News Roundup, October 2022

CBOSS Dumpster Fire Update: the CBOSS case is still making its way through San Mateo County Superior Court (under case file 17CIV00786). The trial was held in April through June of this year, and closing briefs are due in December. Closing arguments are currently scheduled to be made in court on the 5th of January 2023. The latest kerfuffle is over a post-trial Caltrain/Parsons motion to seek punitive damages from Alstom for intentionally, not just negligently, lying about the status of the project based on testimony given during the trial.

Trains Without Wires: Caltrain held a VIP invitation-only unveiling of the new EMUs in San Francisco on September 24th. Four trainsets (serial production #2 - #5) have now been delivered and will collect dust (graffiti?) for a couple of years because the electrification of the corridor is far from done. The new trains were hauled to San Francisco by diesel power.

New Palo Alto downtown
grade separation

Stirring Things Up In Palo Alto: Caltrain recently briefed the city on their plan to replace the ancient bridge over the San Francisquito Creek. This is precipitating a sudden change to the city's years-long policy of kicking the can down the road on what to do about a future grade separations at downtown Palo Alto. While everybody seems to assume the bridge and grade separation projects are necessarily linked, they are not! The solution is pretty darn obvious: replace the Palo Alto Ave crossing with a new grade separation at Everett Ave, which would connect downtown to El Camino as shown in the sketch at right.

1. Permanently close and demolish the Alma bridge over University Ave, instead connecting Alma to University via the existing cloverleaf ramps reconfigured as a signalized intersection.
2. Build a new downtown elevated grade separation viaduct and platforms through the existing station parking lots, along the original track alignment that existed before the University Ave grade separation was opened in 1940. This viaduct would be open underneath, providing station parking, bus platforms, pick-up/drop-off areas, and other station amenities. Bonus: the new straightened track alignment removes a speed-limiting double reverse curve in the tracks.
3. Cut over the trains to the new viaduct and elevated station. 
   
4. Extend Everett Ave under the elevated tracks to the existing intersection at El Camino Real and Quarry Rd, also picking up a new connection to the convoluted and inefficient bus loop. Bonus: bus service is greatly sped up to/from El Camino, Stanford and downtown by avoiding time-consuming looping routes.
5. Permanently close the grade crossing at Palo Alto Ave.
6. Demolish the old University Ave rail bridge, remove the old cloverleaf ramps, and bring the University Ave / Alma intersection back up to a grade level signalized intersection.

This grade separation approach is completely decoupled from whatever happens with the San Francisquito bridge.

More CEQA Lawsuits Flying: the recent certification of the HSR San Francisco to San Jose EIR precipitated several new CEQA lawsuits. Brisbane and a private developer are upset about the sprawling HSR "light" maintenance facility planned in the city, and its impact on the planned Brisbane Baylands development. Millbrae also got in on the action due to a clash between its development plans and the planned expansion of the station footprint for HSR. Unfortunately, the Sacramento Superior Court does not allow free access to case files, so details are hard to obtain.

CBOSS Dumpster Fire Update

The CBOSS development lifecycle,
as anticipated in 2009 on this blog.
Today we are at "point of no return."

The deadly crash of an Amtrak train near Tacoma, Washington, which would likely have been prevented if a PTC (Positive Train Control) system had been in place, has renewed the discussion of the status of PTC systems in the Bay Area. Caltrain officials say everything will be OK with CBOSS, Caltrain's very own flavor of PTC. Despite those assurances, a potent brew of ingredients is mixing together.

Bonfire of Lawsuits: After a well-chronicled program failure involving delays, cost overruns, and failure to meet milestones, Caltrain terminated the CBOSS prime contractor, Parsons Transportation Group, in February 2017. PTG and Caltrain promptly sued each other, with PTG claiming wrongful termination and Caltrain seeking up to $98 million in damages. A rich trove of documents can be accessed online under San Mateo Superior Court case number 17CIV00786, and chronicles in detail everything that went wrong with the CBOSS program. With Caltrain likely to recover some damages, PTG has now sued Alstom (formerly PTG's subcontractor and the supplier of CBOSS hardware and software) for failure to deliver a working solution. One is left to wonder how this motivates Alstom to finish the CBOSS project, since delivering a working solution to Caltrain would undermine the claim that Alstom was given an impossible task.

