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Reauthorization Issues and the Future of Tribal Transportation

Reauthorization Issues and the Future of Tribal Transportation. Presented by Michael Willis 2010 Self-Governance Annual Conference May 6, 2010. Topics. Reauthorization OIG Report on Interior Roads Programs IRR Funding Formula Controversy Direct Contracting with FHWA.

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Reauthorization Issues and the Future of Tribal Transportation

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  1. Reauthorization Issues and the Future of Tribal Transportation Presented by Michael Willis 2010 Self-Governance Annual Conference May 6, 2010

  2. Topics Reauthorization OIG Report on Interior Roads Programs IRR Funding Formula Controversy Direct Contracting with FHWA

  3. SAFETEA-LU Extension SAFETEA-LU expired September 30, 2009 HIRE Act (March 18, 2010) extends SAFETEA-LU through December 31, 2010

  4. SAFETEA-LU Extension Maintains FY 2009 funding level through FY 2010: $450 million Continues FY 2009 funding level through 1st quarter of FY 2011: $112.5 million Appropriates $19.5 billion to Highway Trust Fund

  5. Reauthorization or Consolidation? • Tribal Reauthorization of Indian Programs (TRIP) Act (Senate Draft) • Surface Transportation Authorization Act (STAA) (House Draft) • Consolidate programs and funding categories • Emphasis on safety and “livability” • Intermodalism • How to fund?

  6. Development of a United Tribal Position • NCAI/ITA Joint Task Force • Regional and Statewide Organizations • ATNI, USET, OTTC, ITCA, ATTWG, others • “White Paper” Outlines Tribal Priorities • October 2008 • Unified Position: Coordinated Advocacy

  7. White Paper: Tribal Proposals • Increase Funding: Roads, Bridges, Transit • Create Tribal Transportation Safety Program • Road Maintenance • Extend ISDEAA to US DOT • Make Existing DOT Programs More Accessible to Tribal Governments

  8. Tribal Reauthorization of Indian Programs (TRIP) Act • Senate Draft (March 2009) • Discussion draft for circulation and comment  • Tracks White Paper recommendations, with some important exceptions • Application of ISDEAA • Emergency relief and ROW language

  9. Funding: IRR Program • $800,000,000 in FY 2010 • Step-ups of $50,000,000 each year • $1,050,000,000 in FY 2015 • Obligation limitation exception restored • $50,000 “floor” per Tribe

  10. Funding: IRR Bridge Program • $75,000,000 in FY 2010 • Step-ups of $12,500,000 in FY 2011 and FY 2012 • $100,000,000 in FY 2012-2015 • Construction of new bridges authorized • Obligation limitation exemption

  11. Funding: Tribal Transit • $35,000,000 in FY 2010 • Step-ups of $10,000,000 each year • $85,000,000 in FY 2015 • Planning grants up to $50,000 per Tribe

  12. Tribal Safety Programs • Tribal Transportation Safety Program • New 23 U.S.C. 202(d)(6); administered by FHWA • $50,000,000 for infrastructure projects • Tribal Safety Program • New 23 U.S.C. 413; administered by NHTSA • $50,000,000 for behavior modification

  13. Road Maintenance • Tribes may use up to 25% of IRR funds, OR up to $500,000, whichever is greater

  14. IRR Inventory • Within 2 years, Secretaries must ensure IRR inventory attains “95% degree of accuracy” • $10,000,000 appropriated to DOT for this purpose • Funding formula issue not addressed

  15. Indian Preference • For projects on or near reservation, States must employ Indian/Native preference • Training and employment • Subcontracts and subgrants • Supersedes State law

  16. Advance Construction • Tribes with ISDEAA agreement with Interior or DOT may carry out advanced construction projects • Explicit authorization for “flexible financing”

  17. Tribes carrying out ISDEAA agreement may elect to assume NEPA, NHPA responsibilities Environmental Laws

  18. Application of ISDEAA • White Paper: Extend ISDEAA to DOT and its Modal Administrations to enhance accessibility of existing programs • Provide uniform terms and conditions • Reduce transaction costs • Senate Draft: Title VII: Tribal Transportation Self-Governance Program • Secretary “shall offer to enter into” an agreement • Inconsistent with mandatory language of other Titles of ISDEAA • Gives too much discretion to Secretary

  19. Right of Way • White Paper: BIA must provide Tribes documentation of ROW for “all IRR routes” • Senate Draft: BIA must provide ROW documentation only for routes “owned by the [BIA] or a tribal government”

  20. Emergency Relief • Limits availability of funding to facilities “owned or maintained by the tribal government or [BIA]”

