Lockyer Had Warned of Toll Pitfalls

Then-state Sen. Bill Lockyer, now California’s attorney general, warned in a 1991 memo to fellow legislators that contracts being drawn for four private roads, including the 91 Express Lanes, had serious defects that were likely to come back to haunt the state.

Chief among his concerns were prohibitions that prevented the state from building freeways or making road improvements that would compete with business on the private toll roads.

Such prohibitions prompted Caltrans to agree in October to halt plans to improve safety on the Riverside Freeway near the privately operated toll lanes. The toll lanes run next to the freeway. Caltrans backed down after being sued for $100 million by the California Private Transportation Co., which claimed the work would irreparably damage its business.

“My argument all along was that the existence of the toll roads would limit traditional public highway construction, and we’re seeing it now,” Lockyer said Thursday. “The inherent conflict is that the success of the toll road depends on congestion on the public highway. It’s very unfair to the other drivers.”

The core conflict, critics say, is that a badly congested freeway is the best incentive for drivers to use the toll lanes. The worse the commute, the theory goes, the more people will pay to escape it.

The Assembly Transportation Committee has set a hearing in Sacramento in January to review Caltrans’ agreements with the 91 Express Lanes operator. Some legislators say they were shocked to learn that Caltrans forfeited its right to improve the highway for decades.

“What was going on in the minds of state legislators when they passed this thing?” Riverside County Supervisor John F. Tavaglione said. “To give away a 35-year exclusive agreement on the entire width of the freeway?”

Riverside County Supervisor Bob Buster said Thursday that he would ask his county’s Transportation Commission next week to petition Lockyer to investigate whether Caltrans illegally surrendered its police powers or violated the “public trust doctrine” in the initial franchise agreement and in October’s settlement agreement.

That deal, Buster said, resulted in “one of the biggest public giveaways that we’ve ever witnessed.”

But some legislators who voted for the 1989 law that made private roads possible say they were looking for creative solutions to a long-standing need for new roads.

“I think that involving the private sector was a very acceptable solution,” said former state Sen. Marian Bergeson, who now serves on the State Board of Education. “We were trying to find ways of expediting tremendous transportation problems in Orange County especially that were not being addressed.”

Bergeson, however, said she didn’t believe companies should have been guaranteed that public road improvements wouldn’t be made.

“I don’t think the public should be manipulated in order to let a private investment succeed,” she said. “And I don’t remember that being part of the deal.”

The state’s awkward position came to light recently when the operators of the 91 Express Lanes from Orange County to Riverside, the only private toll road to be built in the state, tried to sell it to a nonprofit group. Caltrans had cleared the way for the attempted sale in October by approving the deal and settling a lawsuit brought by the operator of the toll lanes to stop planned improvements on the Riverside Freeway.