Town of Atherton v. Cal. High-Speed Rail Auth.

• Decision Date: 24 July 2014
• Docket Number: C070877
• Citation: 175 Cal.Rptr.3d 145,228 Cal.App.4th 314
• Court: California Court of Appeals Court of Appeals
• Parties: TOWN OF ATHERTON et al., Plaintiffs and Appellants, v. CALIFORNIA HIGH–SPEED RAIL AUTHORITY, Defendant and Respondent.

228 Cal.App.4th 314

175 Cal.Rptr.3d 145

TOWN OF ATHERTON et al., Plaintiffs and Appellants,

v.CALIFORNIA HIGH–SPEED RAIL AUTHORITY, Defendant and Respondent.

C070877

Court of Appeal,

Third District, California.

Filed July 24, 2014

See12 Witkin, Summary of Cal. Law (10th ed. 2005) Real Property, § 832 et seq.

APPEAL from a judgment of the Superior Court of Sacramento County, Michael P. Kenny, Judge. Affirmed. (Super. Ct. Nos. 34200880000022CUWMGDS, 34201080000679CUWMGDS)

Stuart M. Flashman for Plaintiffs and Appellants.

Griswold, LaSalle, Cobb, Dowd & Gin, Raymond L. Carlson, and Laura A. Wolfe for Citizens for California High–Speed Rail Accountability as Amicus Curiae for Plaintiffs and Appellants.

Colleen Carlson, County Counsel (Kings), and Erik Kaeding, Deputy County Counsel (Kings) for County of Kings as Amicus Curiae for Plaintiffs and Appellants.

Virginia Gennaro, City Attorney (Bakersfield), and Andrew Heglund, Deputy City Attorney (Bakersfield) for City of Bakersfield as Amicus Curiae for Plaintiffs and Appellants.

Chatten–Brown & Carstens, Jan Chatten–Brown, Douglas P. Carstens, and Josh Chatten–Brown for John Van de Kamp, San Luis Obispo Coastkeeper, Endangered Habitats League, Environmental Water Caucus, Pacific Energy Policy Center, Laguna Greenbelt, Inc., North County Watch, Communities for Sustainable Monterey County, and West County Toxics Coalition as Amici Curiae for Plaintiffs and Appellants.

Wanger Jones Helsley, Oliver W. Wanger, John P. Kinsey, and Daren A. Stemwedel for Preserve our Heritage as Amicus Curiae for Plaintiffs and Appellants.

Chatten–Brown & Carstens, Jan Chatten–Brown, Douglas P. Carstens, and Josh Chatten–Brown for Friends of Eel River, Friends of Rose Canyon, The River Project, Save Our NTC, Inc., and California Native Plant Society as Amici Curiae for Plaintiffs and Appellants.

Kamala D. Harris, Attorney General, John A. Saurenman and Daniel L. Siegel, Senior Assistant Attorneys General, Danae J. Aitchison and Jessica E. Tucker–Mohl, Deputy Attorneys General for Defendant and Respondent.

Pillsbury WinthropShaw Pittman, Michael R. Barr, Kevin M. Fong, and Blaine I. Green for Union Pacific Railroad Company as Amicus Curiae.

DUARTE, J.

California has long contemplated a high-speed rail system connecting its southern and northern regions. In 1996 when the Legislature established defendant California High–Speed Rail Authority (the Authority), it declared the need for an intercity rail system operating at high speeds to complement the existing infrastructure of highways and airports. (Pub.Util.Code, § 185010.) As plans for a high-speed rail system developed, the system's alignment—simply put, where to lay the track—from the Central Valley to the San Francisco Bay Area became an issue. At the heart of the dispute in this case is the Authority's decision that trains travelling between those destinations should travel through the Pacheco Pass rather than further north at the Altamont Pass.

Petitioners challenge the adequacy of the revised final program environmental impact report/environmental impact statement (PEIR/EIS) and the approval of the Pacheco Pass network alternative as the route for the high-speed train (HST) system to connect the San Francisco Bay Area and the Central Valley. They contend the revised final PEIR violates the California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et seq.) because it: (1) provides an inadequate analysis of the vertical profile options for alignment—simply put, where to elevate the track—along the San Francisco Peninsula; (2) uses a flawed revenue and ridership model; and (3) has an inadequate range of alternatives, specifically because it rejects an alternative proposed by an expert consulting company (Setec).

After this case was originally calendared for oral argument, the Authority asked us to dismiss it, contending that federal law preempts any CEQA remedy. The Authority makes this argument because a federal board recently assumed jurisdiction over the HST. As we will explain, we need not decide the broader question of federal preemption because we find the specific circumstances of this case establish an exception to federal preemption under the market participation doctrine.

