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Senecas, state at odds over I-86 work

The Seneca Nation is demanding about $1 million from Albany before state contractors can rehab an ailing stretch of the Southern Tier Expressway through the nation's Allegany Territory.

Seneca Nation President Robert Odawi Porter says he will bar the heavy machinery and other fixtures of road work unless the state again adheres to a Seneca rule adopted in 1993.

The Tribal Employment Rights Ordinance -- known as TERO -- requires a 3.5 percent administrative fee whenever the state comes onto tribal lands to undertake major projects. For the most part, the state has followed the Seneca law, but state officials have declined to do so in this case.

The money pays, among other things, the Senecas who monitor the state's work and "look out for nation interests." The fee would reach almost $1 million on the $28.5 million job, which could have begun soon after the state signed a contract next month.

"This state decision endangers the traveling public and probably kills the project for the 2012 season," Porter said in taking his stand Thursday, even though the highway carries visitors to Seneca Gaming Corp.'s Seneca Allegany Casino.

Discussions over the fee, as part of a "project-specific agreement," have been under way for more than a year. They abruptly ended May 15, when state officials told Porter in a conference call that they would not pay it.

The state's top transportation officials say they will not grant the fee for projects that amount to routine maintenance, such as repaving an expressway.

"This is an unprecedented demand," Transportation Commissioner Joan McDonald and Thruway Authority Executive Director Thomas Madison said in a letter directed to Porter just before he convened a news conference Thursday about the repairs.

The two wrote that the monitors usually have no qualifications and questioned whether they are truly important to the Senecas. In the past, they said, the nation has simply dropped the monitors when the money ran out, apparently unwilling to pay them with its own dollars.

"The state has no substantive concerns with Seneca personnel closely examining undertakings," their letter to Porter said. "We simply cannot pay for such activity when it involves routine improvements and maintenance."

The DOT commissioner and the Thruway Authority executive director said they are willing to meet with Porter and the nation's council soon to discuss the matter. The Thruway goes through Seneca land south of Buffalo.

Said Porter: "If they came to the meeting and said, 'We will comply with your laws, including your TERO, and pay the fees,' then I think that will be a great meeting." But Porter hinted that he would accept nothing short of that, meaning the dispute over the expressway can join the swirl of other disputes between the Senecas and state government.

He agreed that the state has not always paid an administrative fee for ordinary expressway needs.

"When they do very simple routine maintenance through the local DOT barn, no. But this is a bid-out significant reconstruction of the road. And every time we have had this kind of contracted work done, there has been a project-specific agreement and TERO compliance," Porter said.

The Southern Tier Expressway is a federal highway, also known as Interstate 86, so the federal government will provide 90 percent of the repair costs. Porter, in a letter to the Federal Highway Administration, asked the agency to direct all of the money to the Seneca Nation so the nation instead can complete the work.

He said the nation could turn to either the state's chosen bidder or to SCMC LLC, a Seneca Nation-owned business acting as a federal contractor elsewhere. SCMC's president and chief executive is Odie Brant Porter, wife of Robert Porter. A nation spokesman said she would derive no extra benefit if SCMC got the work.

"The New York State Department of Transportation is approaching this project in a manner that reflects an apparent unwillingness or refusal to work with the [Seneca] Nation in a spirit of cooperation and a focus on public safety," Porter told the federal agency in a letter dated Tuesday; it has not yet generated a response.

"We do not believe that this project should be delayed any longer than necessary because we are aware that travelers on this highway are incurring damages to their vehicles on a regular basis and that some conditions are causing accidents," he added.

What if the state forces the matter and begins work anyway?

"I don't expect that they would do that," Porter said. "But if they do, then we will do what we usually do. The people involved will be cited for trespass, and if they don't stand down, then they will be removed."