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In heated high-speed rail battle, Peninsula residents may have found their Goliath
• Citing potential common ground between Peninsula dwellers and Union Pacific, local residents plan to file an action to assure the railroad behemoth has a seat at the table in high-speed rail negotiations.

by Sean Howell

Correction: In a previous version of this story, we identified Russell Peterson, who is bringing a lawsuit against the High-Speed Rail Authority and Peninsula Corridor Joint Powers Board, as an Atherton resident. In fact, he lives in Menlo Park.

Those who would like to see the high-speed rail line run in a tunnel or a trench, rather than on a berm, as it passes through the Peninsula might have found an ally in the negotiating process — in the form of, ironically, a major railroad company.

According to Menlo Park attorney Mike Brady, Union Pacific railroad retained an unusual set of rights when it sold the Caltrain corridor to the Peninsula Joint Powers Board, which represents Peninsula counties, in 1991. Among those rights is the right to "veto any other inter-city passenger service" running along the rail line, and to prevent any invasive construction in the right of way, according to Mr. Brady.

With Mountain View-based attorney Zachary Tyson, Mr. Brady plans to file a declaratory relief action Tuesday, Aug. 11 in San Mateo County Superior Court on behalf of Menlo Park resident Russell Peterson. In the claim, Mr. Peterson asks the court to declare that the High-Speed Rail Authority cannot begin work on the project without Union Pacific's consent.

Residents who feel that neither the High-Speed Rail Authority nor the Joint Powers Board are looking out for their interests hold out hope that Union Pacific could disrupt potential plans for raised tracks, which many feel would have deleterious effects on local communities.

Mr. Brady and Mr. Tyson are working pro bono, according to Mr. Brady.

Unlikely Union

Peninsula residents and Union Pacific officials would make unlikely bedfellows, given that the three Peninsula counties — Santa Clara, San Mateo and San Francisco — originally bought the rights to the rail corridor from Union Pacific.

But residents who are concerned about the potential impacts of the high-speed rail system on local jurisdictions have said they think the Caltrain board is more interested in securing benefits for its own system, such as electrification of the rail line, than it is in defending the interests of Peninsula communities.

It's not clear where Union Pacific stands on the prospect of high-speed rail, though it has said it doesn't intend to give up its right to veto the high-speed trains, according to Mr. Brady. He points out that a memorandum of understanding between the rail authority and the Caltrain board doesn't even mention Union Pacific, saying the railroad giant is "being completely ignored by the authority and the Joint Powers Board."

In response to a request for an interview, Caltrain said in a statement that "nothing has been done that would violate" Union Pacific's rights.

Mr. Brady agreed with that assessment. "They can plan all they want to, but they couldn't start the project until Union Pacific agrees," he said. "It's a waste of public funds for the Joint Powers Board and the High-Speed Rail Authority to be planning this project without Union Pacific's consent."

Mehdi Morshed, the authority's executive director, said in a statement: "We're looking forward to working in good faith with everyone involved and can't speak to a lawsuit that doesn't exist."

Common ground?

On the issue that looms largest in the minds of locals — whether the rail system would run underground, or on a berm — Peninsula residents and Union Pacific might find some common ground, Mr. Brady said.

For instance, running Caltrain and high-speed rail tracks through an underground tunnel, with Union Pacific freight running above ground, could be a win-win for both locals and the railroad giant, he said. Union Pacific wouldn't have to share the above-ground tracks, enabling it to run freight trains during the day. And Peninsula cities wouldn't have to confront a 15-foot-high berm bisecting their communities.

Perhaps Union Pacific would make the tunnel option, thought in many quarters to be prohibitively expensive, a condition for its consent to the high-speed rail system.

Mr. Brady admits it's all speculation at this point. He met with Union Pacific representatives, but didn't get any indication of the railroad's position, he said.

If Union Pacific is concerned about its rights when it comes to the rail corridor, why doesn't it file for declaratory relief itself?

"It's probably political," Mr. Brady said. "Maybe they have to be careful, who knows. I don't purport to answer for them ... What their ultimate position will be, I don't know."

Posted by David, a resident of another community, on Aug 13, 2009 at 7:22 am

Back in the day, the idea of a high-speed train would have been greeted as "progress". You didn't like the idea? Tough. It was something done for the community. Now, everyone's got the right to scream NIMBY. All these people are doing is wasting our money. Let's get this line built and start reaping the benefits. As for the folks who live by the line, well, they've always lived by the railroad tracks, same as people near airports knew what they were doing when they bought where they did. Get over it people, and let's get on with life.