Final Judgement in Atherton v. CHSRA

It's pretty much a formality at this point, but Judge Michael Kenny has issued his final judgement in the case of Atherton v. CHSRA, ordering the CHSRA to revise the EIR for the Bay Area to Central Valley segment of the project to address the concerns over noise/vibration and ROW sharing with UPRR that the judge cited in his initial decision. See both the Final Judgement document and the Peremptory Writ of Mandate below, and then my comments:

Final Judgment in Atherton v. CHSRA

Peremptory Writ of Mandate

As we explained earlier, the judge rejected plaintiffs' request to stay further HSR work. According the the CHSRA, this outcome does not impede them from continuing to move forward as they currently are with project-level EIR and design work, and should not jeopardize stimulus funding. The judge did not order a complete reopening of the full EIR process, and CHSRA is confident they can submit the revisions on time. The judge gave CHSRA 70 days to show their compliance (by decertifying the EIR - they have more time than that to finalize the revisions; thanks to the comments for pointing this out) although exactly what that means isn't precisely clear in the documents.

Although we'll hear the project opponents and those that filed the lawsuit claim victory here, it's difficult to see how those claims can be justified. The Pacheco alignment is upheld, CHSRA can continue to plan and design the system, they'll still be getting federal stimulus funds, and the judge has given them wide latitude in how they comply with the order to revise the EIR. Furthermore, the overwhelming majority of the plaintiffs' claims, particularly the main ones about the Pacheco alignment, were thrown out. The plaintiffs basically got lucky in that the judge found some other parts of the EIR that the plaintiffs never really focused on were deficient and necessitated a revision.

What was promised to us in the summer of 2008 as a lawsuit that would stop the project in its tracks and blow up the route decision has essentially fizzled. CHSRA will produce an improved EIR and address the UPRR issue, something they needed to do anyhow. The plaintiffs will get their court costs paid, but otherwise they've failed to accomplish their goals of undermining the HSR project.

Judge Kenny: Planning Work Can Continue

Judge Michael Kenny has issued his tentative ruling in the issue of whether work could continue on the Bay Area to the Central Valley segment of the high speed rail line - and it is a victory for CHSRA:

Petitioners have requested that the writ of mandate to be issued in this case include a stay of all of respondent’s activities dependent on or premised upon the approvals being ordered rescinded. Respondent opposes the request. The Court set a briefing and hearing schedule on this issue.

The Court has considered the parties’ arguments and the evidence they have submitted on this issue. The Court concludes that under the circumstances of this case, staying project-level activities is not appropriate pursuant to Public Resources Code section 21168.9(a)(2) and pertinent case law.

The actions for which a stay is being requested are studies with no potential for adverse change or alteration to the physical environment. Additionally, the Court concludes that such studies do not create such momentum that respondent Authority would be unable to comply with its CEQA obligations as previously determined by this Court.

Accordingly, petitioners’ request that the writ to be issued include a stay is denied.

CHSRA offered this statement in response:

“We’re happy to see that the tentative ruling supports our position that granting a stay on the project is unnecessary since the project is in the planning stage and could cost the state funding and jobs,” said Jeff Barker, the Authority’s Deputy Director.

"We don't believe that anyone is interested in jeopardizing billions of dollars in economic stimulus for California, delaying the creation of tens of thousands of jobs, and forcing taxpayers to shoulder higher costs to build the system," said Barker.

Totally agreed. There was no reason to delay planning work while the CHSRA goes back to address the two items that Judge Kenny said were inadequately examined in the program EIR.

Once again the HSR deniers behind this lawsuit have lost. They basically got lucky on the UPRR ROW issue, which was never a core element of their lawsuit, and their other efforts to stop HSR in its tracks have been consistently shot down by this judge. I have every reason to believe that will continue.

Judge: No Halt to HSR Planning

After ruling in Atherton v. CHSRA that the CHSRA needs to address the issue of the Union Pacific right of way between San Jose and Gilroy, Judge Michael Kenny was much less clear about what happens next. Into that vacuum stepped many of the anti-HSR folks to claim that the CHSRA was going to have to stop their work and do a new EIR.

Today we learn that while the ultimate remedy is still unclear, CHSRA is not barred from continuing its project level studies, and that an October 9 hearing has been scheduled by Judge Kenny to decide the matter of how to "correct the programmatic analysis," in the words of this CHSRA press release issued today:

CHSRA 9.14.09 Court Action FINAL

The release also notes that application for federal stimulus for this portion of the route remains active.

