The Los Angeles County Metropolitan Transportation Authority (a.k.a. Metro, and formerly known as M.T.A.) and Union Pacific are two major reasons why the Rail Authority is seriously looking at putting its high speed trains down the I-10 corridor through Alhambra and our neighboring cities.
Metro is the lead agency in the county for transportation planning and has a lot of sway with the Rail Authority. Metro believes that the 60 freeway is the only viable option of the three original routes considered. At the same time, Metro is planning to use that same route along the median of the 60 freeway for its Gold Line extension, which is currently in the environmental study phase. What’s more, Metro owns the railway right of way currently used by Metrolink in the center of the I-10 freeway, and has offered it to the Ratil Authority.
Union Pacific is the largest railroad in California. It owns the right of way for one of four alternative routes proposed by the Rail Authority for its high speed trains. Union Pacific’s customers likely own the property for the adjacent route. Union Pacific has consistently told the Rail Authority it will fight tooth and nail to resist any plans to put high speed trains near its rights of way. Very conveniently for Union Pacific, federal law is currently on its side.
The Rail Authority has decided that its trains will travel from Los Angeles Union Station to the Inland Empire and then south to San Diego.To that end, it has proposed four possible routes for its trains through the area west of the 605 freeway:
- On the the Union Pacific right of way, south of the 60 freeway through the cities of Commerce and Industry where relatively few people live. It is the purple line in this map.
- Adjacent to the Union Pacific right of way.
- On the median, within the right of way, for the 60 freeway.
- On or along the I-10 freeway
Right of Way
A right of way is the strip of land on which a company or government agency has the right to run its transportation infrastructure such as roads or railroad tracks. Caltrans owns the right of way on which it built the I-10 freeway. Similarly, Metro owns the right of way down the center of the I-10 freeway on which Metrolink operates its commuter railway. And in the case of Union Pacific, the right of way is the land that Union Pacific owns or has the right to use to lay its train tracks and operate its railroad business. Union Pacific owns many rights of way through Southern California. One such right of way runs along Mission Road where it has been put in a trench through Alhambra.
Utilities also have rights of way in which they run their wires and pipes. For example, Edison has an easement over the back portions of most lots in my neighborhood. An easement gives the holder a property right to use that piece of property. Edison uses its easement to locate its poles, transformers, and electrical lines.
Initially, the Rail Authority expected it could run its high speed trains in existing rail corridors. After all, Union Pacific rights of way are often wider than the space Union Pacific actually uses to run its tracks or operate its railway. However, Union Pacific has said no. It has consistently told the Rail Authority it will fight any plans to put high speed rail near its rights of way to protect its property and contract rights. It wants nothing to do with high speed trains, will refuse to sell any of its rights of way to the Rail Authority, will deny permission to share its rights of way with the Rail Authority, will not allow the Rail Authority to cross its rights of way, and will even fight plans to put the high speed trains near its right of way.
A commentary on the Rail Passenger Association of California and Nevada (RailPAC) web site says: “It will be a mistake to assume cooperation from the [Union Pacific] on future rail passenger service. What might [Union Pacific] want that could change their mind? Money is part of the answer…. [It] would like fewer headaches dealing with government bodies….” Liability. “The potential for lawsuits when passengers are involved is much greater than when a container of television sets is destroyed…. [F]or now [high speed rail] will be a harder sell than a telemarketer interrupting your dinner to sell timeshare vacations on the Gulf of Mexico.”
Union Pacific’s letters
Union Pacific has written a series of letters to the Rail Authority with regard to every proposed alignment of the high speed rail line. All letters strongly state that “it is not in Union Pacific’s best interests to permit any proposed high-speed rail alignment on our rights of way.” 
It makes similar arguments in each letter, telling the Rail Authority that situating the high speed rail line on or along the Union Pacific rights of way will interfere with its ability to move freight, that Union Pacific serves a vital service to the economy, and that California lacks the power of eminent domain to seize the right of way.
- “Major rail shippers are located along [the Union Pacific rights of way in Southern Calfornia]. In many instances, these shippers have constructed large unloading and storage facilities, including facilities for lumber, manufactured goods, automobiles, feed, and a multitude of other goods crucial to the Los Angeles area. Any [high speed rail] alignment on or adjacent to these [rights of way] would terminate Union Pacific’s ability to serve these shippers, and future shippers needing rail service, leading to serious economic loss to shippers, consumers, the state and the railroad.” 
