Wednesday, August 26, 2009

Initial Ruling in Atherton v. CHSRA

NOTE: We've moved! Visit us at the California High Speed Rail Blog.

As I wait here in Menlo Park for the HSR town hall to get underway, we have a ruling in the frivolous lawsuit Menlo Park, Atherton, and the PCL filed against the CHSRA. It's a mixed bag for everyone - the judge ruled that most of the Federal EIR on the Pacheco alignment was sound and that most of the petitioners' claims about it were "without merit."

But there were three specific points that the judge DID rule had merit:

1. EIR claim that vibration from tracks can be mitigated to a "less than significant level" is "not supported by substantial evidence"

2. EIR inadequately described land use impacts from HSR (though the judge did throw out the arguments that HSR would produce sprawl)

3. EIR needed to have been "recirculated" based on Union Pacific's refusal to share ROW in the San Jose-Gilroy corridor area.

See the ruling for yourself:

athertonvchsra

The outcome is that the "writ of mandate" the petitioners sought is granted. In practice this is likely to mean the EIR will have to be revisited to consider the three points above. Other points that the court rejected, including the argument that US-101 and I-280 needed to be considered, or that Altamont itself needs to be reconsidered, do not appear to be reopened by this ruling.

More as it develops.

91 comments:

TROLLING STOCK said...

Little by little your pipe dream is fading away.
Whether because of opposition by Nimbys and other vested interests, or because of lack of funding (public and private), the fate of the project is doomed!
HSR is not going to happen! Get over it!

mike said...

Overall, looks bad for virtually all of the NIMBY arguments. The judge ruled that the EIR accurately analyzed noise and visual impacts. He also ruled that 280 and 101 can clearly be ruled out as reasonable alternatives. The vibration comment appears trivial - basically that CHSRA needs to acknowledge that this will be further analyzed in the project level EIR and not claim that it has already been analyzed.

The one point which the NIMBYs can take hope in is the UPRR comment (which is really both 2 and 3 in Robert's list). The judge appears to be telling CHSRA to show that either it can get access to UPRR ROW from SJ to Gilroy or document the alternative plan that it claims to have. I view this as a good thing from either perspective. The NIMBYs should be happy that there is some potential for delay, and the HSR proponents should be happy that CHSRA is being forced to actually spell out what their actual plan is for SJ-Gilroy. One outcome is that CHSRA has to document a contingency plan for eminent domain takings on this segment. Another is that they have to accelerate negotiations with UP and actually get an agreement hammered out.

Evan Goldin said...

Little by little your protests against progress are fading away.

Because of support by the majority of Californians, economic/environmental benefits, $10 billion bond funds, stimulus money, support from the president and the money saved from less money needed for highways/airports, the fate of this project is looking better than ever!

HSR is going to happen! Get over it!

Bay Area Resident said...

>>>Overall, looks bad for virtually all of the NIMBY arguments. <<<<

To quote the always colorful Barney Frank, on what planet do you spend most of your time?

lyqwyd said...

I posted this on the previous thread:

I'm not a lawyer, so my understanding after reading the result could be totally off base, but as far as I understand the court rejected the following arguments by the plaintiff:

- failed to use train splitting
- failed to adequately describe costs
- Pacheco doesn't result in more "recreational ridership"
- inadequate biological impacts along Pacheco alignment
- inadequate study of growth inducing impacts
- inadequate study of noise impacts along Peninsula
- inadequate study of visual impacts
- inadequate study of tree impacts
- that CHSRA was predisposed to Pacheco
- that Dumbarton rail bridge was a viable alternative and not properly addressed in EIR
- inadequate description of construction challenges of Altamont
- CHSRA inappropriately excluded 101 & 280
- CHSRA failed to properly respond to Menlo Park's letter

To reiterate, the plaintiff claims CHSRA failed to do the above properly, and those claims were rejected by the court, in my mind meaning the above items were all completed according to law.
it also rejected Palo Alto's amicus brief.

Plaintiff was granted a "writ of mandate", which seems to me to require CHSRA needs to correct the items pointed out above by Morris, but again, I'm not a lawyer.

It's not clear to me what, if any, needs to be halted by CHSRA, but it certainly does not seem to mean a new EIR needs to be done, or that the alignment needs to be re-evaluated. I could be entirely wrong, so I will wait for some of the more lawyerly readers to chime in.

To me it actually looks pretty good outcome overall, it may result in a minor delay, but it seems to confirm the Pacheco alignment as the way to go.

Morris Brown said...

My understanding is a new EIR on SF to Pacheco must be circulated and certified.

All project level work being done in the Bay Area, must now be stopped.

That is what I have been told. I am not an attorney.

lyqwyd said...

Yeah, I definitely think any deficiencies found would have to be corrected under the normal EIR process, but since it's only a few items it shouldn't take an inordinate amount of time to correct, and then whatever the normal response/comment/review time after the updated EIR is finalized. Most likely months to a year, but still a fairly minor set-back in my mind.

YesonHSR said...

The issue with the UP seems the the big one here.Something that Arnold and DiFi need to help out with to limit delays.

Morris Brown said...

From the SJ Mercury

http://www.mercurynews.com/breakingnews/ci_13209932?nclick_check=1

=========
Judge rules in favor of legal challenge to high-speed rail route through Peninsula

By Jessica Bernstein-Wax

Bay Area News Group
Posted: 08/26/2009 04:44:04 PM PDT
Updated: 08/26/2009 05:13:48 PM PDT

A Sacramento County Superior Court judge has ruled in favor of Menlo Park, Atherton and environmental groups who challenged the decision to run high-speed trains through the Peninsula instead of the East Bay, one of the plaintiffs in the lawsuit said today.

The ruling means the California High-Speed Rail Authority needs to revisit using the Pacheco Pass route to get the bullet trains from the Bay Area to the Central Valley, according to a statement the High-Speed Rail Litigation Coalition released this afternoon. The alternative route, which would have sent the trains through the East Bay, was Altamont Pass.

Coalition member David Schonbrunn obtained a copy of Sacramento Superior Court Judge Michael Kenny's ruling while in the Capitol earlier today. Attorneys for both sides said they do not yet have a copy, and the ruling is not yet available on the court's Web site.