Dying Product: The hardware and software underlying CBOSS is known as I-ITCS, a product originally developed by GE Transportation Systems Global Signalling. While a precursor known as ITCS briefly operated on Amtrak corridors in Illinois and Indiana, it is now being displaced by the de-facto standard freight PTC system known as I-ETMS, with ITCS relegated to controlling only the grade crossing functionality in these corridors. Alstom, which acquired GE Transportation Systems in 2015, is not likely to see a future in the I-ITCS product, leaving Caltrain with a globally unique hardware and software solution. This does not bode well for product support over the lifetime of CBOSS.

Looming Deadline: the deadline imposed by Congress and the Federal Railroad Administration to successfully complete a PTC revenue service demonstration is just a year away, at the end of 2018. One year is not enough to finish, and Caltrain will almost certainly blow this deadline. Will FRA grant another extension and allow Caltrain to continue operating without PTC?

Sole Source Savior: in July 2017, avionics firm Rockwell Collins' subsidiary ARINC was awarded a sole source contract to figure out what it will take to pick up the pieces and complete the CBOSS project. ARINC completed this assessment in September, and will soon (by sheer programmatic necessity, since failure is not an option) be awarded a name-their-price sole source contract to finish a minimally working version of CBOSS that passes FRA muster. With the leverage that ARINC enjoys under these circumstances, the "re-procurement" of CBOSS will likely be (1) expensive and (2) structured such that Caltrain bears all of the risk of continued failure, i.e. cost-plus-fixed-fee rather than fixed price. With the clock ticking, the re-procurement effort has already fallen behind the planned fall 2017 schedule.

Budget Crunch: To date, Caltrain has spent over $200 million (yes, one fifth of a billion dollars!) on CBOSS with nothing to show for it. All the money allocated for CBOSS is spoken for, and a lot more (several tens of millions) will be needed to finish the project. Some of that will come from damages, but it is quite likely that 2018 will bring emergency financial maneuvers to throw more good money after bad.

Descoping of Functionality: while the first 'I' in Caltrain's I-ITCS solution stands for "Interoperable," which was one of the original selling points of CBOSS, this feature is now being thrown over the transom. Interoperability requirements contributed to the scope creep that triggered a re-design of the supposedly off-the-shelf ITCS software. It didn't help that Union Pacific was (as per usual) actively non-cooperative in helping to develop an interoperable solution, leading to Caltrain throwing in the towel and spending an additional $21.7 million (from an FRA "interoperability grant," no less!) to dual-equip seven diesel consists with the I-ETMS freight PTC system for operating on the Gilroy branch owned by UPRR. How I-ETMS freight trains will be accommodated on the peninsula corridor in I-ITCS territory is a burning question, for which the range of answers includes ditching I-ITCS and replacing it with the more viable I-ETMS, following the Amtrak example.

System Integration and Testing is Hard: while Caltrain never fails to remind us that all of the components of CBOSS are physically installed on the trains and the tracks, that is the easy part. The hard part is getting everything to operate together reliably every day, and Caltrain and their shifting band of contractors are barely getting started on this most difficult phase of the development of a new and complex safety-critical system. Integration and Testing is where the best design intentions meet cold harsh reality, and all the mistakes and omissions made during the design phase become painfully apparent. While PTG claimed in court filings that they were 90% done with CBOSS when their contract was abruptly terminated, that last 10% of troubleshooting commonly takes far more than 10% of the budget or schedule.

PTC is Hard: the legal declarations from PTG managers who ran the CBOSS program (see 17CIV00786) reveal a long list of underlying factors that caused much acrimony and remain unchanged today: (1) the specifications and standards for PTC continue to evolve, triggering continued changes and penalty testing; (2) Caltrain and its in-house consultants (the so-called "owner's team") are woefully ill-equipped and uncoordinated in their approach to complex safety-critical avionics technology development; (3) the formal contractual interactions between the "owner's team" and the vendor are complicated and delay-prone; (4) working with UPRR is a huge pain in everyone's caboose; (5) the underlying systems over which CBOSS is supposed to "overlay" are kludged-together stove pipes that, incidentally, will require nearly total re-design for the electrification program; (6) testing PTC on an operating railroad requires extensive coordination that has been demonstrated to be lacking; and so on. Strike PTG and substitute ARINC.

These ingredients will produce a situation where CBOSS does less than was promised, later than planned, and for a lot more money. No crystal ball is needed to predict that CBOSS will continue to "fail forward" to a finish line somewhere beyond 2018.

