Who is the Oklahoma Turnpike Authority? - Part 4
The agency finally gets held accountable and denied passage across federal land, but they laughably ignore it and continue engineering design......
The story continues with more unethical engineering…. Make sure to read Parts 1, 2 and 3 to the story first!
You already know that the OTA doesn’t have to follow typical engineering protocol during the planning phase of routes; no traffic or justification studies, no environmental impact studies, no alternative route options for municipalities and public input and no care in the world as to how many people they run over with eminent domain. They are the biggest bully on the block. Because they have operated with impunity for more than seven decades, continuing to buy influence in the legislature and within the highest judicial courts in the state, they have gotten increasingly brazen.
But in this particular instance, it probably would have been a good idea to have an ethical, competent professional engineer in the room during the planning phases, because the OTA proposed part of their route through the heart of the Lake Thunderbird watershed and through the Garber Wellington Aquifer, both drinking water sources for the cities of Norman, Del City and Midwest City. In fact, their proposed route required permission from the Bureau of Reclamation (BoR) to cross lands in the flowage easements on the inflow side of the Lake (Figure 1); permission they never sought prior to announcing the route. The BoR found out about these routes from the citizens and the media in March 2022.
Figure 1. Bureau of Reclamation map of Lake Thunderbird Watershed and proposed OTA routes through Reclamation Land.
In December 2022, after the OTA had already spent close to $20 million dollars designing unauthorized turnpike routes, the BoR DENIED the OTA application to cross federal land stating that
"Reclamation has determined that the Proposed Project is not compatible with use of fee title lands acquired for the authorized purposes of the Norman Project, and is therefore not compatible with the public and the United States' interests in the Norman Project."
The BoR pushed further and stated that
"Based on the information contained within OTA's [application], Reclamation has determined that the Proposed Project could be designed such that it does not interfere with the provisions of Reclamation's Norman Project pipeline and flowage easements."
The most telling paragraph in the entire document is when the Bureau stated that
"OTA's [application] does not contain sufficient evidence documenting the level of analysis used by OTA to identify and evaluate the range of alternatives (including the assumptions, methods and criteria) and to ultimately select the alignment that uses Norman Project fee title lands as the preferred alignment of the Proposed Project over the other alignment alternatives that do not use Norman Project fee title lands. Without such evidence, Reclamation finds that the range of alternative alignments included in OTA’s [application] may be too narrow, and that the methods and rationale used by the OTA to select the preferred alignment may not be justified." (emphasis added)
The OTA never did any studies to evaluate alternatives. They chose routes based on real-estate developers’ preferences and land use re-zoning dreams and plowed ahead without a study to stand on. Thankfully, the only agency that has the jurisdiction to stop them in their current routes, did so, with sound engineering reasoning.
Wouldn’t that have been a piece of information the OTA should have known prior to contracting firms to complete designs?
How is the route designer and firm not fired after that expensive mistake?
What kind of transportation agency puts a route on a map without any environmental, archeological, historical, artifact or economic development impact studies, without notifying potentially affected homeowners and landowners and without talking with community stakeholders?
State agencies that utilize federal and state tax dollars are required to engage the public well before a new route or widening project is undertaken, but the OTA is not required to have any municipality, county, community or public input prior to announcing a route. But it gets worse.
The OTA is not required to provide their transportation plans to the Association of Central Oklahoma Governments (ACOG), a regional transportation planning governmental agency. The proposed routes were conspicuously absent from the recently published “comprehensive” Encompass 2045 Plan, that identifies priority transportation projects and investments across city, county and state entities. Not only did the OTA fail to provide their “long-range plans” to ACOG for public comment, they failed to discuss the routes with the City most affected by these routes: Norman, OK.
These proposed routes decimates the City of Norman’s 2025 Land Use and Transportation Plan that specifically states that the City wants to
“preserve rural Norman’s character and protect its environmentally sensitive nature,”
“Maintain development densities in rural Norman that generally do not exceed 1 unit per 10 acres,” and
“Protect water quality in Lake Thunderbird and the Garber-Wellington aquifer from point and non-point pollution related to development (impervious surface run-off, oil and gas drilling, disposal of toxic chemicals, etc.).”
In addition, the routes cut through the heart of the world’s best known and rare Barite Rose Rock vein, a natural wonder and Oklahoma’s state rock and National Park Service GeoHeritage Site (Figure 2).
Figure 2. Location of OTA’s proposed routes superimposed with the known vein of Barite Rose Rocks. (Oklahoma Geological Survey)
This lack of transparency in an obviously long, secret planning period (most likely three years according to Secretary of Transportation, Director of OTA and ODOT Tim Gatz’s December 7, 2021 Directors Report) not only led to terrible route choices from an engineering and environmental standpoint, but illegal choices that the OTA tried to get away with.
The OTA, however, was simply following their 70-year playbook. Plan routes in secret, announce routes after the legislative session deadline to submit bills has passed so citizens have no opportunity to convince their legislators to stop them, throw a ton of money at their engineering designers and consultants to buy secrecy and compliance, and try to begin construction as fast as possible before any opposition can gather and fight back.
Before they rolled out their ACCESS plan publicly the OTA even bought oppositional domain website names like StopAccessOklahoma.com, StopTheLoop.com, EndAccessOklahoma.com, StopThePike.com, and StopOTA.com, among many others (Wallis 2022).
Figure 3: Screenshot of KOSU Article published November 21, 2022 detailing how the Oklahoma Turnpike Authority bought oppositional domain names to attempt to quell push back of their plan.
