David vs. Goliath
The High Speed Rail issue will be an interesting battle between the powerful and elite vs. the ordinary folks just trying to save their homes & livelihood
Jan 29, 2013
If nothing else, the High Speed Rail issue will be an interesting battle between the powerful and elite vs. the ordinary folks just trying to save their homes & livelihood. On the one side you have President Obama, Governor Brown, Chairman of the Fresno County Board of Supervisors Hentry Perea, and Fresno Mayor Ashley Swearengin all pushing this project, and to date showing little concern or interest in what may happen to people along the proposed route. On the other side, you have Kings County, Madera County, and many of their affected residents. Agriculture interests are represented by the Madera, Kings, and Merced Farm Bureaus in that few statewide ag organizations have had the cojones to stand up to the powerful and support their members in the area. The articles below indicate the little folks may have some ammunition left in what amounts to a guerrilla opposition effort to this project.
By Ralph Vartabedian, Los Angeles Times
Construction of California's high-speed rail network is supposed to start in just six months, but the state hasn't acquired a single acre along the route and faces what officials are calling a challenging schedule to assemble hundreds of parcels needed in the Central Valley.
The complexity of getting federal, state and local regulatory approvals for the massive $68-billion project has already pushed back the start of construction to July from late last year. Even with that additional time, however, the state is facing a risk of not having the property to start major construction work near Fresno as now planned.
It hopes to begin making purchase offers for land in the next several weeks. But that's only the first step in a convoluted legal process that will give farmers, businesses and homeowners leverage to delay the project by weeks, if not months, and drive up sales prices, legal experts say.
One major stumbling block could be valuing agricultural land in a region where prices have been soaring, raising property owners' expectations far above what the state expects to pay.
"The reality is that they are not going to start in July," said Anthony Leones, a Bay Area attorney who has represented government agencies as well as property owners in eminent domain cases.
State high-speed rail officials say it won't be easy, but they can acquire needed property and begin the project on time.
"It is a challenge," said Jeff Morales, the rail agency's chief executive. "It is not unlike virtually any project. The difference is the scale of it."
Quickly acquiring a new rail corridor is crucial to the project, which Gov. Jerry Brown touted last week as the latest symbol of California's tradition of dreaming big and making major investments in its future.
Delays in starting construction could set in motion a chain reaction of problems that would jeopardize the politically and financially sensitive timetable for building the $6-billion first leg of the system. Under its deal with the Obama administration, which is pushing the project as an integral part of its economic and transportation agenda, the state must complete the first 130 miles of rail in the Central Valley by 2018, an aggressive schedule that would require spending about $3.6 million every day.
California voters in 2008 approved plans for a 220-mph bullet train system that would initially link the Bay Area and Southern California at a cost of $32 billion, less than half the estimated cost of the project.
If the construction schedule slips, costs could grow and leave the state without enough money to complete the entire first segment. Rail agency documents acknowledge initial construction may not get as close to Bakersfield in the southern Central Valley as planned.
In addition to property, the rail authority still needs permits from the Army Corps of Engineers and approval by the San Joaquin Valley Air Pollution Control District, two more potential choke points that Morales says can be navigated.
The land purchases are waiting on the hiring of a team of specialized contractors, but they cannot start their work until the rail agency gets approval from another branch of the state bureaucracy. About 400 parcels are needed for the first construction segment, a 29-mile stretch from Madera to Fresno.
The formal offers will start an eminent domain action, the legal process for seizing land from private owners. The owners have 30 days to consider the offer, and then the state must go through a series of steps that can add 100 more days of appeals and hearings, assuming the state can get on the court calendar, according to Robert Wilkinson, an eminent domain litigator in Fresno. If the state fails to convince a judge that a quick takeover of property is justified, formal trials could stretch on for 18 months, he added.
"I would think a lot of these are going to end up in litigation," he said. "It is a tight schedule, no question about it."
Indeed, the rail authority's formal right-of-way plan indicates it does not expect to acquire the first properties until Sept. 15, despite other documents that indicate construction would start in July. Rail officials said they padded the schedule to avoid claims for additional payments by construction contractors should land not be available by July.
Last month, the federal Government Accountability Office reported that about 100 parcels were at risk of not being available in time for constructionThat assessment was based on information the office collected last August. Susan Fleming, a GAO investigator, testified at a House hearing last month: "Not having the needed right of way could cause delays as well as add to project costs."
Morales said in a recent interview that he would not argue with the warning in the GAO report but still sees nothing that would delay the start of construction. Technically, the rail authority could meet the July target date by beginning demolition or other construction on a single piece of property, he said.
Anja Raudabaugh, executive director of the Madera County Farm Bureau, which is suing to halt the project under the California Environmental Quality Act, said the rail authority will face strong opposition to condemnation proceedings in the Central Valley. The bureau has hired a condemnation expert to help battle the land seizures.
"It is a harried mess," she said.
She noted that agricultural land prices rose rapidly last year across the nation. In the Central Valley, the average price of farmland is $28,000 per acre, while the rail authority's budget anticipates an average price of $8,000 per acre, she said.
Kole Upton, an almond farmer who leads the rail watchdog group Preserve Our Heritage, questioned the rail agency's expertise in conducting complex appraisals of agricultural land that has orchards, irrigation systems and processing facilities.
"I am not sure this thing has been well thought out by people who have a deep understanding of agriculture," Upton said. "I live on my farm, and my son lives on my farm. My dad started it after World War II. This is our heritage and our future."
Morales said he believes the agency's budget for property acquisitions is adequate and he did not want to negotiate prices publicly.
