Sunday, March 17, 2013

Quentin Kopp's high-speed rail declaration

 
Below is Quentin Kopp's declaration in support of a Kings County suit against the High-Speed Rail Authority. The litigation based on CEQA can't stop this project, which, as Kopp points out, now violates Proposition 1A that state voters passed in 2008. But this suit can, since the project has changed so much since November, 2008, that it no longer conforms to what voters thought---and were told---they were voting for.
 
You can find the brief by the Plaintiffs---there's a May 31 court date---and declarations by Kopp and others on the Kings County website. Thanks to Kathy Hamilton for the link.

I, Quentin L.  Kopp, declare and say:
 
1. I reside in the City and County of San Francisco. I was admitted to the State Bar of California in January, 1954, and am presently an inactive member. I engaged in trial practice in San Francisco and other California counties from approximately December 20, 1955, until December 31, 1998, prior to my appointment to the San Mateo County Superior Court. I retired from the San Mateo County Superior Court in February, 2004, entered and served in the Assigned Judges' Program of the California Judicial Council for over six years, and ended my participation in that program in December 2010. I am presently a member of the American Arbitration Association. I also served in the California State Senate from December 1, 1986, until November 30, 1998, and as a member of the Senate Transportation Committee for 12 years. From 1987 until 1998, I was Chairman of the Senate Transportation Committee. I also was a member of the Metropolitan Transportation Commission from 1977 until my election to the California State Senate in 1986, and served as Chairman of such Commission for two years during that period of time. I was a member of the San Francisco Bay Area Rapid Transit District governing board, appointed by the San Francisco Board of Supervisors, from January, 1973 until such Board became an elected body in November, 1974, and was also a member and eventual Vice President of the Board of Directors of the Golden Gate Bridge, Highway and Transportation District from 1976 until election to the California State Senate in 1986. I have personal knowledge of the facts stated herein, and, if sworn as a witness, would and could competently testify thereto.
 
2. I have been involved with the planning and implementation of a California high speed train system since 1992, and served as a member of the California High Speed Rail Authority ("Authority") from June 2006 until March 2011.
 
3. I initiated the legislative action to establish high speed rail ("HSR") in California with a bill creating the HSR Commission. Such bill was vetoed by then-Governor Pete Wilson. In 1994, I introduced, and there was enacted, a measure establishing a California HSR Committee to evaluate whether high speed rail was (1) desirable and (2) feasible in California. By the term "high speed rail," I refer to electrified trains capable of speeds as fast as 220 miles per hour.
 
4. The California HSR committee members were appointed by then-Governor Pete Wilson.  Such committee analyzed the issues of desirability and feasibility, and reported to the Governor and the Legislature in early 1996 that high speed rail was both desirable and feasible in California. That same year, I introduced legislation creating the present Authority.
 
5. In August 2006, I was elected Chairman of the Board of Directors of the Authority and served continuously in that responsibility through 2008 and until on or about July 1, 2009. During the period of such chairmanship, necessary legislative acts to implement a high speed train system occurred. In that period, Assembly Bill No. 3034 (AB 3034), involving provisions in the California Public Utilities Code and Streets and Highways Code, was developed as integral to submitting a $9,950,000,000 State General Obligation Bond to California voters for approval on November 4, 2008. Such General Obligation Bond had been authorized for voter action by the Legislature and then-Governor in 2002, but because of external events, that ballot measure was postponed, first, to the 2004 State General Election, then to the 2006 State General Election, and, finally, to the 2008 State General Election, all without amendments of the type contained eventually in AB 3034.
 
6. As Authority Chairman, I appeared several times before legislative committees in the Assembly and the State Senate testifying on HSR plans. The Senate Transportation Committee, then under the chairmanship of State Senator Alan Lowenthal, particularly participated in developing the statutory language of AB 3034 and, hence, the language of the underlying ballot measure which became known thereafter as Proposition 1A. I was familiar with the concerns of various legislators and professed objectives and desires concerning language of Proposition 1A. I was also well aware of the intent of the Authority's ability to fulfill promises that would be made and were made to California voters in the November 4, 2008, General Election.
 
7. In my opinion, the HSR project, as it evolved in the 2012 Authority's Business Plan, is no longer a genuine HSR system, as covenanted to California voters and the Legislature. Instead, it has been distorted in a way directly contrary to the high speed rail plan the Authority attempted to implement while I was Chairman, namely, a true HSR system containing all the features, terms and protections desired by the Legislature. Accordingly, it is my opinion the project is not lawfully eligible to receive Proposition 1A bond funds.
 
8. Proposition 1A was approved by a majority of California voters on November 4, 2008, as a bond measure designed to finance part of the cost of HSR in California in conjunction with federal funds, local public funds, regional public contributions and money from private investors. The vast proportion of the $9,950,000,000, to wit, $9,000,000,000, was for genuine HSR. The remaining $950,000,000 was allocated to eligible recipients for capital improvements only to inner-city and commuter rail lines and urban rail systems providing direct connection to HSR or that are part of construction of the HSR system or provide capacity enhancements and safety improvements.
 
