A surprise decision by the New York State Department of Transportation to stop planned roadwork on Interstate-86 in the Southern Tier has the Seneca Nation of Indians asking federal officials to reroute the repair funds directly to the Indian nation.
At issue is an apparent reversal by state DOT officials to back off in 19-year agreement that calls for Seneca Nation representatives to monitor road construction sites that cut through sovereign territory. The decision, some feel, may further fray already-fragile relations between New York state and the Seneca Nation.
"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," said Robert Odawi Porter, Seneca Nation president. "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."
State DOT officials could not be reached for comment.
The proposed $28.5 million project would repair a well-worn, 11.5-mile section of I-86 running west from Salamanca to Steamburg. The entire section cuts through Seneca sovereign territory.
The state received bids for the work on May 18 and was expected to award the bid next month. The project has been in the state DOT pipeline for more than two years.
Now, the Seneca Nation is asking the Federal Highway Administration to re-allocate the funds directly to them and they will make the repairs. The federal agency had allocated the funds to the state DOT.
"… 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," Porter wrote in a letter to federal highway officials. "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 a May 14 call from Thruway Authority Executive Director Thomas Madison and NYS DOT Commissioner Joan MacDonald, Porter said.
Porter said during the conversation Madison and MacDonald told Seneca leaders that this project would not adhere to the Nation's Tribal Employment Rights Office (TERO) rules, which have been in place since 1993.
The TERO rules have, under the I-86 project, been followed on nearly every New York state project that crossed Seneca Nation territory since 1993. They require Seneca Nation monitors be present at construction sites to look out for tribal 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, Porter said..
Jody Clark, Seneca Nation 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 Seneca Nation monitoring, hiring of Seneca workers and a 3 or 3.5 percent administrative fee built in to the project bid.
The TERO fee was part of this project's bid specifications when they went out in April, Porter said.
New York state's report supporting the bid documents makes clear on two separate pages that the Seneca Nation owns the highway and state DOT is responsible for maintenance.
The highway portion of I-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.
Under the original 1976 agreement between New York state and the Seneca 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, Porter alleges.
"This project is long overdue and was heading smoothly for bid award and start of construction this summer," said Richard Nephew, Seneca Nation council chairman. "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.
Porter, in a letter to Jonathan McDade, division administrator, Federal Highway Administration, New York Division in Albany, proposed that Seneca Construction Management Corp. LLC do the work. Seneca Construction Management, or SCMC, is a Seneca business that recently won a contract for $18.5 million to design and build a U.S. Army Reserve Center in Schenectady. SCMC is also working under Army construction contracts in Mobile, Ala., and Savannah, Ga.
The Seneca Nation is also in discussion with federal transportation officials about 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 I-90 near Silver Creek. Seneca officials are considering detouring Thruway traffic around the bridges, which inspectors some time ago deemed probably faulty and past due for inspection.