Trial Court Holds High Speed Rail’s Funding Plan Violated Prop 1A But Refuses to Issue a Writ Invalidating Legislative Appropriation or Future Subsequent Approvals for the Rail Project For Now

On August 16, 2013, Sacramento Superior Court Judge Michael Kenny issued a ruling in Tos v. California High Speed Rail Authority(Case No. 34-2011-00113919-CU-MC-GDS), finding that the High Speed Rail (HSR) Authority’s funding plan did not comply with Streets and Highways Code Section 2704.08, which was codified by Proposition 1A, approved by the statewide voters in 2008. But Judge Kenny ultimately concluded that no writ of mandate rescinding approval of the funding plan, invalidating the legislative appropriation, or invalidating subsequent project approvals should be issued at this time.

The Authority approved a funding plan for the HSR on November 3, 2011. Under S&W Code section 2704.08(c), the funding plan needed to identify the “sources of all funds to be invested in the corridor” and to certify that the “authority has completed all necessary project level environmental clearances necessary to proceed to construction.” Petitioners filed a complaint and petition on November 14, 2011, asserting that the funding plan did not comply with Section 2704.08. On July 18, 2012, before the trial court issued its ruling, the Legislature enacted Senate Bill 1029, appropriating state bond funds and available federal funds for the construction of one of two alternative Initial Operating Sections (IOS).

Although Judge Kenny found that the funding plan did adequately identify sources of funds for a segment of the IOS referred to as the Initial Construction Section (ICS) from Madera to just north of Bakersfield, he found the funding plan violated Section 2704.08 because it failed to do so for the entire IOS from Merced to Los Angeles. Additionally, Judge Kenny found the Authority had not properly certified that environmental clearances for the entire project were complete. At this time, only the Madera-to-Fresno segment has received final project-level environmental review.

Based on these findings, Judge Kenny concluded that he could issue a writ of mandate directing the Authority to rescind its approval of the funding plan. Nonetheless, the judge decided not to issue such a writ because it would have no “substantial or practical impact on the program” without a concurrent invalidation of the legislative appropriation for the HSR or subsequent approvals. Furthermore, Judge Kenny concluded that no writ should be made to invalidate legislative appropriation made through SB 1029, partly because petitioners did not seek such relief in their Second Amended Petition and Complaint, and they only raised the issue for the first time in their reply brief. Finally, the judge directed the parties to submit supplemental briefing on the issue of whether a writ should issue to invalidate subsequent approvals.