9. As pointed out by the Legislative Analyst in the Official Voter Guide, Proposition 1A requires "accountability and oversight of the authority's use of bond funds authorized by the measure for a high-speed train system." (Emphasis added.) The Legislative Analyst also noted that of the $950,000,000 for improving other passenger rail systems or allowing riders to connect to HSR, $190,000,000 was designated to improve inner-city rail services and $760,000,000 was specified for other passenger rail services including urban and commuter rail. No part of the $9,000,000,000 for HSR was designated for urban or commuter rail. The Legislative Analyst iterated that in 2006, the Authority estimated total costs of the entire HSR system would amount to approximately $45,000,000,000.
 
10. In May, 2007, the Authority had decided that Phase I of HSR is the corridor between San Francisco and Los Angeles and Anaheim. It also decided that Phase II would extend HSR from Los Angeles to San Diego on the south and from Merced to Sacramento on the north.
 
11. Both AB 3034 and Proposition 1A require the project to be built in usable segments. Streets and Highways Code section 2704.01(g) defines a "usable segment" is shown through its repeated use in the extensive statutory provisions in sections 2704.08(c) and (d) of AB 3034 (incorporated into Proposition 1A) that delineate the mandatory provisions of the detailed Funding Plans of the Authority is required to approve. Thus, section 2704(c) requires the Authority to approve and submit to the Legislature, the Director of Finance, and the Peer Review Group, "a detailed Funding Plan for that corridor or a usable segment thereof" that meets the requirements of subsections (A) though (J)---each of which (except for subsection I) specifies that the requirement must be met for "the corridor or usable segment thereof." These mandatory provisions include:
 
(D) The sources of all funds to be invested in the corridor, or usable segment thereof, and the anticipated time of receipt of those funds based on expected commitments, authorizations, agreements, allocations, or other means.
 
(E) The projected ridership and operating revenue estimate based on projected high-speed passenger train operations on the corridor or usable segment.
 
(H) The corridor or usable segment thereof would be suitable and ready for high-speed train operation.
 
(J) The planned passenger service by the authority in the corridor or usable segment thereof will not require a local, state, or federal operating subsidy.
 
Essentially the same provisions are repeated in the Funding Plan required by subsection (d), the provisions of which must be met before the Authority can commit to the expenditure of Proposition 1A bond funds for construction.
 
Accordingly, at the meeting of the Authority's Board of Directors on December 2, 2010, Deputy Attorney George Spanos advised the Board that the proposed construction of a section of track between north of Fresno to north of Bakersfield was not a "usable segment" within the meaning of Proposition 1A, but it would be a subset of a "usable segment." That legal advice conformed to my understanding of "usable segment," both then and at all times since. Such definition is part of Proposition 1A.
 
12. A usable segment cannot be commenced in terms of construction until adequate funding for that usable segment is obtained or committed; such funding must be sufficient to ensure completion of that particular usable segment. The purpose of such provision is protection of the State from risks that a portion of the system would be abandoned or uncompleted because of lack of money to finish construction. Such rigid funding protections are an integral part of the statutory scheme and ballot measure. The present HSR plan does not contain those protections. The Authority itself describes the alleged usable segment it proposes to build in the Central Valley as running from Merced to the San Fernando Valley, and represents it will cost $31,000,000,000. That amount of money has not been secured by the Authority and is not committed by any state, federal, local or private investor source. The United States House of Representatives, in its most recent transportation bill, specifically eliminated California from further funds for HSR.
 
