News - April 28, 2010

Menlo Park joins Atherton in asking to reopen rail suit

by Sean Howell

Never one to be left behind when it comes to high-speed-rail advocacy, the city of Menlo Park is joining several other plaintiffs, including the town of Atherton, in asking a judge to reopen a lawsuit against the California High-Speed Rail Authority.

The suit, alleging that the rail agency did not adequately review the environmental impacts the system could have on the Peninsula as it passes along the Caltrain corridor, was originally decided in August 2009 by Sacramento Superior Court Judge Michael Kenny. Judge Kenny's ruling de-certified the environmental analysis document, but did not by and large fault the agency's environmental review of the Peninsula segment of the route, and did not order work on the project to stop.

Stuart Flashman, the attorney who filed the original lawsuit, began looking into the possibility of re-opening the suit in February, contending that the rail agency had withheld crucial information about how it arrived at an estimate of how many people would ride the train. That estimate, which rail critics have said shows a strangely high number of boardings in Gilroy, might have provided the rationale to send high-speed trains shooting along the Caltrain corridor, rather than the Altamont Pass, according to Mr. Flashman.

Menlo Park's City Council agreed with Mr. Flashman's assessment that ridership information had been "improperly withheld from the petitioners, the public, and the court," voting 4-0 in closed session to join the suit at its April 20 meeting, with Andy Cohen recused.

Councilman John Boyle, who dissented in the council's original decision to join the suit, voted to join this time around. He said his fundamental stance that high-speed rail might be a good thing for city because it would improve grade crossings hasn't changed. But he'd like to know whether the route selection would have been different, had the correct information been used to generate the ridership model.

"It does go, potentially, to the heart of the whole model: Did they pick the right route?" he said. "The public has a right to know how material this would have been."

Of the environmental and rail advocacy nonprofit groups that spearheaded the original lawsuit, all but the BayRail Alliance have decided to re-up, according to Mr. Flashman.

He intends to file a writ of error coram nobis in Sacramento County Superior Court early this week, asking Judge Kenny to revisit the suit based on the new information.

The rail agency first attributed the variance in the numbers to an immaterial typographical error, and later released a statement maintaining that all pertinent ridership information has been publicly available since 2007.

Also at its April 20 meeting, Menlo Park's council unanimously approved the wording of a comment letter to the rail agency on the environmental review process. The agency is re-circulating the initial environmental review, to comply with Judge Kenny's ruling.

Atherton's City Council unanimously approved the wording of its letter to the rail agency at its April 21 meeting.


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