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Memo to Clients - And the Public

Memo to Clients - And the Public

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Published by joejoe48
Public letter from Sturat Flashman, the attorney who won the lawsuit against the Calfiornia High Speed rail authority.
Public letter from Sturat Flashman, the attorney who won the lawsuit against the Calfiornia High Speed rail authority.

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Published by: joejoe48 on Dec 04, 2009
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06/10/2010

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1
 
Law Offices of 
 Stuart M. Flashman
Memo
To:
Planning and Conservation League, BayRail Alliance, California Rail Foundation,Transportation Solutions Defense and Education Fund
From:
Stuart M. Flashman
CC:
Town of Atherton, City of Menlo Park
Date:
December 3, 2009
Re:
Legal implications of the Court’s judgment in Town of Atherton et al v. California High SpeedRai Authority
Question Presented:
You have asked me to provide you with information that you could distribute to the press and thepublic about the legal implications of the Court’s judgment in the above-referenced case. Please beaware that, because this memo is intended for distribution to the public and is therefore not protectedby attorney-client privilege, the information provided herein will be limited accordingly.
Discussion
On December 3, 2009, the Board of Directors of the California High-Speed Rail Authority is takingofficial action to comply with the Final Judgment and Peremptory Writ of Mandate in the litigationentitled,
Town of Atherton, et al., v. California High-Speed Rail Authority, et al.,
Superior Court CaseNo. 34-2008-80000022. (Copies of those documents are attached to this memo.) Specifically, theBoard of Directors is considering adopting a Resolution that:
 
Rescinds Resolution 08-01, including all certifications and approvals included therein[Resolution 08-01 was the Resolution that “certified” the Final Program Environmental ImpactReport (EIR) for the Bay Area to Central Valley High-Speed Train System as being incompliance with the California Environmental Quality Act (CEQA), and that approved thePacheco Pass Network Alternative with San Francisco and San Jose Termini, preferredalignments, and preferred station location options for further study in project-level EIRs];
 
 
Directs its staff to “prepare the documentation needed to comply with the final judgment in the
Town of Atherton 
litigation and to circulate such documentation for the public comment periodrequired under the California Environmental Quality Act; and
 
 
Directs its staff to present an informational staff report to the Authority at the next regularlyscheduled meeting following the close of the public comment period on the correctedmaterial.
 
 
Page 2
In essence, what the Court ordered, and the resolution does, is to rescind a
ll 
of the actions earliertaken by the Authority with respect to certifying the EIR and granting approval for the Bay Area toCentral Valley High-Speed Train System, including approval of the Pacheco Pass Network Alternativewith San Francisco and San Jose Termini, preferred alignments, and preferred station locationoptions. The resolution effectively erases the Board’s decisions as to the route selection it previouslychose.Of course, the Court could not, and did not, order the Board to change its mind about what route tochoose. It seems likely, especially based on statements by Authority staff and Board members, thatthe Board and staff of the Authority continue to believe that the Pacheco Pass alignment, the NetworkAlternative with San Francisco and San Jose Termini, and the preferred alignments and preferredstation location options that the Board previously selected remain the “right” choice for the routing intothe Bay Area. However, with the rescission of the Board’s prior actions, that belief is simply a“preference” and has no legal significance. Under the Court’s judgment, the Authority will not legallybe able to decide the routing issues until it has completed a revised Draft EIR, circulated it forcomments, adequately responded to those comments, and certified a revised Final EIR. Only thenwill it be able to re-address the question of a choice of alignments, termini, stations, etc.CEQA is very clear that comments on the entire revised Draft EIR will be in order, that cities and othergovernmental entities, individuals, and organizations, even those that did not participate in the priorCEQA process, will be able to submit comments, and that all those comments must be appropriatelyaddressed.To state this more directly, the Final Judgment and Writ of Mandate issued to the Authority does not
limit 
the scope of the CEQA review process to those issues specifically found by the Court to beinadequate in its review of the earlier EIR/EIS. The Final Judgment specifically states that the Authoritymust “revise the Environmental Impact Report/Environmental Impact Statement for the Bay Area toCentral Valley High-Speed Train Project
in accordance with CEQA, the CEQA Guidelines and the Final Judgment entered in this case prior to reconsidering certification of that EIR/EIS 
[emphasisadded].” That means that a full CEQA process has been required by the Final Judgment, not a“partial” or “attenuated” process.Of course, the Court did not find the prior EIR totally defective. The Court held that many parts of thatEIR were adequate,
given the scope of the record before the Authority and the Court 
. Whether thatwould be the case with a new EIR, based on a new record, remains to be seen. As has been notednumerous times in CEQA jurisprudence, the conclusions in an EIR must be supported by substantialevidence
in light of the entire record 
. With the Court’s judgment, that record has been reopened, andthe Authority will have to make its decisions based on the
entirety 
of that record, not just that portionthat had previously been reviewed by the Court.In order to assure that the Authority has full information before it on all of the various factors that mightresult in significant adverse environmental impacts from the proposed High Speed Rail projectentering and running through Bay Area, interested parties would be well advised to vigorouslyparticipate in the upcoming CEQA review.

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