Media News Group Launches Another Anti-HSR Editorial Attack

One of the most reliably anti-HSR voices in the state is the Media News Group, publisher of several major newspapers (including the San Jose Mercury News). During the 2008 campaign they were among the most die-hard HSR deniers. Now that a judge has issued a mixed decision in the Atherton v. CHSRA lawsuit, MNG is taking advantage of the situation to yet again try and kill high speed rail:

OFTEN THERE IS a wide gap separating a concept from reality. Such is the case with California's high-speed rail project. Conceptually, fast, comfortable, fuel-efficient, intercity, passenger rail transportation makes a lot of sense as fuel prices rise and reductions in carbon dioxide emissions are mandated.

However, there are a number of inconvenient realities that come between California's dream of high-speed rail service and actually constructing it.

The latest roadblock is a court ruling that the High Speed Rail Authority's environmental impact report is "inadequate." The court's conclusion is hardly surprising considering that the EIR failed to address Union Pacific's decision not to allow the trains to run along its tracks from Gilroy to San Jose.

It never ceases to amaze me how usual standards of journalistic practice, such as they are, don't apply at all to the editorial page. The judge most assuredly did NOT rule that the EIR as a whole was "inadequate." He ruled that three specific parts of it were inadequate, but that the overwhelming majority of the contested portions were perfectly adequate, including the basic elements of the choice of the Pacheco Pass over the Altamont Pass for the HSR route. This inconvenient truth doesn't stop the MNG editorialists from plowing ahead with further bits of disinformation:

When the high-speed rail project was first proposed, supporters assumed it would use the Union Pacific's tracks. Without Union Pacific's right of way, an alternate route would have to be considered, affecting the Monterey Highway or requiring the taking of additional private property.

The ignorance here is astounding. UP's tracks were NEVER going to be used, at least not in any plans I've seen over the last two years. I can't speak for the CHSRA, but this HSR supporter never expected to use UP's ROW either. Ever since I became familiar with the situation in May 2008, I understood the plan was to use land next to UP's ROW, but not the ROW itself. Additional private property may have to be taken, but as southern Santa Clara County region is much less built up than the Peninsula, this should not require much if any loss of housing.

As a result of the court's ruling, the rail project is likely to be considerably delayed as a new EIR is written and the additional time and costs of buying land or battling Union Pacific in court are considered.

This is blind speculation almost entirely lacking in evidence. We have no indication what remedy the judge will order. A new EIR does not seem likely, and although it is a possibility, MNG has no basis whatsoever to assume it is a definite outcome. The time and cost of dealing with UP is certainly a consideration, but as I explained yesterday federal assistance can expedite this process.

Alternate routes, such as one over the Altamont Pass, which some rail advocates favor, are even more costly and also would require a new EIR.

Well, at least they got that one right. Altamont is dead. Will groups like the Planning and Conservation League finally accept that reality and devote their efforts to actually supporting HSR?

Voters approved a $9.95 billion rail bond measure last November. The rest of the money is supposed to come from the federal government and investors. Delays can only increase the costs and discourage investors.

But that is hardly the only problem with the high-speed rail project. The business plan is inadequate. There is no accurate estimate of ridership, fares, operational costs and investor interest. Also, the $40 billion cost estimate is dubious.

I see MNG decided to rehash a bunch of the old discredited HSR denier nonsense for good measure. I suppose this means that once we've discredited this editorial we can expect its claims to keep reappearing in MNG editorials for years to come?

With so many other greater capital project needs such as fixing the Delta, highway repair and school renovations that require large amounts of funding, California should sidetrack its highly questionable high-speed rail project.

This is the new line of attack against HSR, and we heard it in Menlo Park last week: that HSR isn't worth the money given all the other priorities.

The fact is we need to and can do all of these things. HSR is necessary to this state's future. To sacrifice it because we're too cheap to find money to pay for our other priorities would have been like refusing to build the Golden Gate Bridge during the Depression. That move, funded by local bonds issued in the depth of the Depression, worked out pretty damn well for California. So too will HSR. MNG will never admit it, and that's fine. We didn't need them in the campaign to pass Prop 1A, and we don't need them in the campaign to ensure that the will of the voters is respected and the HSR project built.