- “Union Pacific will deem any attempt by [the Rail Authority] to interfere with Union Pacific’s operations over these subdivisions, including service to shippers, or to appropriate any part of its right of way by eminent domain, as an attempt to force a de facto abandonment of freight service in violation of federal law.” 
Eminent Domain is not Available to California
The last point regarding eminent domain is likely a serious obstacle to using the Union Pacific right of way.
As Union Pacific points out in a number of its letters, federal law requires that railroad operators obtain approval from the Surface Transportation Board in the U.S. Department of Transportation before it may abandon a rail line. In one such letter, it states: “As a common carrier railroad, Union Pacific is subject to the requirements of federal law governing abandonment or discontinuance of freight operations. Specifically, the Interstate Commerce Commission Termination Act (49 USC Section 10501 et seq.) prohibits a railroad from abandoning or discontinuing freight services over main or branch lines of railroad without authority from the federal Surface Transportation Board (STB).”
Federal railroad laws and regulations apply to Union Pacific and control in situations when federal and California laws conflict, despite the fact that the Union Pacific right of way is located in California. This is because the U.S. Constitution gives the federal government power to regulate interstate commerce. Union Pacific’s rail operations in Southern California are tied to interstate commerce as it transports cargo from the ports of L.A. and Long Beach to other states. For that reason, the Surface Transportation Board has jurisdiction and has the power to grant an eminent domain request by California.
The Surface Transportation Board is unlikely to grant California’s request to use eminent domain to take any portion of the Union Pacific right of way. The Union Pacific right of way is actively used as part of a main rail line between Los Angeles and points east. In contrast, the Surface Transportation Board denied the City of Lincoln, Nebraska permission to use eminent domain to take a 20 foot portion of a little used, dead end spur. The Surface Transportation Board “held that taking a five-block long, twenty-foot wide swath of a railroad’s right of way would unduly interfere with railroad transportation.” If it would not allow the condemnation of a portion of a lesser used spur, the Surface Transportation Board will almost certainly not allow the condemnation of any portion of a main line in one of the nation’s busiest rail corridors. As the appellate court that decided City of Lincoln said “[c]ondemnation is a permanent action, and it can never be stated with certainty at what time any particular part of a right of way may become necessary for railroad uses.” 
In all likelihood, it would take an act of Congress before California could utilize eminent domain to take a small sliver of the Union Pacific right of way. It would be an uphill battle against the business lobby who want a cheap, scalable way to transport goods, the environmental lobby who want diesel trucks off the roads, and a variety of other interests who would not want their states inconvenienced so California could be so California.
For those reasons, eminent domain likely will not be available to California to gain access to the Union Pacific right of way.
UPDATE: The fact that California does not have the power of eminent domain over Union Pacific is not lost on the Rail Authority. Genoveva Arellano, public relations contact for the L.A. to San Diego segment of the high speed train project told the Pasadena Star News that “it’s “well known” that Union Pacific has not allowed the use of its tracks for the project, and that “it is likely that [the Union Pacific right of way] will be moved off the map.”
Metro is responsible for regional transportation planning for Los Angeles County, setting transportation priorities, funding many of the transportation projects in the county, and, of course, operating the large bus and light rail fleet.
As a result, Metro is highly involved in the I-1o freeway corridor through the county, including Alhambra. It helps Caltrans set priorities and pay for modifications and improvements to the freeway. For example, Metro is is partially funding the current I-10 construction through Alhambra and the rest of the San Gabriel Valley. Also, Metro runs its buses on the carpool lanes, called the busway, and will operate what it calls the high occupancy toll (HOT) lanes Caltrans is building.
Metrolink Right of Way
What’s more, Metro is the sole owner of the railway right of way in the center of the freeway, currently used by Metrolink. The Southern Pacific did not retain an easement or other property right to the right of way when it sold the right of way to Metro in the early 1990’s. Also, there are no contracts with freight or other operators to use the right of way. According to Alex Clifford, Metro’s Executive Officer for High Speed Rail, the freight trains that do run down the center of the 10 freeway do so as a courtesy, usually in response to tracks closed for construction, stalled trains, and accidents, or to alleviate congestion. Apparently, it is also used for special occasions or party trains.
