Land acquisition process for rail project can begin

Now that a judge has denied a request to halt work on the massive California high-speed rail project, the state agency responsible for construction may approach Central Valley landowners to seek permission to survey land as a first step in the acquisition process.

Madera County Farm Bureau Executive Director Anja Raudabaugh said she has heard from about 35 farm landowners in the county who have received right-of-entry request letters from the California High Speed Rail Authority. The letters are being sent to landowners in the path of the initial construction segment—known as Construction Package 1, from south of Madera to Fresno—where the agency intends to break ground first.

"The letters are asking specifically to do archeological, cultural and biological surveys. The authority wants to investigate whether the properties pose a risk for sensitive habitat, species or other cultural or archeological issues that may stop or slow down construction," Raudabaugh said. "The entry letter asks the property owner to sign the letter that the authority has prepared, allowing access onto the property to do these surveys."

Typically, following surveys, the state would attempt to negotiate a voluntary sale with landowners whose land is needed for right of way. If the parties cannot agree, the state would then proceed with condemnation, during which a court would decide the question of just compensation, including for relocation expenses and other losses.

For efficiency's sake, observers said, eminent domain and temporary entry permit proceedings for high-speed rail would likely be consolidated into one or more actions. As currently planned, issues relating to road crossings, severed parcels and disruptions to irrigation and drainage systems would be addressed as part of the authority's acquisition process.

The authority got the green light to move forward with its pre-construction plans after Sacramento County Superior Court Judge Timothy Frawley denied a request for a preliminary injunction sought by petitioners that included county Farm Bureaus in Madera and Merced counties. The injunction request was a preliminary motion in a California Environmental Quality Act case against the authority, brought on the grounds that the agency's environmental review is "deficient" and "harmful" to farmers and ranchers. The county Farm Bureaus are joined in the suit against the California High Speed Rail Authority by the county of Madera, Preserve Our Heritage, Fagundes Brothers and the Chowchilla Water District.

The judge's decision in mid-November to deny the motion for the injunction came after state attorneys said that no construction on the project would begin before the case is decided. In addition, the judge considered balancing the increased cost of construction—with a potential loss of $3.2 billion in federal funding—against harm caused by pre-construction activities, including efforts to acquire right of way for the project.

"The balance of harms favors allowing the pre-construction activities to proceed," Frawley said.

Attorney Barry Epstein of Fitzgerald Abbott & Beardsley in Oakland, who represents the county Farm Bureaus in the case, noted that a motion for a preliminary injunction is not easy.

"It's an uphill battle when you are making a request for any preliminary injunction, and certainly one for a huge public project carried out by a state agency," Epstein said.

The next milestone in the case will occur next April, when Judge Frawley is scheduled to decide whether or not to overturn the authority's approval of the Merced-to-Fresno section based on whether the agency complied with CEQA.

The preferred route selected for the Merced-to-Fresno section of the high-speed rail project would impact approximately 2,500 acres of prime and important farmland, along with an estimated 150 farms, ranches and agricultural businesses.

In related news, the rail authority, at its Nov. 14 board meeting in Sacramento, approved an agreement with the California Department of Conservation for the development and implementation of an agricultural lands mitigation program. The authority agreed to put up $20 million for agricultural conservation easements to compensate for farmland lost to the high-speed rail right of way from Bakersfield to San Jose, with initial focus on the segment between Madera and Fresno.

Merced County Farm Bureau Executive Director Amanda Carvajal called the $20 million budget for mitigating impacts to agricultural lands "inadequate." Carvajal said the figure suggests the authority expects to pay $8,000 per acre for farmland easements, which falls short of the $25,000 per acre estimate previously presented by the agency.

Other farmland losses come in the form of severed parcels, severed irrigation systems and blocked road crossings, some of which—those under 50 acres—were not counted in the authority's tally of severed parcels.

"If you put a 300-yard rail structure down the middle of an irrigation system, you are talking about severing a major irrigation artery that supports your farm. The authority did not address how they would handle that, other than to say it would be handled in the right-of-way process," Raudabaugh said. "If I can't mitigate a parcel, that's going to result in a loss of ag lands and if I can't irrigate, then it's no longer a value to me as an ag parcel."

(Christine Souza is an assistant editor of Ag Alert. She may be contacted at csouza@cfbf.com.)

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