In a total reversal of their 2009 judicial decision that ruled MTA’s application to build tracks at street-level across the Farmdale Avenue intersection unsafe, the California Public Utilities Commission, the state’s rail safety regulatory agency, last Thursday rubber stamped approval of a street-level crossing directly adjacent to Dorsey High School.
The crossing has generated considerable controversy and opposition in the South L.A. community due to concerns about child safety and environmental inequity.
As coordinator of the Citizens Campaign to Fix the Expo Rail Line, it is the same proposal that was previously rejected, the infamous “holding pen.”
The CPUC reversed itself.
Fix Expo is a collaboration of more than a dozen community and school groups that have requested the railroad crossing by Dorsey High School be placed on a grade separation, under the street, in a trench, or over the street on a bridge for the protection of the schoolchildren who attend Dorsey High.
But the community groups are vowing that the CPUC decision will not be the last word in this battle. Thankfully, for the safety of 1,900 Dorsey children and community, the CPUC decision can be appealed.
A Case of Double Jeopardy
Fix Expo’s legal team has claimed that when the CPUC ruled a street-level crossing of the intersection as unsafe in 2009, the firmly enshrined judicial principle of res judicata, Latin for “a matter [already] judged,” barred the Expo Authority from applying for and barred the CPUC from approving a street-level crossing at Farmdale.
In criminal matters res judicata is known as “double jeopardy.”
In last year’s decision, the CPUC ruled that a street-level crossing sought by the Expo Line Construction Authority, a subsidiary of MTA, was not safe even if the trains had been slowed down to 10 miles per hour and were staffed by the L.A. Sheriff’s, concessions the Expo Authority offered in seeking approval of their holding pen proposal. This year, when presented with the identical street-level crossing with even fewer protective measures, higher speeds, and made more complicated by the possible inclusion of a station, the CPUC ruled the crossing as safe.
The good news is because we have the initial 2009 decision that ruled the crossing unsafe and a grade separation as possible and necessary, our appellate rights are very strong.
The even better news is we get to appeal to an actual court, the California Court of Appeals, which is not susceptible to the political pressures that have been inflicted on the CPUC commissioners from politicians like Westside Supervisor Zev Yaroslavsky, L.A, Mayor Antonio Villaraigosa and City Councilmen Bernard Parks and Herb Wesson, and MTA funded lobbyists like Sandra McCubbin, who previously lobbied for Enron.
We are going to appeal the CPUC’s decision to the Court of Appeals, and when we do, we are going to win.
Don’t They Hear Our Clamor?
In reversing themselves, the CPUC claimed that there are “no issues in dispute.”
Said Clint Simmons, Public Safety Chair of the West Adams Neighborhood Council:
“I guess CPUC considers the 300 community residents, parents and teachers who packed the Dorsey cafeteria in June for the CPUC public hearing and demanded grade separation figments of their imagination.”
The decision also claims that the presence of MTA rail safety ambassadors would prevent the 900 students who storm out of Dorsey onto Farmdale’s narrow sidewalks within a small 15-minute window after school is dismissed. “The students currently ignore the LAPD, School Police officers and school administrators who currently can't control the Farmdale intersection,” said Simmons.
Perhaps most astonishing is that the CPUC made their decision without permitting an evidentiary hearing. That would have allowed the community groups to present expert witnesses and engage in cross-examination of the MTA’s executives. Prior to making their 2009 decision, the CPUC conducted a 6-day evidentiary hearing where the foremost rail safety and vehicular accident experts in the country all testified that the crossing was unsafe on behalf of Fix Expo.
Among the experts, was the former National Transportation Safety Board chairman of all rail accident investigations Russ Quimby.
“If the proposed crossing[] at…Farmdale Avenue do[es] not qualify for grade separation from a safety perspective, then no crossings would,” he testified.
Quimby stated that the holding pen proposal created a “notable risk that a catastrophic accident may well occur under one of several different scenarios…
“First, that a train will collide with a vehicle with sufficient force to either derail the train into and/or push the vehicle into the proposed ‘holding pens’ where several hundred students are trapped inside, killing or seriously injuring scores of students in a single accident. Second, that a train will collide with a vehicle (particularly a truck or bus) rupturing and igniting a fuel tank that would engulf students in the holding pen in flaming diesel or gasoline. Third, a combination of the above two scenarios where the students are crushed and burned simultaneously by vehicles and/or a derailed train.”
Quimby also testified that National Transportation Safety Board studies showed that in slowing down the train, “you end up creating as many problems as you solve.” “[The trains are] going very slow, and you got students who are impatient and standing there waiting for a slower train to go by, and they feel like they have more time to beat the train across the tracks.”
Ed Ruszak, a national expert in vehicular accident causation, and Najamedin Meshkati, the creator of USC’s Transporation System Safety program, also testified in favor of grade separation on behalf of Fix Expo.
“It wasn’t even close,” said Simmons. “The expert’s testimony was overwhelming. Conversely, the Expo Authority failed to present a single expert with rail safety certification to testify that the crossing is safe.”
Since the hearing former MTA light rail operator Lester Hollins has come public about the hazards of the design. Hollins is also a parent of Dorsey High students. “From a train operator’s perspective, the Farmdale crossing is a nightmare,” said Hollins.
“There is vehicular traffic going in at least eight different directions, a bunch of student aged drivers with licenses fresh out the envelope, narrow lines of sight and high school students going every way possible crossing the intersection as frequently as 108 per minute. Building the crossing at street level stacks the deck against the operator. It’s only a matter of time before a child is hit.”
I believe that we have known the fix was in since the minute the CPUC signaled their intent to reverse themselves last winter.
Recognizing that the political hurdles at the CPUC were insurmountable, we decided the only way we would win the battle of Farmdale was to take a page out of Muhammad Ali’s playbook and employ a rope-a-dope legal strategy.
Simply, we decided to take our punches at the CPUC, hope for a decision wrought in factual and legal deficiencies, and position ourselves for a good shot before a court where we are more likely to get a fair hearing, the California Court of Appeals. So far it has worked as we’ve anticipated, actually better than we planned.
Last month MTA added $19 million to the project for the changes at Farmdale. Those dedicated resources provide an opportunity.
The next legal steps for the Fix Expo Campaign are to file an Application for Rehearing by the CPUC and then file an appeal with the California Court of Appeals. Fix Expo expects to announce an expansion of their legal team for the appeal.
Fix Expo is also expected to launch a campaign to request the $19 million added to the Expo Line project for the Farmdale crossing modifications, be re-allocated towards a grade separation.
MTA and the politicians can choose to waste more time and taxpayer money fighting the inevitable. Or they can spend the $19 million building a train undercrossing or train bridge that will actually be a safe solution that the experts have requested and the community has requested.
We hope they choose to listen to the community, the experts and that they stop fighting us for the basic safety of our kids.
Mr. Goodmon may be contacted at dg@fixexpo.org
