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HSRA14 - Petition Coram Nobis - With Exhibits

HSRA14 - Petition Coram Nobis - With Exhibits

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Published by Stuart M. Flashman
Petition, complete with exhibits, asking court to reopen case against high-speed rail authority to consider defective model that had been concealed from the public.
Petition, complete with exhibits, asking court to reopen case against high-speed rail authority to consider defective model that had been concealed from the public.

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Published by: Stuart M. Flashman on Aug 05, 2010
Copyright:Attribution Non-commercial


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Petition for Writ of Error Coram Nobis123456789101112131415161718192021222324252627282930LAW OFFICES OF STUART M. FLASHMAN
STUART M. FLASHMAN (SBN 148396)5626 Ocean View DriveOakland, CA 94618-1533TEL/FAX (510) 652-5373e-mail: stu@stuflash.comAttorney for Petitioners and Plaintiffs Town of Atherton
et al.
(Exempt from filing fees – Gov. Code §6103)
et al
.,Petitioners and Plaintiffsv.CALIFORNIA HIGH SPEED RAILAUTHORITY, a public entity, and DOES 1-20,Respondents and Defendants
No. 34-2008-80000022
filed 8/8/08
Judge Assigned for All Purposes:HONORABLE MICHAEL P. KENNYDepartment: 31
 Date: August 20, 2010Time: 9:00 AMDept. 31Judge: Hon. Michael P. KennyPetitioners Town of Atherton, City of Menlo Park, California Rail Foundation, Planningand Conservation League, and Transportation Solutions Defense and Education Fund(hereinafter, “Petitioners”) hereby allege as follows:1. This petition seeks to have the Court vacate its previously-entered judgment in this case,based on newly-discovered evidence that had previously been improperly withheld fromPetitioners, the public, and the Court.2. The evidence presented with this petition indicates that the revenue and ridershipmodeling done under contract for the Metropolitan Transportation Commission and included inthe Programmatic Environmental Impact Report/Environmental Impact Study (hereinafter“PEIR/EIS”) for the Bay Area to Central Valley High-Speed Train Project (hereinafter,“Project”) was obviously and fatally flawed. However this evidence, in the form of the final
Petition for Writ of Error Coram Nobis123456789101112131415161718192021222324252627282930model coefficients that indicated the flaws, was, up until very recently, concealed fromPetitioners, from the public, and from this Court; thereby depriving Petitioners of a fair trial onthe adequacy of the PEIR/EIS.3. Further, Petitioners are informed and believe, and on that basis allege, that the evidencepresented with this Petition was never presented to or considered by the Board of Directors of Respondent California High-Speed Rail Authority (hereinafter, “Respondent”) prior to itsdeterminations to certify the Final PEIR/EIS and to approve the Pacheco Pass alignment as thechosen alignment for the Project.4. Consequently, Petitioners ask that the Court vacate the existing judgment in this case andenter in its stead a modified judgment.5. The currently-entered judgment and writ of mandate order the rescission of Respondent’scertification of the Final PEIR/EIS and of Respondent’s approval of the Pacheco Pass alignmentwith San Jose and San Francisco termini as the chosen alignment for the Project. The currently-entered judgment and writ of mandate also require reconsideration of certain matters identifiedin the judgment and the writ of mandate prior to Respondent certifying a revised PEIR/EIS forthe Project and approving an alignment for the Project.6. Petitioners ask that the judgment be modified to also require Respondent to address thenewly discovered evidence, and the questions it raises about the adequacy of the revenue andridership analysis included in the PEIR/EIS, prior to certifying the adequacy of the modifiedPEIR/EIS or approving an alignment for the Project.
7. This case was filed in August of 2008 to challenge decisions made by Respondent inconnection with approving the Project. In particular, the case challenged the adequacy of theFinal EIR/EIS for the Project in numerous respects as well as the findings made in connectionwith the Project approval. The case was fully briefed, based on an extensive administrativerecord, and heard by the Court on May 29, 2009. In August 2009, the Court issued its decisionupholding some aspects of the PEIR/EIS, but finding it defective in its treatment of land use and
Petition for Writ of Error Coram Nobis123456789101112131415161718192021222324252627282930right-of-way impacts. The Court also found Respondent’s findings defective in failing toacknowledge the significance of the Project’s vibration impacts.8. In November of 2009, the Court entered final judgment in the case in accordance with itsdecision. The Court also issued a peremptory writ of mandate ordering Respondent to rescind itscertification of the Final PEIR/EIS and its approval of the Project, and remanding the same toRespondent for reconsideration and revision in accordance with the Court’s final judgment. TheCourt did not, however, enjoin further project-level environmental work on the Project.9. At present, both the time to move for reconsideration or a new trial and the time for filingan appeal of the final judgment have expired. Consequently, the case is essentially closed.
10. On or about February 1, 2010, after the expiration of any recourse other than thisPetition, Petitioners learned of newly-discovered evidence that indicates that the ridership andrevenue modeling used in the PEIR/EIS, and upon which Respondent relied in making decisionson a choice of alignment for the Project, is seriously flawed. The flaws call into question thevalidity of the modeling results included in the PEIR/EIS, and the soundness of the alignmentdecision made by Respondent in reliance on those results.11. The newly-discovered evidence consists of information on the parameters used for themodeling that produced the ridership and revenue data included in the EIR/EIS. This evidencewas not previously available to Petitioners, nor to the public. Petitioners are further informedand believe and on that basis allege that this evidence was also not available to Respondent’sBoard of Directors when it made its determination of the alignment for the Project.12. The mathematical model used to estimate ridership and revenue had been prepared byCambridge Systematics, Inc., a private consulting firm working under contract with theMetropolitan Transportation Commission (“MTC”). Cambridge Systematics prepared an initialmodel, which was peer-reviewed and found acceptable, and, in August 2006, it published theparameters for that model, which were included in the administrative record for this case. (AR

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