Steaming Pile of CBOSS

CBOSS, the Communications Based Overlay Signal System, is a Positive Train Control (PTC) system being developed by Caltrain to prevent human error from killing or maiming passengers or rail workers.  It is a deeply troubled project.  Caltrain recently requested a peer review of the project from APTA, the American Public Transportation Association, whose subject matter experts were given access to personnel and documents.

Download the final report from the peer review here (500 kB PDF).

It's fair to say our worst fears have come true:

• the project manager does not have the requisite technical experience
• there is no project schedule, and October 2016 is just another month on the calendar
• inter-operability requirements and test methods are not defined or agreed upon
• configuration management is not just out of control, but completely lacking as a process
• software and network security is an afterthought
• animosities between project management and the contractor are impeding the resolution of technical issues
• operator training has not started, and the materials for such do not yet exist
• weekly top-level status meetings between Caltrain management, the program management consultant, and the contractor had not been occurring

The list of documents reviewed by the panel in Appendix C would make a juicy FOIA request.

A little bird overheard some discussions that do not appear in the APTA final report, because the report is intended to provide only constructive criticism to help Caltrain out of this mess.  It's even uglier than you could have imagined:

• Parsons Transportation Group (PTG), Caltrain's prime contractor, does not have the right skills mix to manage complex system integration on 13 different subcontracts
• PTG is fearful that the commercial terms of the CBOSS contract expose them to legal action by Caltrain, contributing to the lack of transparency
• Subcontractor General Electric (now Alstom) discovered that simply re-using the existing ITCS product wasn't going to work.  The inter-operable version of the product is incurring massive increases of scope that were not accounted for in the original contract
• Because of the extent of the changes made to ITCS, the FRA is requiring the same certification and type approval process as for a new PTC system, undermining Caltrain's claim to reusing an off-the-shelf technology
• The FRA has taken the position that Caltrain is really installing two PTC systems, requiring full testing of both I-ITCS and IETMS (the system that will be used by Union Pacific freight trains on the peninsula corridor)
• Inter-operability means not only allowing IETMS equipment to operate in CBOSS territory, but also allowing CBOSS equipment to operate in IETMS territory, something that Union Pacific has been concerned about testing thoroughly
• Poor coordination for accessing an operating railroad for system installation and testing has been and continues to be a bottleneck
• Additional funding is going to be needed, but nobody knows how much more
• A change of contract operator (currently Transit America Services, Inc, soon coming up for re-bid) would introduce significant program execution risk
• Getting all the CBOSS-equipped trains into revenue service could take up to 5 months

The already egregious sum of $231 million to cover a measly 51 route-miles with PTC is about to increase significantly, something you would never guess from the latest CBOSS update provided to Caltrain's laissez-faire board of directors.

Fast forwarding to whatever year it eventually takes place, the RSD (Revenue Service Demonstration) will consist of flipping the "on" switch and transforming rush hour into an epic cascade of software glitches reminiscent of the 1998 MUNI Meltdown.  On that day, we will all know that this CBOSS turkey has finally come home to roost, as was foretold way back in 2009.

Now What?

In an historic vote, the legislature today approved a funding package worth about $8 billion to begin construction of the first high-speed rail system in the Americas.  To make the package politically more palatable around the state, it included the immediate release of $706 million of so-called "book end" funding in the form of Proposition 1A bonds specifically allocated to the modernization of Caltrain, per the recent Memorandum of Understanding approved by all involved agencies.  The $706M total includes $600M of high-speed rail funding and $106M of non-HSR connectivity funding, from pots of money that are subject to different constraints.  These sums form the lion's share of a $1.456 billion funding package that covers both electrification and a new signal system for the peninsula rail corridor.

While this is no doubt a landmark occasion to celebrate for supporters of modern rail transportation, today's vote will probably not cause anything dramatic to happen on the peninsula in the short term.  Consider:

Taxpayer Lawsuits.  The opposition remains fervent and relentless, and a lawsuit challenging the release of $600M of HSR bonds to improve the Caltrain commuter rail system, with not a high-speed train in sight for more than a decade, is a near certainty.  Protections are built into the law, and require several conditions to be met for release of the funds.  Approval by the legislature is only one of those conditions, and the interpretation of the remaining ones is likely to become legally contentious.

