Miscellaneous Q&A

1. Are the State DOT’s able to receive and expend maintenance money on purchasing equipment (e.g., graders)? And related questions: What is the availability of state construction equipment surplus? How can local entities get them?

   Maintenance and construction equipment is purchased by ADOT through the maintenance budget. Equipment that is surplused is auctioned about once a year. Visit the Equipment Services web site for more information.

2. How long of a process is there to receive a right-of-way for new road construction?

   For the State, the actual right-of-way acquisition process may only take 1 month to 1 year. The preliminary work including environmental clearances can take up to 3 years. For BIA Navajo Region roads, a minimum of three years is considered the norm. Some projects take a lot longer depending upon the environmental and archeology clearances.

3. Why is it that Arizona does not have tribal representation on the State Board of Transportation?

   The Governor of Arizona appoints the State Transportation Board Members for terms of 6 years based on board districts and population within those districts, see ARS 28-302. Tribes need to develop a way to advise the Governor of qualified people that could serve on the Arizona Board. The State of New Mexico has taken the initiative where one member of the Commission is a tribal member.

4. Why do the COG’s, the ADOT Districts, and the Transportation Board use different ways to define their boundaries? Nothing seems to match up.

   The Transportation Board and COG’s are based on county boundaries and since each have differing responsibilities the counties they serve are different. ADOT Districts were aligned based on maintenance and construction programs rather than by county.

5. Do the Navajo and Hopi Reservations provide updated requests for functionally classified roads?

   Navajo has always questioned how the functional classifications are designed for roads on Indian reservations. If ADOT is questioned, it is referred to FHWA and vice versa. Whatever the answer is, they (ADOT and FHWA) say it is something that has been predetermined with enactment of ISTEA.

6. What is the difference in tribal government-to-government and local government-state IGA(s)?

   IGA’s between the tribes and state are limited to those that do not require either party to exchange money with the other or relate to some action that may require conflict resolution in the future. Neither the tribes nor the state have expressed a willingness to appear in each other’s courts.

7. Where or who monitors or collects access needs for reservations?

   On Navajo, the BIA and NDOT determine the needs through the tribal transportation-planning program.

8. How do we get all tribes to submit into (the) 5-year plan? Do they have general plans, etc. that spell out projects?

   Work with the DE’s and COG’s when submitting projects. There is a five-year improvement plan that is approved and published annually, see Arizona S.T.I.P.. Many tribes have transportation plans which identify improvement projects. The BIA Regional Offices have information on plans relative to each tribe within Arizona.

9. Are roads on Indian allotments included in the state-tribal transportation programs?

   Yes, if they are on the state’s, BIA’s, or tribe’s highway systems.

10. Navajo projects – what if one person goes against the right-of-way, can this stop the project?

    For a BIA or Navajo initiated project the answer is yes, unless the tribe determines that the project is important enough to the economic and social goals of the tribe, then they can take the land by eminent domain which is rarely done.

11. Why are FLHP and IRR jointly administered?

    These programs are not jointly administered. FLHP is discretionary to Federal-Aid and administered through the states and FHWA. IRR is a direct federal program administered by BIA.

12. Is the 15 or 20-year project planning updated or revised each year – Navajo Reg (Reservation) roads?

    The IRR 20-year plan is updated every five years. The Navajo plan is updated every year. ADOT district engineers would like to be involved in discussing these plan updates to assure coordination between local plans and the individual district plans.

13. Is there a process for reviewing projects so improvements are factored into the project?

    Projects are identified and there is a process that reviews project scope and fund availability. Improvements are only factored in if funding has been set aside to cover any of those improvements.

14. (How do tribes address) bridge construction on roads (flood control, funding; culverts, drainage systems under highways)?

    To answer this question it would be best to contact the ADOT district engineer, or the respective BIA regional engineer and their staffs to discuss what the specific needs are and suggested alternative improvements. Specific drainage or bridge improvements must meet certain criteria, which can also be accessed through the district engineer, the BIA regional engineer and their staffs.

15. (For) design purposes (do) drawings need engineer’s stamp/approval before regional office review?