13. Streets and Highways Code section 2704.09(a) mandates that the high speed train system constructed under the Streets and Highways Code and Proposition 1A "shall be designed to achieve" certain characteristics, including electric trains capable of "sustained maximum revenue operating speeds of no less than 200 miles per hour." Streets and Highways Code section 2704.09(b), also incorporated in Proposition 1A, specifies maximum nonstop service travel times for seven different corridors, including San Francisco to Los Angeles Union Station in two hours, 40 minutes. Streets and Highways Code 2704.09(c), also incorporated in Proposition 1A, mandates achievable operating "headway" (time between successive trains) of five minutes or less. Streets and Highways Code section 2704.9(f) requires that for each corridor described in section 2704.09(b), passengers shall be able to travel "from any station on that corridor to any other station on that corridor without being required to change trains." (Emphasis added.) Streets and Highways Code section 2704.08(c)(2)(J) effectively prohibits passenger service by the Authority in any usable segment which requires a local, state or federal operating subsidy. That provision is incorporated in Proposition 1A. Proposition 1A and its statutory predicate (AB 3034) require each usable segment to be suitable and ready for genuine HSR operation, electrified and containing all components of a genuine HSR system. As HSR is now planned, no electrification is provided for the first alleged usable segment in the Central Valley, (a 130-mile section of track from south of Merced to north of Bakersfield) predicted to cost approximately $6,000,000,000 and financed by Proposition 1A bond proceeds and federal funds from the American Recovery and Rehabilitation Act of 2009. I have never read an Authority explanation for building a conventional rail segment, or segments, without the components of a genuine HSR system. Such a tactic contravenes the Authority's intent in submitting Proposition 1A to California voters on November 4, 2008. Although the Authority's current business plans indicate it claims such conventional rail segment is only "preliminary" and that the Authority will at some unspecified time electrify such segment, there exists no legal justification for such a plan or claim, and such plan completely violates the Authority's intent and its representations to the Legislature and California voters. Furthermore, it appears wasteful to spend approximately $6,000,000,000 on a conventional rail segment, then return years later to modify it and replace it with a fully compatible electrified genuine HSR segment. Finally, the aforementioned first construction segment cannot itself qualify as a "usable segment" because it is not electrified. Statutory schemes and the Authority's intent in 2008 were clear, to wit, build qualified (under statutory definition) usable segments, one at a time, and do not begin a new usable segment until funds are committed and sufficient for completion of the next usable segment, with electrification of every segment from the outset.
 
During all my time with the Authority I never participated in any discussions, agreements, authorizations, or understandings that would incorporate the concept of conventional rail segments into the definition of a "usable segment," even on an interim or preliminary basis; nor was there ever any agreement, intent, or understanding that conventional rail could come first as part of a blended or phased system with genuine high-speed rail to be built later. Such an inclusion would contravene the Authority's intent in submitting Proposition 1A to California voters on November 4, 2008. Statutory schemes and the Authority's intent in 2008 were clear, to wit, to build in qualified (under statutory definition) usable segments for high speed rail and only high speed rail.
 
My comments above with respect to lack of legal authorization for conventional rail relate to the $9,000,000,000 portion of Proposition 1A bond funds, and not to the $950,000,000 portion of those bond funds. The $950,000,000 portion is allowed to be used to improve/modify conventional rail systems in California; that specific authorization for those funds to be used for conventional rail necessarily implies that the $9,000,000,000 portion was not to be used for that purpose, and this was always my intent and understanding as Chairman of the Authority in attempting to carry out the Legislature's intent, the Authority's then intent, and the intent of the voters in passing Proposition 1A.
 
14. Under the Authority's present business plan, the Authority has adopted a scheme to use Proposition 1A bond funds and matching funds, with plans to deliver this amount to the Los Angeles Basin (to Metrolink and related rail agencies there) and to Caltrain on the San Francisco Peninsula,so that these Northern and Southern California commuter operations (referred to as "bookends" in the legislation) can obtain various operational improvements and so that Caltrain can electrify itself. The Authority refuses to proceed with the plan approved by the pre-2012 Authority Board of Directors to obtain sufficient real property to build HSR on its own dedicated tracks. The "blended" system forces HSR and Caltrain to share existing right-of-way and tracks from San Francisco to Gilroy. That means the Authority will be unable to comply with Streets and Highways Code section 2704.09(c) in achieving operating headway time between successive trains of five minutes or less. It also means the Authority will violate Streets and Highways Code section 2704.09(f) which requires that passengers shall have the capability of traveling from any station on each corridor to any other station on that corridor "without being required to change trains." (Emphasis added.) Both of these provisions are incorporated in Proposition 1A, as noted above. The Authority's present business plan will require a rider from San Francisco to Los Angeles and Anaheim to board Caltrain in San Francisco, then leave Caltrain to board a theoretical HSR train from San Jose (or Gilroy) to a station in Los Angeles County such as Sylmar, and change trains again to a Metrolink train to arrive in Los Angeles or Anaheim, whichever is the rider's destination. Such a deviation from Proposition 1A's explicit requirement of no change of trains in the corridor from San Francisco to Los Angeles Union Station consequently renders it doubtful that Streets and Highways Code section 2704.09(b)(1) mandate of maximum "non-stop service travel" time for the San Francisco-Los Angeles Union Station corridor of two hours, 40 minutes can be performed.
 
15. On July 6, 2012, as stated above, the Legislature approved seizure of approximately $1,000,000,000 from Proposition 1A bond proceeds for use, as described above, for regional and commuter rail transit purposes on the San Francisco Peninsula and in Southern California. Such diversion of funds from the Central Valley undermines funding prospects for that area, rendering risk of non-completion much higher. Such diversion is also contrary to the Authority's own intentions in 2008 in presenting the proposed General Obligation Bond to voters on November 4, 2008, and contrary to the Legislature's concern about increasing financial risk from an uncompleted project.
 
