The Oklahoma Turnpike Authority filed its response Thursday to two questions that Oklahoma Supreme Court justices want answered before ruling on whether to validate $500 million in bonds to build new toll roads being contested by the city of Norman and residents who may lose their homes to the expansion.
The justices on May 30 gave OTA until June 15 to answer why it did not request an extension from the Council of Bond Oversight on its conditional approval to issue $500 million in revenue bonds for the ACCESS Oklahoma long-range plan. Justices also asked about the U.S. Bureau of Reclamation’s denial for OTA to use certain federal lands for the south extension route east of Norman and whether a realignment of the route should be addressed before the completion of validation proceedings.
The Supreme Court is considering a request by the OTA to validate the bonds for ACCESS Oklahoma, a process that is required before bonds can be sold to pay for the projects. ACCESS stands for Advancing and Connecting Communities and Economies Safely Statewide.
All work on ACCESS Oklahoma was halted in April as the Turnpike Authority faced ongoing lawsuits, uncertainty over the bond validation, and a request by Attorney General Gentner Drummond for a first-ever investigative audit of OTA operations and actions related to ACCESS Oklahoma.
If the Supreme Court validates the bonds, OTA will resubmit its application to the Council of Bond Oversight and will resume discussions with the Bureau of Reclamation to reapply or adjust the alignment of the south xxtension turnpike project, said Lisa Shearer-Salim, OTA public information manager.
In its Jan. 17 notice to OTA, the federal Bureau of Reclamation said it denied the authority’s request for perpetual use authorization for turnpike construction across east-Norman fee title land — near Lake Thunderbird — because the proposed project is not compatible with congressionally authorized purposes for which the land was acquired and is still needed.
“However, Reclamation does not object to OTA routing the turnpike across Norman project pipeline and flowage easements if the easement crossings are planned, designed, and constructed such that the turnpike does not interfere with Reclamation’s easement interests or impact operation, maintenance, and replacement of Norman project infrastructure,” the notice stated. “Such easement crossings would require close coordination with Reclamation through planning, design, and construction process.”
In their filing Thursday, OTA attorneys Jered T. Davidson and Jana Knott said the authority “will resume discussions with Reclamation to adjust the alignment of the South Extension turnpike, which may necessitate movement of the alignment westward to avoid Reclamation’s fee title land.”
“The intent of the south extension is to connect the east-west connector to I-35, providing an alternative route to alleviate congestion along the I-35 corridor and provide access to the south, east, and northeast side of Oklahoma City,” the attorneys wrote. “Regardless of any design modifications to the proposed alignment, the South Extension will still provide for the easterly crossing of the South Canadian River turning north to connect with the ‘east-west connector’ in the Norman city limits.”
The $500 million in revenue bonds would fund the initial work of the 15-year, $5 billion ACCESS Oklahoma long-range plan. That work includes funding for studies and engineering design of three proposed new route alignments in the Oklahoma City metro area that will complete the “outer loop” first envisioned by lawmakers and state leaders three decades ago. The funding also would jump start construction projects in the long-range plan, including widening both the John Kilpatrick Turnpike and the Interstate 44/Turner Turnpike to six lanes, adding interchanges along many existing toll routes to connect communities, and making other safety upgrades across the system.
Davidson and Knott said in their filing that, in 1993, the Oklahoma Legislature added a new turnpike project authorization: “A new turnpike and bridge or any parts thereof from a point in the vicinity of the city of Mustang southerly across the South Canadian River to the H.E. Bailey Turnpike in the vicinity of the city of Tuttle; and then easterly across the South Canadian River to a point in the vicinity of the city of Norman.”
It’s rare, OTA’s attorneys said, when the initial route doesn’t change because of unforeseen circumstances.
“The Legislature recognizes that there will be situations that arise from time to time where alignments and routes may need to be rerouted, and it is both imprudent and impractical for the authority to have to seek legislative authorization to move a potential route by one or a few hundred feet each time an obstacle arises,” they wrote. “Rather the Legislature has provided that the authority shall construct turnpikes ‘at such locations and on such routes as it shall determine to be feasible and economically sound.'”
Validation of the bonds by the Supreme Court would give bond buyers confidence in the legality of the projects and would ensure the routes are authorized.
“We greatly appreciate the opportunity from the court to provide additional information as part of this important proceeding,” OTA deputy director Joe Echelle said in a statement. “While work on the comprehensive ACCESS Oklahoma long-range plan remains paused until the court issues its decision, the authority remains committed to improving the state’s transportation system by addressing congestion issues through new reliever routes and updating turnpike infrastructure for the state’s long-term needs.”
