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Second Appeal Brief
PA ID# 000-59092-00; Omaha Tribe of Nebraska and Iowa
PW ID# 8, 16, and 35; Timeliness, Time Extension – Work
Conclusion: The Omaha Tribe of Nebraska and Iowa’s (Tribe) second appeal is untimely. Accordingly, this appeal is denied. Moreover, the Regional Administrator (RA) properly exercised her discretion in denying the Tribe’s request for an extension of the timeframe for completion and approval of an alternate project.
In June 2011, the President declared a major disaster for flooding that began in May 2011 in western Iowa. In August 2011, the Tribe elected to act as its own grantee. In early 2012, FEMA obligated $2,004,019.67 in Project Worksheets (PWs) 8, 16, 32, and 35, to demolish and replace a convenience store, its sign and contents, and a fuel plaza. The Tribe’s first priorities after the disaster were reconstructing a casino building and homes. Therefore, the Tribe used the $1,503,014.00 federal share FEMA obligated for PWs 8, 16, 32 and 35 toward reconstructing the casino building. The Tribe spent two and a half years looking for alternate site locations to rebuild the convenience store and fuel plaza. In May 2015, the Tribe requested approval for an alternate project, seeking Federal assistance to build a retail center rather than rebuild the fuel plaza. The estimated completion date for the new project was December, 2015. On November 2, 2015, FEMA Region VII denied the Tribe’s request for an alternate project and time extension. FEMA found that (1) the Tribe’s willingness to spend federal funding for work not-yet-complete jeopardized the completion of additional work and (2) the Tribe had not provided FEMA with the necessary assurance that it could complete the proposed alternate project within the requested time period. The Tribe appealed FEMA’s decision on January 4, 2016, noting it made positive changes to its financial management system and possessed the financial resources to fund the Retail Center. On October 19, 2016, FEMA Region VII’s RA denied the appeal and determined the Tribe failed to demonstrate extenuating circumstances beyond its control that would warrant extension of the period of performance and approval of an alternate project. In addition, the RA found that the Tribe failed to demonstrate it could complete the alternate project within the timeframe requested. The Tribe received the first appeal decision on October 21, 2016. In its second appeal, dated December 26, 2016, the Tribe addresses the RA’s determinations.
Authorities and Second Appeals
- Stafford Act § 423(a).
- 44 C.F.R. §§ 206.206(c)(1), 206.204(c)-(d).
- Roseau County Hwy Dept., FEMA-1288-DR-MN, at 8 (Jan. 06, 2017); Dep’t. of Transp., FEMA-4068-DR-FL, at 3 (Aug. 5, 2016); City of Plattsburgh, FEMA-4020-DR-NY, at 4 (June 8, 2016); San Pasqual Indian Reservation, FEMA-1731-DR-CA (Jan. 16, 2014); Hancock County Water and Sewer District, FEMA-1604-DR-MS, at 3 (May 28, 2014); La Jolla Band of Luiseno Indians, FEMA-1731-DR-CA (Jan. 4, 2010).
- Stafford Act § 423, as implemented by 44 C.F.R. § 206.206(c)(1), allows an eligible applicant, subgrantee, or grantee, to appeal any Public Assistance determination within 60 days of receiving notice of the appealable action.
- The Tribe, acting as its own grantee, submitted its second appeal more than 60 days after receiving notice of the denial of Federal assistance.
- Under 44 C.F.R. § 206.204(c)(2)(ii), a permanent work project must be completed within 18 months of the applicable major disaster or emergency declaration. A grantee may extend this deadline for 30 months if warranted by extenuating circumstances or unusual project requirements beyond the subgrantee’s control.
- The grantee’s authority to grant a project time extension expired June 2015, 48 months after the major disaster declaration.
- Under 44 C.F.R. § 206.204(d)(2), any time extension requests beyond the grantee’s authority must be submitted to the RA and include a detailed justification for the delay and a projected completion date. The RA shall review the request and make a determination.
- The RA properly exercised her discretion when she found the Tribe had not demonstrated circumstances warranting a time extension. As the Tribe does not allege any new justification than previously raised, FEMA affirms the RA’s decision.