Who is the Oklahoma Turnpike Authority? - Part 1
How did one decent idea 77 years ago turn into such a disaster?
The Oklahoma Turnpike Authority (OTA) revealed new toll road alignments on February 22, 2022 that are not legislatively authorized and have no sound engineering justifications or environmental impact studies. These routes, will, however, destroy over 600 homes, destroy an already impaired watershed and aquifer that provides drinking water to three local municipalities, destroy hundreds of acres of wetlands and wildlife management areas owned by the United States and administered by the Bureau of Reclamation and pave over a world-famous vein of Barite Roses, a rare geologic feature and the Oklahoma State Rock.
What is this rogue agency and how has the State of Oklahoma continued to let them conduct business in this manner over the past seventy years? It is an interesting story about corruption and power, secret planning sessions, accelerated design and construction schedules, rubber stamping oversight boards, Ponzi Scheme financing and unlawful business practices that takes some time to digest. These series of blogs attempts to lay out the basic framework of how and why the Oklahoma Turnpike Authority (OTA) got its start and how it has evolved over the past seven decades into an agency that truly believes it is above the law.
History of the Oklahoma turnpike Authority (OTA)
Prior to the Federal government beginning work on the Dwight D. Eisenhower National System of Interstate and Defense Highways across the county authorized by Congress approving the Federal-Aid Highway Act of 1952, the Oklahoma Turnpike Authority (OTA) was created by a state senate bill in 1947 (SB225). Oklahoma enabled a Turnpike Authority because a high-speed highway between Tulsa and the capital of Oklahoma City was needed to replace the deteriorating route 66. An engineering firm, known as HNTB, gave Oklahoma’s Governor Turner a blueprint for a creative financing scheme using future toll revenue to fund current construction. Therefore, the OTA was formed to build a roadway with revenue bond sales, removing any and all federal fund oversight but retaining the sovereign powers of the state, including eminent domain rights. Initially, the OTA was created out of a real need to provide an important link between Oklahoma City and Tulsa, two major metropolitan areas in Oklahoma. The Turner was the only anticipated turnpike project at the time of the legislation. SB 225 stated that upon redemption of all bonds issued, the Turnpike could become a non-toll state highway, however, the bill also provided for the refunding of the bonds issued to construct the Turner Turnpike, which if done could lengthen the period of bonded indebtedness. Without refunding, the original bonds issued to construct the Turner Turnpike would have been retired in 1991.
Before the original Turner Turnpike even opened to traffic in May 1953, the Oklahoma Legislature created a new OTA with HB933, providing for statewide representation on the new OTA and establishing the basis for a State system of Turnpikes. It also authorized construction of the Will Rogers Turnpike, named after a famous radio personality and film actor known for his sense of humor. One month after HB993 was written, SB454 amended it with an authorization to build a Turnpike from Oklahoma City to Wichita Falls, named the H.E. Bailey Turnpike, after an engineer who left his position at ODOT to work for the OTA. It also authorized a turnpike from OKC to Wichita, Kansas that approximates the present-day alignment of Interstate 35, which was later built as a free road with federal funds. Both bills failed to receive two-thirds (2/3) majority and were suspended by the filing of two Referendum Petitions signed by 90,000 Oklahomans in late 1953.
A referendum petition is a process by which the legal voters of Oklahoma propose changes to legislation from the current legislative session, (except as to laws necessary for the immediate preservation of public peace, health or safety). The state questions (SQ359 and 360) put on the ballot for citizen vote in 1954 (Figure 1) ratified SB454 and HB993 including the new structure of the turnpike authority and the three new turnpikes, that became codified in the Oklahoma State Constitution as Title 69, O.S. 1951 Section 653 (2022 Section 1703).
Figure 1. Oklahoma SQ359 and SQ360 (1954)
Political campaigning for these state questions was prevalent in the local newspapers in 1954 (Figure 2).
Figure 2. Campaign advertisement that promises turnpikes are better than state funded roads in support of SQ 359 and 360.