The Environmental Clearance Process.  In April of 2010, Caltrain's electrification project had already obtained federal environmental clearance under the National Environmental Protection Act (NEPA) as the Caltrain board of directors came within a few dramatic minutes of certifying the Final EIR under California's Environmental Quality Act, or CEQA.  The board stopped short, under a surprise threat of a CEQA lawsuit, preferring to resolve any issues outside of the legal system before certifying the FEIR.  While the scope of the electrification project has not changed under the recently approved MOU, the project has now become the first in a series of incremental investments leading up to the "blended system" envisioned in the latest HSR business plan.  That means the electrification EIR may go back to square one for yet another round of public circulation (following prior rounds in 2004 and 2009), a process that is likely to take several years.  It would be surprising to see a new FEIR before 2014.

CEQA Lawsuits.  The sole enforcement mechanism built into CEQA is the lawsuit; it is therefore expected that lawsuits could follow the certification of any EIR.  While clearing electrification as a stand-alone project might be legal under CEQA, the issue is complicated by the project's new association to high-speed rail.  The two-tiered environmental clearance process adopted by the HSR project has already run into serious resistance, with the Bay Area to Central Valley Program EIR about to enter its third round of litigation since 2008.  HSR opponents could easily argue that funding the electrification project under Proposition 1A requires the prior clearance of both this program EIR as well as the project-level EIR for the "blended" San Francisco - San Jose section of the HSR project, including all the project phases expected to be completed after electrification.  Those later phases would include more controversial measures such as the construction of new overtake tracks and new grade separations.  This document is yet to be drafted; while the peninsula project EIR for the full-bore four-track system (still allowed for in the program EIR) was almost ready to circulate as of late 2011, it will require extensive revisions before it conforms to the "blended" configuration.  And that's before it becomes mired in what could become years of CEQA litigation.

The Lead Agency Issue.  The high-speed rail authority has in the past been openly hostile to funding Caltrain improvements.  The new leadership, under board chair Dan Richard, may not be much different.  Richard, like Kopp before him, is a longtime supporter of the expansion of BART, which has always been in invisible tension with Caltrain enhancements.  While he has extolled the merits of the blended book-end approach to gain political support for the entire HSR endeavor, this stance could very well weaken now that the legislative hurdle is passed.  Prior to the vote, he was quoted as saying "The Legislature wanted to emphasize that this money would be there for (the Bay Area and Southern California). And they’re right," highlighting that it is the legislature pushing this funding, not the CHSRA.  Indeed, the Authority, and the transit industrial complex behind it, may be reluctant to push for the peninsula improvements (a) because the opposition there is intense, (b) because of inter-agency rivalry with Caltrain, and (c) because the proposed projects do not involve large-scale civil works of the sort that Parsons Brinckerhoff likes to design, and its acolytes in the construction industry like to build.  Progress on the electrification project could thus depend on which agency leads the EIR process and pushes the project to fruition.  Caltrain is both competent and motivated, but the CHSRA could easily drag its feet--after all, the legislature has only authorized the bond funds to be spent, but the CHSRA retains full authority over when to actually spend them.  All the MOU demands of them is "good faith," which has been in demonstrably short supply.

CBOSS.  While the spotlight is on the electrification project, the MOU and newly passed HSR funding also covers Caltrain's new Advanced Signal System, also known as the Communications Based Overlay Signal System or CBOSS, and often criticized on this blog.  This project is a necessary pre-condition for the operation of light-weight European-style trains, and must be completed by the end of 2015 under a federal mandate that shows signs of being delayed to 2018 or 2020.  Despite Caltrain's repeated insistence to the contrary, CBOSS will not be compatible with HSR other than by fitting two separate, expensive, and functionally redundant signaling systems on high-speed trains, an unavoidable and inconvenient truth that may call into question the wisdom of spending even one cent of HSR money on CBOSS.  A far better outcome would be to make the peninsula rail corridor a testbed for the actual train control system to be deployed on the HSR system, based on the increasingly mature worldwide ERTMS rail signaling standard.

The Timeline.  The money is available only until June 30th, 2018.

UPDATE: The Poison Pill.  At any time before then, a single stroke of the pen from the Department of Finance can transfer the money to the Central Valley projects, per the Budget Act of 2012, Section 2.00, Item 2660-104-6043, Section 3, Provision 2.

The legislature's momentous step leaves many questions unanswered.

• Is the funding of Caltrain improvements using high-speed rail bonds legal?
• Will opponents hog-tie the electrification EIR to the high-speed rail EIRs in a bid to delay?
• Can the existing electrification EIR be tweaked, or is it back to square one?
• How eagerly will the CHSRA push electrification forward, if the focus is initially in the Central Valley?
• Is it legal to spend HSR money on CBOSS?
• Will the project be shovel-ready by June 30th, 2018?
• How will questions of leadership be resolved, among Caltrain, the CHSRA, Parsons Brinckerhoff, and the regional design consultants?
• Will the agencies finally treat technical compatibility between Caltrain and HSR, as long advocated in these pages, as the priority that it ought to be, allowing any train to use any track to serve any platform?