    ADOT requires that specific drawings and designs be stamped by a professional engineer for projects that impact the State Highway System. If there are any questions contact the Arizona State Board of Technical Registration at (602) 364-4930 or check their website.

16. What’s the Navajo Nation’s annual budget for construction and maintenance?

    Currently in 2002, $10 million from fuel tax. For further information contact Lee Bigwater, Director, Navajo Department of Transportation at (928) 871-6498.

17. How much in-depth involvement do the tribes have in the State Transportation Improvement Program process?

    The involvement tribes have in the STIP process is dependent on the level of participation tribes have provided in terms of providing project proposals to district engineers, COG’s, and the State Transportation Board. The more the tribe is involved the better a chance for the STIP to address some of the tribal issues. The tribal STIP is also sent to FHWA and ADOT for inclusion in the STIP. Tribal STIP projects, other than BIA-IRR projects, must be sent to ADOT for inclusion in the priority programming process. There is Transportation Board meeting input required from different levels of representatives from the tribes.

18. Is traffic volume data of BIA system routes (off state routes) needed by ADOT?

    BIA supplies what data it has and ADOT will accumulate data that it may need for major studies. The statewide HPMS database maintained through the ADOT-TPD has some traffic information as well.

19. What type of data does NDOT collect under the planning contract?

    Average Daily Traffic (ADT), comprehensive planning, mapping, accident reporting, Global Positioning System (GPS) roads, inventories of roads and bridges, and data for the 20-Year Long Range Transportation Plan (LRTP).

20. Are scenic by-way projects on the planning list for new construction or improvements?

    Some projects are eligible for special grants but they go through the normal priority programming process and may be required to compete on a national level as well.

21. Who monitors air quality on tribal lands?

    The U.S. Environmental Protection Agency (EPA) and/or tribes do the monitoring. It is up to the tribe to determine how they want to handle it. Air Quality on tribal lands within metropolitan non-attainment areas is usually monitored by the MPO.

22. What is the difference between the STP and the STIP?

    The Surface Transportation Program (STP) deals with dollars and is one of the major federal highway funding programs. The STP provides the bulk of federal money to the states and the Federal Lands Highway Program. The Statewide Transportation Improvement Program (STIP) is a document that ADOT develops by compiling a three-year project list in cooperation with all federal agencies, COGs, and MPOs as required under TEA-21. All highways and transit projects in the State, funded under Title 23 and the Federal Transit Act, must be included in a federally approved STIP.

23. Does Navajo do their own archeological surveys?

    Yes, under a P.L. 93-638 contract with the BIA. Contact Roger Walkenhorst of the Navajo Nation DOT in Window Rock at (928) 871-6498.

24. What is the Navajo Nation doing with Navajo gasoline tax “NHURF?”

    There is no “NHURF”. The Navajo gas tax is used on tribal transportation projects and policy is under development.

25. When Navajo talks about spending $1,000 per mile per year on their roads, are they talking about paved or dirt roads? Does that include funds for maintenance?

    The money is for maintenance only and is more on the order of $300 - $700 per mile or approximately one sixth of the funds the states or counties spend for the same mile of road to maintain.

26. Where do county roads operation, construction and maintenance fit in?

    Counties are responsible for the operation, construction and maintenance of county owned roads over Indian land and should coordinate these activities with local tribal officials. Coconino and Apache counties have reached agreement with BIA to maintain some of the BIA routes in the respective counties. Navajo County has been funding the purchase of roadway maintenance materials to be used by BIA or the individual communities in road improvements.

27. Why don’t (the) Navajo roads constructed have the ROW fenced?

    In the past Navajo roads were constructed through lands classified as open-range. The Navajo Council has since requested that all roads constructed include fencing at the right of way boundaries. Some roads built in the past without fencing have remained unfenced. But more recently fencing has been included in road construction projects. Some ROW fencing projects have been entered in the construction priorities for programming. One major problem the BIA has with fenced ROWs is tort liability. Therefore, the BIA discourages the fencing of road ROWs unless there is strong support to do otherwise.

