"The central objection of the lawsuit was to get the court to say that the High-Speed Rail Authority cannot start construction on the Peninsula corridor until they get the express consent of Union Pacific — consent in writing — to any construction proposals at all, and we think that this is required," Mr. Brady said last week, commenting on Judge Kevin Culhane's June 22 ruling.
Although Judge Culhane ruled that the lawsuit had no merit and couldn't proceed further in the courts, Mr. Brady said that in the process of getting to that point, both the High-Speed Rail Authority and Caltrain filed legal papers acknowledging they must obtain consent from the private rail transportation corporation before construction begins. And, he added, Union Pacific (UP) has expressed "serious safety concerns" and opposition to having high-speed rail service along its right-of-way.
Mr. Brady and Mountain View-based attorney Zachary Tyson filed the lawsuit last year on behalf of Menlo Park resident Russell Peterson and Roger Reynolds Nursery in Menlo Park.
Consent from UP, which retained the right to veto any intercity passenger service other than Caltrain when it sold the rail corridor in 1991 to the Peninsula Corridor Joint Powers Board that governs Caltrain, may be a key factor in the high-speed rail's construction on the Peninsula.
Although one local newspaper reported last week that unnamed UP officials said the company would not try to block construction of the project, a UP spokesman told The Almanac that the company has not changed its previously stated position about running high-speed trains along corridors where the company has a right-of-way.
That position, spokesman Aaron Hunt said, can be found in part in a letter UP wrote to the rail authority in February 2009, which included the statement that UP's "permanent easement for freight and Amtrak service (along the corridor) is a valuable property and operational right that must not be impaired by construction and operation" of high-speed rail.
In an April 10, 2010, letter commenting on a draft environmental document, UP challenges the rail authority's report: The document, it said, "does not accurately characterize and summarize UP's position, i.e., that no part of the high-speed corridor may be located on UP's right-of-way."
Mr. Brady acknowledged that "the ball is now in Union Pacific's camp." But, he said, the judge's citation of the rail authority's and Caltrain's agreement that UP's consent must be obtained before the high-speed system can be built along its right-of-way constitutes "a binding decision. There is no way the high-speed rail and Caltrain can do an end run around Union Pacific's rights."
The High-Speed Rail Authority could not be reached before The Almanac's press time.