"The court concludes that the description of the alignment of the HSR tracks between San Jose and Gilroy was inadequate even for a programmatic EIR," the statement quoted the ruling as saying. "The lack of specificity in turn results in an inadequate discussion of the impacts of the Pacheco alignment alternative on surrounding businesses and residences which may be displaced, construction impacts on the Monterey Highway, and impacts on Union Pacific's use of its right-of-way and spurs and consequently its freight operations." Oakland attorney Stuart Flashman, representing the
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petitioners, said that although his clients didn't win every point, Kenny's ruling was "convincing." "It's enough that it forces them to re-evaluate everything," Flashman said. "Particularly because (former California High-Speed Rail Authority chairman Quentin) Kopp is no longer in charge, and we've got someone from down south who's chairing the board, we may get a different perspective. We had two people in charge of the board who were very big San Jose advocates." Deputy Attorney General Danae Aitchison, one of the attorneys representing the rail authority, said she couldn't comment on the ruling because she hadn't seen it.

"We have no information yet, so we have no comment," Aitchison said.

mike said...

To quote the always colorful Barney Frank, on what planet do you spend most of your time?

Earth. How's the weather on Mars? :-)

Seriously though, given that the judge rejected virtually all of the plaintiff's arguments, which part of "looks bad for virtually all of the NIMBY arguments" do you disagree with? For the record, I was casually using "NIMBY" to refer to the plaintiffs. If that caused you confusion, I apologize.

Anonymous said...

Yes, And will you kind folk notify the feds that the project is NOT shovel ready, is NOT qualified for stimulus funds, or shall we? We'll be VERY happy to help on this.

GOOD BYE HSR - The ever self-absorbed CHSRA should have chosen another route. By the way, fix these things, and there are soooooo many more lawsuits waiting in the wings for you, at one year a piece... some of you will probably have time to become lawyers before you ever see dirt turned on HSR if you fail to heed the good advice you've been given - find another route.

By the way, invalidated EIR - that means invalidated bond measure, invalidated business plan, invalidated cost estimates....
That's the next...

AndyDuncan said...

1. EIR claim that vibration from tracks can be mitigated to a "less than significant level" is "not supported by substantial evidence"

I posted this in the other thread as part of a larger comment, but:

The ruling just says they had contradictory statements in their own documents about vibration mitigation, in one place saying it is "uncertain whether the reduced vibration levels will be below a significant impact" and then punting the question to the project level EIR, and then in the CEQA saying that the mitigation "will reduce this impact to a less-than significant level".

The ruling isn't saying that the vibration impacts WILL be significant or that there is other evidence to support such a claim, or that the program level EIR is the place where such things need to be discussed, just that the CAHSR can't say in one document that they will evaluate ways to deal with "significant impacts" and then later say that there will be no such impacts. It's possible they could just clarify that.

It does sound like Morris is right though, they're going to have to get a revised EIR through. With regards to stopping work, however, if they have to stop the peninsula project work due to getting a new program level EIR, wouldn't a new program level EIR mean they would have to stop work everywhere? Certainly the vibration issue isn't related to just the peninsula.

lyqwyd said...

Until there is more information, it's it's all speculation. But here's some of my speculation anyways:

To me it's not clear that this precludes continuing with project level EIRs. It could, does anybody know if there are laws saying that a program level EIR needs to be complete and certified before project level EIRs are started? If not, they could continue with project level while fixing the program level.

Are any of the project level EIRs completed yet?

AndyDuncan said...

Similarly #2:

EIR inadequately described land use impacts from HSR

Is really an ofshoot of the UPRR issue. From the ruling:

The need for the taking of additional property is a related issue that will be required to be analyzed in connection with further analysis of the impact of Union Pacific's denial of use of its right-of-way.

So again, nothing about the area north of SJ, just the SJ-Gilroy section.

YesonHSR said...

PaloAlto on line has a story on this and it has alot of info and some statments..including Didrons and that they are in talks with UP over this

AndyDuncan said...

@lyqwyd: Well it's also not clear yet if they're going to need a whole new EIR, or if they'll be able to file a Supplemental EIR just covering the two issues. And whether or not work will have to be stopped until the SEIR is approved. We'll have to see what happens next, I suppose.

AndyDuncan said...

@YesOnHSR:

"Judge: Further study on high-speed rail a must "

The authority has been negotiating with Union Pacific in recent months in hopes of resolving the dispute.

Rod Diridon, member of the rail authority's Board of Directors, said the judge's ruling doesn't necessarily mean that the project would be delayed. The only part of the environmental document that would need to be restudied, he said, is the one dealing with the rail segment between San Jose and Gilroy, he said.

Diridon said the Attorney General's office was studying the judge's ruling Wednesday afternoon to determine its impacts. He also said the impact of the Kenny's judgment won't be known until the judge rules on the remedial actions the rail authority must take.

Smart Money said...

including Didrons and that they are in talks with UP over this

Bingo. The smart money says that this will force the state to work out a deal with UPRR sooner rather than later. Don't know if settling things sooner instead of later will be good or bad for the taxpayers, bit it is what it is.

Rafael said...

(part 1)

Today's ruling essentially clarifies the boundary between the program and project levels of the EIR/EIS process. The four specific points on which the judge ruled against CHSRA were all elements that the Authority intended to address anyhow in the project-level phase.

1a) CHSRA picked Pacheco as the preferred route in the hope - not expectation - that it could acquire part of the UPRR right of way between SJ Diridon and Gilroy. Its claim that land could be acquired nearby was not accompanied by full disclosure of the eminent domain proceedings that might be necessary to achieve that.

Genesis: UPRR expressed concern about the possibility that one of its own trains might foul adjacent HSR tracks. This can occur as a result of a serious derailment or, because a freight car accidentally spills its cargo. Such events are rare, but they do happen (Littleton, CO).

Worst case, that could result in a catastrophic follow-on collision involving injuries and loss of life. Best case, it would significantly disrupt HSR operations and damage HSR infrastructure, potentially exposing UPRR to large liability claims.