In the creation of the OTA, the legislature and the people of Oklahoma created a new hybrid entity that was both private and public at the same time. 69 O.S. 1951 Section 653 (2022 Sect. 1703) defined the new Authority as
“There is hereby created a body corporate and politic to be known as the "Oklahoma Turnpike Authority" and by that name the Authority may sue and be sued, and plead and be impleaded. The Authority is hereby constituted an instrumentality of the state, and the exercise by the Authority of the powers conferred by this act in the construction, operation, and maintenance of turnpike projects shall be deemed and held to be an essential governmental function of the state with all the attributes thereof.” (Emphasis added)
The OTA is imbued with the full power of the State, and with that comes the power of condemnation, otherwise known as eminent domain. Eminent domain is the power of the government to take private property and convert it into public use, referred to as “a taking.” The Fifth Amendment of the US Constitution provides that the government may only exercise this power if doing so will increase the general public welfare and if they provide just compensation to the property owners. However, in the Supreme Court Case Kelo versus City of New London, 545 U.S. 469 (2005), the Supreme Court allowed a taking when the government used eminent domain to seize private property to facilitate a private development. This decision significantly broadened the governments’ takings power, which caused significant controversy. In response, many states passed laws which restricted governments’ takings abilities; but not Oklahoma.
The constitutionality of direct delegations of eminent domain has been called into question to the extent that direct delegations, like those given to energy and transportation companies, lack governmental oversight (Asbridge 2023) and pose procedural due process issues in light of the self-interested decision maker. Decisions to exercise eminent domain power are typically made in the board room, without public input, and are therefore, self-interested. The argument is that when an entity is exercising the powers of eminent domain, there needs to be protections and limits for the landowners, communities and the environment in the process.
The Kelo v. New London Supreme Court case actually supports this notion, where Justice Kennedy writes that there may be
“private transfers in which the risk of undetected impermissible favoritism of private parties is so acute that a presumption (rebuttable or otherwise) of invalidity is warranted.”
He suggested that such cases could arise where the taking was “suspicious,” or the procedures were “prone to abuse,” and those cases could justify an invalid taking. Where the risk of undetected impermissible favoritism of private parties is so big, we should presume the takings to be invalid, which would apply to direct delegations of the eminent domain powers; which would apply to the Oklahoma Turnpike Authority. While planning and designing new infrastructure projects, all efforts should be made to protect private property rights. The history of the use of eminent domain in civil engineering projects could be a book by itself and I will cover this topic in subsequent blogs.
When the voters passed SQ 359 and 360, they were promised that the turnpikes would eventually be free once their bonds were paid off. Section 9 of State Question 360, which was codified after passage as 69 O.S. 1951, § 667, included the following text:
“When all bonds issued under the provisions of this article and the interest thereon shall have been paid or a sufficient amount for the payment of all such bonds and the interest thereon to the maturity thereof shall have been set aside in trust for the benefit of the bondholders, such projects, if then in good condition and repair to the satisfaction of the Commission, shall become part of the state highway system and shall thereafter be maintained by the Commission free of tolls.”
This section is often quoted by turnpike opponents in frustration as to why Oklahomans are still being charged tolls on the State’s original turnpikes decades after the construction is finished and the bond should have been paid off. But the “free of tolls” part of SQ359 and SQ360 that the Oklahoma Citizens voted for, was taken away by the legislature just one year later and created a method of revolving debt financing that would allow the OTA to continue to collect tolls in perpetuity.
****************To be continued in Part 2
Are you interested in learning more and helping hold a rogue "state instrumentality” accountable to the people? In response to the Oklahoma Turnpike Authority’s legacy of unethical and downright illegal business practices, two Oklahoma non-profits were created to protect Oklahoma Citizens’ private property rights, educate the state on proper transportation planning policy and enlighten lawmakers and other elected officials about the poor business and financial practices that the OTA continues to engage in. PIKE OFF OTA (501 c4) and Oklahomans for Responsible Transportation, Foundation (501 c3) are leading the charge in legal injunctive avenues and legislative reform and they could use your help. They are trying to dismantle a corrupt Goliath within our state and are doing a great job. Be part of the solution!
www.pikeoffota.com