Initial Ruling in Atherton v. CHSRA

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.

Quentin Kopp Defends Pacheco Choice

Responding to a column in the San Mateo County Times by John Horgan, Quentin Kopp, member of the CHSRA Board and its president until last month, defends the choice of the Pacheco Pass alignment. Interesting reading, to be sure. After criticizing Horgan and the Times for publishing a "misleading" column and briefly describing the 10 years of studies that went into the alignment choice, Kopp offers this explanation for the choice:

The California High Speed Rail Authority has spent more than a decade studying the Peninsula Corridor and Altamont Pass or Pacheco Pass, and concluded twice that the Caltrain corridor is the premier solution for high-speed rail in California. The alternative route, over Altamont Pass, would bypass San Jose and San Francisco entirely.

That last sentence has been getting some attention in the comments to yesterday's post, with Morris Brown implying that Kopp is himself being misleading here, and potentially even violating CHSRA board policy in the process. Rafael agreed that the notion an Altamont alignment would cut off San Francisco and San Jose was "patent nonsense" but suggested that Kopp may have been thinking of one possible Altamont routing that would have sent trains to Oakland.

And yet Kopp is not wrong in the overall point, which is that Altamont had serious problems that could have produced significantly degraded service to SF and SJ. The concept being floated by some latter-day Altamont advocates is that San Jose would essentially be a stub track off the Dumbarton/Altamont mainline. San Jose wouldn't be cut off in this case, but it would get many fewer trains, as express SF-LA trains would not pass through Diridon Station at all. Rafael also pointed out in the comments that the Dumbarton corridor was far from an easy slam-dunk, presenting significant land use and engineering challenges. It is possible that those challenges may have ultimately forced an Oakland terminus.

AB 3034, which was approved by voters as Proposition 1A, mandated a 2 hour 40 minute runtime between SF and LA. As Pacheco is more direct and several miles shorter than the Altamont route, Pacheco met the standard. The same is true of the statutory requirement that SF Transbay Terminal be the route's northern terminus. AB 3034 wasn't yet law when the choice was made in July 2008, owing largely to Governor Arnold Schwarzenegger's delaying tactics on the state budget, but the key points of AB 3034 were already clear, and the existing Prop 1 already had much of that in place. So the CHSRA was constrained in its choices, and given those constraints, Pacheco is a legitimate solution.

Kopp offered further justification for the Pacheco choice:

A watchful public should be informed that this corridor has received more study than any other routes in California. If detractors want to cloud public memory, let me try to refresh it. Consider just a few of the reasons for choosing Pacheco Pass. An Altamont Pass alignment would require:

• Construction of a new transbay tube or bridge, an insanely costly endeavor, a threat to the Bay and certain to encounter opposition from environmentalists. Transformation of an antiquated 19th century railroad trestle bridge through a national wildlife refuge is a fantasy.

• As many as six tracks through developed East Bay communities, forcing expensive, controversial eminent domain proceedings and construction of elevated tracks, both bitterly opposed by residents and civic leaders.

• The splitting of trains, some going to San Jose and others northeast to San Francisco, eventually limiting the system's capacity and defeating the purpose of building high-speed rail service for Californians.

I discussed the first and third points above, but the second one is really worth noting. The Peninsula supporters of Altamont are being stunningly hypocritical in their demands - what they want to do is dump tracks they don't want onto neighborhoods across the bay. They are perfectly happy to force Pleasanton and Fremont to accept something they claim will kill communities.

Kopp also did a good job undermining the arguments made by the environmental groups that are party to the Altamont lawsuit:

You don't even need to accept my word. Consider that on April 30, 2008, the U.S. Environmental Protection Agency notified the Federal Railroad Administration and all interested persons that the corridor most likely to contain the least environmentally damaging practicable alternative for the Bay Area to Central Valley section is Pacheco Pass.

On May 8, 2008, the Army Corps of Engineers concurred, concluding the Pacheco Pass will cause less adverse effect to the aquatic ecosystem or other significant adverse environmental consequences, and "there are no other practical alternatives to the Pacheco Pass."

Some may argue that Pacheco has some environmental impacts, which it may. But the arguments being made here by federal regulators is that Pacheco's impacts are less than those of Altamont, particularly the Don Edwards National Wildlife Refuge.