Back in early June of 2008, UPRR published a press release indicating that CHSRA had failed to address these very specific concerns. Indeed, UPRR claimed the Authority had not even been in touch in the preceding "couple of years".

CHSRA, for its part, downplayed this issue.

1b) The court found that CHSRA improperly ignored a specific request from UPRR that the program-level EIR/EIS go through another iteration following its decision against selling land to the Authority for the purpose of constructing dedicated HSR tracks immediately adjacent to UPRR's freight tracks.

This reinforces point (1a), that CHSRA should have fully disclosed the land use implications of its plan B for ROW acquisition down to Gilroy.

Genesis: In March of 2009, UPRR sent a formal letter to CHSRA informing it that the Lick to Gilroy section of its ROW was definitely not available.

Earlier related posts: Union Pacific's HSR Games, Fresno Bee Slams Union Pacific, Union Pacific Speaks, How Important is UPRR to California HSR?

2) In analogy to (1a) and (1b), the court ruled CHSRA had not adequately disclosed the risk of eminent domain takings where the Caltrain corridor is currently too narrow to support four tracks side-by-side.

Reference material: Why They Chose The Caltrain Corridor, Threading The San Mateo Narrows

Rafael said...

(part 2)

3) The court also ruled that CHSRA's final program-level EIR/EIS was internally inconsistent on the issue of vibration impacts on abutting properties.

Together, Caltrain and UPRR already operate over 100 FRA-compliant trains on the corridor today, without causing the foundation slabs of nearby buildings to crack and crumble. These trains operate on tracks with relatively large geometry tolerances, resulting in significant vertical and horizontal acceleration a.k.a. vibrations.

Both HSR trains and Caltrain's prospective EMUs will weigh roughly half as much and run on all-new tracks with concrete sleepers. The improved track geometry, in conjunction with the superior suspension characteristics, will drastically reduce vibration impacts in spite of increased speeds and rail traffic volume.

IMHO, the finding on vibrations is a formality that will turn out to be a red herring soon enough.

---

CHSRA could appeal the ruling, but I'm not sure that would make sense. The court did not find that the Authority had improperly favored Pacheco over Altamont. The four specific findings are all things CHSRA had on its near-term to-do list anyhow. The court merely re-arranged the Authority's priorities and perhaps, rightly so.

For Pacheco to be feasible, CHSRA needs to spell out exactly where its tracks will run from San Jose Diridon to Gilroy. Only if it cannot secure a ROW will it need to re-open the study of Altamont-via-Dumbarton, including how HSR passengers would reach San Jose Diridon.

Keep in mind that CHSRA's original studies assumed that dedicated HSR tracks could be constructed between Union City and San Jose Diridon via a combination of UPRR ROW, VTA's WPML, a then-available hwy 262 median, the then-available I-880 median and a short tunnel section south of the airport runways. Those assumptions have gone out of the window.

If Pacheco has to be abandoned in favor of Altamont-via-Dumbarton, the HSR starter line may well have to be split in Redwood City rather than the East Bay (see MAP).

In other words, it would be a mistake to equate "Altamont" with "no HSR tracks through Atherton/Menlo Park/Palo Alto".

Anonymous said...

Shoot. Not good. Only bright spot is UPRR. Judge essentially dismissed every other argument. I really thought at least the visual impacts might have a chance. Noise is easy to mitigate. But visual, not so much. But no dice.

Maybe UPRR will throw a wrench in the whole thing. But unlikely. They're a for-profit firm. Their goal: to make profit! At the right price, they will part with that SJ-Gilroy track in an instant. They don't even use it much. Saying they won't is like saying the 49ers would never move to Santa Clara. Of course they would. If the price is right. Only hope is Kopp and Diridon royally screw up negotiations. With those guys it might happen. You never know. But it's just a hope.

So, what's the plan now? Clearly we can't rely on the EIR process to stop this thing. Maybe UPRR will. But relying on UPRR is like relying on a Hail Mary Pass. Yeah, it might work. But probably won't. And we'd better have a plan if it doesn't.

Joe Sez said...

Mercury News reports the ruling as a significant victory for Menlo Park Antherton. Claims published state the entire route has to be reconsidered.

Hilarious to see the difference between the take here (which I trust) and the Merc (which charges 0.75) and seems to have run half baked with the plaintiff's spin.

dave said...

The Mercury News is just trying to be dramatic. Don't mind them!

YesonHSR said...

That will be an issue..the media blowing this all out of proporation
Oh the rail project is stopped ..ect ect..CAHSR and backers will need to counter these drama stories

YesonHSR said...

The Merc has been usually a big HSR supporter despite it being owned by the very anti-hsr Medianewsgroup out of Denver..ie oil owners..just shows how some reporters have no clue as to what there saying

Rafael said...

@ lyqwyd, AndyDuncan -

you should probably think of the EIR/EIS process like a piece of software. Not everything gets thrown out of the Windows just because some has found a few bugs.

My reading of the tea leaves is that today's ruling requires CHSRA to fix four specific points in its the program-level Bay Area to Central Valley EIR/EIS only. Based on those fixes, it needs to re-evaluate its route preference and run the result past all relevant stakeholders yet again. After that, the revised document needs to go back to FRA for certification.

I don't know if CHSRA is legally required to stop all project-level EIR/EIS work. Perhaps it could simply be re-labeled to the program-level to comply with the court ruling: it's not really possible to spell out eminent domain and vibration implications without at least high-level information about how a given alignment would be constructed.

It's also not clear that the ruling has any legal bearing on the rest of the program-level EIR/EIS, especially the part south of Merced. As a practical matter, however, CHSRA needs to figure out how to get out of UPRR's hair statewide or else, make personnel and policy changes to fix that broken relationship asap.

This is easier said than done, UPRR is the elephant in the room: HSR tracks are supposed to hew close to UPRR tracks on about 50% of the entire HSR network plus overlay through Altamont.

Brandon in San Diego said...

Following on Rafael's earlier post concerning an alternative alignment across the Bay and dividing the destination of trains between SF and SJ terminals...