16. The statutory scheme in Proposition 1A assured voters there would be no state, local or federal operating subsidy for HSR. I repeatedly assured groups of voters of that statutory and bond measure prohibition. The current plan ignores that prohibition. For HSR to succeed financially, it must use dedicated trackage reserved exclusively for HSR as is the case in all countries with HSR. HSR will not succeed financially if it must share tracks with conventional or commuter rail. As noted, without its own dedicated tracks, not nearly as many HSR trains can operate per day. The "track-sharing" arrangement with Caltrain represents one example (Los Angeles to Anaheim represents another) of the Authority's current alteration of the project from a genuine HSR system to a distortion of such, using such terms as "blended system" to  describe the present plan. Those concepts contravene the Authority's representations to the public that a true HSR system would be built with all $9,000,000,000 in bond money from Proposition 1A spent for exactly that. To me, the Authority Chairman during all the planning and pre-November 4, 2008 efforts regarding the bond measure, this constitutes the greatest betrayal of all in the context of the original intent and promises to voters. The project, as now planned rather than what was promised, constitutes a distortion and mangling of California's HSR project and promises to California voters.
 
17. The Authority has also participated by approval in another violation of Proposition 1A and Streets and Highways Code sections 2704.095(a)(1) and (d) which, as stated above, allocate $950,000,000 of bonds authorized by Proposition 1A to eligible recipients for direct connection to the HSR system. Section 2704.095(d) mandates that funds allocated pursuant to the subsection shall be used to pay or reimburse the cost of providing or improving "connectivity with a high speed train system." On or about June 8, 2012, the Authority was presented with information showing that $61,300,000 of such money was allocated to the so-called "Central Subway Project" in the City and County of San Francisco, based upon a planned HSR station stop at Fourth Street and King Street, San Francisco. Prior to 2012, the Authority's plans, while premised upon a HSR terminal at the so-called Transbay Terminal located at First Street and Mission Street in San Francisco, also provided for the aforementioned Fourth Street and King Street station (the present Caltrain San Francisco terminal location) because the Transbay Terminal could not physically accommodate 10-12 HSR trains per hour plus all arriving Caltrain trains. Prior to the Authority's plan released on April 2, 2012, the Authority's business plans were based upon 10-12 trains arriving in San Francisco during peak hours from 7:00 until 10:00 a.m. and 4:00 until 7:00 p.m. The present Caltrain terminal, which the Authority prior to April 2, 2012, had planned to utilize, will now be "connected" to HSR by the Central Subway. The Central Subway Project does not, however, connect with HSR or improve connectivity with HSR because the current plan of the Authority eliminates any station at Fourth Street and King Street in San Francisco.
 
Furthermore, the Central Subway Project changes the route of an existing San Francisco Municipal Railway light rail line (called the T Third Line) and by doing so eliminates the segment of that line which would connect to the HSR system at the San Francisco Transbay Terminal. In short, the $61,300,000 allocation of HSR Proposition 1A connectivity funds would finance a project which not only fails to connect to HSR, but disconnects an existing light rail line from HSR. Instead of providing or improving "connectivity with the high-speed train system," it destroys connectivity in degradation of section 2704.095(d). In fact, in June, 2011, $61,300,000 from the $950,000,000 of so-called connectivity funds described above were allocated to the Central Subway Project in San Francisco and included in the proposed State Budget Act of 2011-2012 for distribution to the San Francisco Municipal Railway Central Subway Project only to be vetoed by Governor Edmund G. Brown Jr. who stated that the Central Subway Project appeared to be "unrelated to the high-speed rail project or an integrated rail plan." I am informed and believe that following the Authority's current business plan public release on April 2, 2012, the California Transportation Commission by electronic mail informed all applicants for money from the aforementioned $950,000,000 portion of Proposition 1A that new applications for any such funds must be received by May 1, 2012, and stated that the projects submitted must be consistent and have a direct connection to the HSR system. The California Transportation Commission thereafter allocated $61,300,000 to the San Francisco Municipal Railway Central Subway Project. The current Authority business plan which eliminates any station connecting in San Francisco to the Central Subway and provides $61,300,000 for the Central Subway Project constitutes an illegal expenditure under Proposition 1A.
 
18. I am informed and believe that the failure to proceed with dedicated tracks on the San Francisco Peninsula for HSR has caused the Authority business plan now to project that a maximum of four trains per hour will arrive in San Francisco during the peak hours mentioned above, which will have a resultant effect of reducing ridership and thereby preclude the Authority from operating without a state, local or federal financial operating subsidy, in violation of Proposition 1A and Streets and Highways Code section 2704.06(2)(J).
 
I declare under penalty of perjury pursuant to the laws of the State of California that the foregoing is true and correct.
 
Executed on this 15th day of February, 2013, at San Francisco, California.
 
Quentin L. Kopp
 

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