Opponents: South extension could eliminate 600 homes
Opposition has focused mostly on the ACCESS Oklahoma project’s south extension, which would travel south into McClain County and onto I-35 just north of Purcell. While proponents say the extension will be critical to divert commercial truck traffic around the OKC metro, opponents claim that turnpike expansion would eliminate more than 600 homes.
Lawsuits filed by members of Pike Off, a grassroots opposition group, claim OTA was vague on early agreements related to Access Oklahoma and violated the Open Meeting Act. The Supreme Court last month overruled a district judge who had found in December that the OTA had violated the Open Meeting Act.
Tassie Katherine Hirschfeld, a volunteer with the grassroots organization Oklahomans for Responsible Transportation, said OTA’s filing shows that the turnpike authority has no respect for the deliberative processes of the Supreme Court, the Legislature or the Bureau of Reclamation.
“The OTA’s language makes it clear they believe they should be allowed to borrow billions of dollars for highway construction with no oversight and no accountability,” she said in a statement. “Over the past year OTA has faced multiple legal challenges, spent millions of dollars designing illegal and unworkable routes and galvanized thousands of people into a very well-organized opposition movement. Oklahomans for Responsible Transportation and Pike Off OTA are proud of the work we have done over the past year to rein in this rogue agency and promise we will continue to work tirelessly to protect our fellow citizens from its abusive behavior.”
Amy Cerato, another volunteer with Oklahomans for Responsible Transportation, said OTA’s filing shows it believes the Turnpike Authority is accountable to no one but itself.
“They base their entire argument on the false claim that they have had legislative authorization to build the southern extension since 1993,” she said in a statement. “If that was the case, they would not have run two failed bills (HB 1459 and SB 371) in the 1999 legislative session to add ‘in the vicinity of Purcell’ in an effort to change the law. It is our continued belief that the OTA lacks legal authorization to build not only the Southern Extension, but also the east-west and tri-city connector. We anticipate the Supreme Court will agree.”
OTA officials have said that if the Supreme Court validates their proposed sale of $500 million in revenue bonds, the financial instruments could hit the market as early as 45 days after the ruling.
The state’s Council of Bond Oversight in August approved the $500 million in revenue bonds with the condition that lawsuits against the Norman-area toll roads are resolved first. COBO’s approval was good for 180 days, meaning it expired Feb. 2.
In their court filing, Davidson and Knott said nothing requires the OTA to obtain COBO approval before the Supreme Court can validate the bonds.
The authority’s decision to allow COBO approval to expire was intentional, and the OTA will seek COBO approval again after the high court makes a decision, the agency’s attorneys wrote.
“If this court validates the bonds as requested by the authority, the same application that was originally submitted to COBO can, and will, be resubmitted for approval,” the attorneys wrote. “If this court’s decision necessitates a revised application, then such revisions can, and will, be made based on the parameters of the decision.”
Shearer-Salim said OTA determined that waiting for the legal cases to resolve would provide certainty and a better climate for entering the bond market.
“The authority works tirelessly to sell bonds at the best interest rates available in the market, thereby providing the best value for the authority and the state of Oklahoma,” she said in a statement. “This practice directly contributes to keeping OTA’s tolling rates among the lowest in the nation.”
Since 1950, the OTA has obtained Supreme Court validation of bonds 13 times before beginning construction of a new turnpike, Shearer-Salim said. The OTA has issued bonds with COBO approval 26 times since 1966 to obtain more than $5 billion to date in total funding for improvements to previously constructed turnpikes.
“These processes are part of the checks and balances ensuring that the authority is adhering to state statute and following best fiscal practices,” she said.
Earlier high court opinion: OTA did not violate Open Meeting Act
On May 31, the Oklahoma Supreme Court ruled in a 5-3 decision that OTA did not violate the state’s open meeting law. It overturned a lower court ruling that stated OTA officials willfully violated the Open Meeting Act when they unveiled the ACCESS Oklahoma toll road plan.
A group of residents and landowners claimed they would be adversely affected by the construction of one of the proposed new turnpikes — the south extension — and filed a lawsuit in Cleveland County District Court claiming the OTA violated the Open Meeting Act.
They alleged the OTA violated the Open Meeting Act by not providing sufficient nor timely notice of the new proposed turnpikes in either its January 2022 or February 2022 agendas. They also challenged the lack of notice in the Feb. 22, 2022, meeting agenda of Gov. Kevin Stitt’s announcement of the ACCESS Oklahoma program.
The Open Meeting Act requires that agendas contain subjects to be discussed in meetings and that agendas be provided to the public in advance of meetings.
“We hold that the OTA gave sufficient notice of the actions it took on the six challenged agenda items, as each item provided notice of the subject matter of the business that the board transacted,” wrote Supreme Court Justice James Winchester. “We further rule that the announcement of the ACCESS program at the February 2022 meeting was for informational purposes only. Because no action was taken by the board at the February 2022 meeting regarding the ACCESS program and sufficient notice was given for the actions taken at the June 2022 special meeting regarding the ACCESS program, the OMA did not require that the OTA give more specific notice of the announcement regarding the ACCESS project during the director’s report.”