...Wouldn't the lawsuit fall under the heading of "best intentions but unintended consequences" if...
of the planned daily 56 one-way trains resulted in 36-ish to SF and 20-ish to SJ ALSO resulted in the need to run additional direct trains between SJ and SF... at a rate that produced over 56 trains through the NIMBY cities?

Add in the other direction and the result, under some scenarios, could be much higher than 56 1-way (112 2-way) trains.

That would be ironic... but tragic.

---

Here's a scenario that may be plausible:

Existing Plan:
56 Northbound
56 Southbound
112 Total

If Bay Crossing (per Altamont/Rafel):
36 Northbound to SF
20 Northbound to SJ
56 Northbound Subtotal

36 Southbound SF to SoCal/Sac
20 Southbound SJ to SoCal/Sac
56 Southbound Subtotal

Plus
San Francisco to/from San Jose
36 Northbound (to make SJ whole)
36 Southbound
72 subtotal

Plus additional SF and SJ trains to SoCal to make up for the decrease in Statewide direct linkage from those cities/stations:

10 Southbound from SF ((56-36)*50%))
10 Northbound to SF

18 Southbound from SJ ((56-20)*50%)
18 Northbound to SJ

(I arbitrarily picked half the difference between planned and first cut)

The results:

Between Redwood City and SF:
164 trains total; 52 more trains

Between Redwood City and SJ:
148 trains; 36 more trains
(This includes Menlo Park, Atherton & Palo Alto)

Between Redwood City and East Bay, which also includes Menlo Park:
168 trains; 168 more

Again, I think this is a plausible outcome. I am not saying it will absolutely happen; however, within theoritical possibilities. Splitting trains in half... although creates an operational task/challenge, could minimize the impact.

Of course, there could/would be other considerations that may cap services... such as the ability of more trains to generate ridership and revenue to cover operating costs... and provide a surplus for funding extenstions or paying off bonds.

Brandon in San Diego said...

With my previous post written, and despite my writing a bit much on that... I agree with Rafael or Robert's earlier assessment of the impact of the judge's ruling... very little impact to the project; only timeline if anything at all.

I do wonder about impacts to meeting ARRA criteria for any submitted projects in the affected EIR/EIS area. Actually, were any projects submitted in this region? Was the Transbay Terminal the only project?

Also, I suspect the judge's ruling only affects the CEQA/EIR side of the environmental review. The NEPA/EIS side, which is Federal, may not be affected at all??? And, therefore, ARRA application criteria may still be achieved?

I am sure we'll learn about these questions in the next couple days.... if not all ready answered above in the past hour!

lyqwyd said...

@Rafael

agreed, in my opinion this will cause little to no real delay in the project. I think there's a slight chance that there could be medium delay if the judge determines that the EIR needs to go through the whole process after the minor changes are made, meaning they make the 3 updates which really shouldn't take too long, but they are required to recirculate, go through the comments phase, etc.

I don't know the details of the EIR process, but from the recent issues with SF's bike EIR, the actual creation of the EIR from scratch seems by far to be the most time consuming portion. Given that the judge validated the vast majority of the EIR, I can't see it taking too long to make the updates.

I think the judge will allow progress on project level EIRs since the parts he found lacking are relatively minor, and it seems the ruling indicates he didn't find any major issues that would cause the alignment to be re-evaluated.

I personally find this ruling very positive overall and I'm quite hopeful that there will be at worst only minimal delays to the overall project. I'm crossing my fingers that my hopes prove to be true, and anxiously awaiting further details!

Nicolas said...

Re: Mercury News

Like Mike Scanlon said at tonight's Menlo Park meeting, "don't believe everything you read in the news" or something along those lines. The panelists seemed confident that Pacheco would remain the chosen alignment.

Attendee said...

Big news from Eschoo's meeting tonite is that she was stunned to learn (like most other voters) that route decision was made prior to 1A. She asked - Did the wording of measure 1A contain the route disclosure? Medhi - no but we didn't have anything to do with the writing of measure 1A.

The next step is of course the following. Rescind, nullify and/or repeal measure 1A, because it was based on bad faith trickery, fine print, lack of disclosure. Voters were NOT informed that route decisions were already made and theoretcally embedded in measure 1A (in fact the measure 1A wording was crafted specifically to throw voters off the route scent stating that bond funds could be used on ANY route, and included specifically mention of Altamont as an option) or at BEST they were victimized.

and secondly, even if you believe that measure 1A was valid - because there WAS after all a valid EIR - that EIR premise is now invalidated, becaus CHSRA failed on these 4 points. Since EIR is now determined by a judge to be incomplete, vote on measure 1A is shown to be based on false/incomplete/misleading statements by the CHSRA.

Anna Eschoo is now going to help us now get measure 1A repealed. That's the next step.

lyqwyd said...

@Attendee

I'll see you on the train, I'll be the guy with the big old grin on my face.

Nicolas said...

@ Atendee

The alignment choice was public information prior to Proposition 1A. It was decided in 2007. When you cast a vote for a statewide public works project, you defer to the planners and engineers who have the expertise to best design the system. It is your responsibility to keep yourself informed about the details.

Tony D. said...

High Speed Rail WILL run from San Jose to Gilroy via UPRR corridor! The fact that CAHSRA and UPRR are in negotiations over SJ-Gilroy is proof of that. If UPRR had no interest in a shared right-of-way, THERE WOULDN'T BE ANY NEGOTIATIONS SHERLOCK! Freight service in this corridor and traffic on Monterey Hwy is nil. Again, with UPRR, it's all about "Show me the money!"

While I don't see it coming down to this, the "Nuclear Option" (aka Eminent Domain) will be the last resort for the State/CAHSRA in this corridor if UPRR absolutely refuses to play. And no, the 11th Commandment does not state UPRR has devine powers!

As for how this is being portrayed in the media, that's just plain sickening. Spin and untruth at its finest! And while it's on the Merc's website, for the record the "news" is coming from the Daily Newsgroup (?). Already emailed the reporter and CC'd Gary Richards (aka Mr. Roadshow) of the Merc; hopefully he'll do a HSR article to counter this bull shit.

Bay Area Resident has obviously adapted to Carbon Dioxide on Mars.

