Groups aim to reopen HSR EIR lawsuit over MTC's ridership meddling
- Published Monday, February 8, 2010, by the San Mateo County Times
Menlo Park, Atherton will try to reopen high-speed rail lawsuit
By Mike Rosenberg
San Mateo County Times
Menlo Park, Atherton and four environmental groups that sued the California High-Speed Rail Authority said Monday they will file a petition to reopen the case based on recently revealed ridership figures.
The plaintiffs hope their motion, to be filed in Sacramento Superior Court within the next two weeks, will lead to a full trial that would include evidence discovery and witness testimony. Ultimately, they hope the suit will reverse the rail authority's December 2007 decision to run its bullet train through the Peninsula instead of the East Bay.
If the plaintiffs are successful in getting their case reopened, their actions would help derail the polarizing $42.6 billion San Francisco-to-Anaheim bullet train by slowing down the planning process. Any delay, rail officials have said, would cause the state to miss its September 2012 deadline to use its $2.25 billion stimulus grant, which is being leveraged to access voter-approved bond money and private investments.
The plaintiffs' attorney, Oakland-based Stuart Flashman, said a "writ of error coram nobis" <http://tinyurl.com/yze3uv8>, while uncommon, can be used to reopen a case even after a judgment has been made, as long as previously unknown evidence comes to light after the case closes.
The plaintiffs claim a group of concerned Peninsula residents last week obtained documents from 2007 <http://calhsr.com/resources/ridership-forecast> that show the Bay Area Metropolitan Transportation Commission may have hid parts of an independent study that showed less favorable ridership models. The residents, called Californians Advocating Responsible Rail Design <http://calhsr.com>, circulated the data to city officials, who Flashman said were "furious" at the discovery.
Flashman, who has already begun drafting the motion, said the new data makes the ridership study the authority used to justify its route "fatally flawed, but none of us knew it."
Flashman said it's still unclear whether the rail authority was even aware of the ridership data provided by transportation consulting firm Cambridge Systematics <http://camsys.com>, which the MTC hired on the rail authority's behalf. The authority's main justification for picking the Pacheco Pass Route over the Altamont Pass was the difference in expected riders.
But the claim, even if true, may not be enough. The ridership numbers may not have any impact on the rail line's environmental impact, which is the only basis on which the judge could reopen the case.
Authority Deputy Director Jeff Barker said Monday the state had not been made aware of any new legal action and could not comment further.
Quentin Kopp, a Bay Area rail authority board member, called it another attempt by the plaintiffs to avoid having to post a hefty bond required when asking for an injunction, or a halt to the planning process.
"I must await the actual petition to understand it fully," Kopp said. "But I can and will say that it smacks of another effort to avoid the legal requirements of a preliminary injunction."
Kopp, a semiretired San Mateo County judge, said he was not sure of the legal merits of that specific motion in civil court, and had only heard of it being used in criminal proceedings.
The plaintiffs last summer lost the majority of their suit <http://transdef.org/HSR/HSR_Lawsuit.html>, which they filed in Sacramento Superior Court in August 2008. They cited environmental laws in challenging the authority board's certification of an early planning document that picked the Pacheco Pass as the Bay Area route instead of the Altamont Pass.
But Judge Michael Kenny did rule that two areas of the authority's report needed more study: Vibration and track use from San Jose to Gilroy. The authority is redoing that work while it chugs along with more advanced planning.
Flashman went as far as to suggest a possible criminal fraud investigation against those at the MTC responsible for concealing ridership data, if in fact they did. But such an investigation would come from the attorney general's office, which is also representing the rail authority in the lawsuit.
Officials at the MTC did not respond to comments by press time Monday.
CARRD relied on co-founder Elizabeth Alexis, an economist who has studied econometrics at Stanford University for four years, to dig through the ridership data.
"For an all-volunteer grass roots organization it is a little daunting," said CARRD co-founder and Palo Alto resident Nadia Naik, who called the news of the motion completely unexpected. "It was as much a surprise to us as anyone that this data hadn't been made public."
If the judge accepts Flashman's motion, he said, a trial could be set within several months.
The other four plaintiffs are the Planning and Conservation League <http://www.pcl.org>, the California Rail Foundation <http://calrailfoundation.org>, the Transportation Solutions Defense and Education Fund <http://transdef.org> and BayRail Alliance <http://bayrailalliance.org>. The city of Palo Alto filed a brief in support of the suit.
Mike Rosenberg covers San Mateo, Burlingame, Belmont and transportation. Contact him at 650-348-4324.
[BATN: See also:
Peninsula watchdog group blasts HSR ridership prediction methods
HSR ridership estimates, assumptions questioned; may be "invalid"
Letter: Deficits abound; HSR ridership projections keep shrinking
Anti-HSR Palo Alto, Menlo Park officials feign ridership worries
Palo Alto HSR meeting: NIMBYs feign altruistic ridership "concern"
Judge in HSR EIR lawsuit allows studies and work to proceed
HSR planning work can continue, judge in EIR lawsuit says
Sacramento judge in EIR lawsuit lets HSR planning continue
HSR EIR lawsuit attorney: a chance to revisit Altamont Pass route
HSRA's Kopp: defending Pacheo HSR route from push for Altamont
HSRA's Kopp declares lawsuits to stop Peninsula HSR frivolous
Menlo Park, Atherton pair raise over $30k to fund HSR lawsuit
Judge to rule on suit against Pacheo Pass HSR EIR by August
HSRA lawyers show Palo Alto backed HSR route it now opposes
Comment: CA HSR must be done right (and on the right route)
Palo Alto group puts HSR tunneling cost at $90-265m per mile
Palo Alto may sue to push HSRA to revisit Alamont Pass route
Menlo Park, Atherton join suit against Pacheco-biased HSR EIR
Menlo Park, Atherton join suit challenging HSR EIR
CHSRA picks Pacheco as sole BA HSR route; Altamont lip service
HSRA picks rural sprawl-inducing Pacheco Pass route for HSR
Pacheco HSR route chosen; trains to zoom along Caltrain line
CHSRA chooses sprawly Pacheco route, despite enviro objections
CHSRA bends to San Jose mafia, picks Pacheco Pass route
Despite logic, Pacheco route chosen instead of Altamont for HSR
CHSRA dumps logical Altamont for SJ-backed Pacheco route
Enviro, rail groups blast Pacheco high-speed rail route choice
Editorial: Pacheco HSR route way off track, way too political
MTC flak claims Pacheco HSR route pick settles "Bay Area question"
MTC votes to back sprawl-enabling Pacheco HSR route via Los Baños
MTC backs rural Pacheco HSR route (with Altamont lip service)
Statement backing MTC dual HSR route ploy draws harsh rebuttal
MTC still backs rural Pacheco HSR route via bustling Los Baños
MTC plans "dual route" ploy in bid to kill Altamont Pass HSR
Editorial: Altamont the better HSR route
Bay Area HSR route choice has implications for Sacramento link
Shameless SJ boosters stop at nothing to force Pacheco HSR route
San Jose boosters eager to railroad HSR over Pacheco Pass
Editorial: For SJ boosters, Pacheco the only sensible HSR route
Editorial: Fund CHSRA; back Altamont over VTA's Pacheco nonsense
Column: Build all of HSR system at once, using Altamont Pass