Kopp closes his op-ed by calling for a "more reasoned discussion" of the matter. This reminds me of some of the health care town halls, where opponents of reform who know they have absolutely no chance to stop this through the usual political process (because the majority of Americans want reform to happen) have taken to trying to shout down their opponents. Although we haven't seen some of the more violent expressions of disagreement over HSR, I think there is a fundamental similarity between the health care disruptors and the folks behind this lawsuit. They didn't get their way in the normal process, and now they are trying to disrupt the HSR project rather than let it proceed, even though voters approved the project and the route.

There are productive ways Peninsula residents can help ensure HSR is built in a way that meets their needs. But this Altamont obsession is distracting them from that more necessary work. The sooner the Peninsula accepts the reality and permanence of the Pacheco alignment, the better they will be.

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.

Another Peninsula NIMBY Lawsuit

Clem has the scoop over on his blog about a planned lawsuit from an Atherton resident opposed to HSR that argues Union Pacific's consent must be given before the HSR project can proceed. From a Palo Alto Daily Post article:

Atherton resident Russell Peterson said yesterday he will file a lawsuit that will attempt to stop the state High Speed Rail Authority from starting any construction without the full approval of the Union Pacific Railroad....

Attorney Mike Brady, a Menlo Park resident representing Peterson, said the suit will ask a judge to require all plans for the bullet train to receive Union Pacific approval before construction begins.

As Clem lays out, this stems from Section 2.7 of the agreement between Caltrain and the UPRR, which seems to indicate that UP has to give its consent before any intercity trains can use the tracks. It is this clause that Peterson is using as the basis of his suit. I would be surprised if a judge finds Peterson has standing to sue using this agreement as a basis - wouldn't that be UP's place to decide whether or not to uphold their contractual agreement?

But as Clem found, there are other parts of the agreement that suggest Caltrain actually holds the cards here:

8.3.(c) In the event that Owner demonstrates a reasonably certain need to commence construction on all or substantially all the length of the Joint Facilities (including User's Cahill/Lick Line) of a transportation system that is a significant change in the method of delivery of Commuter Service which would be incompatible with Freight Service on the Joint Facilities (other than User's Cahill/Lick Line), Owner may, at its sole cost and expense, file no sooner than nine months prior to the commencement of such construction for permission from the ICC to abandon the Freight Service over the portion of the Join Facilities (excluding User's Cahill/Lick Line) upon which the construction is to occur. User shall not object to or oppose such a filing; however, it shall be allowed to participate in the abandonment proceedings.

Clem's interpretation is that the Caltrain/HSR project qualifies under this provision, although both Caltrain and the CHSRA have preferred to work with UP instead of against them. And that makes sense to me.

Peterson's suit will probably not go anywhere, but it does raise the issue of UP, its trackage rights, and how this affects Peninsula HSR planning. As Rafael has pointed out on several occasions, the tunnel that Peninsula NIMBYs prefer for the Caltrain/HSR corridor would almost certainly prevent freight trains from continuing to use the route.

Although it is theoretically possible that a tunnel could be built south of Redwood City and the Dumbarton rail bridge rehabbed to allow the UP freight hauler to continue to use the tracks, no money has been identified for this option, nor has it been seriously discussed. It's also worth noting that this would do nothing to help the cities further up the Peninsula, like Burlingame and San Mateo, that have also been calling for a tunnel. (Of course, I am quite confident that if Atherton, Menlo Park and Palo Alto felt they could solve their own problems by screwing the other Peninsula cities, they would gladly do so.)

If UP wants to continue running freight along the route, they are best off with an above-grade solution, and one has to assume they are quite well aware of this. Caltrain and the CHSRA are designing the route with UP's needs in mind. So why would UP have any interest in suing? No wonder a Peninsula NIMBY has to go it alone.

The Play To Block HSR Stimulus Funds

The California High Speed Rail Authority held its monthly meeting today, and included a project phasing workshop after the regular meeting, part of Chairman Curt Pringle's efforts to provide more opportunities for the public to get involved with providing feedback on the planning process. One of the outcomes of today's meeting was that the Authority is becoming more assertive in providing management and oversight:

Under the leadership of newly elected board chairman, Curt Pringle, the Authority created three standing committees:

* Executive Administrative Committee: Chairman Curt Pringle, Judge Quentin Kopp, Director Fran Florez
* Operations Committee: Directors Richard Katz, Rod Diridon, Jr. and Russ Burns
* Finance: Directors Tom Umberg, David Crane and Lynn Schenk...