Attendee: If you were smart and could read, you would have known that Pacheco Pass was the chosen route prior to November 08. Almost everyone on this site, and a vast majority of CA voters, knew this. I'm pretty sure Eshoo knew this as well, but of course (in the Daily Newsgroup fashion) someone is completely spinning/misinterpreting what is coming out of her mouth (IMAGINE THAT!).

lyqwyd: I think you are a lawyer ;o)..

matt said...

Just because you were too lazy to do any investigation into a proposition you voted yes for, does not mean you were duped. The map of the route was on the front page of the authority's website in the months leading up to the vote. Tough shit if you can't be bothered to do a google search of "California High Speed Rail" and click on the first link.

Tony D. said...

Final take on the "news" of the day:

My gut feeling is that UPRR will either operate or co-operate high-speed rail in California. They're not blind to the profits HSR systems are making overseas ("Show me the money!"). I don't think this would be a bad arrangment.

Robert Cruickshank said...

I will have much more on tonight's town hall tomorrow morning - just got back to Monterey and sleep is calling my name.

Eshoo's apparent surprise that a route had been selected before Prop 1A went to voters, and her claims that she didn't know about it, really do not make her look very good. As a sitting Congresswoman she should have known these things. The route debate got widespread media coverage last year, including on the Peninsula. For her to miss that rather key detail suggests she wasn't really paying close attention to what goes on in her district.

Further, she seemed to be dismayed that Prop 1A included a detailed routing based on the Final statewide EIR. Which is equally stunning to me. Did she expect people to vote for vaporware? To give $9 billion to a project that had no details nailed down?

Eshoo did have some other very good points, including the need for the CHSRA to improve its outreach. But if I'm a Peninsula resident, I'd be somewhat annoyed and troubled that my Congressional rep hadn't been paying attention to the 10-year long development of a project that would bring significant change (for the better) to my region.

Anonymous said...

Eshoo did come off rather clueless at the meeting, particularly for a long-serving Congresswoman, but I liked the fact that she took control of the event and wanted to get into hard questions.

Mehdi Morshed came off as a clown. How on earth did he become Executive Director???

jim said...

Tony D. said...
Final take on the "news" of the day:

My gut feeling is that UPRR will either operate or co-operate high-speed rail in California. They're not blind to the profits HSR systems are making overseas ("Show me the money!"). I don't think this would be a bad arrangmen


well they can't just operate it, they have to bid on it first and prove that they can provide the service infrastructure, ( staff, ticketing systems, the list goes on per the requirements an operator must offer) and UP doesn't have any such thing or people to do the job.

cahsr wants someone who can bring experience, personnel and the other infrastructer needed for passenger travel.

that means, amtrak, and airline, or a foreign railway

Pat said...

@Robert --

"frivolous lawsuits" don't win. If they win at all they are not "frivolous".

Awww are you anti-environmentalist pro-Pachecho Pass pave,pave types going to cry like babies...like you have thought us pro-environmentalist should?

Hmmm Eric M?

Tony?

Anonymous said...

Not a federal EIR. like you post claim. It's CEQA - California Environmental Quality Act. In state court etc. (Under federal NEPA, it is called an EIS, not an EIR).

TomW said...

Points 1 and 2 do *not* say the EIR was wrong or false - they say that more information is needed.

Point 1 (vibration) really needs an example from somewhere round teh world where something is done with the trackbed that virtually eliminates vibration, in order to show it is possible. I am sure there must be somethign somewhere (involving track over an old bridge perhaps?)

Point 2 (land use/emminent domain) needs someone to be more pessimistic in their assumptiosn for RoW.

Point 3 (recirculation) I don't understand - does this mean CHSRA just needs to send the docuement to all interested partiss once more, and nothing else?

The good news is that the judge implcitly approved the vast majority of the EIR, including route choice.

Brandon in San Diego said...

Yes, as I understand... CHSRA needs to make necessary changes to the document and address teh points the judge raised, re-circulate per CEQA guidelines speaking to public comment period, and re-approve the document... essentially re-affirming what they have already done.

Robert Cruickshank said...

Pat - you guys didn't win. The basis of the suit was that Altamont was wrongly rejected by the CHSRA. The judge found that there was no basis for that claim.

What the judge did find is that on a separate issue unrelated to the choice of Altamont or Pacheco - the matter of the UP ROW between San Jose and Gilroy - the CHSRA had more work to do.

But the judge does not appear to have ordered a full reconsideration of Altamont. If any reconsideration is to be done it is to be of the San Jose-Gilroy section and the matter of the ROW.

Finally, who owns the Altamont Pass railroad ROW, especially that through Fremont, Pleasanton, and Livermore that the plaintiffs wanted to see used instead of Pacheco?

That's right, it's owned by the Union Pacific Railroad.

lyqwyd said...

@pat

Anti-environment, pave pave pave would be opposing the rail line, as the alternative to rail would hundreds of miles of roads and highways, more sprawl development, and more CO2 into the atmoshphere.

Cry? This is a win for us pro-environment folks, it locks in Pacheco as a well chosen route, and rejects the vast majority of the frivolous claims in the lawsuit.

Or maybe you meant tears of joy?

Anonymous said...

Read the document. The judge didn't approve the route choice or "implicitly" approve of the other points. All he did was say that the additional amounts of study/proof the plaintiffs were seeking on those points was not required in the PROGRAM EIR. Those additiona points of proof and detail will still be required in future rounds of Project EIR - and judge was OK with CHSRA waiting for those future rounds to address those items.

Peter said...

How is it a big surprise that the route decision was made prior to Proposition 1A? The Atherton suit was filed in August of last year. Three months prior to the November election...

Peter said...

@ Anon 9:23

The judge stated that there was substantial evidence to support the alignment decisions on all but those four issues mentioned by. I don't see how this means that the Authority has to reevaluate those issues the judge found no problems with. They can just cut and paste the same analysis in the amended EIR. and recirculate it.

jim said...

So once uprr makes a deal, now sooner than later being likely, and this was the whole basis for stopping the train, and the rest of the lawsuit was rejected, then thats it.

jim said...

and if in this lawsuit the plaintiffs threw every imaginable complaint they had into it and it was all rejected then where do they go.

