News - February 17, 2010

Attorney looking to reopen rail suit

by Sean Howell

The attorney who represented Menlo Park, Atherton, and several environmental groups in a lawsuit over the proposed California high-speed rail project is looking to re-open the case, in light of recently discovered information about ridership projections. Whether the two local jurisdictions will join him remains to be seen.

Oakland-based attorney Stuart Flashman said he began investigating the possibility of revisiting the case after new information came to light about the data on which the High-Speed Rail Authority based its ridership model. The information could have had a significant impact on the ridership model, which in turn could have influenced the board's decision to run trains along the Caltrain corridor, rather than the Altamont Pass, Mr. Flashman maintained.

Elizabeth Alexis, co-founder of Californians Advocating Responsible Rail Design, said she learned two weeks ago that the model the rail authority used to project ridership figures was different than the one the agency has disclosed in public documents. Ms. Alexis obtained a memo from a consultant working with the rail agency, indicating that regional transportation officials made a conscious decision not to publicize the most recent methodology in the final report.

"We don't know what was behind that decision, but the result is that the public and ourselves were all deceived," Mr. Flashman said, adding that he had long doubted the ridership numbers, but couldn't find conclusive evidence that they had been manipulated. "If we had known about these changes, we would have screamed bloody murder."

Rail authority officials first said the changes to the ridership model were too minor to warrant republication, then attributed the discrepancy between the published document and the information Ms. Alexis received to a "typographical error."

The lawsuit in which Atherton and Menlo Park participated alleged that the decision to run high-speed trains along the Caltrain corridor was based on a faulty environmental review process. The results of the ridership study were part of that review process, according to Mr. Flashman.

A Sacramento County Superior Court judge ruled in October that work on the high-speed rail line between San Jose and San Francisco could proceed, despite flaws in the environmental impact report.

Mr. Flashman is drafting a writ of error coram nobis that he hopes to file in Sacramento County Superior Court, provided he can persuade the original plaintiffs in the case to sign on. It's a very rare procedure most often used in divorce proceedings, Mr. Flashman said, when a spouse finds out information about his partner that hadn't been disclosed — that she had a Swiss bank account, for example.

"Essentially what it's about is, there was a factual error in the record, and as a result, we didn't get a fair trial," he said. "If we had had this evidence, the case would have gone entirely differently."

Atherton's City Council is scheduled to vote in closed session on whether to join the new motion at its meeting Wednesday, Feb. 17, according to City Attorney Wynne Furth.

Menlo Park has not yet placed the item on an agenda, though the Feb. 23 meeting is a possibility. Mayor Rich Cline said he wanted to make sure the council has the opportunity to engage in a thorough, informed discussion on it, adding that it's no sure thing that the city will join on.

Noting that trains would cut alongside the Belle Haven neighborhood and through Flood Triangle under the Altamont alignment, Mr. Cline added that even a successful lawsuit wouldn't be a panacea.

"The fact is, I don't think the outcome for Menlo Park rests on Altamont being the right of way," he said in an interview. "Until we've seen real answers rather than explanations (from the rail authority), it really doesn't matter which way they're coming for us."


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