Monday, April 6, 2009

Columbia Venture LLC v. SC Wildlife Federation

Apr 3: In the U.S. Court of Appeals, Fourth Circuit, Case Nos. 05-2398, 06-1072, 08-1033, & 08-1034. The Federal Emergency Management Agency (FEMA), the South Carolina Wildlife Federation, et al (Defendants) jointly appeal the district court’s order vacating the 2001 base flood elevation determinations adopted by FEMA for Richland County, South Carolina. The district court vacated these determinations because of FEMA’s failure to timely publish notice in the Federal Register as required by 42 U.S.C. § 4104(a). Because Columbia Venture did not establish that it was prejudiced by this failure to publish, the Appeals Court reversed the district court’s Order of Vacatur and remand the case for further proceedings.

The Appeals Court explains that The sole grounds for an appeal under § 4104(b) is a claim that the flood elevations are scientifically or technically incorrect. FEMA must "review and take fully into account" any submitted data that tends to "negate or contradict the information upon which [the] proposed determination is based." Once FEMA resolves the administrative appeal,
any appellant aggrieved by its final determination has 60 days to appeal to the federal district court where the community is located. In 2005, Columbia Venture first learned of FEMA’s defective publication. It filed a motion to vacate the final base flood elevation determinations for the Congaree River, arguing that FEMA’s failure to comply with § 4104(a) rendered those determinations null and void. The district court granted the motion in favor of Columbia Venture. Defendants timely appealed.

The Appeals Court said FEMA does not dispute that it failed to timely publish notice of its August 1999 proposed determinations in the Federal Register in violation of § 4104(a). However, a failure to timely publish does not per se result in nullification of the agency action. Instead, § 4104(g) incorporates chapter 7 of Title 5 of the Administrative Procedures Act, which provides that "due account shall be taken of the rule of prejudicial error." 5 U.S.C. § 706. Therefore, "the party who claims deficient notice bears the burden of proving that any such deficiency was prejudicial," and if that party fails to carry its burden, the agency’s decision must be upheld. Friends of Iwo Jima v. National Capital Planning Comm’n, 176 F.3d 768, 774 (4th Cir. 1999).

The Appeals Court finds that, "Despite Columbia Venture’s attempts to distinguish Friends of Iwo Jima, we find that it controls. Columbia Venture has not shown that it suffered prejudice as a result of FEMA’s defective publication.

Finally, the Appeals Court rules, "As in Friends of Iwo Jima, because its position 'was considered and simply did not prevail,' Columbia Venture was not prejudiced. . . Because FEMA’s failure to comply with § 4104(a) did not prejudice Columbia Venture, we reverse the district court’s Order of Vacatur and remand for further proceedings."

Access the complete opinion (
click here).