Draft EIR today. This is the HSR Authority’s third attempt to come up with a legally defensible EIR for the Bay Area to Central Valley portion of the Statewide HSR project. TRANSDEF and its allies, which include the cities of Atherton, Menlo Park, and Palo Alto, successfully challenged the previous EIRs.

These comments propose an entirely new Altamont route, based on the
Altamont Corridor Rail Project Preliminary Alternatives Analysis Report. (See an earlier Newsletter for an overview of this exciting project.) By avoiding the environmental impacts identified in earlier DEIRs, this alternative poses a challenge to the Authority’s stubborn insistence on the Pacheco route: An unbiased evaluation would determine the new Altamont alternative to be environmentally superior to Pacheco.

The comment letters and attachments are posted at the bottom of the
Altamont page.

Court Rules Again Against HSRA

On Thursday, November 10, Judge Michael Kenny of the Sacramento Superior Court released a pair of decisions 38 and 40 pages long, invalidating the Environmental Impact Report for the Central Valley to Bay Area section of the California High-Speed Rail project--for the second time. The Judge found that the California High-Speed Rail Authority had failed to adequately address a series of challenges raised by the Petitioners, comprised of the Town of Atherton, the City of Menlo Park, the City of Palo Alto, the California Rail Foundation, the Transportation Solutions Defense and Education Fund, the Planning and Conservation League, Patricia Giorni and the Mid-Peninsula Residents for Civic Sanity.

The court found that the project’s Revised Environmental Impact Report had failed to discuss significant impacts, failed to consider information from the Authority’s parallel project-level studies, and failed to recirculate the document for public comments.

For the second time, the Court ordered the Authority to rescind its approvals selecting the Pacheco Pass alignment and its certification of the associated Revised Final Environmental Impact Report.

Gary Patton, co-counsel, stated that "The court's decision tells the California High-Speed Rail Authority that it can't keep ignoring the public's right to participate. The court's decision in the Atherton II case says that the Authority failed in its duty to recirculate the CEQA document to get public comments, and this was a violation of the law.”

Richard Tolmach, President of the California Rail Foundation, declared that “Twice in a row, the Authority ignored the requirements of environmental law. The Judge found they still have not done a proper study.”

Stuart Flashman, lead counsel, stated that “In rejecting the EIR, the Court has upheld the principle that significant project impacts cannot be swept under the rug for later consideration, after the key decisions have already been made.”

Because the EIR challenge was divided procedurally into two parts, there are two decisions:
Atherton I and Atherton II.

Round 2 in HSR Litigation

A coalition of three cities, three environmental organizations, two citizens’ groups and a taxpayer today filed suit challenging the Environmental Impact Report for the high-speed rail connection between the Central Valley and the Bay Area.  The report was issued by the California High-Speed Rail Authority, which is responsible for planning a statewide high-speed rail system. Five of the parties had challenged the previous version of the report, resulting in the court throwing it out and ordering it rewritten.

The cities of Palo Alto, Menlo Park, and Atherton joined the California Rail Foundation, the Transportation Solutions Defense and Education Fund and the Planning and Conservation League. Palo Alto had not been a party in the previous challenge, although it filed a supportive brief. Also joining are two citizens’ groups centered in the San Francisco Peninsula: The Community Coalition on High-Speed Rail and Mid-Peninsula Residents for Civic Sanity.  The Rail Authority’s chosen alignment would run through the Peninsula along the Caltrain/Union Pacific rail corridor.

Click here to see all the documents

Palo Alto files amicus brief

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