Anonymous said...

Talk about being disconnected from reality:
As reported in today's Mercury News, "yet the court ruling all but dismissed that (Altamont) option...would result in 'substantially increased construction costs and constructability issues."
But then the plaintiffs attorney Stuart Flashman goes on to say "they'll have to go back and look again at Altamont versus Pacheco."
HUHH?!

AndyDuncan said...

@Peter. I don't even think they'll need to recirculate the entire EIR, it's entirely possible that they'll only need to prepare a Supplemental EIR and have that reviewed. I suppose that depends on what happens with UPRR.

There was at one time, when the alignments were being considered a "Gilroy Bypass" which would have skipped a Gilroy station and stayed to the east of 101, presumably on new ROW not owned by UPRR. the non-aerial sections of the existing alignment, however, look to have space alongside them for new ROW takes. Given Diridon's comments that they would "just buy the land next to the UPRR ROW", that seems the most likely solution should UPRR refuse to let them use their ROW.

In the end though, getting two grade-separated tracks from Gilroy to SF in exchange for some unused ROW seems like a good deal for UPRR.

Peter said...

@ AndyDuncan
Unfortunately, all we have is the Ruling. We don't know what the Order will be (what the Writ of Mandate will actually mandate).

Also, I was just looknig at the ROW on GoogleEarth and it appears to only be one track on the ROW south of San Jose.

Anonymous said...

Robert,

You wrote:

"the judge ruled that most of the Federal EIR on the Pacheco alignment was sound"

You should delete the word "Federal".

AndyDuncan said...

Unfortunately, all we have is the Ruling. We don't know what the Order will be (what the Writ of Mandate will actually mandate).

Very true.

Anonymous said...

Get real. The militant unions that are joined at the hip with the Pelosi machine will never permit a private operator of the hsr. They will get them out of there after a few years. A few wrecks and it's back to government owned and operated.

Put it another way - can you see a privatized BART? For all the technical expertise I see on this site there is an equal amount of political cluelessness.

Anonymous said...

UPRR ROW and Monterey Hwy/SR 82 in South San Jose is extremely wide and can easily accommodate HSR.
South of San Jose, Monterey Hwy is lightly used and runs through mostly rural Coyote Valley, Morgan Hill and Gilroy.
UPRR freight service through this portion of the ROW is also light, as most of the line is single-track with some passing tracks.

Anonymous said...

I think you are all too optimistic about the UPRR situation. In Denver, they didn't play ball and the line needed to be rerouted late in the process. If they don't want to share ROW, they don't need to.

YOU CANNOT USE EMINENT DOMAIN ON A RAILROAD. They are protected by federal law.

AndyDuncan said...

YOU CANNOT USE EMINENT DOMAIN ON A RAILROAD. They are protected by federal law.

Easy on the Billy Mays Key. And while I have no idea if that's true (I would appreciate links, particularly where eminent domain was attempted to be used against one railroad to facilitate another), it's potentially irrelevant. They can use eminent domain to buy the land next to the UPRR ROW, land which for most of that stretch is farmland.

This isn't a small issue if UPRR continues to balk, but it's not an insurmountable one, especially along the area in question.

Peter said...

I'm going to do some research on the issue of using eminent domain to take part of a railroad tonight after class. So far all I've found, in a brief search of Westlaw, is that railroads themselves can use eminent domain.

More this evening, hopefully. With citations (@ Anon 11:52).

lyqwyd said...

I could imagine that eminent domain is not allowed on rail ROWs as if it did, a city could use it on a small portion of the line and ruin the entire line.

But I agree with Andy, it's irrelevant as CHSRA would just use eminent domain on the land next to the existing ROW, which is probably much less valuable than the actual ROW.

lyqwyd said...

According to this article (July 1, 2009) UP just sold 33 miles of freight line just north of Denver for $118 million, with another 3 transfers to happen in the near future. They kept a freight use easement on a portion of the line.

I think UP is willing to play ball with passenger rail when the price is right.

lyqwyd said...

A telling quote from the article:

"This is just one part of the country where UP is making land sales or corridor-sharing deals with passenger train operations, from local transit lines to high-speed rail."

AndyDuncan said...

The other thing to consider in a hardball situation is the value of the Gilroy-SF line if the JPB decides to exercise the "nuclear option" in the caltrain trackage agreement and kicks UP off the peninsula north of SJ.

Let's hope it doesn't go hardball. I agree with previous sentiments that freight rail is very valuable and only getting more so.

Anonymous said...

I LOVE IT! Anon 11:52 shot down with facts! It's funny how often this happens to naysayers and NIMBYS here.
If not sharing the actual UPRR ROW south of SJ, Monterey Hwy/SR 82 can be easily narrowed to accommodate HSR, as it is wide (6-lanes with wide median in SSJ), lightly used, and primarily rural south of SJ proper.
I'm sure there will be a deal with UPRR sooner rather than later.

Rafael said...

@ lyqwyd -

"[UPRR] kept a freight use easement on a portion of the line."

This is common practice, cp. the Caltrain corrido, SCRRA's ROWs down south etc. The problem is that HSR must use lightweight, non-compliant rolling stock and a low axle load limit (17 metric tonnes is typical) to permit safe, cost-effective operations at high speed.

In other words, you can't run FRA-compliant heavy freight trains on HSR tracks. If UPRR sells any slice of any of its many ROWs for the purpose of constructing HSR tracks, that slice is gone for good as far as heavy freight is concerned.

High speed cargo is possible on HSR tracks, but that's a substantially different business model.

lyqwyd said...

I'm very skeptical of the "nuclear option" for a number of reasons.

First it's not clear to me that it would actually apply, the wording is pretty vague to me.

Second, if it were enacted you can be sure UP would instantly bring some powerful legal as well as political guns to the table. The Atherton lawsuit would be a gnat's bite compared to what UP could do.

Both UP & CHSRA know the type of drawn out battle it would be, I doubt CHSRA would even mention it in their negotiations, as that could work against them by making UP even more resistant to working out a deal, leading to a game of chicken where CHSRA has much more to lose.