Additional organizational transparency measures include maintaining and keeping current the California High-Speed Rail Authority Web site, posting all applications and other required documentation....

Discussed proposal for development of new “investment grade” ridership and revenue forecasts to assist in attracting public-private partnerships.

All of which is quite welcome.

The board apparently also discussed fast-tracking certain deadlines to enable more stimulus funding to arrive in California. It's hard to figure out exactly what this refers to - the article from ABC/7 in LA is written at something resembling a 6th grade level and is maddeningly vague. But whatever was discussed and decided, it was enough to provoke some of the usual suspects into their usual outrage:

"The biggest danger is that citizens don't get heard, alternatives don't get considered. They don't want to study any route alternatives. And to me, that's absolutely wrong when you're doing a $40 billion project," said Richard Tolmach, California Rail Foundation....

"You can't short-cut the process on a high-speed train. You end up with a mess," said Tolmach.

Tolmach is not being truthful here - the CHSRA spent 11 years studying route alternatives. He's just unhappy they didn't pick his preferred route.

More significant than Tolmach's desire to study the project until 2049 is his implication that stimulus funds are less important than building the project his way. This is a completely crazy approach, jeopardizing the entire HSR project and the federal funds it needs to be built over a relatively minor spat over a routing choice.

Tolmach is joined in working to undermine the HSR stimulus funds by the Planning and Conversation League, which last month sent this rather extraordinary letter to a bunch of state legislative leaders:

PCL Letter Re Budget Bill

The key section is quoted below:

Lastly, we would like to rebut several false claims made recently by the Authority. First, the Authority has made the claim that forcing them to do a thorough review of the Bay Area segment will cost the state Stimulus funding. This is not true. Work on the San Francisco to San Jose segment, beyond electrification of the existing tracks and work on the Transbay Terminal, will not qualify for stimulus funding since the environmental review is not currently scheduled to be done in time, even without a complete review of alternate alignments.

But that's not a widely shared point of view, particularly about the Transbay Terminal's eligibility for stimulus funds. However it is designed, the train box needs to be part of the TBT project from the start, and stimulus funds are part of how that will occur. PCL is willing to jeopardize that because of their desire to place a small piece of the project - the Altamont alignment - over the project as a whole.

PCL is also willing to make threats and pass it off as self-fulfilling prophecy, writing in the letter that unless the CHSRA does exactly what PCL wants, there will be more lawsuits, costing the state money. PCL claims that if CHSRA caves to their demands, the state will "save money in the long run" but it's unclear how a lawsuit would match the multibillion dollar HSR stimulus PCL is willing to risk here.

I've often stated my thoughts on Altamont vs. Pacheco: each has their pros and cons, but the decision has been made to route the long-distance trains over Pacheco, the high speed commuter trains over Altamont, and that it's time to accept it and move on for the sake of the entire HSR project.

By threatening HSR stimulus funds, groups like the PCL are showing that the HSR project as a whole isn't relevant to their work. There's no reason the CHSRA, the state legislature, the governor, or the people California should listen to such financially reckless thinking.

Why The CHSRA Was Right To Reject The Settlement

by Robert Cruickshank

Reports of the CHSRA's rejection of a settlement offer put forward by Menlo Park, Atherton, the Planning and Conservation League, and several other unnamed organizations have gotten some notice in the comments to the previous post, but it deserves its own entry.

Especially so I can explain why this was the right thing to do for not just the CHSRA, but the HSR project.

The California High Speed Rail Authority has rejected a settlement offer that Menlo Park, Atherton and environmental groups made in a lawsuit challenging the decision to run bullet trains through the Peninsula instead of the East Bay, an attorney for the cities said.

The offer, which the authority rejected in a closed session meeting July 2, would have required the agency to consider running trains through Altamont Pass, said Stuart Flashman, an attorney for the petitioners. Altamont Pass and Pacheco Pass were the two finalists for the route, and the authority selected Pacheco in 2007.

"What we are proposing is we would agree to dismiss the case if you would agree at the project level to restudy one Altamont alternative," Flashman said Thursday. "You throw this out now, and it may not come back. They decided they would just roll the dice."

