Original Post: Another lawsuit is brewing at the ground zero of legal action against high speed rail on the peninsula, the leafy town of Atherton. It isn't the first, and will surely not be the last.
Famously, the town of Atherton is the lead plaintiff in a lawsuit that seeks to overturn the CHSRA's program environmental certification, which settled upon a route that traverses Atherton via the Caltrain corridor. That lawsuit is scheduled to be decided later this month.
On August 5th, the Daily Post revealed in an article that
Quite aside from the unanswered questions of exactly who is going to be sued, on what grounds, and whether Peterson even has legal standing to enforce an agreement to which he is not a party, the lawsuit will seek to enlist UPRR's purported rights to slow or stop the construction of high speed rail on the peninsula and through Atherton. Peterson may be trying to provoke UPRR into a dispute with the PCJPB over the high speed rail issue, triggering the Dispute Resolution and Binding Arbitration clauses of Section 7 of the agreement.
Brady, the attorney, spoke at the April 2nd Caltrain board meeting, opposing the Memorandum of Understanding that the PCJPB entered into on that day. That MOU established a framework of cooperation between Caltrain and the California High Speed Rail Authority, which Brady and other project opponents felt was in violation of the 1991 trackage rights agreement. The minutes of that meeting record his statement as follows:
Mike Brady, Menlo Park, said UP has written four letters to HSR over the years concerning its rights under the Trackage Rights Agreement. He is challenging the legal rights of the JPB to enter into this contract with HSR in light of the existing contract with UP. The JPB represents the citizens of San Mateo County and attention needs to be paid to the detrimental impact of HSR and steps need to be taken to alleviate it.So what's all the fuss about anyway? HSR opponents have made much of the fact that the UPRR agreement contains a clause giving the Union Pacific the right to operate intercity passenger service, as opposed to Caltrain's commuter service. Section 2.7 of the agreement delineates the respective rights and responsibilities of the User (UPRR) and Owner (Caltrain).
2.7 Intercity Passenger Rights Agreement: Intercity Passenger Service on the Joint Facilities (except for User's Cahill/Lick Line) shall be subject to the following provisions:
(a) Owner shall permit User to allow NRPC [Amtrak] Intercity Passenger Service Trains to be operated over the Joint Facilities (except for User's Cahill/Lick Line) in accordance with the terms of the NRPC Agreement in effect as of the date of this Agreement with the understanding that any changes subsequent to the date of this Agreement in Intercity Passenger Service, including but not limited to the number or schedule of Trains, shall be subject to Owner's consent under section 2.7(b) hereof.
(b) User may amend its present or any subsequent NRPC Agreement and enter into any new agreements and amendments thereto with NRPC or with any other party for the provision of Intercity Passenger Service over the Joint Facilities (except User's Cahill/Lick Line) with the consent of Owner, which shall not be unreasonably withheld, subject to the provisions of Section 4.3 when Owner dispatches and controls the operations and provided that costs due to any such Intercity Passenger Service agreement, or amendment thereto over the Joint Facilities (except for User's Cahill/Lick Line) and costs of changes necessitated by such agreements affecting line capacity, yard capacity, or the signal system shall be borne by the User. The parties agree to negotiate in good faith with regard to any additional parties that may be engaged or User proposes to have engaged in Intercity Passenger Service.
(c) Notwithstanding the provisions of Section 2.7(b) above, no Intercity Passenger Service Trains shall operate on Exclusive Commute Trackage without a written agreement between Owner and User.While it will take lawyers to comb through this and other clauses, Section 8.3.c of the agreement is particularly interesting. This section was likely written to allow for a future BART takeover of the peninsula corridor, in accordance with BART's original plans, but might equally apply to the current plans for the peninsula.
8.3.(c) In the event that Owner demonstrates a reasonably certain need to commence construction on all or substantially all the length of the Joint Facilities (including User's Cahill/Lick Line) of a transportation system that is a significant change in the method of delivery of Commuter Service which would be incompatible with Freight Service on the Joint Facilities (other than User's Cahill/Lick Line), Owner may, at its sole cost and expense, file no sooner than nine months prior to the commencement of such construction for permission from the ICC to abandon the Freight Service over the portion of the Join Facilities (excluding User's Cahill/Lick Line) upon which the construction is to occur. User shall not object to or oppose such a filing; however, it shall be allowed to participate in the abandonment proceedings.Given that Caltrain's plans for lightweight electric trains on a shared HSR corridor would potentially qualify as a "significant change" that is "incompatible" with UPRR freight trains, the PCJPB and CHSRA could conceivably kick UPRR off the peninsula corridor if they wanted to. (However, all signs so far point towards accommodation of UPRR and its freight customers.) In view of the low level of freight service and the strong nationwide push for HSR, it is unlikely that the federal government would oppose or deny such a radical move, if it ever became necessary.
With that ace in play, can Russell Peterson succeed in provoking UPRR to take a hard stance on the trackage rights agreement?