Appeals court has tough questions for plaintiffs in bullet-train suit

An artist's rendering of a California high-speed rail train.
(Associated Press)

A state appellate court panel on Friday zeroed in on technical and procedural issues that could signal trouble for Central Valley groups fighting California’s proposed bullet train project.

During an hour of oral arguments in Sacramento, the three-member panel questioned attorneys both about the timing of the opponents’ lawsuit, and some of its underlying interpretations of state law.

The appeals court is reviewing a trial court judge’s ruling last year that the state failed to comply with taxpayer protections included in a $9-billion bond measure, a decision that has prevented the state from tapping the funds.

But Deputy Atty. Gen. Ross C. Moody argued that the state followed the requirements of Proposition 1A, the 2008 bond proposal. Sacramento County Superior Court Judge Michael Kenny made multiple errors, Moody said, when he blocked the use of the bond fund and ordered a new funding plan for the project.


“We can’t get this project off the ground,” Moody said. “We are stopped because of a misreading of Proposition 1A.”

The appellate court has 90 days to issue a decision, which could affect the state’s plan to start construction this summer.

Under the bond measure, the state was supposed to develop a plan showing it had all required environmental reviews and sources of funding identified to build an initial segment of the system that could be used to run bullet trains. The ballot measure also required a second plan presented to the Legislature.

Moody argued that the first funding plan was intended to help the Legislature decide whether to appropriate the bond funds and that any shortcomings in that plan could be remedied in a second funding plan. If the opponents want to raise a challenge, the appropriate time would be after completion of the second funding plan, Moody said. And, at this point, the proper entity to judge the adequacy of the funding plan is the Legislature, not the courts, Moody said.


On Friday, the appellate panel repeatedly cut off Stuart Flashman, the attorney representing some of the plaintiffs opposing the bullet train plan. The judges also pressed Flashman about the proper timing of his clients’ case and suggested he was raising legal arguments not made in the original lawsuit.

“You are trying too hard in this case,” said Justice Ronald Robie.

Flashman argued that the point of the funding plan and other requirements was to protect the state from getting stuck with a partially built system that it lacked the funds or environmental approvals to complete.

The hearing also reviewed the state’s appeal of a second lower court ruling by Kenny, who decided the state violated procedures when it decided to sell the voter-approved bonds. During Friday’s hearing, Justice Vance Raye observed that lawsuit was raising “very technical objections.”


Also in the appeal of that decision, an attorney for Union Pacific Railroad urged the court, if it rules in favor of the state and allows bond funds to be sold, to decide the case narrowly and not conclude that other voter-imposed conditions on the project have been met.