Why should the CHSRA believe this? Although the specific parties to a settlement would be bound by its terms, others would not. Flashman has done a lot of work to sow doubt about the Pacheco choice. Menlo Park and Atherton have residents who would still be free to file their own lawsuits - suits that are almost guaranteed to occur should the CHSRA decide on anything other than a no-build option for the Peninsula.

More importantly, it would open the door to revisiting route choices by what is essentially blackmail. Route selection and design choices must be driven by what is best for the HSR project.

There's more:

Flashman noted that the authority did not make a counter offer.

Sacramento County Superior Court Judge Michael Kenny held a five-hour hearing in the case May 29 and must make a ruling by the end of August, Flashman said. In the meantime, he must go through about 35,000 pages of documents.

"I felt, and talking with my clients they also felt, that this would have been an opportune time to try and settle," Flashman said. "Essentially we were in a situation where everybody could form their opinions about who was likely to win."

Flashman is parsing his words carefully here, but this is as clear an admission of defeat as we'll probably ever get from him and his crew. One has to assume the CHSRA recognized this as well and therefore felt no reason to settle. A court victory for the Authority would also do much to discourage other frivolous lawsuits.

Still, would it have been good for the CHSRA to offer a settlement anyway? Especially since it's possible that refusing to do so might reinforce the incorrect view among the Peninsula NIMBYs that the CHSRA is unaccountable and hostile?

I don't believe it would have been, since I'm not seeing anything the CHSRA could have offered that would be better than a court victory. As I noted above, no settlement could stop others in Menlo Park and Atherton - or other cities - from suing. Flashman et. al. want to force reconsideration of the Altamont corridor, but that ship has long since sailed, especially with CA voters ratifying the plan to use the Altamont corridor as a high speed corridor anyway.

I still await the final verdict, in favor of the HSR project and its fair process, against NIMBYs and those so-called environmentalists who prioritize small-time parochial concerns over the much greater benefits to the environment of actually building HSR.

Tuesday Open Thread

It´s mid-afternoon here on the Algarve in Portugal. Beautiful weather, cool clear water, and a nice breeze making the last week of my visit here quite enjoyable. So what am I doing online? Other than being a total nerd, and taking a kind of siesta, I´m catching up on HSR stuff. Thanks so much to Rafael for his ongoing work in keeping the blog updated.

Some quick HSR related items:

• AB 153 by Fiona Ma will be heard in the Assembly Transportation and Housing Committee today - the bill would clarify the eminent domain power of the CHSRA, to emphasize the agency does indeed have such power.



• Apologies if this has been discussed before - it is a few days old - but the Mercury News has an article on two Menlo Park/Atherton moms who have organized to fundraise for the anti-HSR lawsuit, having collected over $30,000 (note: the original version of this post misstated the sum as $300,000) toward the legal bills. I´m really pleased to see that in this economic crisis there are people with that much money to waste, especially mothers who apparently don´t have to worry about the severe attacks on public education taking place in this state. Wouldn´t $30,000 be rather useful to local schools or to help feed the hungry?!

Two Quick Peninsula Updates

1. Caltrain board approves MOU with CHSRA:

One last-minute change to the deal was the elimination of a controversial passage that indicated the bullet train would operate on a four-track alignment, assuming there typically would be two tracks for Caltrain and a pair for high-speed rail.

This was only "controversial" because Palo Alto insists on having veto power over the operations and basic needs of the system, which they have no right to claim. As others have pointed out in the comments, a four-track solution is still expected to be adopted. Personally I think Caltrain and the CHSRA should have kept that language, since NIMBYs cannot be appeased, as they immediately proved:

Palo Alto Council Member Pat Burt, echoing the concerns of other officials and residents, said the cities should have the right to partner with the state as well, not just Caltrain.

"The cities must be allowed to enter into this process in a substantive way," Burt said. "(The Caltrain board) is not designed as its first priority to preserve and protect the quality of life of the cities that the railway passes through."

Right. Their priority is to operate efficient passenger rail service. Burt's words are significant though for explaining what this is all about for him - preserving a 20th century model of urban life that is obsolete and not at all workable in the 21st century. He thinks Palo Alto can live in a kind of permanent 1995. Is this the kind of forward and progressive thinking Palo Alto wants to be known for?

Still, this is a welcome development that shows the high speed rail project is making important progress.

