Judge won't reopen high-speed-rail challenge

Court rejects Peninsula coalition's bid to reopen the case to force rail authority to revise ridership numbers

The case challenging high-speed rail studies and route selection has been finalized by Sacramento Superior Court Judge Michael Kenny despite a last-ditch effort by a coalition of challengers to get it reopened.

The coalition consists of Atherton, Menlo Park and private groups. Palo Alto has participated as a friend-of-the-court.

Kenny made several additions or changes to the tentative decision he reached last week.

Kenny on Friday agreed to delay his final ruling on the coalition's latest legal challenge, but he proceeded to finalize it Monday -- effectively ending the legal challenge.

In May, the coalition -- which also includes the California Rail Foundation, the Transportation Solutions Defense and Education Fund and the Planning and Conservation League -- asked the court to reconsider an August 2009 decision after discovering the rail authority relied on a ridership model that had not been publicized or peer reviewed.

The 2009 ruling forced the rail authority to decertify and revise parts of its environmental-impact report (EIR) for the rail system's San Francisco-to-San Jose segment. However, the decision did not require the rail authority to re-evaluate its selection of the Pacheco Pass in the Peninsula as its preferred route for the rail system, a route which the coalition is protesting.

Last Thursday, Kenny tentatively denied the coalition's request to re-open the case and argued that the plaintiffs had failed to meet the state's stringent legal requirements for reopening previous rulings.

But after hearing from both sides Friday afternoon, Kenny agreed to take the coalition's latest arguments "under submission" and to delay making a final decision until later this week, the coalition's attorney Stuart Flashman told the Weekly. This means the coalition's challenge to the rail authority's route for the rail system remains alive, albeit hanging by a thread.

The group argued in its May petition that the new evidence indicated the rail authority's ridership and revenue modeling was "obviously and fatally flawed" and that these flaws were concealed from the public. The group has called on the rail authority to consider the Altamont Pass in the East Bay as a possible route for the new rail system.

Even with the new evidence and Kenny's decision to delay a final ruling, the coalition still faces steep hurdles in its quest to reopen its legal challenge. Kenny wrote in his tentative ruling that the "writ of coram nobis" -- a petition which seeks to reopen a final judgment -- "is considered to be a limited and drastic remedy that will be issued only if a number of requirements have been satisfied."

The plaintiffs in this case, Kenny indicated, failed to meet the state's stringent requirements for reopening court decisions: proof that the new evidence would have led the court to reach a different decision; proof that this evidence couldn't have been uncovered earlier as a result of reasonable diligence; and proof that all other legal remedies had already been exhausted.

Kenny wrote in his ruling that the coalition failed to demonstrate that the new evidence would have led to a different ruling a year ago. He faulted the plaintiffs for not discovering the flaws in the ridership model before last year's ruling and also wrote that the coalition had not exhausted all of its legal avenues.

To reopen the coalition's case against the rail authority, Kenny would have to change his mind on all three of these decisions.

The flaws in the ridership model were discovered in January by Elizabeth Alexis, a Palo Alto economist and co-founder of the rail watchdog group Californians Advocating Responsible Rail Design (CARRD). In his ruling, Kenny criticized the coalition for failing to consult transportation experts and for not uncovering the flaws in the rail authority's ridership model before Alexis did so earlier this year.

"Despite the significance of (the Rail Authority's) selection of the Pacheco Alignment and (the coalition's) overwhelming concerns regarding issues related to the ridership modeling purportedly supporting respondent's selection, (coalition members) present no evidence demonstrating that their failure to previously discover this new evidence was not the result of (the coalition's) negligence, fault, or lack of due diligence," Kenny wrote.

But Flashman argued the coalition had no reason last year to suspect that the rail authority's ridership models had the types of major flaws that Alexis uncovered earlier this year. The environmental review had reportedly undergone three peer reviews before it was certified, he said.

"The only reason why these problems were discovered was because we had one person who was a modeling expert and who was able to dig into these models and identify these problems," Flashman said.

The coalition isn't the only group that has been critical of the rail authority's ridership numbers. In June, transportation experts from UC Berkeley's Institute of Transportation Studies issued their own independent review and found "significant problems that render the key demand-forecasting models unreliable for policy analysis." The rail authority has persistently defended its ridership studies, which were performed by the firm Cambridge Systematics, and characterized Berkeley's criticisms as academic squabbles.

Flashman also disputed Kenny's findings that the coalition has other legal remedies available to challenge the rail authority's data. Last year's court order did not require the rail authority to revise its ridership numbers. The rail authority has indicated that it is "only obligated to respond to those comments received during the circulation period that relate to the content" of the revised material, which does not include ridership data.

"The reason we went forward with this is because we felt this is the only remedy we've got," Flashman said.

The rail authority, meanwhile, has just completed the court-mandated revisions to the environmental-impact report for the San Francisco-to-San Jose segment. The authority's board of directors is scheduled to discuss the revised document at its next meeting, which is scheduled for Sept. 1 and Sept. 2. Last Thursday, rail authority Chief Executive Officer Roelof van Ark issued a statement praising Kenny's tentative ruling.