"We don't think we are wildly off," he said.
By Chris Reed
Reports that the California High-Speed Rail Authority and Amtrak are teaming up to buy bullet trains and that the state is preparing for hundreds of eminent-domain property seizures in the Central Valley for the bullet train’s first segment are grim reminders that common sense and fiscal responsibility are under siege in Sacramento and Washington.
But however one feels about the $68 billion bullet train project, its 50-month journey from the California ballot box to the present day should give pause to those who believe in the law, due process and democracy. Both a plainly written state law and crystal-clear federal regulations were supposed to protect taxpayers from the project proceeding if there were warning bells about its viability and prudence. In California, the warning bells haven’t been occasional; they’re so constant as to be deafening. Yet the project keeps moving along.
In November 2008, California voters narrowly approved Proposition 1A, providing $9.95 billion in state bond seed money for a statewide high-speed rail system. Virtually all the promises that were made to win over reluctant voters have proven to be gross exaggerations — whether on cost, ridership, job creation or the likelihood of substantial private investment. But deceptive ballot campaigns for state propositions are legal.
A business plan built around an illegality
However, the state law that was enacted with the passage of 1A is a binding document on the government of California — at least in theory. But the latest version of the rail authority’s business plan, released last May, showed a project on path to run afoul of state law in essential ways.
The business plan continues to assert that there is a likelihood of substantial private investment. But such investment can only be attracted with ridership or revenue guarantees that Legislative Analyst Mac Taylor and others say violate Proposition 1A’s guarantee that there will be no taxpayer subsidies of operating costs. If the guarantees aren’t met, taxpayers have to make up the difference to investors.
Then there is the basic issue of speed. Under the unusually specific language of Proposition 1A, the bullet train is supposed to connect San Francisco with Union Station in Los Angeles, about 382 miles, in a “maximum express service travel time” of two hour and 42 minutes — averaging a minimum of 141 mph. But in order to shave $30 billion off the project’s cost, the Brown administration gave up on bringing true high-speed rail to Los Angeles and its northern suburbs and to Silicon Valley and the peninsula south of San Francisco. The “blended approach” planners now recommend calls for linking the southern end of Silicon Valley with the northern exurbs of Los Angeles with a high-speed rail route that is integrated at each “bookend” with existing rail.
But if the first 50 miles and the last 50 miles of the route are in heavily populated areas where speeds must drastically slow, getting from Union Station to San Francisco in the mandatory 162 minutes or less looks impossible. Perhaps this is why the 212-page business plan is mum on the topic — even though a memo distributed to the rail authority board last year anticipated a three-hour trip, the same estimate that was used in legislative debates last summer before final approval was given to spend $8 billion of state and federal funds to begin building the first segment of 130 miles in the Central Valley.
Once again, the language in Proposition 1A forbidding operating subsidies and mandating minimum train speed aren’t guidelines or goals. They are the law of the state of California.
In a 2011 interview I did with Howard Jarvis Taxpayers Association President Jon Coupal on KOGO 600 AM, we discussed the protections that taxpayers appeared to have from the boondoggle proceeding. Coupal told me that if Gov. Jerry Brown and the Legislature ignored the safeguards written into Proposition 1A, it would be a “betrayal of Californians.” The betrayal is at hand, Coupal noted last week in an email exchange.
But it’s not just Californians being betrayed by the bullet train project. It is all U.S. taxpayers. Federal regulations governing the spending of the $787 billion 2009 stimulus have the force of law. When it comes to the $3.5 billion in federal funding to be used for the Central Valley high-speed rail segment, these rules are simply being ignored.
The specific rules on the use of stimulus funds for state high-speed rail projects were published in the Federal Register on June 23, 2009. They said states could only receive stimulus funds if “rigorous analysis” showed their proposals had a sound “financial plan (capital and operating)” that reflected well upon the “quality of planning process” and had financial estimates reflecting “reasonableness.”
So much for “rigorous analysis.” The present bullet train’s financial plan depends on private investment that will never be forthcoming and upon tens of billions of dollars in new federal funding in the exact category — discretionary domestic spending — that is likely to wither as Washington acts to reduce trillion-dollar deficits. Its planning process has been chaotic; the decision to build the first link in the Central Valley was imposed on the state rail authority by the Obama administration only after years of planning that anticipated initial work in the state’s most populated areas. And “reasonableness” is not a word that will be associated with the project’s financing, given that it is based on assumptions of private investment that will never be forthcoming — at least without illegal promises of taxpayer subsidies if ridership or revenue is less than projected. This broad skepticism isn’t just from California small-government ideologues. It is shared by, among many others, the editorial page of The Washington Post ‘Federal standards aren’t being met’
“None of the federal standards are being met,” state Sen. Mark Wyland, R-Encinitas, told me in an email. “If improving transportation for Californians is the goal, then we are idling on the wrong track. The federal government needs to realize that this plan is a money pit.”
Unfortunately, the highest-profile legal challenge to the project seen so far has struggled to gain traction. Three lawsuits are being heard in a single trial in Sacramento Superior Court. They allege the project’s environmental impact report didn’t meet California Environmental Quality Act standards and had key details approved in a manner that violated open-meeting laws.
But what’s needed is a lawsuit that is much more basic and builds on the original wording of Proposition 1A. The bullet train has to have a legal business plan, and it has to get from Union Station in L.A. to San Francisco in two hours and 42 minutes or less. If it can’t meet these conditions, that should matter to judges and juries who believe we are nation of laws, not men.
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