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Seneca Asks Feds for $28M+ for Highway Repairs After NY Reneges on TERO Compliance

The Seneca Nation has asked the federal government to re-allocate $28.5 million from New York State to the Nation to repair more than eleven miles of an interstate highway that runs through Seneca land after state officials said they will no longer comply with a Nation ordinance that they’ve honored for almost two decades.

“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,” Seneca Nation President Robert Odawi Porter wrote to Jonathan D. McDade, Division Administrator of the Federal Highway Administration’s New York Division on May 22. “We are concerned that the 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 offered to take over the entire project, not just the section running through the Nation’s Alleghany Territory, which comprises 95 percent of the project. “You may be aware that the Nation has a proactive Tribal Transportation Program and a productive [Seneca] Construction Management Corporation (SCMC) with a proven record of successful projects and we are confident that we can satisfactorily perform this job under your requirements as well,” Porter wrote. The SCMC recently won an $18.5 million contract to design and build a U.S. Army Reserve Center in Schenectady, New York. SCMC is also working under Army construction contracts in Alabama and Georgia.

Porter’s letter to the federal agency and another letter to state officials were included in a media release on May 24. In his letter to the federal agency, Porter said that he and Seneca Nation Council Chairman Richard Nephew were told on “an extraordinary” teleconference May 15 with NYS DOT Commissioner Joan McDonald and New York State Thruway Authority Executive Director Thomas Madison that the state will no longer abide by the Nation’s Tribal Employment Rights Ordinance (TERO) – either on the current project or other projects going forward, despite 19 years of successful collaboration. “This new position is directly contrary to the practice which both [parties] have adhered to for the past 15 years or so, and regardless of the longstanding federal policy recognizing the applicability of TERO to federally funded projects,” Porter wrote. In his letter to the state officials, Porter reminded them of their agreement to meet with Council to discuss the issues – a meeting that has not yet taken place. “In the interim, neither of your agencies should proceed with any scheduled work in the Nation’s territories in contravention of Nation law and without the necessary Council approvals,” Porter wrote.

The Nation’s TERO was adopted in 1993 and has been implemented on almost every New York State project on or crossing Nation territory since then. The TERO requires Nation monitors to be present at construction sites to look out for Nation interests, including land use, environmental rules and project completion and quality and includes a project monitoring cost reimbursement to the Nation and a 3.5 percent fee applicable to contracts on the Nation’s territories. According to the media release, the nation’s Transportation Manager Jody Clark said the state and 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.

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Porter noted in his letter to the federal agency that the state, despite its decision not to honor the TERO agreement, has included the TERO fee in the bid specifications for the current project. The Nation’s TERO requires an approved Compliance Plan including payment of the fee from the contractor before work can begin. “We are not sure how the state intends to notify the contractor of the state’s new policy that the TERO fees will no long be reimbursed as provide for in the contract documents,” Porter said. “No doubt this will cause much confusion for the contractor and may well result in additional costs and delays in the projects schedule.” The state received bids on May 18 and is expected to award the contract in mid-June. State officials could not be reached immediately for comment.

Porter said that the state’s sudden and unilateral decision to jettison the long-standing rule was “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.” He said the state decision endangers the traveling public and will likely prevent the project from going forward in this year’s construction season – a short window of opportunity in the northwestern section of the state where harsh and cold winters come early and last long.

Alluding to the Nation’s conflicts with the state over its support of expanded gaming in New York and the state’s violation of the gaming compact that promises the Nation an exclusivity zone, Porter said, “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.”

The portion of road that needs rebuilding totals around 46 lane miles of highway, ramps and medians, in addition to access to the Seneca Alleghany casino, and it also includes two exits for the very-popular Allegany State Park. Several drainage upgrades and bridge rehabilitations are also included.

Under an original 1976 agreement between New York State and the Nation that permitted the section of Interstate 86 to cross Seneca territory, the state is obligated to maintain territory roads, but the state has not met the terms of the agreement for 35 years, leaving the road in a deteriorated condition, Seneca officials said. Because the federal government provides funding for the project, Seneca can seek its intervention on this issue. “This project is long overdue and was heading smoothly for bid award and start of construction this summer,” Nephew said. “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.