The fact that Metro is the only owner of the right of way makes the Rail Authority’s job easier. It only needs to appeal to Metro, rather than a host of other parties like it does in other areas. For example, the Southern Pacific railroad retained an easement to run freight trains on the right of way it sold to Caltrain in the San Francisco Bay Area. An easement gives the holder a property right to use that piece of property. Union Pacific assumed the freight easement on the Caltrain tracks when it purchased Southern Pacific. Union Pacific has told the Rail Authority it must accommodate Union Pacific freight trains and that it has no intentions to abandon the line or allow an eminent domain proceeding to succeed, similar to its assertions with regard to the proposed high speed rail line through Commerce and Industry (discussed above).  Incidentally, the Rail Authority’s current plans to build an elevated railway along the Caltrain right of way may allow Union Pacific to increase freight traffic along the line; it is currently limited to operating when Caltrain does not, 12am to 5am.
In addition, Metro is a partner agency in the high speed rail project through the county. Together, Metro’s role as a stakeholder in the project and involvement in the I-10 corridor leads it to have a lot of sway with regard to where the high speed trains will run through the county.
According to Mr. Clifford, Metro will allow the Rail Authority to utilize the Metrolink right of way if it can accommodate Metrolink trains, not disrupt the bus/carpool lanes, and not force Caltrans or Metro to expand the size of the freeway footprint. Meeting those criteria is a big challenge because the freeway has a number of curves and the right of way is small (20 feet wide). He said that Rail Authority engineers were told to be creative and figure out a way to make it work during the alternatives analysis process.
Mr. Clifford also repeated what the Rail Authority has been telling us, that all options are on the table. That is, except for running the trains at street level. He agreed that street level is impossible because the Metrolink right of way is 20 feet and not wide enough to accommodate two tracks. He told me that “the right project might cost a little bit more.” In that way, the Rail Authority engineers are looking at a number of options including: 1) cut and cover tunnel; 2) cantilevered trench, where some vehicle traffic runs above trains while the center of the trench is open to the sky; 3) elevated platform above vehicle traffic; and 4) elevated platform above trains.
I am still skeptical. Costs will lead and control the design chosen. I stand by what I said in a previous post: “All options are on the table” — NOT. I find it hard to believe that such a grand, expensive project will be allowed to spend to get the project right. In addition, the roads through Alhambra, San Gabriel, and Rosemead mostly go under the freeway. A trench or tunnel option will either require the Rail Authority to re-route the roads above the freeway ($ ca-ching $) or go below those roads ($ ca-ching $ ca-ching $). Moreover, when it comes down to either accepting a less desirable outcome or letting the high speed rail extension to San Diego die due to costs, The Metro board will listen to the business, environmental, and union lobbyists and vote for the cheaper, elevated trains.
Metro’s role and power to sway the Rail Authority cannot be underestimated. Our focus, as a community, must be on Metro, its board, leadership, and transit planners, if we have any hope to kill plans to put the high speed trains through our community.
- Contact Metro’s board members and let them know how you feel about high speed trains coming through Alhambra and our neighboring cities. Metro will be largely responsible for routing high speed trains down the I-10 freeway, if the Rail Authority picks this route. Not only does it have a lot of sway as the regional transit planning agency, but it owns the right of way and has already offered it to the Rail Authority, albeit with strings attached. 
- Contact your members of the House of Representatives and Senate and let them know how you feel about high speed trains coming through Alhambra and our neighboring cities. Demand that they pass legislation that makes it easier for states to use under-utilized railway rights of way. The Department of Transportation should allow the use of eminent domain to build high speed passenger trains when the existing railroad uses less than one half its right of way. For Alhambra, contact Adam Schiff, Diane Feinstein, and Barbara Boxer.
- Remain constructive in your criticism of the Rail Authority’s plans to route its high speed trains through Alhambra. Although it may seem pre-ordained the trains will come through Alhambra, that does not mean they will. And if they do come through, by remaining constructive, we may actually improve our situation. I would personally like to see less dirty diesel and may be personally persuaded should Caltrans eliminate more big trucks from the highway or at least charge a hefty toll to discourage their using the highway (then again, that’s another agency or two that needs to make such a rule).
 You need only look at a satellite map of railroads to see how much right of way is actually used. I drew a box around an area of the right of way in the following map to show an approximate slice of the right of way. If anything, it is larger than what I show and goes up to the fences or buildings in the picture.
