The Legal Problems Behind the Park Privatization

In 2005, the Oklahoma state legislature overturned seven decades of recreation and parks policy in order to make it politically possible to push through the “privatization” agenda of a few developers and politicians.

The attached timeline lays out the main events in the liquidation of one of Oklahoma’s most popular public parks. The sale of LTSP put the park into the hands of a small group of politically connected individuals who intended to turn it into an exclusive private development, resort and conference center. To make way for these takings, the State of Oklahoma systematically starved the park of maintenance funding, instituted laws to attempt to circumvent federal mandates, and violated several federal laws including the Land and Water Conservation Fund (LWCF) Act, and the National Environmental Policy Act (NEPA).

Starving the Park

From 1999 to 2003, the Oklahoma Tourism and Recreation Department let this “crown jewel” of the Oklahoma state park system fall into disrepair, allowing the federally-funded wastewater treatment systems to fail, which forced the closure of the park campgrounds. During this period the U.S. Army Corps of Engineers (USACE) documented several violations of environmental laws, which placed the state park recreation lease in jeopardy.

In January 2001, an Environmental Baseline Study by USACE, found several above ground fuel storage tanks at the new Chickasaw Pointe Golf Course in violation of federal environmental law (CERCLA).[1] These and other environmental compliance issues including the misuse of pesticides and herbicides jeopardized and delayed the renewal of OTRD’s recreation lease for almost three years until funding could be secured for remediation.

In 2002, the state appropriated $4 million to build new sewage treatment lagoons at Lake Texoma and another park, but these systems were never built.

As a result, the Corps of Engineers informed former Lt. Governor Mary Fallin that they would not approve additional leases at Lake Texoma. Because of these unfulfilled commitments to eliminate health and safety threats to the public, the lease at Lake Texoma expired and the park was forced to operate under a month-to-month tenancy, placing it in danger of termination.
Legislative Support for Park Sale

The State’s intention to allow the sale of LTSP is apparent as early as 1999 in federal legislation. At the OK delegation’s urging, a provision was inserted into the 1999 Water Resources Development Act, [2] which authorized the sale of up to 1580 acres of Corps land, including most of LTSP and the surrounding shoreline wild lands and riparian buffers.

In 2004, Oklahoma passed a law enabling the Commissioners of the Land Office (CLO), also known as the School Lands Trust, to invest as much as 3% of the permanent school funds, or approximately $30 million in its state parks.[3]

This law specifically provided that investments or acquisitions by the CLO “relating to Texoma State Park, Lake Texoma Lodge, or any real property in the area owned by the Oklahoma Tourism and Recreation Department” shall be subject to provisions for consideration and opportunities for state park employees, including severance packages for those who would be displaced by the closure of the state park resort lodge, or golf course. It also required consultations with, and opportunities for, each of the park concessionaires, recognizing their considerable private investments around the Park.

In 2005, the Oklahoma legislature passed Senate Bill 823, the ”Oklahoma Tourism, Parks and Recreation Enhancement Act,” which completely re-organized OTRD and authorized the Commission to issue bonds, and, for the first time, to “reduce” their inventory of state park land by selling it..

Failure to Produce an Environmental Impact Statement

Although the sale of over 1500 acres of federally owned public recreation lands clearly constitutes a “major federal action” under the terms of NEPA, no Environmental Impact Statement has been produced for the current Pointe Vista Development proposal. In November, 2004 the Oklahoma Commissioners of the Land Office (CLO) distributed a public Request For Proposals (RFP), seeking an experienced developer for a public-private partnership to fund a new family-oriented state park lodge and a fully renewed public park resort and golf course.

Because of the limited change of use proposed by the RFP, the Corp of Engineers (USACE), opted to do a shorter Environmental Assessment (EA) and came up with a “Finding Of No Significant Impact” (FONSI) for this scope of project at the park[4].

Because the RFP focused on reinvigorating existing assets and did not contemplate a potential sale of the park, the Corps saw no need for a full Environmental Impact Study (EIS). This plan, however, was soon dismissed and a much more aggressive sale and redevelopment plan came on the scene.

The CLO’s “Land Use Plan” described a limited commercial and residential development adjacent to the Chickasaw Pointe Golf Course. They stated a preference for leasing, and not selling, the majority of the 564 acres they had requested to purchase from the Corps. The Corps’ EA studied an expansion of resort park amenities and a “public-private partnership” which would guarantee the future of Lake Texoma State Resort Park, not it’s displacement..

However, after the EA public comment period was concluded, but before the EA was released in June, 2005, the State of Oklahoma announced they were going to sell the park to a private developer. This EA not only failed to assess the impact of the later sale by the state, but, it also neglected any review of the cumulative impacts of over thirty years of private development along 580 miles of Lake Texoma shoreline in Texas, as well as Oklahoma. The last Lake Texoma EIS was conducted in 1976, and a Lake Master Plan was created in 1978.

In June, 2006, after the first round of bidding failed to identify a developer, the Land Office re-issued the original RFP and attracted two interested parties. One of them, Pointe Vista Development, LLC, won the bid. In September, 2008,Mark Fischer, one of the principal owners of Pointe Vista Development, claimed he didn’t have $2 million for an Environmental Impact Study and that he wasn’t going to pay for one, according to Boyd Steele, President of the former Friends of Lake Texoma State Park.

Pointe Vista proposes 3,000 residential units using over 3 million gallons of water per day.

In January, 2009, after months of delay, they and OTRD finally submitted their draft deliberative documents and project design to USACE, Tulsa District.
On April 3, 2009, Steve Nolan, the Chief Environmental Analyst overseeing the scoping process and development of the EIS, informed the public that the state is working on identifying funding sources for the study. Nolan previously confirmed in December, 2008, that the EIS will be cumulative and take into consideration all segments of the park, including those sold in 2008 known as Areas A and B, as well as, the 1,000 acre land parcel, Area C, which was under consideration for sale to the OTRD Commissioners who would have sold it to Pointe Vista.

Land and Water Conservation Fund Violations

The LWCF’s state grant program is designed to provide recreational resources to the public in partnership with state and local park programs. State sponsored recreational projects that receive LWCF monies must remain open to the public for recreational use in perpetuity. When an LWCF grant is received, not only the park land covered by that grant, but the entire park, is intended to be protected from conversion to private non-recreational uses.

The LWCF does allow for conversions of funded lands, if and only if, recreational land of equal or greater value is provided, and the features of the original park land are analyzed item by item comparing it to those of any proposed replacement park lands in a separate EIS. National Park Service and Secretary of Interior approvals are needed before the conversion.

Lake Texoma State Park has received over $700,000 in 7 separate grants from the Land and Water Conservation Fund (LWCF) state grant program between 1967 and 1988. With every grant accepted from the LWCF, Oklahoma was committing to protecting LTSP from conversion to private non-recreational use.

Each LWCF grant was accompanied by a map (section 6f3 map) that illustrated the areas subject to the federal grants. Based on these maps “all of Lake Texoma State Park Resort” was protected under the provisions of the LWCF Act, according to a June 1997 letter from OTRD Planning and Development Division Director Kris Marek. (continued) &l