Monday, August 16, 2010

Great Rivers Habitat Alliance v. FEMA

Aug 12: In the U.S. Court of Appeals, Eighth Circuit, Case No. 09-3183. Great Rivers Habitat Alliance (Great Rivers) and the Adolphus A. Busch Revocable Living Trust (Busch Trust) (collectively, appellants) appeal the dismissal of their case for lack of jurisdiction by the Magistrate Judge presiding with the consent of the parties. The district court found appellants failed to exhaust their administrative remedies before the Federal Emergency Management Agency (FEMA) pursuant to the National Flood Insurance Act of 1968 (NFIA), and further found the judicial review provisions of the Administrative Procedure Act (APA) did not apply. Appellants argue the case was dismissed in error because they had in fact exhausted their administrative remedies, and in any event should be allowed to proceed under the APA. The Appeals Court affirmed the district court decision.
    On the APA claim, the Appeals Court said, "Because the APA only grants judicial review of final agency action in cases 'for which there is no other adequate remedy in a court,' 5 U.S.C. § 704, the district court did not err in dismissing appellants' APA claim, because 42 U.S.C. § 4104(g) provides an adequate legal remedy."
    On the jurisdictional question the Appeals Court said it can be "reduced to whether appellants challenged FEMA's decision on the basis of the decisions' scientific or technical accuracy in accordance with § 4104(b). In order to appeal a determination on the basis of scientific or technical accuracy, FEMA's regulations require supporting documentation. . . Appellants did not point to any mathematical or measurement error, changed physical conditions, or lack of sufficient quality data to support the allegations . . . We agree with the district court that appellants' challenge was not based upon the scientific or technical accuracy of the LOMR [Letter of Map Revision], and thus did not constitute an appeal within the meaning of 44 C.F.R. § 67.6."
    The Appeals Court said finally, ". . . the regulations require appellants to certify new information so FEMA can conduct another analysis. This is precisely what appellants failed to do in this case. Instead, appellants attempt to force FEMA to reanalyze the existing data, hoping for a different result, without submitting any new certified technical data showing the first analysis contained mathematical or measurement errors, or physical conditions have changed. Because appellants did not submit new scientific or technical information, and what they did submit was not certified by an engineer or surveyor, appellants are relying on nothing but the data in FEMA's files. The district court correctly concluded it lacked jurisdiction because appellants failed to exhaust their administrative remedies by filing a proper appeal with FEMA."
    Access the complete opinion (click here).

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