28. Who is responsible for livestock on state/county road ROWs that present danger to traffic on the Navajo Reservation (Mr. Frazier’s presentation)?

    Those who own the livestock, according to the Navajo Nation Supreme Court and the tribal code. The livestock owner is responsible where fencing is installed. Enforcement for gate closures along BIA, state, and county roads is under the jurisdiction of the Navajo Nation. Other tribes have different policies in regards to keeping livestock off the roadway.

29. How was the ROW obtained for the state highway crossing two Moencopi allotments above the village?

    This will need to be researched. In most cases the right of way was obtained through BIA when the roadway was originally constructed and then it was turned over to ADOT when the roadway was declared a state highway. A formal request for further information can be made by contacting Chief Right of Way Agent of the ADOT Right of Way Group at (602) 712-7316.

30. What is the number of projects and construction costs for building and improving roads on/off the reservations (Hopi & Navajo)?

    The average construction cost for projects on reservations are a little higher than some of the costs off the reservation. Most of the increase in costs is due to increased haul distances for materials and meeting the different employment requirements dictated by tribal law (Per ADOT).

    The number varies from year to year for Navajo depending on the funding, size of projects, degree of project readiness, as examples (Per BIA-NRO).

    This information is available for the Hopi and Navajo Reservations from the BIA- WRO and NRO Branch of Roads, upon receipt of a written request from the tribe (Per BIA-WRO).

31. If the HELP program can be accessed by tribes, then ADOT and regional engineers should have public meetings on reservations.

    Visit the HELP website for more information.

32. How has the State Transportation Board addressed the needs on the reservation located within municipalities?

    There has been limited opportunity to do so because there is very little reservation land within municipal boundaries. Any improvements are based on the identification of needs and prioritized on a statewide basis.

33. Local transit program for Tribes?

    IRR construction funds may be used to construct transit system facilities (i.e. transit pick-up shelters) and purchase vehicles for a tribal transit program, but, cannot be used to operate the program. Funds for both capital improvements/purchases and operating assistance are available from the Federal Transit Administration, under Section 5311, through the state DOT. Funds are also available from the Federal Transit administration, under Section 5313, through the state DOT, to provide training and technical assistance to transit operators.

34. How can the tribe/state coordinate transit funding to better the transit needs of the tribes?

    Transit planning should be coordinated with input from both government entities and transit plans should be implemented with involvement of all impacted parties. Communication between both government entities is key.

35. Is the Navajo Nation being adequately funded/considered for transit program funding?

    No. Operations budget is needed to cover expenses such as facilities, repairs, and general operations.

36. How are state and metro planning processes involving tribes that are located within metro areas? How is the BIA involved?

    BIA involvement is limited to providing information on BIA projects, and providing the names of tribal contacts to State DOTs and MPOs to assist them in meeting the statewide planning “consultation” requirements of 23 U.S.C. 135(d) (2) - Consultation with Governments.

37. What can be done to streamline or shorten the length of time to obtain road projects to get started?

    This issue needs to be addressed on a tribe-by-tribe and project-by-project basis, as there are certain activities and time frames associated with the project development. Typical time frames for a BIA-WRO road construction project are delineated on the “Pre-Construction Activities” flowchart (a copy of this handout is included in the Appendix). In the BIA-NRO, the existing tribal ROW, NEPA, and other processes need to be restructured to allow for a more streamlined approach to getting transportation needs met in a timelier manner.

38. How much involvement do Indian tribes have in planning?

    Tribal involvement in planning is directly dependent on the individual tribes ability to access and be a part of the planning effort. Contact ADOT-TPD, the respective ADOT district engineer, or the COG. On Navajo, the transportation planning process starts at the Chapter level and is elevated to the Agency and Council Committee levels. Tribes have a major role in the IRR program transportation planning process. They develop or assist in the development of long range transportation plans, they conduct and/or participate in public meetings for transportation planning and/or road construction projects and they establish road construction priorities, which are used to develop the IRR TIP.

39. How can HURF rules and regulations be changed to benefit tribal lands?

    This will take State legislative action.

