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U.S. Forest Service, Indians Road Repair
Appeal Brief
Appeal Letter
Appeal Analysis
PURPOSE: Respond to third appeal submitted by Monterey County Public Works Department
DISCUSSION: In March 1995, heavy rains caused numerous areas of damage on Indians Road in Los Padres National Forest. Indians Road is a one-lane dirt road, 10-12 feet wide, used exclusively for recreation. The roadway was impassable at each of 23 slide locations. DSR 71096 was prepared on September 18, 1995 for debris removal ($3,955) and slipout repair ($139,300), totaling $143,257. The U.S. Forest Service (USFS) owns Indians Road. However, the USFS shares maintenance responsibility with the Monterey County (County) through a 1977 written agreement between the two agencies. Upon review, DSR 71096 was determined ineligible because the roadway is owned by the USFS. The April 1996, first appeal included a copy of the 1977 agreement between the County and USFS, which specified the County's responsibility for routine maintenance while indicating that "extraordinary" repairs are to be agreed upon between parties. In October 1996, FEMA denied the first appeal, based on the language of the 1977 agreement, which stipulates that extraordinary maintenance is not covered. In January 1997, the County submitted a second appeal. USFS prepared a geotechnical survey that estimates repair costs at $421,000 for three large slides. OES transmitted the second appeal in April 1997, suggesting that an understanding exists between the County and the USFS regarding the County's maintenance responsibility. In July 1997, OES submitted copies of two "Special Use Permits," both dated in 1950 which grant the County "right of way" and require that the County perform maintenance on the roads. FEMA upheld the first appeal determination in an October 2, 1997, letter indicating that the repairs are not the legal responsibility of the County, per the 1977 agreement which OGC considers germane. On December 18, 1997, the County submitted their third appeal stating that after 1980, the County could no longer receive FHWA Emergency Relief for Federally Owned Roads funding, and, the County needed to apply under the FEMA program for emergency repairs. The County requested a meeting prior to a final determination. The 1977 agreement and a geotechnical study by the USFS, support the ineligibility of the County. Prior funding by FHWA does not support the appeal. It is recommended that the appeal be denied.
RECOMMENDED ACTION: Sign the letter informing the GAR of this decision.
Heavy rains in March 1995, caused numerous areas of damage on Indians Road in Los Padres National Forest. Indians Road is a one-lane dirt road, approximately 10-12 feet wide, used exclusively for recreation. Twenty-three locations of damage were identified on Indians Road including two large slides where the roadway was impassable. Damage Survey Report (DSR) 71096 was prepared based on a September 18, 1995, site inspection. Original estimates for restoration included debris removal for $3,955 and slipout repair (permanent restoration) for $139,302, totaling $143,257. The U.S. Forest Service (USFS) owns Indians Road. However, the USFS shares maintenance responsibility with the Monterey County Department of Public Works (County) through a 1977 agreement between the two agencies. Upon review, DSR 71096 was determined ineligible on the basis that the roadway is owned by the USFS, which has legal responsibility for these damages.
First Appeal
On April 1, 1996, the County submitted its first appeal of the determination of ineligibility for DSR 71096 to the California Governor's Office of Emergency Services (OES). The County submitted a copy of the "Forest Development Road Cooperative Agreement - Monterey County, California" dated April 1977 (agreement), which specified the County's responsibility for routine maintenance. OES transmitted the first appeal to the Regional Director on May 9, 1996, recommending funding approval because the County is bound by the agreement with the USFS to provide maintenance for Indians Road. On October 15, 1996, the Regional Director denied the first appeal, based on the language of the agreement between the County and the USFS. The Regional Director stated that the work required in DSR 71096 is "extraordinary maintenance" rather than routine, as they are both addressed in the agreement. The appeal was denied on the basis of the repairs being considered extraordinary while the agreement does not assign responsibility for extraordinary maintenance, thus the County is not legally responsible.
Second Appeal
On January 9, 1997, the County submitted a second appeal to OES. Additional information was submitted including a letter from the USFS citing the lack of progress in repairing the road and stating that a geotechnical survey was prepared by the USFS. The geotechnical survey contains a repair estimate of $421,000 for three of the major slides. In addition, a reference was made to Schedule A, Item 6 of the agreement, which states that the County is responsible for all maintenance of Indians Road. OES concurred with the second appeal on April 17, 1997, stating that a mutual understanding exists between the County and the USFS regarding the County's maintenance responsibility.
