Lawsuit over high-speed rail segment is settled

Ag groups, state forge pact on plan's impact

tsheehan@fresnobee.comApril 19, 2013 

— Farming interests in Madera and Merced counties dropped their environmental lawsuit challenging the first section of the statewide high-speed rail project.

The California High-Speed Rail Authority and representatives of several agricultural organizations announced the settlement Thursday afternoon after Sacramento County Superior Court Judge Timothy Frawley signed off on it, less than 24 hours before attorneys were to argue their points in Frawley's courtroom.

The settlement removes the last legal challenge to the authority's approval last May of the 60-mile stretch of the proposed rail route between Merced and Fresno, and certification of the environmental-impact report that was the basis for the route approval.

Farm Bureaus in Madera and Merced counties were among the organizations suing the rail authority. Anja Raudabaugh, the Madera bureau's executive director, said the rail authority gave significant concessions: increased mitigation of agricultural impacts, and direct compensation for landowners affected by the project.

The lawsuit was filed by the Madera County Board of Supervisors, the two Farm Bureaus, Preserve Our Heritage (a Valley-based, grass-roots agriculture organization), Chowchilla Water District and the Fagundes farming family in Madera and Merced counties. They alleged that the rail authority used a "flawed process" to assess the effects of the high-speed rail project on agriculture and that the agency illegally approved the Merced-Fresno line.

The Madera County Board of Supervisors voted earlier this month to withdraw from the case.

Two similar suits, one by Chowchilla and another by companies that own property along the route in Madera and Fresno counties, were settled earlier this year.

"This is a very positive development and I commend the High-Speed Rail Authority on working closely with California farmers and arriving at a very solid settlement," Gov. Jerry Brown said.

What farmers wanted

The lawsuit by the farm groups sought to halt -- or at least slow -- work on the project. The rail authority is weeks away from awarding a contract for construction to begin this summer on the first stretch of the route in Fresno and Madera.

Thursday's announcement came less than three weeks after Farm Bureau representatives pledged to fight on after the Madera County Board of Supervisors opted out of the lawsuit.

The farm groups asserted that when the rail authority approved the Merced-Fresno route, the agency failed to adequately assess how agriculture and communities would be affected by the high-speed rail line; did not offer enough solutions to make up for those effects; and violated open-meeting laws that govern how the boards of state agencies conduct business.

Because of those problems and others, the suit asked the court to nullify the authority's May 3, 2012, environmental certification and approval of the Merced-Fresno section. It sought a permanent injunction barring the rail authority from hiring contractors, starting construction, purchasing equipment or supplies or spending any money to develop the section "until it has fully complied" with CEQA and state open-meeting laws.

What farmers got

Key provisions of the settlement, according to court documents, include requiring the rail authority to:

• Make up for the loss of farmland for the railroad right of way by purchasing agricultural conservation easements on property of similar quality elsewhere in the region. Those easements would preserve the land from any use other than agriculture.

• Offer to buy any leftover parcels under 20 acres created when the rail line divides a property.

• Pay opponents' legal fees of nearly $973,000.

• Create an "agricultural land mitigation fund" of $5 million to purchase additional conservation easements, beyond those required to make up for farmland directly affected.

• Consult with affected property owners in the area of the "Chowchilla Wye," a Y-shaped junction of the Merced-Fresno rail route and a line branching westward toward Los Banos, San Jose and the Bay Area.

• Take measures to ensure that the Chowchilla Water District's facilities are uninterrupted.

The settlement is considered a judgment by the court, which means the judge will have the authority to enforce the agreement's provisions.

"Far from being perfect, I believe this settlement forces the authority to compensate and mitigate individual land owners for agricultural impacts this project will have on the farming community in Madera County," Madera County Farm Bureau president Tom Coleman said. "We were very concerned that even if we prevailed entirely in our CEQA case, we would not have been afforded these rigorous concessions."

Moving forward

Frawley had dealt the farm organizations a blow in the fall when he rejected their request for an injunction to bar the authority from any planning or contracting work until the case was decided. In November, Frawley said he did not believe the plaintiffs were likely to prevail.

"The settlement represents a real improvement, providing more ag mitigation and more protection for the directly affected ag properties," said Barry Epstein, the lead attorney for the agricultural groups. "This is one of those cases where litigation was needed to accomplish the core CEQA purpose of reducing impacts when public agencies chose to undertake environmentally harmful projects."

A new complication for the rail authority arose Thursday: The federal Surface Transportation Board ruled that it has authority over the project, which could mean big delays and cost overruns if the state is forced to comply with federal railroad regulations.

Rob Wilcox, a spokesman for the rail authority, said the Surface Transportation Board is still considering the state's request for an exemption, "and we continue to move forward to begin construction this summer."

Dan Richard, the rail board's chairman, said he is confident the federal board will approve the request next month, as it recently did for a Florida project.

The rail authority has about $6 billion available to build the "backbone" of the route between Merced and Bakersfield. Federal money requires that it be spent, and the section largely completed, by Sept. 30, 2017.

The rail authority faces another lawsuit by Kings County, Hanford farmer John Tos and Hanford homeowner Aaron Fukuda, which claims the authority's plans violate Proposition 1A, the $9.9 billion rail bond measure approved by voters. That lawsuit will be tried May 31 in Sacramento.

The Associated Press contributed to this report.

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