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Judge issues tentative ruling in favor of California high-speed rail authority

(The following story by Jessica Bernstein-Wax appeared on the San Jose Mercury News website on October 9, 2009.)

SAN JOSE, Calif. — A judge Thursday issued a tentative ruling in favor of the California High-Speed Rail Authority, saying the agency doesn't have to temporarily stop work on plans to run bullet trains between Northern and Southern California, as the cities of Atherton and Menlo Park and some environmental groups had requested.

The Sacramento County Superior Court posted Judge Michael Kenny's ruling late in the afternoon ahead of a hearing today, during which he will likely render a final decision.

"The court concludes that under the circumstances of this case, staying project-level activities is not appropriate," Kenny wrote in the document. "The actions for which a stay is being requested are studies with no potential for adverse change or alteration to the physical environment."

The lawsuit Atherton, Menlo Park and environmental groups filed against the authority challenges its decision to run bullet trains through Pacheco Pass and the Peninsula instead of through the Altamont Pass and the East Bay.

California voters in November 2008 approved Proposition 1A, a measure authorizing the sale of $9.9 billion in bonds to help finance a high-speed rail system. However, the issue has become increasingly contentious on the Peninsula, where some cities are demanding the authority run the trains underground. High-speed rail officials have indicated that tunneling would be more expensive than laying tracks above grade.

In August, Kenny ruled that the authority's environmental impact report didn't provide an adequate description of the project or include a proper land-use analysis. He also said the agency should have recirculated the documents after Union Pacific Railroad Co. said it wouldn't share its tracks with bullet trains.

Opponents of the speedy trains called that ruling a victory, while the authority insisted it had prevailed on most points.

Reached by phone Thursday, Stuart Flashman, an Oakland attorney representing Menlo Park and Atherton in the case, said the rail agency should halt work on the project while it complies with the judge's August ruling.

"They are planning to spend over the next year or so ... $5 million on the project-level environmental work," Flashman said. "I would say $5 million is a considerable amount of momentum. The more money that's spent on a project, the harder it is to get the agency to say that wasn't the right decision."

In a brief filed Monday, the rail authority said it wouldn't let that work color its analysis of the corrected environmental documents.

"The most obvious reason why the court should refuse to stay project-level environmental studies is that these are studies, not bulldozers or shovels that could harm the physical environment," the brief states.

While any outcome is possible at Friday's hearing, "normally the final ruling corresponds with the tentative ruling," rail authority board member Rod Diridon said Thursday. "If the judge had stopped the project we would undoubtedly have missed the federal stimulus deadlines, which would have then lost us almost a billion dollars of federal money and the matching Proposition 1A bond money. We really want to make sure we keep the project on schedule."

Flashman described Kenny's ruling as disappointing but said he feels his clients could still prevail in court.

"I'm hopefully going to convince (the judge) that their interpretation of the law is wrong," Flashman said, referring to the authority.

But "it's always an uphill battle to go against the tentative, because it says the judge has made his mind up," he added.

Friday, October 9, 2009

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