On July 21, 1997, OES submitted additional information to support the second appeal. This information included a July 1, 1997, letter from the County transmitting a June 20, 1997, letter from the USFS with two attachments: Special Use Permits dated March 27, 1950, and March 28, 1950. The Special Use Permits provide rights of way to the County and require the County to perform road maintenance.
The Associate Director upheld the Regional Director's determination in an October 2, 1997, letter stating that the County is not legally responsible for the work required, which is extraordinary maintenance, in accordance with the 1977 written agreement.
Third Appeal
On February 23, 1998, OES forwarded the County's December 18, 1997, third appeal which is based primarily on the County's legal responsibility for the repairs. The third appeal makes these general points: (1) after 1980, the County could no longer receive Federal Highway Administration (FHWA) Emergency Relief for Federally Owned Roads (ERFO) funding, and (2) after 1980, the County needed to apply under the FEMA program for emergency repairs, rather than through the USFS to FHWA for ERFO funding.
DISCUSSION
Legal Responsibility by Agreement/Contract
FEMA regulations require that eligible applicants have legal responsibility for facilities. Though ownership often establishes legal responsibility, a contract or agreement may also establish legal responsibility in leau of ownership. A review of the most current (April 1977) and applicable agreement between the County and the USFS regarding the Indians Road, reveals the following clause:"In the event it is determined that conditions on a project under maintenance require extraordinary repairs, removal, or unusually extensive slides, or similar work outside the scope of ordinary road maintenance, the performance thereof may be accomplished after both parties agree on appropriate cost shares and who will do the necessary work. If work is of an extensive nature it shall be covered by a project agreement." As indicated by FEMA in both the first and second appeal determinations, the responsibility for extraordinary repairs as set forth in this agreement is not that of the County but rather is to be determined by both parties. The County's responsibility for the repairs in question are at the discretion of the County and the USFS. Thus the agreement does not establish that the County is solely responsible for the repairs.
The subgrantee described the FHWA-ERFO funding which was received prior to 1980. Receipt of Federal funding for repairs would preclude FEMA public assistance funding. The fact that this funding was discontinued after 1980 is not pertinent to this determination of eligibility.
Legal Responsibility by Practice: History of Repairs; Regular and Extraordinary
The County has stated that they have performed all regular maintenance of Indians Road. The County has been telephoned in an effort to better document the practice of extraordinary repairs. The County stated that there have been no extraordinary repairs to Indians Road, such as repairs resulting from landslides. Furthermore, the County stated that the damage caused to Indians Road by DR-1046 has not been repaired. An indicator of the practice of responsibility is that the USFS conducted a geotechnical evaluation of areas damaged by the disaster on Indians Road.
Given that the 1977 agreement leaves the responsibility for extraordinary repairs at the discretion of both parties, there is no history of extraordinary repairs to establish which party has taken responsibility, and the USFS conducted a geotechnical engineering evaluation of certain areas affected by the disaster, the County does not have legal responsibility for the repairs.
CONCLUSION
The owner of Indians Road, the USFS, has the legal responsibility for repairs resulting from landslides. The County has never performed "extraordinary" repairs, while the USFS has conducted a geotechnical engineering evaluation. The responsibility for extraordinary repairs to the road remains with the USFS and not the County. Therefore, the County is not an eligible applicant and the appeal is denied.