Only one thing is sure, there is a lot more sausage-making still ahead of us.

Electrification Grounded

While the recently released Alternatives Analysis steals the spotlight, in the background there is even more trouble brewing for Caltrain. Last week, Caltrain's electrification project was stopped dead in its tracks by an explicit lawsuit threat made on behalf of two litigious organizations, the Planning and Conservation League and the Community Coalition on High-Speed Rail. The former is a plaintiff in the so-called Atherton lawsuit, and the latter is associated with another pending lawsuit.

The threat was made in this letter (640 kB PDF file) from attorney Gary Patton.

The letter not only complains of the age of the EIR (last circulated for public comment in 2004), but more importantly, it argues that the project has substantially changed and has effectively become part of the peninsula HSR project, by virtue of the MOU signed by Caltrain (a copy of which is attached to the letter) and the funding arrangement whereby HSR funds might pay for a portion of the electrification project.

The implications of this legal threat to the Caltrain electrification project are easy to deduce:

• Without a certified EIR, the project is not "shovel-ready";
• Without "shovel-readiness" the project is unlikely to benefit from the stimulus funds awarded to the California HSR project;
  
• It is no longer even within Caltrain's purview to prepare an updated EIR;
  
• The construction timeline is likely to be delayed for at least as long as the HSR project, entering service in 2020 in the unlikely event that everything goes smoothly;
• The replacement of Caltrain's aging fleet (a large portion of which was acquired circa 1985) will be delayed by several years, likely causing Caltrain to miss the window and undertake early replacement of obsolete equipment with more diesel-hauled trains rather than electric multiple units. You can stop the clock on the HSR project, but you can't stop the clock on aging of equipment.
  

Danger and Opportunity

With a barrage of lawsuits being lined up against the peninsula HSR project, Caltrain is already getting caught in the crossfire. Any project that enables or facilitates the eventual construction of HSR is seemingly fair game. For better or for worse, Caltrain is now in a shotgun marriage with HSR, enforced by these legal threats, with environmental clearance, engineering and construction likely unable to proceed independently. There is very little that Caltrain can do about this besides duking it out in court.

On the flip side, maybe this is an opportunity to finally undertake the design of a integrated system, where Caltrain and HSR are built as a single project rather than two independent operators awkwardly sharing the same corridor. This blog has always promoted compatibility, whether it be platforms, train control, timetables, to maximize the synergy between the two systems--something in which Caltrain has shown dishearteningly little interest so far. Perhaps this setback of the electrification project will prompt some reflection.

(pantograph photograph by ztephen)

Focus on: Atherton

If the term wealthy enclave means anything, Atherton (per capita income about 20 times population) is it.

The leafy town of Atherton abuts a mere 0.8 mile of the peninsula rail corridor, and yet may turn out to be the greatest friction point for HSR on the peninsula--and possibly anywhere in California. This is not because of technical difficulty, but rather because the town is more willing and able than most to employ legal means to get its wishes: as a first priority, a routing of HSR that is not through Atherton (namely, via the Altamont Pass), and as a last resort, the construction of a tunnel to put Caltrain and HSR completely out of sight.

In an 11-page letter sent to the CHSRA in late 2007, the Town of Atherton detailed its concerns about the HSR project. Refer to Chapter 22, p. 101 of the Bay Area to Central Valley Program EIR/EIS. The letter includes the following claims:

1. properties will need to be condemned to build HSR through Atherton;
2. partially condemned properties are subject to remainder damages "easily in excess" of the value of the entire property, to compensate owners for noise and visual impacts in perpetuity;
3. the remainder of the property may not be condemned unless it is actually needed for the project; condemnation to limit remainder damages is not sufficient to support the taking.
   

In short, Atherton warned that running HSR through town would entangle the project in an expensive and drawn-out legal battle. That battle has already begun: Atherton was a co-plaintiff in a partially successful legal challenge brought by environmental and transit activists against the above-mentioned EIR, forcing it to be revised. Doubtless this is only the beginning.

