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Second Appeal Letter
PA ID# 000-39374-00; La Jolla Band of Luiseno Indians
PW ID# 815; La Jolla Band of Luiseno Indians
January 4, 2010
FEMA Tribal Authorized Representative
La Jolla Band of Luiseno Indians
22000 Highway 76
Pauma Valley, California 92061
Re: Second Appeal–La Jolla Band of Luiseno Indians, PA ID 000-39374-00
Legal Responsibility, FEMA-1731-DR-CA, Project Worksheet (PW) 815
Dear Ms. Peck:
This is in response to your letter dated March 9, 2009, which transmitted the referenced second appeal on behalf of the La Jolla Band of Luiseno Indians (Tribe). The Tribe is appealing the Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) denial of $67,636 for reimbursement of costs to set up five mobile homes.
As a result of the wildfires in October 2007, the La Jolla Indian Reservation sustained tremendous fire damage to homes and other property. FEMA prepared PW 815 totaling $67,636 for the set-up of five mobile homes to replace tribal members’ homes destroyed by the disaster. Initially, FEMA determined PW 815 ineligible because the mobile homes were located in a floodplain. In its first appeal received on October 31, 2008, the Tribe stated that FEMA never determined that the mobile homes were located in a Special Flood Hazard Area as designated on the National Flood Insurance Program maps. In the first appeal response dated January 14, 2009, the Acting Regional Administrator acknowledged that FEMA had not determined that the mobile homes were located in a floodplain. However, the Acting Regional Administrator denied the appeal because the Tribe did not have legal responsibility for the damaged homes or for the provision of temporary facilities to the individual owners. In addition, the homeowners received Individual Assistance (IA) from FEMA for the damage to their homes.
In the second appeal submitted to FEMA on March 9, 2009, the Tribe asserts it has legal responsibility for the damaged homes. In support of its argument, the Tribe submitted its Constitution citing Article 1 (Jurisdiction) and Article 6 (Powers of the Tribal Council) as the basis for its legal responsibility. The Tribe states that it defines its legal responsibility “as always acting on behalf of the General Membership made up of its individual tribal members.” It is “legally responsible for enacting and implementing the contracts, services, programs, and other goals and objectives as they are defined and sanctioned by its General Membership.” The Tribe further argues that FEMA’s PAC Crew Leader did not properly perform his or her duties and did not educate the Tribe on the differences between the Public Assistance program and the IA program.
Title 44 CFR§206.223(a)(3), General Work Eligibility states, “To be eligible for financial assistance, an item of work must be the legal responsibility of an eligible applicant.” The Public Assistance Guide (FEMA 323/June 2007) states that, “Ownership of a facility is generally sufficient to establish responsibility.” I have reviewed the information submitted with the second appeal, including the Tribe’s Constitution. The Tribe has not established that it had legal responsibility for the homes that were damaged by the disaster. The Stafford Act and FEMA regulations do not authorize the use of Public Assistance funding to establish temporary housing or replace privately owned housing. Homeowners can apply to FEMA’s IA program for housing assistance. The record indicates that the homeowners in this case applied for and received IA funding.
I have reviewed the information submitted with the appeal and have determined that the Acting Regional Administrator’s decision in the first appeal is consistent with Public Assistance regulations and policy. Accordingly, I am denying the second appeal.
Please inform the Tribe of my decision. This determination is the final decision on this matter pursuant to 44 CFR §206.206, Appeals.
Elizabeth A. Zimmerman
Disaster Assistance Directorate
cc: Nancy Ward
FEMA Region IX