40. HURF swap – affects on Indian reservation projects and proposals?

    At the present time tribes have been advised by NACOG and ADOT that Indian reservation projects are ineligible to receive HURF assistance.

41. HURF: What distinguishes a highway from other types of roads?

    With regard to HURF and pursuant to A.R.S. 28-6531, "Arterial street or highway means a street or highway used primarily for through traffic in such manner that vehicular traffic from intersecting streets and highways is required by law to stop or yield before entering or crossing the street or highway.” See ARS 28-6531. The COG’s can give further information regarding the definition of highways and roads.

42. What can be done to streamline or shorten the length of time to obtain road projects to get started?

    This issue needs to be addressed on a tribe-by-tribe and project-by-project basis, as there are certain activities and time frames associated with the project development. Typical time frames for a BIA-WRO road construction project are delineated on the “Pre-Construction Activities” flowchart (a copy of this handout is included in the Appendix). In the BIA-NRO, the existing tribal ROW, NEPA, and other processes need to be restructured to allow for a more streamlined approach to getting transportation needs met in a timelier manner.

43. How much involvement do Indian tribes have in planning?

    Tribal involvement in planning is directly dependent on the individual tribes ability to access and be a part of the planning effort. Contact ADOT-TPD, the respective ADOT district engineer, or the COG. On Navajo, the transportation planning process starts at the Chapter level and is elevated to the Agency and Council Committee levels. Tribes have a major role in the IRR program transportation planning process. They develop or assist in the development of long range transportation plans, they conduct and/or participate in public meetings for transportation planning and/or road construction projects and they establish road construction priorities, which are used to develop the IRR TIP.

44. How can HURF rules and regulations be changed to benefit tribal lands?

    This will take State legislative action.

45. HURF swap – affects on Indian reservation projects and proposals?

    At the present time tribes have been advised by NACOG and ADOT that Indian reservation projects are ineligible to receive HURF assistance (Per BIA-NRO).

46. HURF: What distinguishes a highway from other types of roads?

    With regard to HURF and pursuant to A.R.S. 28-6531, "Arterial street or highway means a street or highway used primarily for through traffic in such manner that vehicular traffic from intersecting streets and highways is required by law to stop or yield before entering or crossing the street or highway.” See http://www.azleg.state.az.us/ars/28/06531.htm. The COG’s can give further information regarding the definition of highways and roads.

47. What about tribal sovereignty as it relates to funds and communications?

    Congress determines the rules regarding tribal sovereignty. Executive Orders govern them.

48. Can the tribes use STP funds? If so, on which type of roads (i.e. state highways, local, driveways?

    Yes, STP funds are eligible to be spent on functionally classified roads above rural minor collector. ADOT can assist you if you need to determine whether a road is functionally classified or not. In addition, up to 15% of rural STP funds may be spent on rural minor collectors.

49. What protocol should be followed for each tribe?

    Key contacts need to be established within each community (tribal and other), so proper protocols can be established. It is realized there is a special relationship between tribes and the federal government but there is also a need for cooperation between the state and the tribes. The Arizona Commission of Indian Affairs has a list of all Native American tribal contacts. Milton Bluehouse, Jr. is the Executive Director and point of contact he can be reached at (602) 542-3123

    How can communications be improved between ADOT, other state agencies and the tribes? A way to direct/funnel information to appropriate offices is needed.

    The most effective process that has been found to date is to coordinate transportation related activities with the tribe’s respective district. District personnel have both the knowledge and the ability to direct specific requests to where they can best be handled. Tribal contacts have been, in the past, based on personal contacts rather than through specific offices. It may help if there are specific offices that are points of contact for ADOT District personnel. Contacts for various state agencies can be found on the Arizona State web site. The ADOT Intermodal Transportation Division organization chart is available on the ADOT ITD web page and the ADOT Phone Book is located at http://www.azdot.gov/index_docs/contact_adot.asp

50. How can the tribes help to improve the communication between agencies in trying to clear projects in a timely manner - bid date (e.g. R/W clearance, tribal council meetings, etc.)?