Horizontal Alignment

Despite the controversy around the issue of eminent domain, the Caltrain right of way (see maps for mileposts 27 and 28) is 80 - 85 feet wide and straight as a ruler everywhere along the 0.8 mile section that falls within Atherton town limits. In principle, this is sufficient space to accommodate four tracks, although temporary construction easements may still be required to build the grade separation structures at Atherton's two grade crossings, Fair Oaks Lane and Watkins Avenue.

Trees are highly prized in Atherton, and many large volunteer trees growing on the railroad right of way would have to be removed. Caltrain's electrification EIR identified 80 trees that would need to be removed for a two-track at-grade electrified configuration; a wider four-track arrangement would likely result in even more tree removals.

Vertical Alignment

The existing tracks slope down at a gentle (less than 0.5%) grade to the north, and cross a drainage ditch known as the Atherton Channel at Watkins Ave. The vertical alignment of the tracks through Atherton is intimately linked to the choices made in neighboring Menlo Park, which has several closely-spaced crossings that would require a consistent vertical alignment to be used through both cities. The existing alignment is shown in the figure below, created from Caltrain track survey data.


Even with the program EIR in legal trouble, project-level environmental work is continuing, with the CHSRA's preliminary design alternatives including elevated, at-grade and below-grade variations of the vertical alignment through Atherton.

An elevated alignment, as originally suggested in the program EIR/EIS and as previously studied in neighboring Menlo Park, would raise the tracks about 15 feet and lower the roads by about 5 feet. Pedestrian sidewalks would stay at grade. The tracks would have to be elevated over all six crossings in Menlo / Atherton, as shown in the figure below. Note, the 1% grade specified for freight trains considerably lengthens the northern approach to such an elevated structure.



Putting the tracks in a trench would require lowering the rails by 30 feet, to accommodate tall freight cars under overhead electrification. The solid red line in the figure below shows a trench alignment. The tracks must rise back to grade at the existing Fifth Avenue grade separation to the north, so trains, tracks, poles and overhead wires would be out of sight for only a portion of Atherton. Again, freight-friendly 1% grades are shown.


Atherton's Folly

In the analysis of alternatives process for the San Francisco - San Jose project EIR, the CHSRA requested each city to state its preferred design alternative. Atherton's position is still that the Pacheco Pass HSR routing through Atherton is ill-advised, wasteful, expensive, and adds no transportation value. Should this route be built, however, Atherton proposes a tunnel concept that is ill-advised, wasteful, expensive, and adds no transportation value. An eye for an eye...

A letter from Atherton (see p. 5) states a preference for an unusual two-level stacked tunnel arrangement, with two HSR tracks in a tunnel on the lower level and two Caltrain / UPRR tracks in a trench on the upper level, as diagrammed in the notional cross-section at right. All roads would remain at grade, and the horizontal clearances would "fit well within" the 80 - 85 foot right of way, purportedly allowing trees to be preserved. The vertical alignment for such a tunnel is shown in the vertical profile (above) as a dotted red line. Accounting for the minimum vertical clearances, the HSR tunnel would bottom out about 75 feet below grade, well below sea level. The extensive ventilation head houses, emergency evacuation stairwells and pump houses required to operate such a tunnel are not shown in the diagram.

The claimed benefits of such an arrangement include:

• No property takes and little loss of property value
• No barrier or visual impact, little noise
• Less cost than a twin-bore four-track tunnel
• Upper level usable by diesel freight trains
  

The concept was originally proposed by Redwood City resident James Jonas, who calls it the Hat Trench. Jonas was invited to present the concept to Atherton's rail committee in summer 2009.

It remains unclear who would pay for such a pharaonic tunnel structure. While the price of property in Atherton is high, it remains small in comparison to a tunnel. Less easy to quantify is the price of a view and the price of peace and quiet. Are those truly worth $10,000 per linear inch? Atherton should have plenty of MBA's to figure it out.

NOTE: This post will be updated continuously, as warranted by additional information or new events relating to Atherton.

Atherton et al. Lawsuit Decided

The Honorable Michael P. Kenny has now ruled on Sacramento Superior Court case number 34-2008-8000022, better known as the Atherton lawsuit. The basics were discussed here a few months ago. Today's decision is a mixed bag, with some claims ruled in favor of the plaintiffs (Atherton et al.) and others in favor of the defendant (the California High Speed Rail Authority).

Summary of Ruling

The complete ruling can be downloaded from the Sacramento Superior Court's document server. Select 2008 (the year the lawsuit was filed), and enter the case number 80000022, then hit the search button. This will dredge up all the case documents, including the ruling dated August 26th, 2009. Here is a quick summary, with the plaintiffs' claims and the judge's respective rulings:

1. The CHSRA's Final Program EIR failed to provide an adequate description of the project between San Jose and Gilroy (on or near Union Pacific's right of way adjacent to Monterey Highway) before selecting the Pacheco alignment. Ruling: in favor of Atherton et al.
   