I believe UP is holding out for cash and assurances that their freight operations will at worst be left untouched, and possibly upgrades that will open up the peninsula to more freight.

I have every confidence that a deal will be worked out, without any need to attempt the "nuclear option".

lyqwyd said...

@Rafael

In the article it also stated that Colorado would built additional tracks where needed, which is basically the same as the plan for CAHSR, except the additional tracks would be built along the entire ROW.

I'm certain that when the deal is worked out UP will require that freight still is allowed, meaning additional tracks for HSR along side tracks for freight. Whether that turns out to be a total of 3 or 4 tracks who knows, but there will be at least 3 for the entire ROW.

Anonymous said...

Anon, 11:52 here again.

I don't know the particulars of your project, I'm not really familiar with the alignment, or how important that UPRR ROW is. I'm not against your project. I don't live in your state, so all power to you. But the RR hold all the cards. Don't go into this with wishful thinking. I've definitely seen this movie before.

http://www.denverpost.com/ci_9881873?source=bb

If it had been another landowner, the transit agency would have used eminent domain no problem.

Our experience negotiating with UPRR is such that, as HSR is studied statewide in Colorado, they are spending extra money finding ways to avoid the RR ROW altogether.

Also, if you are using the freight railroad RR, you will have problems with FRA compliance of your trains. They will need to be heavier than the models sold in europe and japan to comply with the buff strength requirements, and the feds might impose a speed limit.

AndyDuncan said...

Also, if you are using the freight railroad RR, you will have problems with FRA compliance of your trains. They will need to be heavier than the models sold in europe and japan to comply with the buff strength requirements, and the feds might impose a speed limit.

There are no plans to use the freight RR. The plans include putting in new, HSR-only, tracks on the ROW alongside the existing FRA tracks.

The Authority has shown no intention of sharing track with FRA compliant trains anywhere on the system. All the plans so far have 2 dedicated HSR tracks.

The issue is where do those go, on UPRR owned land, or somewhere else?

Robert Cruickshank said...

Andy, it is true that federally chartered railroads are immune from state eminent domain power. It's a legacy from the Gilded Age of the late 19th century, when a massively corrupt US Congress gave the railroads immunity from state-based efforts to rein in the power of the railroad barons.

What it does mean is that presumably the US Congress could take away that protection from the freight railroads. It's one reason I wish Dianne Feinstein would get off her ass and exercise some leadership on this.

Anonymous said...

Page 8 notes that the Pacheco Pass will include the Monterey Bay market. Ah, now I know why Robert is carpetbagging on Peninsula issues. This whole blog because Robert doesn't want to drive an extra 30 minutes to enjoy his fetish.

Now I understand. It's all about Robert. How is this more selfish than the "nimbys" on the Peninsula?

flowmotion said...

Well, this clarifies the question I had about how they could be moving forward with EIRs without the ROW being nailed down.

It's probably safe to assume this will go way beyond San Jose to Gilroy, and that CAHSR will need to finalize the details with UPRR across the entire state. Better now than five years from now.

Anonymous said...

Anon 11:52 again

Sharing track isn't the issue. Even sharing ROW with the freight railroads means you need FRA compliant vehicles. If the railroads don't agree to remove their freight traffic from a corridor completely, the CAHSR trains have to be FRA compliant. I don't know anything about Pacheco pass, but you're going to need FRA vehicles there unless UPRR decides to discontinue freight service through the pass. I have no idea how likely that is. The line to Boulder that someone posted had seen all of its traffic dry up when the Denver agency purchased the ROW (that's why UP sold).

These freight railroads are not insurmountable, but they are very real, and it seems like there's a lot of wishful thinking going on.

Anonymous said...

@ Rafael 1:16,
So there might be freight issues with UPRR on other segments of the HSR network.
But SJ to Gilroy is lightly used (I live a mile away in Gilroy) and is mostly single track.
In fact, I believe this portion of the corridor will be double tracked for the sole purpose of increased Caltrain service.
In short, freight traffic in the SJ-Gilroy segment, both present and future, is minimal.

Darrell said...

Even sharing ROW with the freight railroads means you need FRA compliant vehicles.

Not true. There are multiple examples of new light rail lines sharing right-of-way but not track with existing freight railroad track.

Some railroads object, however, or demand a large separation from their tracks.

Question: does the FEIR for San Jose-Gilroy envision leaving the UPRR freight track at grade or grade-separating it alongside the HSR tracks?

NoeValleyJim said...
This comment has been removed by the author.
NoeValleyJim said...

Looks like the Palo Alto and Atherton NIMBYs lost. Don't you feel foolish now for wasting your communities time and money on this quixotic crusade?

And I bet Redwood City gets the downtown station now, not Palo Alto. You should have held out for the station and undergrounding the route through your community Palo Alto, instead you rolled the dice and lost.

AndyDuncan said...

If the railroads don't agree to remove their freight traffic from a corridor completely, the CAHSR trains have to be FRA compliant..

They need to be physically (or temporally) separated, but what that means isn't set in stone. On the LA-Anaheim alternatives analysis (god I sound like a broken record), they show thick concrete barriers between the FRA tracks and the HSR tracks, and they take those barriers into account when calculating ROW width.

UPRR had expressed concern in the past that such barriers were insufficient, but I haven't heard anything about the FRA's thoughts on them.

AndyDuncan said...

Diagram of the barrier here (from Clem's blog)

Anonymous said...

Can't deal with the truth Robert? Hahahaha. You HSR fetishist.

Anonymous said...

re: anon 7:54,

Who are these idiots Robert? Please, tell us what the "truth" is anon!

lyqwyd said...

According to streetsblog the CHSRA shares the same opinion about the ruling.

Quote from Morshed:

"The assessment of our lawyers, is that the court decision is a minor issue and that it's not going to impact our schedule, that we can continue our work and not it's going to have an impact on our project-level work or our federal funding request."

Seems they think the ruling wont cause any delays, or jeopardize federal funding, and confirms the Pacheco pass as the right choice.

Still waiting for the final word from the judge, but... YAY!!!!!

Pat said...

@Robert --

re: "Didn't win" -- All I can say is, dude you really haven't been around through this process that much.

