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Rough rides on Thruway persist as state, Senecas tussle

Twenty miles west of the Lackawanna toll barrier, loose items in the car start to shake. Failed patches of tar flake into wheel wells. A dull roar fills the passenger cabin as signs advise drivers to slow down.

"It's beyond politics," said John W. Rigley, who figures he drives on this rough-and-tumble section of the New York State Thruway through Seneca Nation territory at least every week.

"It just needs to be fixed," he said.

Politics, nonetheless, rule those approximately 3 miles. Two lanes westbound and two eastbound are in rapid decay as the Seneca Nation and the state government – represented here by the Thruway Authority – let disputes rage on.

Front and center these days is the lawsuit the Seneca Nation filed in April. It seeks millions of dollars from the Thruway Authority by alleging again that the state failed to follow federal law when it built the highway through Seneca land some 60 years ago.

Still, the lawsuit alone does not prevent the Thruway Authority from fixing the highway. Neither side has explained the stasis. But both sides say they are talking, or at least willing to talk.

“We continue to try and engage with Thruway Authority officials on substantive discussions regarding detailed maintenance initiatives on the portion of the Thruway that crosses the Nation’s sovereign Cattaraugus Territory," the Seneca Nation said in a statement this week. "The condition of this well-traveled stretch of roadway continues to deteriorate with each day. The Thruway Authority needs to find its way to work cooperatively with the Nation to finally address this growing public safety concern.”

For its part, the Thruway Authority doesn't want to say more than it has said already. When asked for comment, a spokeswoman pointed to a statement the agency issued months ago: "The Authority is moving toward an agreement with the Seneca Nation ... "

Cars and trucks travel on the rough patch of the Thruway. (Mark Mulville/Buffalo News)

David Brzuz of Erie, Pa., was stopped at the service area in Angola one day last week, after driving his compact car through the rumbling stretch.

"It was rough," he said. Brzuz said the remote roads leading to a camp he owns are better than the Thruway through Seneca Nation territory.

Brzuz, Rigley and other drivers interviewed by The News said that with the tolls Thruway motorists are assessed, they should be entitled to a better highway. Keeping it as is hurts only motorists, they said.

"It's dangerous," Rigley said. "For what you pay in tolls, they've got to take care of it."

The Thruway has on the drawing board a $30 million rehab of the pavement. But right now that rehab exists only on paper, and speeds limits are set at 55 mph and 45 mph for the especially bad pavement.

"In the meantime, the traveling public has that rough section," said Assemblyman Andrew Goodell, R-Jamestown, whose district begins south of the Seneca Nation territory.

The agreement between the Senecas and the Thruway Authority allows the state to perform routine maintenance on the highway, Goodell said, but anything beyond that requires the consent of the Seneca Nation.

For large capital improvements, the Nation expects the state to observe its "Tribal Employment Rights Ordinance," a decades-old law requiring that Senecas perform at least 51 percent of the work. If the state skirts the requirement, it is expected to pay a 3.5 percent administrative fee for, among other things, the Senecas who will monitor the work of outside contractors.

No one is saying whether the ordinance, known as TERO, factors into the status quo surrounding the rough Thruway through Seneca land. But TERO has stalled work before. In 2012, the state Department of Transportation refused to pay the 3.5 percent administrative fee for a $28.5 million improvement project on the Southern Tier Expressway through the Seneca Nation's Allegany territory. The state and the Senecas later announced a compromise.

Many other issues are at play in relations between the Seneca Nation and the state government run by Gov. Andrew Cuomo. The Senecas believe a compact with the state allows their casinos to operate without competition. But after a public referendum Cuomo allowed private interests to open casinos at select sites in New York. In 2017, the Senecas stopped sharing with New York State more than $110 million a year in revenue from its casinos, saying the compact allows the Senecas to halt those payments after 14 years.

[RELATED: More dead trees, fewer repaved roads as casino cash dispute drags on]

The Senecas, and other other tribes in New York, believe they should be able to sell goods, free of sales taxes, to all customers, not just fellow tribal members. Then, in April, the Seneca Nation sued in federal court to declare as invalid the decades-old easement that allowed the highway to run through Nation territory. The nation wants future tolls attributable to that section of the Thruway.

"We are not seeking to cause any disruption," Seneca Nation President Todd Gates said when the lawsuit was announced, "but rather to ensure that New York State authorities comply with federal law and gain approval from the Department of Interior for the Thruway." He said it "encroaches on 300 acres of land that has belonged to the nation and our ancestors for generations."

A sign on the New York State Thruway on a 3-mile stretch that passes through the Seneca Nation's Cattaraugus Territory says New York owes the Senecas $675 million in tolls. (Mark Mulville/News file photo)

The state has filed a motion to dismiss the case, arguing, among other things, that a nearly identical lawsuit filed in 1993 failed. The Seneca Nation, the state's lawyers wrote, want more money for actions taken in October 1954, when the state Department of Public Works – a Thruway Authority predecessor – obtained an easement for the highway from the Senecas.

"There is no ongoing violation of federal law," the state lawyers said in court papers.

For motorists who read the billboards, it isn't just the rough road that marks the start of Seneca Nation territory. A sign tells them New York State owes the Nation $675 million in toll revenue.

One driver, who refused to give his name, wondered if both sides are heading toward darker days reminiscent of the 1990s. In July 1992, Senecas burned tires alongside the Thruway, and violent clashes followed as state troopers intervened. A similar drama played out in 1997 as protesters sought to close the Thruway through Seneca land.

Taxation on tribal land was a flashpoint then. Today, the only overt act that could bring the troopers involves Seneca Nation businessman Eric White's decision to clear land at his Big Indian Smoke Shop property. It has been widely interpreted as a sign he wants to build his own lane connecting the Thruway to his cash registers. The earthmovers were idle on a recent weekday.

White and his lawyer recently went to the state's highest court, the Court of Appeals, to challenge a state law that requires sales taxes on cigarettes be paid at the wholesale level, which forces all retailers to collect the sales tax or lose money. White lost the case in a 7-0 decision.

 

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