Seneca Nation Looks to Repair Route 86 Themselves

May 24, 2012 Updated Oct 10, 2013 at 3:52 PM EDT

By WKBW News

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Seneca Nation Looks to Repair Route 86 Themselves

May 24, 2012 Updated Oct 10, 2013 at 3:52 PM EDT

SALAMANCA, NY (release) - The Seneca Nation today asked the Federal Highway Administration to re-allocate $28.5 million for the Nation to reconstruct 11.5 miles of Interstate 86 after New York State unilaterally changed a construction management practice that’s functioned well since 1993.

The state received bids on May 18 and the contract is expected to be awarded for the project in mid-June. It has been planned for more than two years because the highway is unsafe for motorists.

The section of road, running west from Salamanca past the town of Red House, is a portion of the four-lane limited access Southern Tier Expressway, which stretches from Jamestown to Binghamton. Almost all this portion runs through Seneca Nation territory.

That section is in deplorable condition and could be dangerous for motorists. To avoid further delays in reconstruction, the Nation moved to replace the state Department of Transportation on the project and obtain and reallocate the federal funds from the state to complete the job. In a letter to the Federal Highway Administration, President Robert Odawi Porter wrote:

“…the New York State Department of Transportation (NYS DOT) is approaching this project in a manner that reflects an apparent unwillingness or refusal to work with the Nation in a spirit of cooperation and a focus on public safety.

“We are concerned that NYS DOT’s intransigence will result in delays in getting this long-overdue project underway, to the ultimate detriment of the traveling public.”

The Nation’s decision came after an extraordinary joint phone call May 14 from Thruway Authority Executive Director Thomas Madison and NYS DOT Commissioner Joan MacDonald. They told President Porter and other top Nation officials, without any warning, that this project would not adhere to the Nation’s Tribal Employment Rights Office [TERO] rules, a rarity in 19 years.

Those rules, adopted in 1993 and followed on nearly every New York State project that crossed Nation territory since, require Nation monitors be present at construction sites to look out for Nation interests, including land use, environmental rules and project completion and quality. The state officials added that TERO rules would no longer be followed on any future projects.

President Porter, in a May 22 letter to the two Cuomo administration officials offering to continue talks to resolve the issue, said no attempts by the state to begin reconstruction of Interstate 86 on its territory will be permitted if they ignore TERO rules.

Jody Clark, the Nation’s transportation manager, said New York State and the Nation completed an estimated 10 to 15 construction projects or regulated activities per year on roads, bridges and highways since TERO’s creation, with more than 40 in just the last three years.

Significant projects included Nation monitoring, hiring of Nation workers and a 3 or 3.5 percent administrative fee built in to the project bid. In fact, the TERO fee was part of this project’s bid specifications when they went out in April. And the state’s report supporting the bid documents makes clear on two separate pages that the Nation owns the highway and state DOT is responsible for maintenance.

Only when Madison and MacDonald called on May 14 was the rule abruptly jettisoned.

“This is an insulting and unprofessional slap in the face of almost 20 years of Nation-state cooperation on highway, road and bridge construction and reconstruction projects and it’s totally unacceptable,” President Porter said. “This state decision endangers the traveling public and probably kills the project for the 2012 construction season.”

“Everyone knows we have some disagreements with state officials in other sectors, but we will not stand by, lose another construction season, and watch union workers and contractors sit by idly while the state plays political games and endangers the safety of motorists, our people and our patrons who come to Seneca Allegany Casino, including those from Ohio and Pennsylvania.”

In fact, the highway portion of Interstate 86 to be rebuilt – a total of about 46 lane miles of highway, ramps and medians – includes two exits for the very-popular Allegany State Park. Several drainage upgrades and bridge rehabilitations are also included.

Further, under the original 1976 agreement between New York State and the Nation that permitted Southern Tier Expressway to cross Seneca territory, the state is obligated to maintain territory roads. For 35 years, the state has not met the terms of the Southern Tier Expressway agreement, Nation officials said.

President Porter and Clark initiated contact with the Federal Highway Administration because the money the state proposed to use to fund the reconstruction project comes from federal highway budgets. Under Seneca treaties with the federal government, the Nation can seek United States’ intervention on an issue such as this.

“This project is long overdue and was heading smoothly for bid award and start of construction this summer,” said Nation Council Chairman Richard Nephew. “In all the years of working with local DOT, we’ve always found ways to work things out. Major construction companies and our own TERO office have rarely missed a start date or seen a project delayed for this reason or by Albany’s intervention.

“This makes the state responsible for an unsafe highway that is clearly one of the 10 worst of this type of interstate in the country and easily the worst in the state,” Nephew added.

President Porter proposed – in a letter to Jonathan D. McDade, division administrator, Federal Highway Administration, New York Division in Albany – that SCMC LLC do the work. SCMC is a Seneca business that just won a contract for $18.5 million to design and build a U.S. Army Reserve Center in Schenectady, NY. SCMC is also working under Army construction contracts in Mobile, AL and Savannah, GA.

Officials said more than a year of discussions with the state has not produced a consensus on a three-page agreement involving TERO and the project. More than 95 percent of the highway to be reconstructed is on Seneca land and is typically rolling and bumpy with a seriously deteriorated road bed.

“This project cannot proceed without a Project Specific Agreement (PSA) between the NYS DOT and Seneca Nation that clearly identifies the rights and responsibilities of each entity while working on our lands. Nevertheless, to date, the NYS DOT has been unwilling to finalize the PSA for this work, choosing instead to change some of its long-standing policies and practices in a manner that fails to recognize our sovereignty and other critical concerns and which appears geared towards ensuring the badly needed project will not be completed in the near future,” President Porter wrote to McDade.

The Nation is also in discussion with federal transportation officials about work on and the condition of two bridges on its Cattaraugus Territory over the New York State Thruway. They carry Route 438 and Mile Strip Road, respectively, over Interstate 90 near Silver Creek. Seneca officials are considering detouring Thruway traffic around the bridges, which inspectors some time ago deemed past due for inspection and probably faulty.

The Nation in March authorized the Thruway Authority to conduct bridge inspections and begin preliminary plans, but the agency never acted and the authorizations expired, with one bridge inspection overdue on the Thruway.