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Second Appeal Letter
PA ID# 071-00000; San Bernardino County
DSR ID# 95376; Prado Tiro Shooting Range - Sites 39, 41, 43, and 45
April 20, 2001
Mr. D. A. Christian
Governor's Authorized Representative
Governor's Office of Emergency Services
P.O. Box 419023
Rancho Cordova, California 95741
Re: Second Appeal: San Bernardino County, PA ID #071-00000, Prado Tiro Shooting Range, FEMA-1203-DR-CA, DSR 95376
Dear Mr. Christian:
This is in response to your letter dated March 31, 2000, to the Federal Emergency Management Agency (FEMA) forwarding a second appeal requesting FEMA funding under FEMA-1203-DR-CA on behalf of San Bernardino County (County). The County requests reimbursement of $133,943 to repair equipment at the Prado Tiro Shooting Range.
As a result of the El Ni?o storms and heavy rains in February of 1998, floodwaters inundated the Prado Tiro Shooting Range, damaging electrical circuits, range equipment, and trap machines. FEMA prepared Damage Survey Report (DSR) 95376 for $133,943 to repair and replace electrical circuitry, clean and check range equipment, and repair and replace trap machines. Upon review, FEMA determined that the six new trap machines were ineligible because the damages appeared to be due to applicant negligence and reduced the eligible DSR amount by $27,153. On May 11, 1999, the County forwarded a letter to the California Governor's Office of Emergency Services (OES) appealing FEMA's determination on DSR 95376. The County contended that the charges of negligence were unfounded. Further, the County states that it should not be held accountable or penalized for alleged negligence by a third party. The Regional Director denied the appeal stating that Part 17, Section B, Destruction of Buildings and Improvements, of the lease agreement between the Concessionaire and the County, places responsibility for the repair of the damages upon the Concessionaire. Therefore, in accordance with Title 44 CFR 206.223(a)(3), a supplemental DSR was prepared to deobligate the previously approved funding in the amount of $106,790, because it was determined that the County was not legally responsible for the damage.
The County submitted a second appeal, transmitted and partially supported by OES in a letter dated March 31, 2000. The appeal states in pertinent part that prior to the DR-1203 event, an addendum was made to the lease agreement placing financial responsibility on the County for damages less than $250,000. The primary issue of this appeal regards the legal responsibility for repairs to the shooting range. Consideration for funding this scope of work is provided below.
In August 1965, the County leased over 2,000 acres in the Prado Flood Control Basin (Basin) from the U.S. Army Corps of Engineers (USACE). The lease agreement was subsequently amended in 1974 and 1987. The County leased the Prado Tiro Shooting Range, which is located in the Basin, to a concessionaire on December 19, 1994. A provision of the Concessionaire Lease Agreement clearly establishes that the County is legally responsible for repairs to the shooting range in disaster- related situations. Specifically, Part 17, Section C, Destruction of Buildings and Improvements, of the Agreement provides that the County is responsible for the repair of any uninsured damage done by flood or any other cause for which the Concessionaire is not negligent or at fault. The Agreement clearly indicates that the repairs were the legal responsibility of the County at the time of the disaster.
To establish legal responsibility pursuant to 44 CFR 206.223, we also reviewed the County's lease with the USACE. Condition 10 of the lease agreement states that, "The United States shall not be responsible for damages to property or injuries to persons which may arise from or be incident to . . . the flooding of the premises by the Government, or flooding from any other cause . . ." We interpret this provision to mean that the United States Government is not liable for damages to property or injuries to persons in the Basin. This includes Federal disaster assistance.
The County's lease with USACE governs with respect to determining legal responsibility pursuant to 44 CFR 206.223. Since this lease indemnifies the Federal Government from all claims, there is no basis for funding the repair of the Prado Tiro Shooting Range. Therefore, I am denying the appeal.
Please inform the applicant of my determination, which constitutes the final decision on this matter pursuant to 44 CFR 206.206.
Lacy E. Suiter
Executive Associate Director
Response and Recovery Directorate
cc: Karen Armes
Acting Regional Director
FEMA Region IX