Concurring with Winchester were Chief Justice John Kane IV and Justices Yvonne Kauger, James Edmondson and Richard Darby. Dissenting were Vice Chief Justice Dustin Rowe and Justices Noma Gurich and Dana Kuehn. Justice Douglas Combs did not participate.
Dissent: Actions of OTA thwarted openness
Rowe, in his dissenting opinion, wrote that he believed OTA used deceptive wording to delay revealing to the public a project that was already well-known and well-underway within the OTA.
“The OTA created ACCESS Oklahoma, approved management contracts, and sought funding for its implementation — all while using deceptively worded agendas to obscure the purpose of the meetings and circumvent public participation,” Rowe wrote. “This participation by the public is precisely what the OMA seeks to guarantee. The actions of the OTA thwarted our state’s public policy of encouraging and facilitating an informed citizenry’s understanding and participation in the governmental process. As such, the OTA’s actions constituted a willful violation of the Open Meeting Act.”
In December, Seminole County District Judge Timothy Olsen granted summary judgment on all counts in the case challenging the OTA’s meeting agendas. Attorneys representing homeowners in the path of a new turnpike said the OTA changed agendas to prevent the public from getting details of the ACCESS Oklahoma plan before it was presented to its board.
In its ruling, the Supreme Court also stated that the high court has the exclusive jurisdiction to determine the validity of proposed bonds to construct and operate turnpikes. Winchester wrote that the Legislature gave the high court “exclusive original jurisdiction.”
“This court has construed the Legislature’s grant of jurisdiction as giving the court sole authority to determine all questions of sufficiency of the law to authorize bonds and construct turnpikes,” Winchester said. “This court gained exclusive jurisdiction to consider the relief requested by appellees — to prevent the OTA from exercising its eminent domain to construct the proposed south extension — when the OTA filed its application to validate the proposed bonds.
“Since exclusive jurisdiction belongs to this court, the district court should never have considered appellees’ claims for relief. In the future, proceedings related to bond validation matters must be brought in this court.”
Rowe disagreed, saying Winchester’s opinion deprives people the right to bring a lawsuit challenging whether a public body violated the OMA.
“The majority’s finding that plaintiffs’ alleged OMA violations should morph into the OTA’s bond application before this court would completely deny plaintiffs of their opportunity to fully litigate the alleged violations,” Rowe wrote. “The question of whether the OTA complied with OMA requirements is a separate legal question where the trial court must ascertain findings of fact. The Supreme Court does not conduct trials — nor are we situated to make findings of fact. Without the ability to fully litigate the alleged violations in a trial or hearing, the Open Meeting Act is gutted. Accordingly, I cannot join in today’s pronouncement which I view as an infringement on the people’s right to legitimately challenge an Open Meeting Act violation.”
After the ruling, OTA issued a statement that it “always strives to go above and beyond the minimum legal requirements in how it conducts the public’s business and does so as transparently as possible.”
“The agency will continue to operate in this manner and remains fully committed to complying with the Open Meeting Act,” according to the OTA statement provided by Shearer-Salim.
Hirschfeld, the lead plaintiff in the OMA violation case against the OTA, said she is disappointed but respects the decision of the court.
“We remain committed to improving transparency in Oklahoma and believe we will have many more opportunities to hold the OTA accountable for its poor decisions,” she said in a statement. ” We look forward to the results of the (state attorney general’s) investigative audit and the implementation of HB 2263, which includes additional legislative appointees to the OTA’s governing board.”
A ‘black day’ for transparency in Oklahoma
Stan Ward, lead attorney in the plaintiffs’ OMA violation case against the OTA, said the Supreme Court ruling “marks a black day for transparency in Oklahoma state government.”
“It’s extremely unfortunate that the Open Meeting Act has been effectively neutered,” he said in a statement. “No clearer case of Open Meeting Act violation can be imagined. While many hundreds of landowners will be adversely impacted by this decision, the biggest losers are the citizens of Oklahoma who simply want what the act expressly states it is about – namely, to be informed as to the business that our local and state governments are up to.”
Rob Norman, the attorney who argued Pike Off OTA’s case questioning the legal authorization of the OTA’s proposed routes before the Supreme Court, said the high court is taking the merits of the legal challenges very seriously.
“In the end, no response the OTA files with the court, and no meetings the OTA may convene, can change the ultimate fact,” he said. “The Oklahoma Turnpike Enabling Act simply does not allow the OTA to build either the south extension, the east-west connector, nor the tri-city connector,” he said in a statement.