Frivolous Lawsuits, Part 2

As was expected, Atherton resident Russell Peterson filed his lawsuit against Caltrain and the CHSRA today in San Mateo County Superior Court. The link includes a picture of the happy family filing the suit, taken by proud papa Morris Brown.

There is a good debate going on in the comments to recent post about whether Peterson has standing to file a lawsuit based on a contract between the Peninsula Corridor Joint Powers Board and the Union Pacific Railroad. Although I am not a lawyer, it seems that Peterson has an uphill battle ahead of him.

The conspicuous absence here is, of course, UP itself. It would be a sign of a major decline in power and in fortunes if one of the nation's largest railroads was reduced to letting some NIMBY sue on their behalf. UP would have no trouble going into court if they felt it necessary to protect their interests.

Instead, as Quentin Kopp claims, UP prefers to work with the passenger rail agencies:

Judge Quentin Kopp, a member of the rail authority's board, bristled at that suggestion.

"Mike Brady apparently worries about Union Pacific, which itself manifestly refuses to join in his frivolous suit," Judge Kopp said. "To the contrary, Union Pacific representatives have in the last 30 days met with an authority member and the governor, as well as authority staff, on the subject of right of way use."

In response to a request for an interview, Caltrain said in a statement that "nothing has been done that would violate" Union Pacific's rights.

Now, Kopp's quote is vague, and he doesn't indicate what the content or the outcome of those meetings have been. But it is telling that UP doesn't see a need to go to court. Peterson is making one hell of a longshot bid here, a desperate attempt to try and stop the HSR project dead in its tracks.

The Almanac article doesn't report Clem's insight that the Caltrain/UP agreement language seems to indicate Caltrain, not UP, holds the cards here. But that seems par for the course for the Almanac, which has never really indicated to its readers that there is significant support for HSR in the area, or that the NIMBY claims rest on very weak ground.

The Almanac does speculate about how a tunnel might actually work to UP's advantage:

On the issue that looms largest in the minds of locals — whether the rail system would run underground, or on a berm — Peninsula residents and Union Pacific might find some common ground, Mr. Brady said.

For instance, running Caltrain and high-speed rail tracks through an underground tunnel, with Union Pacific freight running above ground, could be a win-win for both locals and the railroad giant, he said. Union Pacific wouldn't have to share the above-ground tracks, enabling it to run freight trains during the day. And Peninsula cities wouldn't have to confront a 15-foot-high berm bisecting their communities.

Perhaps Union Pacific would make the tunnel option, thought in many quarters to be prohibitively expensive, a condition for its consent to the high-speed rail system.

I would be very skeptical of this. If a tunnel is built, then there will be enormous pressure put on UP by the local governments to stop the freight hauling. The at-grade tracks will become seen as an anachronistic eyesore and the cities will salivate over the possibility of developing that land, given its prime location on the Peninsula. Tunnel proposals in several cities, such as Palo Alto, rely on selling the air rights over a tunnel to developers in order to help pay for the tunnel.

Surely Union Pacific knows this, and that is one reason why they have preferred to confer with the CHSRA and Caltrain on an above-grade solution that would preserve freight trains for quite some time along the Peninsula corridor. Peterson and his pals can try and use UP for their own purposes, but it seems clear to me that this frivolous lawsuit is going to fall on its face even more quickly than the Menlo Park/Atherton/PCL/Tolmach suit over Pacheco.