In a legal filing Thursday, the Oklahoma Turnpike Authority told the state Supreme Court it has sole discretion when it comes to final routes for its new toll roads.
The high court will decide if OTA will be allowed to build three new turnpikes, including two in Norman. At question are claims from Pike Off OTA in a lawsuit filed by the opposition group in May 2022.
The group alleges that a proposed turnpike in the Lake Thunderbird Watershed is not described in a state law that authorized numerous other turnpikes in 1987.
It also contends OTA violated the state’s one bond rule in the Enabling Act when it obtained numerous bond indentures and built turnpikes in phases, instead of building them under one bond issuance.
As justices turned their attention to the location of the Lake Thunderbird turnpike questioned in state law, they sent OTA a request to explain where the agency would build it after the lake’s owner, U.S. Bureau of Reclamation, denied OTA’s application to do so.
In a response to the court, OTA pointed out that final turnpike alignments often change before they’re finalized, and as long as it has approval from the Legislature, it has “sole discretion” on what the final route will be.
OTA also noted the bureau’s denial included the possibility of a second application.
“While Reclamation denied the initial request on Jan. 17, 2023, it indicated a route is possible in another area across its easements,” a statement from OTA read.
Justices also asked OTA to explain why the agency let an application for an extension from the Council of Bond Oversight (COBO) to lapse. The board reviews applications from state agencies before entering the bond market in consideration of approval.
The turnpike authority applied for the board’s approval on June 9, 2022, hoping to obtain $500 million in bonds to kickstart its 15-year long range ACCESS plan. The board provided approval, but only if the Pike Off lawsuit and the Open Meeting Act lawsuit were settled or decided in OTA’s favor.
The deadline for OTA to obtain an extension on that conditional approval lapsed on Feb. 5, 2023. The Open Meeting Act lawsuit was not decided in OTA’s favor until May 31 when justices overturned a district court ruling that sided with the plaintiffs.
OTA wrote in its response to the court Thursday that it waited until the conclusion of that lawsuit and would simply reapply for board approval after justices ruled on the Pike Off matter and its own hearing to validate OTA’s bond validation.
In its court response, OTA noted that while state law requires the board’s approval it does not say the agency must do so “before an application can be filed in this Court,” it read.
OTA said in a statement Thursday that it did not seek an extension and waited for the legal cases to be resolved to “provide certainty and abetter climate for entering the bond market.”
OTA Deputy Director Joe Echelle thanked the State Supreme Court to clarify its position on both matters.
“We greatly appreciate the opportunity from the Court to provide additional information as part of this important proceeding,” Echelle 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.”
Critics react
Plaintiffs in the lawsuit called OTA’s arguments “disingenuous” and “arrogant.”
“The arrogance of the OTA is unbridled,” said Amy Cerrato. “They are literally daring the Oklahoma State Supreme Court to deny their bond application by claiming that no entity, including the legislative branch, Council for Bond Oversight, or even the State Supreme Court has the right to question the route of any new alignment.
“They believe they are accountable to no one but themselves, which is problematic for any agency that wields the power of eminent domain.”
Tassie Hirschfeld, a plaintiff in both lawsuits, agreed.
“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. “Today’s court filing makes it clear that the Oklahoma Turnpike Authority has no respect for the deliberative processes of the state Supreme Court, the state legislature or the Bureau of Reclamation.”
Co-counsel in the Open Meeting Act lawsuit, Richard Labarthe said OTA’s response regarding the board’s approval and its lapse was disingenuous.
“They took the action of seeking COBO approval, they got limited approval, they didn’t fulfill those conditions timely and then they didn’t seek an extension,” Labarthe said. “Now to suggest none of that matters, just feels so imperious to me.”
It was unclear Thursday if Pike Off’s attorney Rob Norman would submit a supplemental response to OTA’s filing. He did not immediately return a request for comment late Thursday.
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