Appeal Brief
| Desastre | FEMA-1046-DR |
| Applicant | Monterey County Department of Public Works |
| Appeal Type | Third |
| PA ID# | 053-91003 |
| PW ID# | 71096 |
| Date Signed | 1998-07-13T04:00:00 |
DISCUSSION: In March 1995, heavy rains caused numerous areas of damage on Indians Road in Los Padres National Forest. Indians Road is a one-lane dirt road, 10-12 feet wide, used exclusively for recreation. The roadway was impassable at each of 23 slide locations. DSR 71096 was prepared on September 18, 1995 for debris removal ($3,955) and slipout repair ($139,300), totaling $143,257. The U.S. Forest Service (USFS) owns Indians Road. However, the USFS shares maintenance responsibility with the Monterey County (County) through a 1977 written agreement between the two agencies. Upon review, DSR 71096 was determined ineligible because the roadway is owned by the USFS. The April 1996, first appeal included a copy of the 1977 agreement between the County and USFS, which specified the County's responsibility for routine maintenance while indicating that "extraordinary" repairs are to be agreed upon between parties. In October 1996, FEMA denied the first appeal, based on the language of the 1977 agreement, which stipulates that extraordinary maintenance is not covered. In January 1997, the County submitted a second appeal. USFS prepared a geotechnical survey that estimates repair costs at $421,000 for three large slides. OES transmitted the second appeal in April 1997, suggesting that an understanding exists between the County and the USFS regarding the County's maintenance responsibility. In July 1997, OES submitted copies of two "Special Use Permits," both dated in 1950 which grant the County "right of way" and require that the County perform maintenance on the roads. FEMA upheld the first appeal determination in an October 2, 1997, letter indicating that the repairs are not the legal responsibility of the County, per the 1977 agreement which OGC considers germane. On December 18, 1997, the County submitted their third appeal stating that after 1980, the County could no longer receive FHWA Emergency Relief for Federally Owned Roads funding, and, the County needed to apply under the FEMA program for emergency repairs. The County requested a meeting prior to a final determination. The 1977 agreement and a geotechnical study by the USFS, support the ineligibility of the County. Prior funding by FHWA does not support the appeal. It is recommended that the appeal be denied.
RECOMMENDED ACTION: Sign the letter informing the GAR of this decision.
Appeal Letter
July 13, 1998
Mr. D.A. Christian
Governor's Authorized Representative
Governor's Office of Emergency Services
Post Office Box 419023
Rancho Cordova, CA 95741
Dear Mr. Christian:
This letter is in response to your February 23, 1998, transmittal of Monterey County's third appeal of Damage Survey Report (DSR) 71096 under FEMA-1046-DR-CA. The applicant is requesting eligibility for estimated costs to restore several sections of Indians Road damaged by landslides.
Based on a review of the documentation submitted, I have determined that the applicant is not legally responsible for repair of these damages. Such repairs are the responsibility of the U.S. Forest Service (USFS), which owns the roads. These responsibilities are established through the 1977 cooperative agreement and by practice. As explained in the enclosed appeal analysis, the applicant's third appeal is denied.
Please inform the applicant of this determination that constitutes the final level of appeal in accordance with 44 CFR 206.206(e).
Sincerely,
/S/
James L. Witt
Director
Enclosure
cc: Martha Z. Whetstone
Regional Director
FEMA Region IX
Mr. D.A. Christian
Governor's Authorized Representative
Governor's Office of Emergency Services
Post Office Box 419023
Rancho Cordova, CA 95741
Dear Mr. Christian:
This letter is in response to your February 23, 1998, transmittal of Monterey County's third appeal of Damage Survey Report (DSR) 71096 under FEMA-1046-DR-CA. The applicant is requesting eligibility for estimated costs to restore several sections of Indians Road damaged by landslides.
Based on a review of the documentation submitted, I have determined that the applicant is not legally responsible for repair of these damages. Such repairs are the responsibility of the U.S. Forest Service (USFS), which owns the roads. These responsibilities are established through the 1977 cooperative agreement and by practice. As explained in the enclosed appeal analysis, the applicant's third appeal is denied.
Please inform the applicant of this determination that constitutes the final level of appeal in accordance with 44 CFR 206.206(e).
Sincerely,
/S/
James L. Witt
Director
Enclosure
cc: Martha Z. Whetstone
Regional Director
FEMA Region IX
Appeal Analysis
BACKGROUNDHeavy rains in March 1995, caused numerous areas of damage on Indians Road in Los Padres National Forest. Indians Road is a one-lane dirt road, approximately 10-12 feet wide, used exclusively for recreation. Twenty-three locations of damage were identified on Indians Road including two large slides where the roadway was impassable. Damage Survey Report (DSR) 71096 was prepared based on a September 18, 1995, site inspection. Original estimates for restoration included debris removal for $3,955 and slipout repair (permanent restoration) for $139,302, totaling $143,257. The U.S. Forest Service (USFS) owns Indians Road. However, the USFS shares maintenance responsibility with the Monterey County Department of Public Works (County) through a 1977 agreement between the two agencies. Upon review, DSR 71096 was determined ineligible on the basis that the roadway is owned by the USFS, which has legal responsibility for these damages.