View Right of Way in a larger map
 See the letters sent from Union Pacific to the Rail Authority (Google Docs). One example of its strong wording is: “Union Pacific will not voluntarily make these rights of way available to the corridor project under any circumstances.” Letter from Jerry Wilmoth, General Manager Network Infrastructure for Union Pacific to Dan Leavitt, Deputy Director of California High Speed Rail Authority, Re: Union Pacific Railroad Scoping Comments For San Jose to Merced Joint EIR/EIS, page 15 of 40 (April 8, 2009)
 Letter from Jerry Wilmoth, General Manager of Network Infrastructure for Union Pacific, to Dan Leavitt, Deputy Director of the California High Speed Rail Authority, Re: Union Pacific Railroad Scoping Comments for Los Angeles to San Diego via Inland Empire EIR/EIS (November 23, 2009). (Google Docs). Also, see the various letters relating to the San Francisco Bay Area to Central Valley section of the high speed rail system. (Google Docs). See also: David Goll, Union Pacific opposes Calif. high-speed rail plan, Silicon Valley / San Jose Business Journal, May 11, 2010; Dennis Lytton, Latest Union Pacific Extortion Letter to California Shows That FRA and Possibly Congressional Legislative Guidance Are Needed, Unofficial California High Speed Rail Blog, May 14th, 2010; Robert Cruickshank, More Vegas Rail Options Emerge – And So Does Union Pacific Opposition, Unofficial California High Speed Rail Blog, May 23rd, 2010; Californians Advocating Responsible Rail Design (CARRD) (discussing Union Pacific letter)
 “Congress and the courts long have recognized a need to regulate railroad operations at the federal level. Congress’ authority under the Commerce Clause to regulate the railroads is well established …” “[T]he plain language of two sections of the ICCTA explicitly grant the STB exclusive authority over railway projects…. [T]he board … [has] exclusive jurisdiction over “the construction, acquisition, operation, abandonment, or discontinuance of spur, industrial, team, switching, or side tracks, or facilities, even if the tracks are located, or intended to be located, entirely in one State.” 49 U.S.C. § 10501(b)(2) (1997).” City of Auburn v. US Government, 154 F. 3d 1025, 1029-1031 (9th Circuit, 1998) (concluding that any state law that prevents a railroad from constructing or operating a line constitutes an impermissible regulation); Wisconsin Central v. City of Marshfield, 160 F. Supp. 2d 1009, 1013-14 (Western District of Wisconsin, 2000) (finding that city’s attempt to condemn railroad property constituted a regulation and was therefore expressly preempted).
 The Surface Transportation Board and courts are likely to look at the uses, traffic capacity, and importance of the corridor. In one recent case, Union Pacific Railroad Company v. Chicago Transit Authority (CTA), a municipal rail authority tried to use eminent domain to convert a lease it had with Union Pacific into an easement. In its analysis, the district court noted that “traffic on the property that CTA seeks is “among the most intense on Union Pacific’s interstate railroad…. And far from being a routine, non-conflicting use…. CTA runs more than 60 commuter trains on the Right of Way and [Union Pacific] operates more than 30 freight trains on the right of way.” Union Pacific Railroad Company v. Chicago Transit Authority, Case No. 07-cv-229, (Northern District of Illinois, 2009).
 City of Lincoln v. Surface Transp. Bd., 414 F.3d 858, 862 (8th Cir. 2005) (quoting Midland Valley R.R. Co. v. Jarvis, 29 F.2d 539, 541 (8th Cir. 1928)).
 Letter from Jerry Wilmoth, General Manager Network Infrastructure for Union Pacific to California High-Speed Rail Authority, Re: Union Pacific Railroad Scoping Comments for Joint EIR/EIS, page 7 of 40 (February 23, 2009) (Google Docs). See also: Robert Cruickshank, Union Pacific Speaks, Unofficial CHSR Blog (March 28, 2009).
 Jose Martinez, Project Director for the L.A. to San Diego line for the Rail Authority, described a cantilevered trench at the downtown L.A. open house on. [insert picture]
 The board includes all five members of the L.A. County Board of Supervisors, Mayor of Los Angeles, three people appointed by the mayor of L.A., one person appointed by the governor, and four members appointed from elected representatives of cities in L.A. County. California Public Utilities Code, Section 130051.
 This is not a concession. A flyer I have from the Air Quality Management District says that “70-percent of airborne cancer risks in Southern California is directly attributed to diesel engines in the South Coast Basin” (includes Alhambra). The high speed trains are not intended to impact, nor will they impact, local commute patterns or traffic, but if we can somehow use the project to decrease diesel use (or clean it up) in Southern California we would be better off.