If these routes were legal and if they were justified and needed and based in sound engineering practices, why would a STATE AGENCY need to try and stop citizens from mounting a movement to stop the turnpikes?
Grass-roots, Citizen Movement and Legal Challenges
In March 2022, the citizens united and formed a grassroots movement fighting turnpike expansion called PIKE OFF OTA (www.pikeoffota.com) and pushed back with strong litigation measures.
The first lawsuit was filed in District Court on May 3, 2022 and contended that the OTA lacked legal authority for the project (Case No. CV-2022-1692). This lawsuit allowed the citizens to stop the Council of Bond Oversight (COBO) from outright approving a $200 million-dollar revolving line of credit on May 4, 2022 to provide interim financing for the OTA’s ACCESS Program because of a state stipulation that no state entity may move forward with a bond sale if litigation is pending. Considering the lawsuit, the Council conditionally approved the funds for the ACCESS program but stated the OTA could not use the funds on the three litigated routes. Even with this roadblock, the OTA defiantly said it would continue as planned with the engineering design but would pay for it out of the General Fund.
Then on August 9, the OTA went back to the COBO and declined the $200 million dollar line of credit after paying close to $100,000 in loan generation and termination fees but asked COBO to approve a $500 million dollar revenue bond sale for December 2022. Again, the COBO put conditions on this $500 million dollar revenue bond sale in that both lawsuits had to be successfully completed in the OTA’s favor. If the OTA did not win one or both lawsuits, the revenue bond sale could not occur.
In addition, the COBO added the condition that the OTA must seek validation from the Supreme Court. The conditional approval was for a six-month window, and the OTA would have to re-apply after February 5, 2023 if and only if, both lawsuits have been brought to completion and the Supreme Court ruled that all routes in the ACCESS program were legislatively authorized and the bond sale was valid.
Without waiting for either of the district court cases to reach a verdict, the OTA turned right around and filed an Application for Approval of Not to Exceed $500 million in Oklahoma Turnpike System Second Senior Lien Revenue Bonds, Series 2022 (Case No. O-120619) in the Supreme Court and a referee heard arguments from both the OTA and several protestants on September 13, 2022. After this hearing, the court referee was to write up a review to share with the Supreme Court Justices for an opinion. The Supreme Court Justices were intrigued enough by the referee’s review that they scheduled a second hearing with all the Justices present for November 28, 2022 in the State Capitol and spent almost two hours asking tough questions of the OTA’s council.
While the lawsuits on the legislative authorization and bond validity were going on in District and the Supreme Court, a second District Court Lawsuit was filed in mid-May 2022 contending that the OTA violated the State’s Open Meetings Act because at least two of their agendas in question intended to mislead the public about the taking of Plaintiffs’ property and the property of hundreds of others in the path of the unannounced turnpike expansion. (Hirschfeld, et al v. Oklahoma Turnpike Authority, Case No. CV-2022-1905).
On December 1, 2022 the court found, via summary judgment that
‘the actions [taken by the OTA] were willful,” and encompassed “conscious, purposeful violations of law.”
Judge Olsen’s decision states that
“the OTA agendas in this case are clearly deceptively vague and misleading.”
The decision meant that any action taken or contract voted on in the January or February 2022 board meeting was invalidated. At first, the OTA ignored the decision and ordered their contractors to continue to work, until pictures were taken of the surveyors working on the routes and letters were sent to all contracted firms to cease and desist. The OTA stopped work until January 3, 2023, when they tried to rectify the violations of the Open Meetings Act case by simply “revoting” on all agenda items. This did not satisfy the conditions of the lawsuit because it was the contracts inside the agenda items that were invalidated. Since the OTA and its contractors were ignoring the judge’s decision, the Citizens united once again and filed what is known as a Qui Tam action in District Court on January 9, 2023 (Case No. CV-2023-64).
The Qui Tam action was filed against all the engineering firms that had signed contracts with the OTA and received payments. The action seeks equitable relief to recover funds unlawfully paid to the Engineering Firm Defendants by a state agency, the OTA. A “qui tam” action is an abbreviation for “qui tam pro domino rege quam pro se ipso in hac parte sequitur,” which means “he who as much for the king as for himself.” Qui tam actions are a provision of the fraudulent claims statute and allows a private person to sue for a penalty, a part of which the government or some specific public institution will receive (Oklahoma Title 62, Section 372 and Title 12, Section 1651). As evidenced by the OTA’s own records, the amounts paid to the defendant engineering and right-of-way firms under the invalid contracts total almost $50 million through December 2022.
The exemption of the OTA from Oklahoma’s Public Competitive Bidding Act aided all the defendants in keeping the ACCESS Oklahoma Plan secret until the announcement was made public; a plan that included routes that were legislatively unauthorized and not vetted by anyone other than Poe and Associates and the OTA.
The OTA conspired with the Engineering firms to avoid repayment of the funds paid out on the invalid contracts by concocting a pretext and false statement that the engineering firms acted in “good faith” and thus were entitled to the $50 million in payments. Whereas, in truth and fact, the Engineering firms had notice of the unlawful contracts and they are jointly liable with the OTA.
The qui tam action was necessary to prevent more than $140 million from being spent on engineering and right-of-way services pursuant to contracts unlawfully entered into and judicially determined to be invalid to construct a turnpike. The engineering firms have received and retained more than $50 million but, as the underlying contracts were and remain invalid, all these expenditures were and are unauthorized, and as such, the citizens request that the engineering firms be required to make restitution so that the OTA is put back into the position in which it stood before the engineering firms were unjustly enriched.
*****To be continued in the final Installment of this historical overview - Part 5
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
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