Judge won’t reopen high-speed-rail challenge

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.”