2. Court throws out Menlo Park's letter to CHSRA:

In August 2008, Menlo Park and Atherton joined a lawsuit against the rail authority. One of Menlo Park's arguments in joining the suit was that rail officials had not responded to their letter. Under law, the agency is required to respond to every letter it receives.

But in the March 27 ruling, Judge Michael Kenny said the city did not adequately prove that it had in fact sent the letter, and that it didn't do enough to make sure it had been received. Furthermore, after the release of the final environmental document but before it was certified, there was a 40-day window in which Menlo Park could have resent its letter, the judge said. The city apparently did not do so.

During the City Council's March 31 meeting, City Manager Glen Rojas said the plaintiffs' attorney did not think the exclusion of the city's letter would have much effect on the case, because similar arguments had been made by others, including the town of Atherton.

The article also has an interesting discussion of whether Menlo Park will reconsider its decision to sue. You'd think that in a time of financial crisis for virtually every city in the state, Menlo Park residents would prefer that their taxes pay for libraries and pothole repairs, not frivolous lawsuits against the CHSRA.

BART to San Jose Lives?

High drama in Santa Clara County, where Measure B now has exactly the 66.67% needed for passage as of Monday afternoon's update. Measure B is of course the 1/8 cent sales tax increase to help bring BART to downtown San José. In the comments on yesterday's post peter noted that "the Yes vote right now is at 66.6679741% Out of 611,886 there are 8 more yes votes than exactly 2/3rds." The next update is likely to come early next week and the vote must be certified on December 2. BART supporters are growing more optimistic about their prospects:

As the absentee ballots were counted, the yes votes crept higher — but not, it seemed, quickly enough. But as provisional ballots began to be verified late last week, the yes votes started coming in at a much higher rate.

Counts taken Friday and Monday came in with 73 percent-plus support for Measure B, pushing it to the two-thirds level overall.

"It shows the strength of support for BART in this county," said San Jose State University political-science Professor Terry Christensen. "Over and over voters have proven how much they want BART. This is not just a bond, but a tax increase. That makes it more astonishing."

Christensen believes the late surge is coming from young voters, who tend to be more supportive of mass transit, and who may have been more heavily represented among the late and provisional ballots.

"That is a very valid theory," he said. "It really is attributed to an effective campaign that they ran. I know they worked the college campuses very hard, and it's the young voters I know who are very supportive of BART. That was smart on their part."

Further evidence that here in California the 2008 election was a wave election for mass transit, creating powerful new momentum and public support for rail projects that ought to quiet the deniers and doubters for some time to come.

Meanwhile, the San Jose Mercury News filed a "Questions remain about HSR" article which does little more than state the obvious: there are still some decisions to make on the Peninsula:

"Up to this point, we've had very limited discussions of a very general nature," [Caltrain spokeswoman Christine] Dunn said. "I know people are very anxious to know what's going to happen next and how it's going to impact their communities, but a lot of those questions at this point are unanswered."

What particularly appeals to Caltrain about the high-speed project is the proposed widening of its tracks and construction of grade separations up and down the Peninsula because bullet trains must run above or below street level....

The high-speed rail authority also has yet to decide where the bullet train will stop, though Millbrae, Redwood City and Palo Alto have been named as potential stops.

We'll obviously be discussing those decisions in much greater detail over the coming months, but it's worth reminding ourselves that these are normal decisions that get made in any major transportation project. My own view is that Millbrae/SFO and Palo Alto would be the best choices for HSR stops.

That Merc article also points out that even though Menlo Park is party to a lawsuit against the HSR project, the city voted FOR Prop 1A:

The cities of Atherton and Menlo Park in August joined a lawsuit challenging the environmental report for the train's route, claiming it underestimates the impact it would have on communities.

Despite elected officials' opposition, Menlo Park voters approved the high-speed rail bond measure while Atherton voters struck it down, according to unofficial election results updated Friday.

Menlo Park voted 57.4 percent in favor of the project compared to 42.6 percent opposed out of 14,021 votes cast. Atherton rejected the measure with 46 percent in favor to 54 percent against, a margin of about 300 votes out of 3,918 cast.

Perhaps Menlo Park wants to reconsider? There's still time to drop out of the lawsuit. Given stressed city budgets this doesn't exactly seem like a good time to spend taxpayer money to sue a project your voters supported.

