Shadowrock Park
Appeal Brief
Appeal Letter
Citation: FEMA-1412-DR-MO; City of Forsyth; No PW Drafted
Cross-reference: Ineligible Project
Summary: Following severe storms and flooding in April, May and June 2002, the City of Forsyth requested Public Assistance for damages sustained to Shadowrock Park. The State of Missouri Emergency Management Agency (the State) and FEMA determined that Shadowrock Park was not eligible for assistance and did not prepare a Project Worksheet when it was discovered that the land was leased from the U.S. Army Corps of Engineers (USACE), with an agreement to hold the United States Government harmless from any claims of damage or injury that occurred on the property. In July 2002, the City appealed FEMAs decision to deny Public Assistance funding for the repair of the Park. The City interpreted Paragraph 10 in the USACE lease agreement to mean that the U.S. Government would be held harmless from liability, not [as] a clause that denies Public Assistance for critical projects in this time of need. FEMA denied the first appeal in October 2002, based on the parks location outside the City limits and the USACE lease agreement. The City submitted a second appeal in October 2002, reiterating its claim that the request for assistance under Section 406 of the Stafford Act was not a claim of liability against the U.S. The State recommended that the second appeal be denied, as the City of Forsyth has not submitted any additional information to overturn the initial appeal decision.
Issues: Is Shadowrock Park eligible for Federal disaster assistance?
Findings: No. The Citys Lease Agreement with the U.S. Army Corps of Engineers explicitly precludes the Federal Government from providing assistance in specified situations.
Rationale: 44 CFR §206.223.
Appeal Brief
| Disaster | FEMA-1412-DR |
| Applicant | City of Forsyth |
| Appeal Type | Second |
| PA ID# | 213-25192-00 |
| PW ID# | N/A |
| Date Signed | 2003-06-20T04:00:00 |
Appeal Letter
June 20, 2003
Mr. Jerry Uhlmann
Director
Missouri Emergency Management Agency
P.O. Box 116
Jefferson City, Missouri 65102
Re: Second Appeal City of Forsyth, Shadowrock Park, FEMA 1412-DR-MO
Dear Mr. Uhlmann:
This letter is in response to your November 15, 2002, letter forwarding the referenced second appeal on behalf of the City of Forsyth. The City has requested that the Federal Emergency Management Agency (FEMA), which is now part of the Department of Homeland Security, reconsider the Public Assistance eligibility for Shadowrock Park.
Following severe storms and flooding in April, May and June 2002, the City of Forsyth requested Public Assistance for damages sustained to Shadowrock Park. The State of Missouri Emergency Management Agency (the State) and FEMA determined that Shadowrock Park was not eligible for Public Assistance and did not prepare a Project Worksheet when it was discovered that the land was leased from the U.S. Army Corps of Engineers (USACE), with an agreement that the United States Government would not have to pay for any damages that occurred on or to the property. Paragraph 10 of the USACE lease for Shadowrock Park (Lease No. DACW03-1-80-201) states:
The United States shall not be responsible for damages to property or injuries to persons, which may arise from or be incident to the exercise of the privileges herein granted, or for damages to the property of the lessee, or for damages to the property or injuries to the person of the lessees officers, agents, servants, or employees or others who may be on the premises at their invitation or the invitation of any one of them, arising from or incident to the flooding of the premises by the Government or flooding from any other cause, or arising from or incident to any other governmental activities, and the lessee shall hold the United States harmless from any and all such claims.
The City first appealed FEMAs decision to deny Public Assistance funding for the repair of Shadowrock Park in a letter dated July 11, 2002. In its argument, the City interpreted Paragraph 10 in the USACE lease agreement to mean that the United States Government would be held harmless from liability, not [as] a clause that denies Public Assistance for critical projects in this time of need. The City claimed that FEMA was inconsistent in granting Public Assistance, and provided examples of unequal treatment in other Public Assistance projects involving USACE land.
The State in its transmittal letter, dated August 2, 2002, recommended that the appeal be denied, based on the USACE lease provisions. FEMA denied the first appeal in a letter dated October 9, 2002, based on the parks location outside the City limits and the USACE lease agreement. FEMAs letter stated that, the lease agreement states that any damages are not eligible for any reimbursement from the United States Government. FEMA is a branch of the US Government and is prohibited from providing Public Assistance to the repair of the flood damages. It was explained that the differences between Shadowrock Park and Public Assistance projects involving USACE land were a result of either FEMA funded emergency measures to provide access to properties accessible only through USACE land, or involved USACE funding for the repair of damage on its own lands.
In a letter dated November 15, 2002, the State transmitted the City of Forsyths second appeal dated October 30, 2002. The City states that the property is within City Limits, not outside of the City limits as the Regional Director indicated in the first appeal denial letter. The City also reiterated its claim that the request is for assistance to repair or relocate community buildings located within Shadowrock Park under Section 406 of the Stafford Act and not a claim of liability against the US.
The State recommended that the second appeal be denied, as the City of Forsyth has not submitted any additional information to overturn the initial appeal decision.
