OTA wins turnpike challenge as Oklahoma Supreme Court approves ACCESS, 6-3

Aug. 1—The Oklahoma Supreme Court sided 6-3 Tuesday with the Oklahoma Turnpike Authority in a challenge to build two Norman-area turnpikes, a decision that drew sharp disagreement on the bench and delivered a blow to the agency's critics.

Dozens of property owners sued OTA in May 2022, which alleged that OTA had no authorization to build the east Norman turnpike because its path was not approved by the legislature in state law which authorized turnpike projects.

A second claim for civil relief alleged OTA did not follow proper bond procedure to build all proposed turnpikes in one bond issuance, instead of several bonds for projects built over the last three decades.

Justices Yvonne Kauger, James R. Winchester, James E. Edmondson, Noma Gurich, Richard Darby and Special Justice John Reif sided with OTA. They wrote in an opinion that it was not the high court's role to determine where routes should go and the agency had not violated bond procedure.

Justices Dustin P. Rowe, Dana Keuhn, and Special Justice Stacy Hixon disagreed in their opinion and warned the ruling "confers upon the OTA incredibly broad discretion without any cognizable limits."

Dissenters also sided with plaintiffs that state law only authorized four turnpike projects, which were to built under one issue.

"The OTA is apparently free to blatantly disregard the Legislature's directives with respect to routes and funding," the dissenting opinion read.

But fellow justices said it is the Legislature which gave OTA that "broad authority to determine the route" for the east Norman turnpike, termed the South Extension. As planned, it would connect the Kickapoo Turnpike at Interstate 40 south to Purcell.

The opinion added that the high court has broadly interpreted the details of those projects for the last 30 years.

Dissenters wrote there was no description to even suggest that the South Extension would resemble the planned route in state law. Those justices also noted a bill had been introduced to authorize such a route in 1999 but failed to win legislative approval.

"In 1999 the Legislature considered a series of amendments" to authorize it, but it never received "a vote in either chamber," the opinion reads.

Justices argued that dissenters should look at the entire turnpike loop planned in state law to see that it is codified, but dissenters said it only highlighted the lack of authorization because it is disconnected from certain routes.

"In finding that the South Extension is not authorized by state statute, we would not be injecting ourselves into the route-making process," the opinion reads. "We would simply be acknowledging that the route lacks legislative authorization."

The opinion also noted that never before had a protest been filed against routes that fall outside legislative authorization since the Enabling Act was passed in 1950, the law which legalized turnpikes in Oklahoma beginning with the Turner Turnpike.

One bond?

The high court ruled in OTA's favor that it had not violated proper bond procedure. The law states four major turnpike projects — Cherokee, Creek, Chickasaw and Kilpatrick turnpikes — "shall be issued as one issue for all four of the turnpike projects and shall be financed, constructed and operated under one bond indenture."

Plaintiffs argued that the language means no additional turnpike projects could be built under additional bonds.

Justices disagreed and noted OTA's argument that the law also allows the agency to pay "all or any part of the cost of any one or more turnpike projects" after the first bond was issued.

The ruling opinion also noted the high court has approved several bonds in the last 30 years under what it termed is under one "trust agreement," which satisfied the one bond rule.

Dissenters' opinion stated that despite the OTA's actions to consolidate all of its bonds under one trust agreement, the agency remains outside state law provision.

"Nothing in the text of the statute alludes to the prospect of multiple bond issues in various phases over the course of more than 30 years," the opinion reads. The law "expressly limits funding for the four projects mentioned to one issue."

OTA announced its $5 billion, 15-year ACCESS plan to expand and improve the state's toll road network in February 2021.

The agency lost a district court lawsuit in December 2022, which alleged its announcement violated the Open Meeting Act, but was overturned 5-3 by the Oklahoma Supreme Court on May 31, 2023.

Mindy Wood covers City Hall news and notable lawsuits for The Transcript. Reach her at mwood@normantranscript.com or 405-416-4420.