Menlo Park HSR Meeting, Sept. 9

Next week the California High Speed Rail Authority and the Menlo Park City Council are going to hold a study session on Prop 1A and the HSR project. It will be in the council chambers at the Menlo Park Civic Center at 5pm on Tuesday, September 9. Expected to be in attendance are Rod Diridon, Dan Leavitt, and perhaps Quentin Kopp (his attendance is uncertain at this point). It should be a fascinating meeting, one I wish I could attend. Menlo Park has become known as a hotbed of anti-HSR activism, but perhaps the situation is more complicated than that.

Martin Engel is a persistent and vocal gadfly, and succeeded in swaying the councils of Menlo Park and Atherton to adopt a NIMBY position and sue the Authority to block the project. But is this NIMBYism representative of what Menlo Park residents actually believe, or did the squeaky wheel get the grease?

Comments should always be used with caution, but the comments on the Almanac article announcing the meeting suggest that there are plenty of Menlo Park residents who actively support high speed rail and oppose their city being party to the lawsuit. Some examples:

"We are already concerned that the study session may be "rigged" in favor of the train."

Typical comment. There is always a conspiracy going on when people show support for the HSR project. Martin, maybe you and your cronies should realize that a majority of people want this project to happen and that it is not always "rigged" as you mention.

Posted by Eric, a resident of the Menlo Park: Sharon Heights neighborhood, 15 hours ago

Martin, how about the rigged closed session meeting for a vote your council had against the CAHSRA. Legal? I don't think so. Just shows the true colors of your city council.

GO HSR!

Vote yes on prop 1A

Posted by Justin, a resident of the Atherton: Lloyden Park neighborhood, 15 hours ago

As neighbors on the peninsula we should be thrilled to have this type of transportation technology coming to our area! The economic and environmental benefits will be huge. In a day when gas prices are near $5.00 I'm bewildered by any one who could possibly argue against high speed rail in their area. It is truly a shame to see disagreement on this issue.
Posted by James W., a resident of the Menlo Park: Menlo Oaks neighborhood, 13 hours ago


Opposition to the train reminds me of the San Mateo county idiots who refused to support BART way back when; now we are stuck with Caltrain lumbering along.
Posted by Doug, a resident of the Menlo Park: Menlo Oaks neighborhood, 35 minutes ago

get real, if you did some reseach you would realize it is not more of the same. Maybe you should and wake up to the twenty first century! This state needs a project like this.

As for Ether, nice comment about "economic boondoggle". Not possible put together. Talk about contradictory. Yes this project will have a great economic impact on the state at the right time and no, it is not a boondoggle. Gee, let's keep the same way of thinking about transportation as you have so we and our children can really fall behind the rest of the world. No thanks. Time to get out of you caves.

Build the train already!

Posted by dave, a resident of the Menlo Park: Stanford Weekend Acres neighborhood, 19 minutes ago

yes Martin, bonds are a way of borrowing money. But unlike a mortgage, the money is not borrowed all at once. It will be spread out over ten years. But you also turn facts around about the train making a profit. All high speed trains around the world are making profits in the billion of dollars, yes billion dollars a year that pay for the money borrowed to build it, maintenance and have money left over to expand the entire system. Don't give us the amtrak never making a profit arguement. Different all together because it is a slow form of transport and can't compare. HSR is fast.

The child like drama you create in this city is really pathethic and embarrasing. Really giving us a bad name. Time to stop. People do support this bond proposal.

Posted by Thomas, a resident of the Menlo Park: Sharon Heights neighborhood, 0 minutes ago

Obviously this is a contentious issue within Menlo Park. But the fact that there are vocal supporters of high speed rail there and in Atherton just goes to show how isolated the HSR deniers and NIMBYs really are. Far from being concerned about their city's supposed doom that will result from HSR, many residents actively support the project and want their community to help build it instead of trying to stop it.

It's a welcome development, if not surprising. The numerous benefits of HSR are self-evident, even to residents of Menlo Park and Atherton. Whether it's high speed connections to SF and LA, or cleaner and safer train operation within their communities, or the economic stimulus HSR will provide, or the significant environmental benefits, these residents see the need to support Prop 1A. The same thing is already happening around our state. Californians, like many Peninsula residents, are eager to vote for Prop 1A and move our state into the 21st century.