The central issue under consideration is the interpretation of Paragraph 10 of the USACE lease for Shadowrock Park (Lease No. DACW03-1-80-201). FEMAs first appeal determination regarding the USACE lease provision is consistent with previous appeal decisions (reference PA ID # 071-00000, 1203-DR-CA, San Bernardino County, DSR # 95376, Prado Tiro Shooting Range, April 2001) pursuant to USACE indemnity clauses and 44 CFR §206.223. Since the USACE lease indemnifies the United States Government from all claims, there is no basis for funding repairs. Accordingly, I conclude that Shadowrock Park is not eligible for assistance. Therefore, I am denying the appeal.
Please inform the City of my decision. My determination constitutes the final decision on this matter pursuant to 44 CFR §206.206.
Sincerely,
/S/
Laurence W. Zensinger
Acting Director, Recovery Division
Emergency Preparedness and Response Directorate
Department of Homeland Security
cc: Richard Hainje
Regional Director
FEMA Region VII
Mr. Jerry Uhlmann
Director
Missouri Emergency Management Agency
P.O. Box 116
Jefferson City, Missouri 65102
Re: Second Appeal City of Forsyth, Shadowrock Park, FEMA 1412-DR-MO
Dear Mr. Uhlmann:
This letter is in response to your November 15, 2002, letter forwarding the referenced second appeal on behalf of the City of Forsyth. The City has requested that the Federal Emergency Management Agency (FEMA), which is now part of the Department of Homeland Security, reconsider the Public Assistance eligibility for Shadowrock Park.
Following severe storms and flooding in April, May and June 2002, the City of Forsyth requested Public Assistance for damages sustained to Shadowrock Park. The State of Missouri Emergency Management Agency (the State) and FEMA determined that Shadowrock Park was not eligible for Public Assistance and did not prepare a Project Worksheet when it was discovered that the land was leased from the U.S. Army Corps of Engineers (USACE), with an agreement that the United States Government would not have to pay for any damages that occurred on or to the property. Paragraph 10 of the USACE lease for Shadowrock Park (Lease No. DACW03-1-80-201) states:
The United States shall not be responsible for damages to property or injuries to persons, which may arise from or be incident to the exercise of the privileges herein granted, or for damages to the property of the lessee, or for damages to the property or injuries to the person of the lessees officers, agents, servants, or employees or others who may be on the premises at their invitation or the invitation of any one of them, arising from or incident to the flooding of the premises by the Government or flooding from any other cause, or arising from or incident to any other governmental activities, and the lessee shall hold the United States harmless from any and all such claims.
The City first appealed FEMAs decision to deny Public Assistance funding for the repair of Shadowrock Park in a letter dated July 11, 2002. In its argument, the City interpreted Paragraph 10 in the USACE lease agreement to mean that the United States Government would be held harmless from liability, not [as] a clause that denies Public Assistance for critical projects in this time of need. The City claimed that FEMA was inconsistent in granting Public Assistance, and provided examples of unequal treatment in other Public Assistance projects involving USACE land.
The State in its transmittal letter, dated August 2, 2002, recommended that the appeal be denied, based on the USACE lease provisions. FEMA denied the first appeal in a letter dated October 9, 2002, based on the parks location outside the City limits and the USACE lease agreement. FEMAs letter stated that, the lease agreement states that any damages are not eligible for any reimbursement from the United States Government. FEMA is a branch of the US Government and is prohibited from providing Public Assistance to the repair of the flood damages. It was explained that the differences between Shadowrock Park and Public Assistance projects involving USACE land were a result of either FEMA funded emergency measures to provide access to properties accessible only through USACE land, or involved USACE funding for the repair of damage on its own lands.
In a letter dated November 15, 2002, the State transmitted the City of Forsyths second appeal dated October 30, 2002. The City states that the property is within City Limits, not outside of the City limits as the Regional Director indicated in the first appeal denial letter. The City also reiterated its claim that the request is for assistance to repair or relocate community buildings located within Shadowrock Park under Section 406 of the Stafford Act and not a claim of liability against the US.
The State recommended that the second appeal be denied, as the City of Forsyth has not submitted any additional information to overturn the initial appeal decision.
The central issue under consideration is the interpretation of Paragraph 10 of the USACE lease for Shadowrock Park (Lease No. DACW03-1-80-201). FEMAs first appeal determination regarding the USACE lease provision is consistent with previous appeal decisions (reference PA ID # 071-00000, 1203-DR-CA, San Bernardino County, DSR # 95376, Prado Tiro Shooting Range, April 2001) pursuant to USACE indemnity clauses and 44 CFR §206.223. Since the USACE lease indemnifies the United States Government from all claims, there is no basis for funding repairs. Accordingly, I conclude that Shadowrock Park is not eligible for assistance. Therefore, I am denying the appeal.
Please inform the City of my decision. My determination constitutes the final decision on this matter pursuant to 44 CFR §206.206.
Sincerely,
/S/
Laurence W. Zensinger
Acting Director, Recovery Division
Emergency Preparedness and Response Directorate
Department of Homeland Security
cc: Richard Hainje
Regional Director
FEMA Region VII
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