   
2. The CHSRA's cost estimates were inadequate and resulted in favoring the Pacheco alignment over the Altamont alignment. Ruling: against Atherton et al.
   
   
3. The CHSRA did not adequately consider "train-splitting" as an operational alternative that might make Altamont alignment operate as well or better than Pacheco alignment. Ruling: against Atherton et al.
   
   
4. The CHSRA's ridership analysis did not fairly evaluate the Pacheco and Altamont alignment alternatives, and was generally flawed. Ruling: against Atherton et al.
   
   
5. The CHSRA's analyses of biological impacts to the Grasslands Ecological Area (along the Pacheco alignment) and the Don Edwards National Wildlife Refuge (along the Altamont alignment) were inadequate, neither equal nor impartial, and lacking in detail. Ruling: against Atherton et al.
   
   
6. The CHSRA's analysis of growth-inducing impacts (a.k.a. sprawl) was inadequate for San Benito, Santa Cruz and Monterey counties. Ruling: against Atherton et al.
   
   
7. The CHSRA's analysis of noise impacts on the peninsula was inadequate. Ruling: against Atherton et al.
   
   
8. The CHSRA's analysis of vibration impacts on the peninsula was inadequate. Ruling: in favor of Atherton et al.
   
   
9. The CHSRA's analysis of visual impacts on the peninsula was inadequate. Ruling: against Atherton et al.
   
   
10. The CHSRA did not acknowledge the potential for extensive land taking (eminent domain) in peninsula communities. Ruling: in favor of Atherton et al. because of the related Union Pacific issue.
    
    
11. The CHSRA's analysis of impact to mature and heritage trees along the peninsula right of way was inadequate. Ruling: against Atherton et al.
    
    
12. The CHSRA's analysis of alternatives was improperly biased towards the Pacheco alignment, and improperly determined that Altamont alternatives were infeasible. Ruling: against Atherton et al.
    
    
13. The CHSRA improperly omitted the possibility of reusing the existing Dumbarton rail bridge for the Altamont alignment, and overstated the difficulty of constructing the Altamont alignment. Ruling: against Atherton et al.
    
    
14. The CHSRA's analysis of alignments along highways 101 and 280 on the peninsula was deficient and improperly eliminated those options. Ruling: against Atherton et al.
    
    
15. The CHSRA failed to amend and recirculate the EIR after Union Pacific forcefully reiterated its position that its right of way was not available. Ruling: in favor of Atherton et al.
    
    
16. The CHSRA failed to respond to Menlo Park's comment letter. Ruling: against Atherton et al.

Implications

While the plaintiffs will no doubt spin the favorable rulings on four of their contentions as a big victory, the fact remains that most of their contentions were found without merit, as evidenced by more red than green in the above summary. With Atherton et al. prevailing on this subset, largely on the back of the Union Pacific issue, some questions immediately come to mind.

Is the Pacheco Pass alignment being overturned in favor of Altamont? No. The CHSRA must now amend and recirculate its Bay Area to Central Valley EIR, in order to re-certify it under CEQA. The result is still likely to favor a Pacheco alignment, although the CHSRA will need to address in detail how it plans to circumvent Union Pacific's unwillingness to share its right-of-way.

Does this ruling stop HSR on the peninsula dead in its tracks? No. At worst, it may delay it a bit, possibly enough to miss the boat on federal stimulus funding.

Does this ruling prevent the CHSRA from continuing the San Francisco - San Jose project level EIR work, and will HNTB be told to stop work? Probably not. The work being performed at the project level could just as well be re-purposed to serve the "patching" of the program-level EIR. Tiering under CEQA allows a program-level EIR to be certified prior to project-level detailed work, primarily to relieve the agency preparing the material from having to delve into overwhelming detail too soon. However, that doesn't prevent the agency from going into more detail than is strictly required under CEQA for a program-level EIR, for example by continuing the project-level EIR work currently underway under the guise of fixing the program-level EIR.

What happens next? The program-level EIR will be amended, possibly with contingency material already prepared by the CHSRA as part of its project-level work on the San Francisco - San Jose section and especially the San Jose - Merced section, which includes the controversial stretch along Monterey Highway. The Union Pacific issue, now subject of an unrelated lawsuit, must be very high on the CHSRA's risk radar; it is very likely that mitigation of this risk would be well underway if not already completed.

