CA: Kings County Hopes to Take HSR Battle to State Supreme Court

Aug. 12--Kings County foes of the California High-Speed Rail Authority's bullet-train plans want to take their legal fight to the California Supreme Court.

Stuart Flashman, an Oakland attorney representing Kings County farmer John Tos, Hanford homeowner Aaron Fukuda and the county's Board of Supervisors, said Monday his clients have all agreed to challenge an appellate court's July 31 opinion in favor of the rail authority and the state, overturning a pair of lower-court decisions:

--In one case, a three-judge panel of the 3rd Court of Appeal declared that the state acted properly in authorizing the sale of bonds from Proposition 1A, the $9.9 billion bond measure approved by California voters in 2008.

--In one portion of a 2011 lawsuit filed by Tos, Fukuda and Kings County, the justices declared that a 2011 draft financing plan, challenged as violating Prop. 1A, was valid because it was a preliminary step toward a second financing plan yet to be approved by the state Legislature.

Another part of the Tos/Fukuda/Kings County lawsuit, expected to be heard by a Sacramento County Superior Court judge this fall or winter, contends that the bullet train system envisioned in the rail authority's current plan cannot comply operationally with Prop. 1A.

The Kings County Board of Supervisors unanimously voted at least week's meeting to approve a Supreme Court appeal. "Essentially, there is much at stake for Kings County and for all taxpayers so it is worth the added effort to make sure the opinion is correct and, if not, get it corrected," Kings County Counsel Colleen Carlson said.

First, however, Flashman said he will petition the 3rd District Court of Appeal for a rehearing, based on aspects of the opinion in the Tos/Fukuda/Kings County case that were not raised in briefings by either side. "Normally, it's a flat 'no,' it's extremely rare that they grant a rehearing," Flashman said. "But this is one where we think they should."

Flashman said one facet of the appellate decision in the Tos case that concerns him is the justices' opinion that the preliminary financing plan "wasn't really any sort of decision that was subject to a legal challenge (because) it was an interim decision along a pathway."

The rehearing petition has to be filed by Friday, and the court has up to 30 days following the July 31 opinion to decide whether to grant a rehearing. If the rehearing is denied, Flashman said, he has 10 days to file a petition for review with the Supreme Court. The Supreme Court has 60 days from that point to decide if it will accept the case.

The Supreme Court already took a pass on the case once this year. In January, Gov. Jerry Brown's administration and the rail authority asked the high court to intervene in the Kings County-spawned legal challenges after Sacramento County Superior Court Judge Michael Kenny denied the state's petition to validate the sale of Prop. 1A bonds and ordered the rail agency to re-do its preliminary financing plan. Kenny issued his rulings in late November.

Instead, the Supreme Court deflected the request to the 3rd District Court of Appeal, directing the appellate court to "expedite its consideration of this matter."

Kings County has been a hotbed of opposition to the California High-Speed Rail Authority's plans for several years, accusing the rail agency of ignoring its concerns that the rail route veers from established transportation corridors and makes wide, sweeping curves across the county's farmland.

In addition to its lawsuit challenging the $68 billion plan for a high-speed passenger train line connecting Los Angeles and San Francisco by way of the San Joaquin Valley, Kings County has filed one of six lawsuits under the California Environmental Quality Act challenging the rail authority's environmental certification and route approval in May for the Fresno-Bakersfield section of the rail system. Joining the county in its CEQA challenge are the Kings County Farm Bureau and Citizens for California High-Speed Rail Accountability, a grass-roots opposition group of which Fukuda is a co-chairman.

If you go

--What: California High-Speed Rail Authority board meeting

--When: 9 a.m. Tuesday

--Where: Byron Sher Auditorium at California EPA, 1001 I St., Sacramento

--The meeting will be webcast live http://www.hsr.ca.gov/Board/live_meeting.html

--The agenda and support materials are available online http://www.hsr.ca.gov/Board/monthly_brdmtg.html, click on the tab for the August 2014 meeting

The reporter can be reached at (559) 441-6319, tsheehan@fresnobee.com or @TimSheehanNews on Twitter.

Copyright 2014 - The Fresno Bee

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