42182Citing UP track rights, Atherton NIMBY to file lawsuit to stop HSR
- Aug 6, 2009Published Wednesday, August 5, 2009, by the Palo Alto Daily Post
Lawsuit seeks to stop bullet train
By Diana Diamond
Daily Post Associate Editor
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.
The suit could stop the planned 2012 construction of this system dead in its tracks on the Peninsula.
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.
The High-Speed Rail Authority is considering plans to put the bullet train on a 15-foot-high embankment, creating what critics call a Berlin Wall.
Some Peninsula residents are urging the authority to dig a tunnel for the high-speed tracks rather than up them on a tall embankment.
Union Pacific still operates freight service on the San Francisco-to-San Jose portion of the tracks.
The history of which entity holds the rights to the tracks is a bit complicated.
According to Brady, in 1991 Union Pacific sold its track rights to Caltrain's governing body, the Peninsula Corridor Joint Powers Board, giving the board the full control of the tracks. But Union Pacific preserved nine rights that include approving any changes that a new rail system, such as the high-speed rail, may want for the tracks.
Thus, Union Pacific must give approval to proposals that affect Caltrain's right to use the tracks running through the Peninsula.
The (Joint Powers Board) and (High-Speed Rail Authority) have a memo of understanding explaining everything they must do," Brady said.
In a Feb. 23 letter to the authority from Jerry Wilmoth, Union Pacific's general manager of network infrastructure, Wilmoth said, "... it is not in Union Pacific's best interests to permit any proposed high-speed rail alignment on our rights of way."
But the letter also left a door open to further negotiations when Wilmoth wrote that Union Pacific is willing to meet with the High-Speed Rail Authority "to better understand the authority's intentions regarding use of the Union Pacific rights of way."
While Caltrain is aware of the need for Union Pacific's agreement, it has apparently ignored it, Brady said.
"I have appeared at meeting of the (Caltrain Joint Powers Board) and raised this issue in public ... Union Pacific has written several letters to the JPB saying their agreement cannot be violated," he said. "(Caltrain) is not saying anything about the (contractual) elephant in the room."
Hence the lawsuit that aims to make sure Caltrain complies with the law and the contracts, Brady said.
Brady and the plaintiff recently met with a Union Pacific representative, and while the railroad "would like to accomplish a system identical with what residents want," there was no formal commitment yet on the railroad's part to push the Caltrain board.