Does this create another opportunity to sue? Yes. Once the amended EIR is re-certified under CEQA, there will be another opportunity for lawsuits, one which the increasingly entrenched HSR opposition is unlikely to pass up. Whether the entire EIR is back in play, versus just the amendments, is an important legal question that we won't pretend to answer here.

As always, keep in mind this is a blogger writing, not a lawyer. And pass some more popcorn around, will ya?

Another Lawsuit Brewing

Update 8/11/09: The lawsuit (full text, 4.3 MB PDF) has now been filed in San Mateo County Superior Court, amid a certain degree of pageantry.

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 Atherton Menlo Park resident Russell Peterson and his attorney Mike Brady are planning a new lawsuit to prevent any HSR construction from occurring without full compliance under the Union Pacific trackage rights agreement. In November 1991, when the peninsula rail corridor was sold by the Southern Pacific to the Peninsula Corridor Joint Powers Board (the operator of Caltrain), the Southern Pacific (later merged into the Union Pacific Railroad) retained certain rights pertaining to rail operations on the peninsula corridor. See Freight on the Peninsula for an overview of UPRR's peninsula operations.

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?

Lawsuit Preview

On August 8th, 2008, the cities of Atherton, Menlo Park, and a number of environmental and transit advocacy groups filed a lawsuit seeking to overturn the CHSRA's July 9th 2008 certification of their Bay Area to Central Valley program EIR/EIS, for failing to properly meet the requirements of CEQA environmental review regulations. This lawsuit, often characterized as an act of peninsula NIMBYism, will be heard later this month in Sacramento Superior Court.

10 interesting factoids about the lawsuit:

1. You can read all the legal briefs on the Sacramento Superior Court's document server. Select 2008 (the year the lawsuit was filed), and enter the case number 80000022, then hit the search button. This will dredge up all the latest documents; the original complaint is at the bottom of the list and is a must-read. The complaint outlines the basic claims made against the CHSRA's environmental review process, and describes the organizations who filed the lawsuit.
   
   
2. The lawsuit does not seek to stop the HSR project. It broadly challenges the thoroughness of the Environmental Impact Report, and specifically the selection of the Pacheco pass alignment over the Altamont Pass alignment, which was the subject of nearly a decade of contentious debate.
   
   
3. If the plaintiffs win and the EIR certification is overturned, the CHSRA would be required to re-open and amend their program EIR to address the deficiencies, and make a new alignment decision on the basis of the amended EIR before proceeding further.
   
   
4. A new EIR decision could very well re-affirm the Pacheco Pass alignment. It would not necessarily result in the selection of Altamont Pass.
   
   
5. The plaintiffs include grassroots transportation and rail advocacy groups who are strongly in favor of HSR, including TRANSDEF, Bay Rail Alliance, and the California Rail Foundation. This fact alone should explode the NIMBY stereotype that is often associated with this lawsuit. They want HSR but they want it done right, and their strong and united stance is noteworthy.
   
   
6. While the town of Atherton has a clear motive to keep HSR entirely outside its boundaries, it's not so cut and dried for co-plaintiff Menlo Park. Under an Altamont scenario, the HSR tracks would still traverse the city, but through some less affluent neighborhoods of east Menlo Park.
   
   
7. The city of Menlo Park's standing as a plaintiff was gravely undermined when it was ruled last March 27th that they did not properly submit their comments on the EIR. In an embarrassing breakdown of basic process, no records were kept of the city's submission of comments to the CHSRA, whether by fax or U.S. mail, and the CHSRA claimed never to have received them.
   
   
8. The Palo Alto city council emphatically and unanimously supported HSR until Proposition 1A passed in November. After severe backlash against the project in Palo Alto as details of the project became better known, the city council reversed itself and voted to join support the lawsuit. While it was too late to become a plaintiff, the city filed an amicus curiae brief on May 1st, which is now available on the court's document server (see item 1).
   
   
9. Any response from the CHSRA to Palo Alto's brief is required to be made by May 15th. UPDATE 5/18: the CHSRA's response to Palo Alto's amicus curiae brief is now available on the court's document server (see item 1).
   
   
10. The lawsuit is scheduled to be heard and likely decided by Sacramento Superior Court Judge Michael P. Kenny on May 29th.
    

Whatever the outcome, it should be interesting to watch. Make sure to have a plentiful stock of popcorn.