    Work with the Districts and the respective project manager when coordinating clearances and tribal meetings. In most cases the District personnel will have knowledge of what is being proposed and what is programmed for projects within various Indian reservations.

51. Explain more about the MoveAZ goal on Stewardship.

    The Arizona State Transportation Board envisions a multimodal state transportation system that is safe, efficient and dependable. Each mode will perform its specific role with all modes working together to provide the maximum mobility and connectivity for people, services and goods with a high priority for the pursuit of advanced technology. Improvements to the mobility of passengers and goods will incorporate concerns for the environment and will be accomplished through coordination with government entities, consultation with stakeholders and the general public as well as consideration of community values.

    To facilitate future development in the state, through the implementation of performance expectations, the Board has established a framework of goals, factors and objectives for planning and programming transportation programs and projects.

    The MoveAZ Long-Range Goal on stewardship states: “A balanced cost effective approach that combines preservation with necessary expansions and coordinates with regional, tribal and local transportation and land use planning.” Performance factors for this goal include preservation and mobility. The performance objectives for each are as follows:

    Performance

    • Preserve and maintain existing transportation infrastructure.
    • Develop and implement an access management program to preserve the functionality of the state highway system.
    • Coordinate planned transportation system expansions with future funding capabilities.
    • Increase efficient coordination of state transportation planning and programming processes with local, tribal and regional land use planning processes.

    Mobility

    • Increase and/or protect capacity of the existing transportation system through increased use of traffic operation and management strategies, including Intelligent Transportation System (ITS) methods.

    Additional information on the MoveAZ Long-Range Plan can be viewed at www.moveaz.org.

52. How is the $0.18 fuel tax distributed to the tribes?

    The tax is collected at the “rack” on a per gallon basis. For those tribes that have fuel compacts, the basis of return is the gallons of fuel sold at reservation pumps, e.g., the Navajo have a compact. If the tribe has no compact, the tax collected stays with the State. The revenues do come back to tribal lands through the maintenance and construction work on State highways that pass through the tribal lands.

53. How can we put our own tax on fuel, or waive the tax we “pay” but are not having returned?

    Some tribes in other states have created their own gas tax. An Oklahoma court case outlines the requirements for this process. To our knowledge, there is no way to waive the taxes on fuel being distributed to the reservations. As noted above, the Navajo have entered into a compact with the State to retrieve the tax for gasoline sold on the reservation. Contact Kathy Morley at ADOT for additional detail. She can be reached at (602) 712-4027 or at kmorley@azdot.gov.

54. Can the reservation use state, gas and diesel tax?

    State fuel tax revenues are used on state highways within reservation boundaries in terms of maintenance and construction expenditures. Any other programs are subject to the law and rules that apply to the use of State monies within reservation boundaries.

55. Why is a fuel compact required?

    The State of Arizona, in accordance with guidelines established by a Supreme Court decision, has set the fuel tax at the “rack”, which means the tax is passed onto the retailers as a cost of fuel. To reimburse tribes for their share of the tax, a compact must be entered into with the State. It provides a framework for how the State and tribes can work together and how a State tax can be collected.

56. Why is it necessary for tribes to have a fuel compact with the state?

    The State of Arizona, in accordance with guidelines established by the Supreme Court, has set the fuel tax at the “rack”, which means the tax is passed onto the retailers as cost of the fuel. To reimburse tribes for their share of the tax, a compact must be entered into with the State.

57. Can tribes enter into stewardship agreements with the state or FHWA?

    The possibility exists though there has been no such agreement to date. This is the same process as with federal funding. Tribes must follow State statutes and work through the MPO or COG. Or the tribe can partner with the State and jointly fund projects as previously mentioned.

58. Could you provide additional information on the 2003 STIP?

    The 2003 STIP has been approved and is now in the process of being published. The STIP website is updated and even includes STIP amendments, it can be accessed via the web at http://tpd.azdot.gov/pps/default.asp. Additional information can also be received by contacting Debbie Mayfield at (602) 712-7622 or Lupe Harriger at (602) 712-8238, both at ADOT.

