Viewpoint - July 14, 2010

Guest opinion: Case affirmed Union Pacific's rights

by Michael J. Brady

This is a response to last week's guest opinion by Quentin Kopp, a board member of the state's High-Speed Rail Authority.

I am counsel for Russ Peterson and Roger Reynolds Nursery in the Peterson v. High-Speed Rail case, which Mr. Kopp discussed last week.

Mr. Kopp thinks the case was unmeritorious. Far from it. The sole goal of the case was to ensure that high-speed rail and Caltrain not try to start construction of a high-speed rail project on the Peninsula unless and until they secured the written consent of Union Pacific Railway to every aspect of construction contemplated.

This is absolutely required pursuant to a binding contract that goes back to 1991. The defendants have been ignoring that contract and the rights of Union Pacific. Caltrain and the rail authority instead entered into "memoranda of understanding" between themselves as to their grand high-speed rail plans without mentioning the rights of Union Pacific, which has virtual veto power over any such project on the Peninsula.

Union Pacific has written many letters to the defendants warning them of their rights and not to do anything without securing their consent. When asked to acknowledge Union Pacific's rights, all the defendants would say in public meetings was that, "we're talking."

The lawsuit, which was dismissed for technical and procedural reasons (filed too early), has now secured a court order cementing Union Pacific's rights. The court order states that the defendants both agree that they cannot start construction on the Peninsula without Union Pacific's written consent. The defendants are now bound by that order and cannot do an end-run around it.

Would the defendants have openly and publicly so agreed without the lawsuit and the resulting court order? I doubt it. If Union Pacific's many letters are representative of their current position, the defendants will have a hard row to hoe in trying to get this project up the Peninsula.

They will be held to the exacting standards of the existing contract which gives Union Pacific exclusive and perpetual authority to decide whether, if at all, or under what conditions, the high-speed rail project can come up the Peninsula.

The interests of Union Pacific in protecting its freight operations and the interests of the Peninsula residents in preserving the beauty of their towns and cities may well dovetail in many important respects. The court order will prevent the defendants from doing any end-run around Union Pacific when all indications were that they intended to do exactly that unless prevented from doing so.

Sometimes you have to go to court to ensure that things are done correctly. We have heard countless assurances from the defendants at countless town hall meetings, and the public is becoming increasingly frustrated at the lack of good faith from the proponents of this project.

The High-Speed Rail Authority always professes that they are in compliance with the law. I suggest your readers consult the numerous reports of the Legislative Analyst's Office and the recent scathing report of the California State Auditor on this point, not to mention the just-issued report of the prestigious U.C. Berkeley Institute of Transportation Studies, which says that the authority's ridership study is totally unreliable.

Every activity of these defendants must be watched and monitored closely. The Peterson case provides one more important weapon to ensure such monitoring, thanks to the courageous actions of Russ Peterson and our beloved 90-year-old Roger Reynolds Nursery.

Michael J. Brady is an attorney based in Redwood City.


Posted by Hank Lawrence, a resident of Menlo Park: Sharon Heights
on Jul 21, 2010 at 7:01 am

Mr Brady,

You are a credit to the community. Thank you.

Hank Lawrence

Posted by R.GORDON, a resident of another community
on Jul 21, 2010 at 12:11 pm

R.GORDON is a registered user.

"Our beloved nursery"..indeed.
Union Pacific is very much like the Catholic Church in the enjoyment of using its authority/money to control progress based mostly on a cat and mouse type power play.
Where the church has now lost about everything but its riches because of land it is having to become more lenient in its credos and disciplines of its waning membership. U.P. does this same cat and mouse game with small and large government, but eventually gives in because the old farts who ran it that way are mostly dead.
I still would not dimiss the fact that someone besides China is going to have to govern our country's HSR systems...though doubtful.

Posted by NIMBY Buster, a resident of Menlo Park: Felton Gables
on Aug 2, 2010 at 9:52 pm

Mr. Peterson and Roger Reynolds are no heros in my books. Just cheap NIMBYs, who would use any trick in the book to greedily get and keep what they want, at the expense of the larger public good. They can try and hide behind frivolous proceedings with Union Pacific, but everyone can see them for what they are. Just as bad as the unions that have locked on like bulldogs to the unsustainable pensions that are bankrupting our communities. I can see why the 21st century is going to be a Chinese one rather than an American one. We're so busy protecting our own little fiefdoms using every legal and binding arbitration trick possible, that we push off the important civic projects for our future. Short term fools !

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