First Appeal
On April 1, 1996, the County submitted its first appeal of the determination of ineligibility for DSR 71096 to the California Governor's Office of Emergency Services (OES). The County submitted a copy of the "Forest Development Road Cooperative Agreement - Monterey County, California" dated April 1977 (agreement), which specified the County's responsibility for routine maintenance. OES transmitted the first appeal to the Regional Director on May 9, 1996, recommending funding approval because the County is bound by the agreement with the USFS to provide maintenance for Indians Road. On October 15, 1996, the Regional Director denied the first appeal, based on the language of the agreement between the County and the USFS. The Regional Director stated that the work required in DSR 71096 is "extraordinary maintenance" rather than routine, as they are both addressed in the agreement. The appeal was denied on the basis of the repairs being considered extraordinary while the agreement does not assign responsibility for extraordinary maintenance, thus the County is not legally responsible.
Second Appeal
On January 9, 1997, the County submitted a second appeal to OES. Additional information was submitted including a letter from the USFS citing the lack of progress in repairing the road and stating that a geotechnical survey was prepared by the USFS. The geotechnical survey contains a repair estimate of $421,000 for three of the major slides. In addition, a reference was made to Schedule A, Item 6 of the agreement, which states that the County is responsible for all maintenance of Indians Road. OES concurred with the second appeal on April 17, 1997, stating that a mutual understanding exists between the County and the USFS regarding the County's maintenance responsibility.
On July 21, 1997, OES submitted additional information to support the second appeal. This information included a July 1, 1997, letter from the County transmitting a June 20, 1997, letter from the USFS with two attachments: Special Use Permits dated March 27, 1950, and March 28, 1950. The Special Use Permits provide rights of way to the County and require the County to perform road maintenance.
The Associate Director upheld the Regional Director's determination in an October 2, 1997, letter stating that the County is not legally responsible for the work required, which is extraordinary maintenance, in accordance with the 1977 written agreement.
Third Appeal
On February 23, 1998, OES forwarded the County's December 18, 1997, third appeal which is based primarily on the County's legal responsibility for the repairs. The third appeal makes these general points: (1) after 1980, the County could no longer receive Federal Highway Administration (FHWA) Emergency Relief for Federally Owned Roads (ERFO) funding, and (2) after 1980, the County needed to apply under the FEMA program for emergency repairs, rather than through the USFS to FHWA for ERFO funding.
DISCUSSION
Legal Responsibility by Agreement/Contract
FEMA regulations require that eligible applicants have legal responsibility for facilities. Though ownership often establishes legal responsibility, a contract or agreement may also establish legal responsibility in leau of ownership. A review of the most current (April 1977) and applicable agreement between the County and the USFS regarding the Indians Road, reveals the following clause:
The subgrantee described the FHWA-ERFO funding which was received prior to 1980. Receipt of Federal funding for repairs would preclude FEMA public assistance funding. The fact that this funding was discontinued after 1980 is not pertinent to this determination of eligibility.
Legal Responsibility by Practice: History of Repairs; Regular and Extraordinary
The County has stated that they have performed all regular maintenance of Indians Road. The County has been telephoned in an effort to better document the practice of extraordinary repairs. The County stated that there have been no extraordinary repairs to Indians Road, such as repairs resulting from landslides. Furthermore, the County stated that the damage caused to Indians Road by DR-1046 has not been repaired. An indicator of the practice of responsibility is that the USFS conducted a geotechnical evaluation of areas damaged by the disaster on Indians Road.
Given that the 1977 agreement leaves the responsibility for extraordinary repairs at the discretion of both parties, there is no history of extraordinary repairs to establish which party has taken responsibility, and the USFS conducted a geotechnical engineering evaluation of certain areas affected by the disaster, the County does not have legal responsibility for the repairs.
CONCLUSION
The owner of Indians Road, the USFS, has the legal responsibility for repairs resulting from landslides. The County has never performed "extraordinary" repairs, while the USFS has conducted a geotechnical engineering evaluation. The responsibility for extraordinary repairs to the road remains with the USFS and not the County. Therefore, the County is not an eligible applicant and the appeal is denied.