Link: California High Speed Rail Blog: Another Peninsula NIMBY Lawsuit
Saturday, August 8, 2009
Another Peninsula NIMBY Lawsuit
Clem has the scoop over on his blog about a planned lawsuit from an Atherton resident opposed to HSR that argues Union Pacific's consent must be given before the HSR project can proceed. From a Palo Alto Daily Post article:
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....
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.
As Clem lays out, this stems from Section 2.7 of the agreement between Caltrain and the UPRR, which seems to indicate that UP has to give its consent before any intercity trains can use the tracks. It is this clause that Peterson is using as the basis of his suit. I would be surprised if a judge finds Peterson has standing to sue using this agreement as a basis - wouldn't that be UP's place to decide whether or not to uphold their contractual agreement?
But as Clem found, there are other parts of the agreement that suggest Caltrain actually holds the cards here:
8.3.(c) In the event that Owner demonstrates a reasonably certain need to commence construction on all or substantially all the length of the Joint Facilities (including User's Cahill/Lick Line) of a transportation system that is a significant change in the method of delivery of Commuter Service which would be incompatible with Freight Service on the Joint Facilities (other than User's Cahill/Lick Line), Owner may, at its sole cost and expense, file no sooner than nine months prior to the commencement of such construction for permission from the ICC to abandon the Freight Service over the portion of the Join Facilities (excluding User's Cahill/Lick Line) upon which the construction is to occur. User shall not object to or oppose such a filing; however, it shall be allowed to participate in the abandonment proceedings.
Clem's interpretation is that the Caltrain/HSR project qualifies under this provision, although both Caltrain and the CHSRA have preferred to work with UP instead of against them. And that makes sense to me.
Peterson's suit will probably not go anywhere, but it does raise the issue of UP, its trackage rights, and how this affects Peninsula HSR planning. As Rafael has pointed out on several occasions, the tunnel that Peninsula NIMBYs prefer for the Caltrain/HSR corridor would almost certainly prevent freight trains from continuing to use the route.
Although it is theoretically possible that a tunnel could be built south of Redwood City and the Dumbarton rail bridge rehabbed to allow the UP freight hauler to continue to use the tracks, no money has been identified for this option, nor has it been seriously discussed. It's also worth noting that this would do nothing to help the cities further up the Peninsula, like Burlingame and San Mateo, that have also been calling for a tunnel. (Of course, I am quite confident that if Atherton, Menlo Park and Palo Alto felt they could solve their own problems by screwing the other Peninsula cities, they would gladly do so.)
If UP wants to continue running freight along the route, they are best off with an above-grade solution, and one has to assume they are quite well aware of this. Caltrain and the CHSRA are designing the route with UP's needs in mind. So why would UP have any interest in suing? No wonder a Peninsula NIMBY has to go it alone.
Posted by Robert Cruickshank at 5:47 PM
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