Whether it's a prelude to a grand bargain or not isn't clear, but Gary Richards is reporting in the Mercury News today that UPRR and the CHSRA have begun discussions about resolving the dispute over the ROW between San José and Gilroy:
Officials with the railroad and the California High Speed Rail Authority confirmed that they have held discussions in hopes of resolving their differences, which if not settled soon could cost the rail authority $3 billion in federal stimulus aid and state bond money, delay construction in Northern California and leave in doubt the electrification of Caltrain....
"Our position continues to be the same as what we've said in the past," Union Pacific spokesman Tom Lange said from Omaha, Neb. "The high speeds of these trains is simply not compatible in our right of way.
"We've had discussions with them, but the bottom line is that safety comes first and foremost."
There's been a lot of discussion in the comments about whether running HSR trains on tracks near the UPRR tracks, but not in their ROW, would pose a safety hazard of any sort. Maybe it does, maybe it doesn't, but UPRR's position is clear, and with the recent ruling in Atherton v. CHSRA it's clear that the issue has to be revisited. So it is good to hear that UPRR and CHSRA are talking, but it is quite unclear what are the substance of the talks and whether or not there's any hope of forward momentum.
One problem is that the judge that issued the ruling in Atherton v. CHSRA, Michael Kenney, did not actually indicate what remedies the CHSRA must undertake to address the three specific problems with the EIR the judge found. Despite claims from Peninsula NIMBYs and HSR deniers like Richard Tolmach, the judge has not ruled that the entire EIR must be redone or that the judge found the choice of Pacheco Pass to connect the Bay Area to the Central Valley was flawed. And as Richards' article makes clear, time is of the essence:
Timing is critical — and that has some officials saying the railroad's stance is a negotiating ploy, partly because the line is lightly used. Currently, just 14 trains run each day between Gilroy and San Jose — six freight, six commuter and two Amtrak trains.
On Oct. 2, the rail authority plans to submit its application for federal stimulus money. It needs approval of those funds soon to meet Washington's requirement that construction be under way by 2012.
If the judge rules that the entire environmental study be revisited, "that could be the death knell for construction on the Peninsula," said high-speed board member Rod Diridon. "If it's a remedial action, we can deal with that."
The recent ruling may also delay Caltrain's long-range plans to expand commuter service by converting its diesel trains to electric. This would enable the agency to speed up service and run more trains more quickly. It is relying heavily on stimulus cash to bankroll the $785 million initiative, $516 million of which is still unfunded.
Some will surely quibble, as they have in recent comments, that this shows the flaws of Diridon's insistence on including the Peninsula corridor in the CHSRA application for federal HSR stimulus funds. Personally I think the CHSRA was right to be aggressive in pursuing these funds. But this does make clear that more than the old Altamont vs. Pacheco dispute is at stake here. Federal stimulus funds are necessary to get construction underway on the Peninsula - construction that, as Mike Scanlon pointed out Wednesday night, is vital to Caltrain's survival.
As I have repeatedly predicted, the parties to this lawsuit have decided it is acceptable to risk the future of passenger rail in the Bay Area - including the HSR project and the very existence of Caltrain - to pick a fight over what is a comparatively small matter. True supporters of HSR would have accepted the Pacheco choice, worked to ensure it was built properly and with respect to the environment, rather than use that choice to try and blow up the whole project.
Still, it is good to see that CHSRA and UPRR are trying to be sensible about this and are talking to each other about the matter. These discussions can take quite a long time - UPRR has been dragging its feet on selling the Davenport-Pajaro line to Santa Cruz County for over 5 years now.
Tough negotiations with freight companies are nothing new. Twenty years ago, it took more than two years of talks before Caltrain agreed to buy the San Jose-to-San Francisco tracks from Southern Pacific for $242.3 million. Talks between the Valley Transportation Authority and Union Pacific dragged on for four years before the VTA agreed in 2002 to pay $80 million to run the BART-to-San Jose extension down the UP corridor between Fremont and San Jose.
"We've negotiated with them on several acquisitions, and they are very difficult negotiators," VTA General Manager Michael Burns said. "They are a private company out to protect their interests.
"But I will be very surprised if at the end they don't reach an agreement."
This is why I believe a federal role is absolutely necessary to ensure these negotiations conclude quickly and fairly to all sides. Current federal law gives UPRR all the negotiating power, enabling a freight railroad whose operations often seem stuck in the middle of the 20th century to hold up the development of a modern 21st century passenger railroad network.
President Barack Obama has made high speed rail a key part of his administration's vision for America's future. But so far he seems to have emphasized HSR funding over the other key policy aspects of implementing HSR. Now I'm not going to complain that Obama wants to change 60 years of federal transportation policy and finally direct some real funds to HSR. And yet that's not going to be enough to ensure HSR happens.
While I recognize that it is not Obama's style to force or pressure anyone into doing anything, both the White House and the Congress - particularly California's two powerful US Senators - need to be examining ways to modernize US railroad policy and legislation. In particular they need to redress the balance of power between the freight railroads, which are essentially private contractors for the federal government and who owe their very existence to the federal government, and the state and local passenger rail systems that the federal government wishes to promote and expand.
The best way to accomplish this would be to have Senator Feinstein or Senator Boxer help mediate these conversations, potentially alongside the Secretary of Transportation or even Vice-President "Amtrak Joe" Biden. They can encourage UPRR and CHSRA to quickly come to an agreement that satisfies both sides, while letting UPRR know that if they do not come to a quick agreement, then perhaps it would be time to change federal law to help provide entities like CHSRA a more level playing field - starting with eliminating the obsolete ban on states using eminent domain on federally-chartered railroads.
That would require a greater level of leadership from California's federal representatives than we have yet seen on HSR. But it is now time for them to step up and prevent a signature project from falling into a morass.