


On a recent Friday, Mark Wasser, an eminent-domain lawyer from Sacramento, embarked on a one-day road trip of more than 500 miles. It is one that he has taken often over the past decade.
A tall and trim man in his 70s, dressed in jeans and a flannel shirt, Wasser folded himself into the driver’s seat of his car and aimed south. He drove toward dozens of California’s high-speed rail construction projects scattered across the vast farmland of the Central Valley.
No one has represented more eminent-domain cases involving the rail project than Wasser. In the long distances between stops, visiting clients and seeing the changing landscape, he pondered something that Gov. Gavin Newsom had said a few days before.
Newsom was a guest on “Real Time With Bill Maher” when the host blamed lawyers, lobbyists, contractors, environmentalists, unions and others for the delays.
“The biggest delay on high-speed rail,” Newsom replied, “has been taking 2,270 properties under eminent domain and ultimately getting the environmental work cleared.”
It was a bold casting of blame for a project that is a punchline for government inefficiency and bureaucratic entanglement.
California’s high-speed rail exists today mostly as a gauge for whether the country can build big things in the 21st century. So far, the answer appears to be no. Approved by voters in 2008 with the promise of connecting Los Angeles and San Francisco by now, no track has been laid. Initial cost estimates of $33 billion have tripled.
Asked whether eminent domain had been its top problem, the California High-Speed Rail Authority, the agency responsible for the project, echoed Newsom.
“The governor is correct to note that right of way acquisition has been the biggest delay in the 119-mile initial operating segment,” the authority said.
The project’s ambitions have been reduced to having trains run 171 miles between Bakersfield and Merced by 2033. Bakersfield? Merced? What happened to Los Angeles and San Francisco? Wasser does not expect to see it in his lifetime.
But he and his 70 or so clients — farmers, dairies, irrigation districts and so on — are not to blame, he said. Most are people who had been farming in the Central Valley for years, even generations. Then they were told that progress was coming in the form of a bullet train, and they needed to get out of the way.
“In my opinion, it is not factually accurate to blame eminent domain for slowing the process,” Wasser said.
On he drove, into the rural heart of the Central Valley, to the center of the rail project.
Much of California’s interior is a table-flat landscape lined by ruler-straight roads stretching toward distant mountains. It is an earthen version of graph paper. In the spaces between the lines is some of the world’s most valuable farmland, row after straight row of fruits, nuts and produce.
But the planned route for high-speed rail is a diagonal squiggle.
Wasser stopped at the farm of John Diepersloot, between Kingsburg and Laton. Among Diepersloot’s crops are about 1,000 acres of stone fruits — peaches, apricots and so on.
The high-speed rail bed — a smooth, wide berm, trackless for now — cuts diagonally across those orchards.
“It carved up all the farmland,” Diepersloot said. “And it left a lot of remnant pieces that are useless.”
Wasser continued south. Born, raised and educated in California, he knows the complexities of the valley from seven years spent representing rural Madera County.
He voted for high-speed rail in 2008, as did a majority of Californians. It was a promise that people would glide at 220 mph and get between California’s two largest metropolitan areas in under three hours. The drive takes twice that.
“I assumed they would go up Interstate 5,” Wasser said, on the west side of the Central Valley, against the coastal mountains. After all, that path was already blazed as a public right of way.
Another issue still debated is why high-speed rail began construction in the middle of the route and not at the end points. Officials wanted to bring jobs to a chronically overlooked region and wanted to show progress quickly, hoping momentum would lead to more funding and support.
The Central Valley is flat farmland, mostly. How hard could it be?
How it works
Eminent domain is how the government acquires private property for a public purpose. A landowner can challenge whether a project serves a “public purpose,” but none of Wasser’s clients have made that argument against high-speed rail.
“That’s not the fight,” Wasser said. “The fight is to get your money. Not to be cynical, but get what you can get.”
The Fifth Amendment of the U.S. Constitution states, in part, “nor shall private property be taken for public use, without just compensation.”
In this case, the California High-Speed Rail Authority gives notice and makes an offer. The landowner, in nearly every instance, declines it. The rail authority then files an eminent domain lawsuit and, shortly thereafter, a “motion for possession,” routinely granted by the court, so work on the project can proceed while the amount of the landowner’s compensation is negotiated.
This dynamic, Wasser believes, counters any claims that eminent domain is responsible for delays.
A project of this scale was bound to create vexing circumstances on the ground. But appraisal of agricultural property can be especially complicated.
Each case is unique. The rail route cut some dairies and farms in half. It split houses from barns and bisected processing facilities. It turned some 100-year-old roads into dead ends, stranding homeowners on inaccessible islands and forcing farmers and their equipment to go miles out of the way simply to work their own land.
“Some schmuck 15 years ago said, ‘This is the route we’re going to take,’” said Bruce Howarth, one of the clients that Wasser was on his way to see. “And they had no idea of the impact.”
‘The stupidest thing’
Around lunchtime, Wasser got to Hanford, a city of 60,000, where downtown feels replanted from the Midwest, circa 1950. High-speed rail does not plan many stations, but one is being built a couple miles east of town.
Wasser parked in front of Kahn, Soares & Conway. It is a major firm in agribusiness, operating from a downtown storefront. The firm began getting calls in about 2013 from people in the area who had received right of way notices from high-speed rail. Soon, the firm enlisted Wasser’s help.
Now, Jan Kahn was behind the wheel. Born and raised in Fresno, he co-founded the firm in 1973 and is co-counsel with Wasser on rail-related cases. Wasser rode next to him. The duo continued south.
Kahn knows firsthand how high-speed rail’s arrival can alter quiet lives. More than a decade ago, he attended a community meeting where high-speed rail officials unveiled maps of the proposed route. Kahn’s family lived in a century-old farmhouse outside of Hanford. He learned that the line would cut through his front porch, literally.
A rail official explained that the line in that area would be dug below grade. An old farmer overheard. “I hope you can swim,” he said.
The water table is unusually high there, he explained. Months later, the rail authority flipped the route from the west side of Hanford to the east side.
Kahn’s house was saved. Now the rail line cuts across the farm of one of his partners. Negotiations over a price continue.
“Most people around here think this is the stupidest thing in the world,” Kahn said.
And he turned toward Alpaugh.
Howarth is general manager of the Alpaugh Irrigation District, established in 1915. He took over the driver’s seat, since he knew the way, and soon parked on a new road overpass, not yet in operation, above the wide stripe of high-speed rail. It slices through what looks like dry, fallow land.
“Everything you look at on paper isn’t the same as the real world,” Howarth said.
The overpass’s only purpose, he said, will be to remind people of a silly idea, unrealized.
“This is never going to be completed,” he said. “We’re standing on a monument.”