  21. Status of Reauthorization Process • House Transportation & Infrastructure (T&I) (Oberstar, MN) • Senate Environment & Public Works (EPW) (Boxer, CA) • Senate Draft (TRIP Act) • 85 Tribes submitted comments; SCIA still accepting comments • Listening session held • Draft is still on the table

  22. Status of Reauthorization Process • House Transportation & Infrastructure (T&I) (Oberstar, MN) • STAA of 2009 • Funding levels undecided • Lacks extension of ISDEAA to DOT • “Livability” • Senate EPW has yet to commit to STAA approach • Uncertain how TRIP or White Paper priorities could meld with STAA approach

  23. Reauthorization: Recent Activity • March 24, 2010: Senate EPW holds full committee hearing to examine opportunities to improve energy security and the environment through transportation policy • April 14, 2010: EPW holds hearing to examine opportunities to reduce injuries and fatalities associated with the nation’s highways; no tribal testimony • April 14, 2010: House T & I Committee Subcommittee on Highways and Transit holds hearing to receive testimony on innovative financing practices in surface transportation project delivery • Senate Committee on Indian Affairs has no plans to hold hearing on tribal transportation legislation until summer or possibly fall

  24. Reauthorization • Momentum building now that health care legislation passed and ARRA winding down • SAFETEA-LU extension buys time • DOT has promised significant outreach, opportunity for tribal input

  25. OIG Report on Interior Roads Programs • Department of the Interior Roads Programs: The Dangers of Decentralization • Issued by DOI Inspector General’s Office February 2010 • Question: Does DOI systematically identify roads needs and priorities, implement project plans, and account for funds expended?

  26. OIG Report: Findings • Inventories: Significant inaccuracies skew funding levels • Prioritization and Implementation: Inadequate in some bureaus, including BIA • Accountability: BIA cannot adequately detect misuse and mismanagement of funds

  27. OIG Report: Findings Inventories Skewed: • NPS and FWS have accurate, up-to-date inventory and condition databases, but BIA and BLM do not. • BIA inventory “skewed” because: • 40,000 mile “unexplained increase” in IRR inventory between FY 2005 (62,000 miles) and FY 2007 (102,000 miles) • Tribes “self-report” road miles with “little to no on-site, independent verification performed” • IRR funding formula creates incentive to overstate miles

  28. OIG Report: Findings Prioritization Problematic: • BIA prioritization “decentralized”—driven by tribal input • 5-Year TTIPs may be revised as often as tribes wish, defeating purpose of long-range planning • TTIPs subject to turnover in tribal leadership and consequent shifting priorities

  29. OIG Report: Findings Accountability Lax: • BIA lacks control of accounting and use of funds, as illustrated in “Flash Report” on Alaska • Funding formula “allows tribes to misrepresent road mileage and conditions under their domains” • Neither BIA nor FLH has resources to monitor expenditure of funds • Risk of waste and fraud is “unacceptably high”

  30. OIG Report: Recommendation Establish a DOI-level office or group able to provide centralized, consistent, systematic oversight of the different FLH-supported roads programs and to serve as a focal point for interaction with DOT.

  31. OIG Report: Misconceptions as to IRR Program • Inventory: Neglects to consider steps taken by tribes and FHWA to improve accuracy of inventory • Prioritization & Implementation: Suggests that DOI, not tribal governments, should prioritize tribes’ transportation needs—a suggestion at odds with SAFETEA-LU and the ISDEAA • Accountability: Fails to recognize that regulations govern inventory and funding formula

  32. OIG Report: Procedural Concerns • OIG failed to consult with Tribes in producing report • To our knowledge, BIA has yet to consult with Tribes, or the IRRPCC, in formulating a response • Tribal response is critical as Congress considers reauthorization

  33. Administrative Push to Resolve Funding Formula Controversy BIA and FHWA leadership to meet this month to address “Question 10.” BIA has indicated resolution of the issue may involve rulemaking, not just policy clarification No indication that BIA will convene a negotiated rulemaking committee as required by Title 23 of the United States Code

  34. Trend Toward Direct Contracting with FHWA • Agreements “in accordance with the ISDEAA” • Model Agreement • DOJ letter represents that FTCA applies to FHWA agreements • Chronic problems with BIA and OSG • 51 Tribes now work directly with FHWA; 25 more are “in process” • Future of contracting/compacting with BIA/OSG?

  35. Questions/Comments? • Michael Willis or Geoff Strommer • Hobbs, Straus, Dean & Walker, LLP • 202-822-8282 or 503-242-1745 • mwillis@hobbsstraus.com • gstrommer@hobbsstraus.com

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