On the merits, we hold the Authority properly used a program EIR and tiering and deferred site-specific analysis such as the vertical alignment to a later project EIR. The challenge to the revenue and ridership modeling presents a disagreement among experts that does not make the revised final PEIR inadequate. The Authority studied an adequate range of alternatives. It was not required to analyze the Setec alternatives because they were infeasible or substantially similar to those already studied. Accordingly, we shall affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Alignment of High–Speed Rail from Central Valley to Bay Area:

Altamont Pass versus Pacheco Pass

In 1993, the Intercity High–Speed Rail Commission (Commission) was established to develop a framework for implementation of a high-speed rail system. As part of a study, the Commission considered three mountain passes (the Altamont, the Pacheco, and the Panoche) to link the Central Valley to the San Francisco Bay Area by rail. It recommended the Altamont Pass. “This option generates higher ridership and revenue for the system, and is less costly to construct than the other two mountain passes considered.”

In 1996, the Authority was established to continue planning for the high-speed rail system. (Pub. Util.Code, § 185000 et seq.) At the end of 1999, the Authority issued a final report on the corridor evaluation. The report noted the Altamont Pass corridor, which turned west from the Central Valley south of Stockton, had a faster travel time than the Pacheco Pass corridor. It did, however, require a branch alignment, or additional track(s), to provide train service to San Jose, which resulted in less frequent service to both San Francisco and San Jose unless additional trains were provided. Environmental issues included a substantial impact to farmland and impacts to threatened and endangered species.

The Pacheco Pass corridor turned west between Fresno and Merced. The report found it was slower than the Altamont corridor in terms of travel time to San Francisco, but provided faster travel time to San Jose with no need for a branch alignment. “Overall, the Pacheco Pass option would have more negative environmental impacts as compared to the Altamont Pass option.” This option could affect low-income and minority populations; there would be more water crossings, there would be impacts to farmland and historic properties, floodplain encroachment, and impacts to threatened and endangered species. The report found the ridership and revenue forecasts were higher for the Pacheco Pass alternative than the Altamont Pass, due to the faster travel times to San Jose and the improved frequency of service to San Jose and either San Francisco or Oakland. Authority staff recommended the Pacheco Pass corridor.

In 2005, the Authority directed its staff to proceed with the preparation of a separate program-level EIR to identify a preferred alignment within the broad corridor between and including the Altamont Pass and the Pacheco Pass for the HST system segment connecting the San Francisco Bay Area to the Central Valley. After receiving over 400 comments on the draft PEIR, in 2008 the Authority prepared a final PEIR/EIS, which identified the Pacheco Pass as the preferred alternative. The Pacheco Pass alternative (1) minimized impacts on wetlands, waterbodies, and the environment; (2) best served the connection between Northern and Southern California; (3) best used the Caltrain Corridor (between San Jose and San Francisco); and (4) was strongly supported by the Bay Area region, cities, agencies, and organizations.

Challenge to 2008 Final PEIR (Atherton I)

Petitioners Town of Atherton, Planning and Conservation League, City of Menlo Park, Transportation Solutions Defense and Education Fund, California Rail Foundation, and Bayrail Alliance (collectively Atherton I petitioners) petitioned for a peremptory writ of mandate to set aside certification of the final revised PEIR. The Atherton I petitioners contended the final revised PEIR was inadequate because it failed to include an adequate description of the project and feasible alternatives; it failed to adequately identify and mitigate the project's significant impacts; its alternatives analysis was inadequate and predisposed toward selection of the Pacheco Pass alternative; and the Authority refused to recirculate the draft PEIR after the Union Pacific Railroad announced its opposition to allowing use of its right-of-way.

The trial court found the Atherton I petitioners met their burden of showing certain inadequacies in the final PEIR. These inadequacies related primarily to the project description and the Union Pacific Railroad's opposition to allowing the project to use its right-of-way. The trial court issued a peremptory writ of mandate commanding the Authority to rescind and set aside its resolution certifying the final PEIR/EIS and approving the Pacheco Pass alternative, to set aside other approvals, and to revise the PEIR/EIS ( Atherton I ). The court denied the Atherton I petitioners' request for a stay of project-level environmental studies.

The Authority filed an initial return to the writ, indicating the Authority had rescinded its prior approvals relating to the project.

Petition for Writ of Coram Nobis

The Atherton I petitioners petitioned for a writ of coram nobis, seeking to vacate the prior judgment. They contended newly discovered evidence that revealed the revenue and ridership modeling was obviously and fatally flawed had been improperly withheld.¹ They asserted that the modeling parameters had been changed because the first results were not acceptable. The Atherton I petitioners provided the opinion of a consultant that the errors in...