Why The CHSRA Was Right To Reject The Settlement (Link: www.cahsr.blogspot.com)

Link: California High Speed Rail Blog: Why The CHSRA Was Right To Reject The Settlement

Sunday, July 12, 2009

Why The CHSRA Was Right To Reject The Settlement

by Robert Cruickshank

Reports of the CHSRA's rejection of a settlement offer put forward by Menlo Park, Atherton, the Planning and Conservation League, and several other unnamed organizations have gotten some notice in the comments to the previous post, but it deserves its own entry.

Especially so I can explain why this was the right thing to do for not just the CHSRA, but the HSR project.

The California High Speed Rail Authority has rejected a settlement offer that Menlo Park, Atherton and environmental groups made in a lawsuit challenging the decision to run bullet trains through the Peninsula instead of the East Bay, an attorney for the cities said.

The offer, which the authority rejected in a closed session meeting July 2, would have required the agency to consider running trains through Altamont Pass, said Stuart Flashman, an attorney for the petitioners. Altamont Pass and Pacheco Pass were the two finalists for the route, and the authority selected Pacheco in 2007.

"What we are proposing is we would agree to dismiss the case if you would agree at the project level to restudy one Altamont alternative," Flashman said Thursday. "You throw this out now, and it may not come back. They decided they would just roll the dice."


Why should the CHSRA believe this? Although the specific parties to a settlement would be bound by its terms, others would not. Flashman has done a lot of work to sow doubt about the Pacheco choice. Menlo Park and Atherton have residents who would still be free to file their own lawsuits - suits that are almost guaranteed to occur should the CHSRA decide on anything other than a no-build option for the Peninsula.

More importantly, it would open the door to revisiting route choices by what is essentially blackmail. Route selection and design choices must be driven by what is best for the HSR project.

There's more:

Flashman noted that the authority did not make a counter offer.

Sacramento County Superior Court Judge Michael Kenny held a five-hour hearing in the case May 29 and must make a ruling by the end of August, Flashman said. In the meantime, he must go through about 35,000 pages of documents.

"I felt, and talking with my clients they also felt, that this would have been an opportune time to try and settle," Flashman said. "Essentially we were in a situation where everybody could form their opinions about who was likely to win."


Flashman is parsing his words carefully here, but this is as clear an admission of defeat as we'll probably ever get from him and his crew. One has to assume the CHSRA recognized this as well and therefore felt no reason to settle. A court victory for the Authority would also do much to discourage other frivolous lawsuits.

Still, would it have been good for the CHSRA to offer a settlement anyway? Especially since it's possible that refusing to do so might reinforce the incorrect view among the Peninsula NIMBYs that the CHSRA is unaccountable and hostile?

I don't believe it would have been, since I'm not seeing anything the CHSRA could have offered that would be better than a court victory. As I noted above, no settlement could stop others in Menlo Park and Atherton - or other cities - from suing. Flashman et. al. want to force reconsideration of the Altamont corridor, but that ship has long since sailed, especially with CA voters ratifying the plan to use the Altamont corridor as a high speed corridor anyway.

I still await the final verdict, in favor of the HSR project and its fair process, against NIMBYs and those so-called environmentalists who prioritize small-time parochial concerns over the much greater benefits to the environment of actually building HSR.