"winning" on issues like this doesn't happen with the other side being defeated.

@lyqwyd (August 27, 2009 8:14 AM) --

I will match my environmental credentials to yours any day. You might be better or not. But either way since you favor running HSR through a nature preserve, I have a head start.

@(Others) -- I love this idea that somehow you are going to just use eminent domain up and down the UPRR ROW. Please do. This will almost certainly make Altamont happen.

@Robert --
federally chartered railroads are immune from state eminent domain power. It's a legacy from the Gilded Age of the late 19th century, when a massively corrupt US Congress gave the railroads immunity from state-based efforts to rein in the power of the railroad barons.

What it does mean is that presumably the US Congress could take away that protection from the freight railroads


How clueless can you be? You have officially jumped the shark.

Railroads are clearly covered under that interstate commerce clause for damn good reasons. If cities and states were allowed to exercise eminent domain on RR, the ROW would be chopped into useless dotted lines. A railroad is not some factory that can be moved 50 feet to the left and still function. It needs a continuous, uninterrupted
ROW with a narrow constraint of allowed conditions.

But what a great idea.. maybe Atherton should use eminent domain on the Caltrain ROW to stop HSR going down the Peninsula.

Go, Fonzie, go, go...time to jump that shark!

lyqwyd said...

Sorry pat you might think you have a headstart, but I already finished the race.

You think highways & airports have less impact than rail, you lose.

Peter said...

I found some statutes and a Supreme Court ruling where Amtrak had the power to use eminent domain to take over existing rail tracks under certain circumstances. The statutes were repealed in 1995. Not sure if they got replaced by anything. Ran out of research time.

The Supreme Court case is still good law, but as the underlying statute has been repealed, I think it's moot in that regard. The citation is "National R.R. Passenger Corp. v. Boston and Maine Corp., 503 U.S. 407 (1992)"

Pat said...

@lyqwyd --

You think highways & airports have less impact than rail, you lose.

Ahhh what a fertile "imagination" you have! And you have a link to anything to back that ad hominem attack up?

Oh so typical of the Dittoheads on this blog.

Geez and it even lacks imagination or wit. Kind of like the name calling in 4th grade.

If you want to challenge me on something I said, sure -- but try not to imagine my positions on issues. It lowers the level of conversation and really doesn't make for very interesting reading.

lyqwyd said...

@Pat

"I will match my environmental credentials to yours any day. You might be better or not. But either way since you favor running HSR through a nature preserve, I have a head start."

That's quite witty, talking about ad hominem attacks, aren't you the one who accused pro-Pacheco folks of being "pave, pave, pave"?

Do you believe that rail is a more environmentally sound transportation model than air or road? I certainly can back up the environmental benefits of rail over private auto and air transport if you believe it's not better.

What am I imagining? That you prefer highway & airplane over rail, or that you prefer Altamont because it's not in your backyard?

Any bay crossing at Dumbarton risks bringing toxic materials up from the mud and further endangers the clapper rail, endangered salt marsh habitats lie further south, so a more southerly approach is not an improvement from an environmental perspective.

Exactly what is your position? You've really said nothing other than you are an environmentalist and anybody who is for Pacheco is against the environment, and thrown a few insults around. Do you have anything to support that you are do have any environmental credibility or that Pacheco is worse environmentally?

Pat Moore said...

@lyqwyd --

Sigh. O.k. here you go:

A few comments from me.

A whole bunch of random stuff I wrote to help educate the Sierra Club.


The Nature Conservancy's "insignificant" nature preserve

Another useless wetlands area.

And about the BS that the Bay Crossing is going to endanger the Clapper Rail or that crossing at the dumbarton is going to cause all these vast problems?

The reality is that all environmental groups support the Dumbarton Bridge alignment. All. No exceptions. Including Committee to Complete the Refuge. Signed by one of the original advocates to create the Don Edwards Refuge, Florence M. LaRiviere. page 23-114 (page 443) favors a Altamont route

Your turn. You might want to take your foot out before speaking.

lyqwyd said...

Okay, I will apologize for saying you think highway / airports are better than rail, from what I read of your writings that is not the case. You still haven't stated your position, but from what I read it seems you are in favor of HSR oppose Pacheco and support Altamont. It is not clear if you would rather have no HSR if it has to be Pacheco. You appear to be antagonistic towards Pacheco supporters. If my understanding is not correct, please forgive me, but you still haven't stated your position.

I'm not sure why you are using the words "useless" or "insignificant" when referring to the nature preserve and wetlands, so I don't have any comment on that.

Clapper Rail & Harvest Mouse are both endangered & both have habitat in that area. Unless they have come off the endangered list very recently, I don't see how that is BS.

There is toxic mercury in the mud around there. Considering that HSR would require a completely new bay crossing, it is quite possible that mercury would be stirred up. How is stirring mercury into the waters of an endangered species not further endangering it? I could see just repairing the existing bridge not being too hazardous, but that bridge will not suffice for HSR.

While The Citizens Community to Complete the Refuge is in favor of Altamont, the are concerned about it's impacts:

"of prime concern to our organization would be the portion of the alignment that would pass through the Don Edwards San Francisco Bay National Wildlife Refuge, but we would also be concerned about the possible fragmentation or disruption of any San Joaquin kit fox habitat and corridors."

Here is a more legible link to their letter.

They suggest a tunnel crossing of the bay. If we are talking cost is no object then I would suggest a tunnel through all the Pacheco wildlife areas, would you still be opposed in that case? Why?

Why is Henry Coe at more risk than Don Edwards? Perhaps it is, but I haven't heard any legitemate arguments to support that.

"Awww are you anti-environmentalist pro-Pachecho Pass pave,pave types going to cry like babies...like you have thought us pro-environmentalist should?"

Pacheco supporters are not inherently pave,pave, nor anti-environmentalist.

I took my foot out of my mouth (at least for the moment), now it's your turn.

If I've further misinterpreted any of your positions, I further apologize, please correct me.

Pat Moore said...

@lyqwyd --

Thanks. I have been really busy and am working on a reply. I hope to have it ready tomorrow.

Don't want you to think I blew you off Since you made this effort, you deserve equal effort on my part.