59. STIP stakeholders – where are the Tribes?

    Tribal transportation projects are represented primarily by BIA Roads program that is submitted to the Federal Highway Administration (FHWA) and then included in the State program. Input to the State program is accomplished through input to the programming and design of State highway projects.

60. Why isn’t the BIA TIP combined with the State TIP?

    These are two totally separate processes and there is not a plan to combine them. However, the plans are coordinated. ADOT receives BIA’s TIP and adds it to the Statewide Transportation Improvement Program (STIP). Perhaps the tribes could help facilitate this process in the future.

61. Could you explain the TERO Program Coordination requirements?

    An issue was raised regarding ADOT Maintenance contracts not being included in TERO requirements. We do a good job of including TERO stipulations in construction contracts, but often overlook in maintenance contracts. This is partially due to the fact that each tribe has its own rules, such as the dollar amount of the contract. Several tribal representatives noted that the tribes would like to have an opportunity to participate in these contracts (e.g. Sacaton rest area maintenance).

62. Who is responsible for maintenance and construction of roads on tribal lands?

    The BIA is responsible. The BIA receives $40 - $50M annually for maintenance. The BIA or the 638 contract, either maintains the roads. The State is responsible for State highways that traverse tribal land, which include numbered Interstates, U.S. Routes and State Routes.

63. Please provide some detail additional information on road maintenance?

    The Department of Interior provides an appropriation of $40 - $45M annually for maintenance. This amount has been the same for the past 6 to 7 years, which has hurt the roads program. The Western Region (4,779 miles) receives approximately $4M annually for all costs including labor, materials, supplies, equipment maintenance and replacement, which is not near enough to meet the total needs, given the expanse of territory from high mountains to low deserts.

64. Were any of the ten milestone meetings held on Indian Reservations? If yes, where? If no, why?

    The answer is yes, the Native American Tribal Focus Group meeting was held in Sells (Tohono O’odham) and Regional Transportation Forums were held on the San Carlos Apache Reservation and here on the CRIT Reservation. In the next round, meetings are planned for Window Rock (Navajo), Sells, Page (adjacent to Navajo) and here (CRIT).

65. How do tribes provide material sources? Specifically comment on environmental clearances and federal constraints.

    On federal trust land, work is done with BIA for clearances. ADOT has a standard specification regarding endangered species, flood plan, cultural resource survey, etc. Construction contracts require the use of materials from cleared sources. (If a site is cleared for use, you can become a competitive advantage for contractors working in your area.) We need more tribal sources. Commercial sources must also be cleared prior to use; ADOT requires this of all contractors. Could materials be considered a “matching” element? The answer is potentially, if it meets quality requirements.

66. Please define functional classifications again. What is its importance?

    The Functional Classification determines where the dollars from FHWA will go. Roadways are classified by roadway function; hierarchy goes from freeway to arterials to collectors to local. More information is available on FHWA’s and ADOT’s websites and ADOT also has a book with descriptions available, please see http://tpd.azdot.gov/gis/fclass/index.php

67. When the Functional Classification is changed, does the Tribe give up right of way and does it change who is responsible for maintenance of the road?

    A change in the functional classification does not cause the tribe to give up right of way and it doesn’t affect ownership or maintenance responsibility.

68. Does the countywide accident data include the tribal data?

    It is the sponsoring agency’s responsibility to report accident data and get it into the Accident Location and Identification Surveillance System (ALISS). If it is not reported, it is not included. On reservations, ADOT owns the road, but the tribal agencies do enforcement, so the state needs to get the information from the tribal agency. It is important to report the data correctly (milepost, type of accident, etc.). The tribal agency needs to know how to report the necessary information accurately. There is inconsistency in forms used on the various reservations. There is also reluctance to provide personal information. It is important to note that ADOT does not need or want the private information, just the statistics like location and type. With the new performance measures, safety is a criteria, so getting good data is vital to getting priority on a project.

69. What is the difference between Title 23 and the 23 Code of Federal Regulations?

    The numbering is purely coincidental. Title 23 is the law that set up the federal transportation funding process. The 23 CFR are the FHWA rules and regulations that govern how the laws will be implemented and managed.