By Glen Hansen
On June 1, 2012, the County of Madera, the Madera County and Merced County Farm Bureaus, Chowchilla Water District, and other individuals and entities (collectively, “Petitioners”) sued the California High-Speed Rail Authority (“Authority”) on the grounds that the Authority had violated CEQA and the Bagley-Keene Open Meeting Act related to the approval of the approximately 75-mile Merced to Fresno section (“Section”) of the proposed 800-mile public transit project known as the High-Speed Rail project. Petitioners allege that that a significant portion of the Section would “deviate from existing transportation corridors, resulting in the destruction of and interference with thousands of acres of farmland, wildlife habitat, hundreds of homes, may businesses, commercial properties and industrial facilities, existing roads and water delivery facilities.” Petitioners further allege that the final environmental impact report (“FEIR”) for the Section contains “myriad analytical deficiencies,” fails to disclose and analyze “the full scope and severity of impacts,” and improperly defers “impact analysis and mitigation.” Petitioners also allege that the Authority violated the Open Meeting Act by not providing “the required notice for the substantive changes to the analysis of Section impacts and the scope of mitigation measures included in the Errata to the FEIR ….”
Then on September 18, 2012, the Federal Railroad Administration issued its Record of Decision on the final environmental impact statement for the Section.
On October 3, 2012, Petitioners moved for preliminary injunction in order to stop preconstruction activities on the Section. According to Anja Raudabaugh, executive director of the Madera County Farm Bureau: “Regardless of the federal approval and regardless of the Obama Administration’s promise to expedite permits, the CEQA case will stop the project if the preliminary injunction is issued.” Raudabaugh added: “If an injunction is issued, they will not be able to release federal money in time to complete by the December 2017 deadline, which stops our segment of the project.” However, on November 16, 2012, the Superior Court denied Petitioners’ motion for preliminary injunction. In the minute order, the Court stated that, while it had “some questions and concerns about particular elements of the Authority’s environmental analysis,” the overall impression was that the Authority “acted reasonably and in good faith” in the environmental analysis, and that a member of the public “would have a fair understanding” of the project’s expected environmental impacts and how the Authority plans to mitigate them. Thus, on the first element of a preliminary injunction analysis, the Court held that it could not conclude at this initial stage of the litigation that Petitioners are likely to prevail on the merits. As to the second element of the preliminary injunction analysis, the Court ruled that “the balance of interim harms favors denying injunctive relief.” The Court explained:
In sum, the Court must balance the potential increased cost of construction and potential loss of some or all of the $3.2 billion in federal funding against the interim harm that may be caused by various pre-construction activities, such as design review and efforts to acquire right of way for the project. In the Court’s view, this balancing is not a close question. The balance of harms favors allowing the pre-construction activities to proceed.
The Court has indicated that it might reach a different conclusion if construction were to commence during the pendency of this case. However, the Court does not see that as a realistic risk. Should circumstances change, Petitioner may renew its motion.
In light of the Court’s ruling, the Authority has the go-ahead to seek permission of landowners to survey properties as part of the process to acquire the land needed to construct the Section. The hearing on the merits of the Petitioners’ claims (and those in the related consolidated actions) is scheduled for April 19, 2013.
Similar actions filed against the Authority by the City of Chowchilla and Timeless Investment, Inc., among others, have been consolidated with the Petitioners’ action discussed above. County of Madera v. California High-Speed Rail Authority (Sacramento County Superior Court case no. 34-2012-800001165-CU-WM-GDS, filed 6/1/2012).
Glen Hansen is senior counsel at Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.
The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, or the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.