"We're happy that the court has tentatively ruled that the petition fails to meet the standard for reopening a final judgment," van Ark wrote. "The authority has been committed to transparency in carrying out its environmental analysis and we will continue to work with and gather feedback from residents of the Peninsula and other interested groups."

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Like this comment
Posted by Morris Brown
a resident of Menlo Park
on Aug 23, 2010 at 7:58 pm

The Judge today, Aug 23rd, ruled that his tentative ruling was final. He made a couple of sentences changed in the final ruling, as shown at the very end of the ruling. So the Tentative ruling stands.


Web Link

morris Brown

Menlo Park

Like this comment
Posted by GiveItUp
a resident of Woodside
on Aug 24, 2010 at 7:55 am

I suppose you believe in angels too?

Like this comment
Posted by What?
a resident of Downtown North
on Aug 24, 2010 at 9:38 am

"The authority...will continue to work with and gather feedback from residents of the Peninsula..."
Yeah...Right...and subsequently ignore everything they hear!

Like this comment
Posted by Walter_E_Wallis
a resident of Midtown
on Aug 24, 2010 at 10:18 am

Walter_E_Wallis is a registered user.

While you are at it, get some judge to declare the income tax unconstitutional.

Like this comment
Posted by the_punnisher
a resident of Mountain View
on Aug 24, 2010 at 10:42 am

Its taken over 30 years, but the NIMBY's on the Peninsula finally LOST.

The group of cities mentioned killed the type of transportation that other cities have had for DECADES...the working RING system that has served many other cities across the US so well...

Like this comment
Posted by What?
a resident of Downtown North
on Aug 24, 2010 at 12:13 pm

Good name. It suits you well. Maybe you'll have more sympathy for "NIMBYs" when your entire life savings are needlessly devastated by a disaster like this. Maybe the right of way should be redirected to your house.

Like this comment
Posted by C
a resident of East Palo Alto
on Aug 24, 2010 at 1:37 pm

What if.... the High Speed Rail ends the congestion on our freeways,
gives trains and buses fewer stops and lightens the load at the Palo Alto Airport.... Would that make the NIMBY's happier???

Like this comment
Posted by GOOD
a resident of Another Palo Alto neighborhood
on Aug 24, 2010 at 2:48 pm

About time that know it All types stop acting like they speak for everyone else and if you dont think there right.. They will scream and shout and sue

Like this comment
Posted by Resident
a resident of Duveneck/St. Francis
on Aug 24, 2010 at 8:10 pm

Everyone with these smug, arrogant comments has no respect for this state or any business or person that will be directly affected by this horror. Shame on you. Don't tell your neighbors your opinions because when the disaster- it will be- hits the fan, they will wag their finger in your direction - not the other way around. OMG poor California.

Like this comment
Posted by Walter_E_Wallis
a resident of Midtown
on Aug 24, 2010 at 9:48 pm

Walter_E_Wallis is a registered user.

Hey, HSR, Take my house, please.

Like this comment
Posted by GOOD
a resident of Another Palo Alto neighborhood
on Aug 25, 2010 at 1:54 pm

and WHO is smug and arrogant??

Like this comment
Posted by Bob
a resident of Atherton
on Aug 26, 2010 at 12:00 am

When I submitted my question in writing as was the process at the last meeting at Menlo Park City Hall it was not read out loud. As a matter of fact when I questioned the rail experts after the meeting they fumbled around as the answer was buried under some lost appendix, subsection, paragraph, Not giving up and continuing to push I finally got the answer to the question. How many trains will run every day, including HSR and Cal Train. And how many will run at peak hours. The numbers are staggering, See if you can find the answer to what should be the most obvious question.

Like this comment
Posted by Jay Tulock
a resident of another community
on Aug 26, 2010 at 11:01 am

You are all fools. Commenting on the EIR will give you comments back from the Authority followed by their will shoved down your throats. There are no comment police to take your sane comments and rule the Authority as lunatics. Those who will comment on your comments are your foes. You may get some delay if you sue, but whatever decision is made will be by a judge who must follow law and probably does not understand high speed rail planning concepts any better than most of you and your representatives do. Meanwhile Kopp, a savvy judge, will find ways to manipulate the law so that all challenges are moot.

There is only one way to stop this madness. Cease your local bickering, your calls for remediation, your fantasy of a tunnel. Join all others up and down the state who are similarly being bombasted by the Authority. Raise $3 million, hire signature gatherers, and place an anti Propo 1A measure on the ballot. The 52 percent do not exist anymore, despite what pro high speed rail people say, due to the economy, public project detail awareness, and skepticism of the integrity of the Authority. None of this existed before the 2008 vote. The Authority will lose their bond money, they will lose their public mandate, you will regain a bright future for your towns.

With Kopp and Diridon finally smashed, hope for a real high speed rail system may come to pass. You must start today. One of you must start today, then two, then ten-thousand.

Jay Tulock, Vacaville

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