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Alaskan Native Corporations

Appeal Brief Appeal Letter

Appeal Brief

DisasterFEMA-1445-DR
ApplicantNinilchik Traditional Council
Appeal TypeSecond
PA ID#XXX-XXXXX
PW ID#37
Date Signed2004-11-26T05:00:00

Citation:

FEMA-1445-DR-AK; Ninilchik Traditional Council (NTC)

Cross-reference:

Alaskan Native Corporations

Summary:

Severe storms and flooding from October 23, 2002, through December 20, 2002, caused damages to roads and bridges throughout the Kenai Peninsula Borough. The NTC applied for Public Assistance funding as a local government to repair parts of its road system, but was determined to be an ineligible applicant because it had not established legal responsibility for the work for which it seeks reimbursement. FEMA denied the first appeal on the basis that the NTC had not established legal responsibility for the facilities based on 44 CFR § 206.223(a)(3).

The NTC submitted a second appeal, along with backup documentation to support its claim that lands containing the damaged roads and bridge were conveyed from the Ninilchik Native Association, Inc. (NNAI) to the State of Alaska in trust for NTC prior to October 2002. The State believes NTC has been unfairly penalized because it followed land transfer requirements mandated by Federal law.

Research of the submitted documents reveals that as of October 23, 2002, the facilities at issue were on land previously conveyed by the United Sates to the (NNAI), an Alaska Native Corporation formed pursuant to the Alaska Native Claims Settlement Act (ANCSA). Pursuant to 44 CFR§ 206.222(c), such corporations are not eligible to apply for FEMA Public Assistance. As of October 23, 2002, the NTC and NNAI had agreed that the land should be conveyed but State approval was still pending and the land had not been transferred. In addition, no agreement has been submitted with the appeal to evidence a binding obligation on the part of the NTC to maintain the property and its facilities in the interim, pending final conveyance.

Issues:

Is the NTC an eligible applicant?

Findings:

No.

Rationale:

44 CFR § 206.223(a)(3)

Appeal Letter

November 26, 2004

James F. Butchart
State Coordinating Officer
Department of Military and Veterans Affairs
Division of Homeland Security and Emergency Management
P.O. Box 5750
Ft. Richardson, AK 99505-5750

Re: Second Appeal, Ninilchik Traditional Council, Applicant Eligibility
FEMA- DR-1445-AK

Dear Mr. Butchart:

This letter is in response to your July 23, 2004, letter forwarding the referenced second appeal on behalf of the Ninilchik Traditional Council (NTC). The NTC disputes the Federal Emergency Management Agency’s (FEMA’s) ineligible applicant determination under 44 CFR § 206.223(a)(3), which states, “To be eligible for financial assistance, an item of work must be the legal responsibility of an eligible applicant.

Severe storms and flooding from October 23, 2002, through December 20, 2002, caused damages to roads and bridges throughout the Kenai Peninsula Borough. The NTC applied for Public Assistance funding as a local government to repair parts of the 1100 Road and Silver Salmon Creek Bridge, but was determined to be an ineligible applicant. The State forwarded the NTC’s first appeal on November 24, 2003. FEMA denied the first appeal on January 22, 2004, stating that the NTC had not established legal responsibility for the facilities based on 44 CFR § 206.223(a)(3). On July 23, 2004, the State forwarded the NTC’s second appeal along with backup documentation to support NTC’s claim that lands containing the damaged roads and bridge were conveyed from the Ninilchik Native Association, Inc (NNAI) to the State of Alaska in trust for NTC prior to October 2002. The State believes NTC has been unfairly penalized because it followed land transfer requirements mandated by Federal law.

The operative date for determining legal responsibility of the NTC is October 23, 2002, as it was on this date that the incident period for 1445-DR began. As of October 23, 2002, the facilities at issue were on land previously conveyed by the United Sates to the NNAI, an Alaska Native Corporation formed pursuant to the Alaska Native Claims Settlement Act (ANCSA). Pursuant to 44 CFR § 206.222(c), such corporations are not eligible to apply for FEMA Public Assistance.

The NTC argues on appeal that it had accepted legal responsibility as evidenced by correspondence between the NTC and the Alaska Department of Natural Resources, Division of Forestry. However, NTC’s acceptance or recognition of responsibility does not by itself create a legally binding and enforceable obligation on the part of the NTC; nor does the execution of transportation planning documents. The NTC may have an interest in long-term planning for land that may one day be owned by the community, or to be held in trust for the community, or for NNAI land in which the community has an equitable interest. However, mere planning does not create an obligation to repair facilities on land titled to NNAI. The NTC could have accepted such a responsibility from NNAI, prior to October 23, 2002, through an interim lease or other binding document. As of October 23, 2002, the NTC and NNAI had agreed that the land should be conveyed but State approval was still pending and the land had not been transferred. In addition, no agreement has been submitted with the appeal to evidence a binding obligation on the part of the NTC to maintain the property and its facilities in the interim, pending final conveyance. Therefore, the NTC has failed to establish, as required by 44 CFR § 206.223(a)(3), the work for which it seeks reimbursement is its legal responsibility.

Accordingly, I conclude that the NTC is not eligible for assistance. Therefore, I am denying the appeal. Please inform the NTC of my decision. My determination constitutes a final decision of this matter pursuant to 44 CFR § 206.206.

Sincerely,
/S/
Daniel A. Craig
Director
Recovery Division
Emergency Preparedness and Response

cc: John E. Pennington
Regional Director
Region X