Private Nonprofit

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Disaster4562
ApplicantOpal Creek Ancient Forest Center
Appeal TypeSecond
PA ID#047-U8DE1-00
PW ID#N/A
Date Signed2022-06-08T16:00:00

Summary Paragraph

From September 7 to November 3, 2020, wildfires destroyed numerous structures at the Facility.  The Applicant submitted a Request for Public Assistance (RPA) to restore the Facility, however, in a Determination Memorandum FEMA denied the RPA.  FEMA determined that the Applicant met the definition of a PNP organization, but was not eligible as the Facility was not an eligible PNP facility.  The Applicant submitted its first appeal, asserting that the Facility was an educational center.  The Applicant explained that it provided a state-sponsored environmental education program called “Outdoor School” through the Facility, among other educational programs.  The FEMA Region X Acting Regional Administrator granted the first appeal and approved the Applicant’s RPA.  FEMA found that the Applicant’s Outdoor School program constituted the majority of use of the Facility, and that the educational programming the Applicant provided was an eligible noncritical, essential social service.  The Applicant submitted its second appeal, contesting FEMA’s determination that the educational programming provided at the Facility is eligible as a noncritical essential social service.  It argues that it provided an eligible critical service because the Facility was primarily used as an educational facility.

Authorities and Second Appeals

  • Stafford Act § 406(a)(1)(B), (a)(3)(B).
  • 44 C.F.R. §§ 206.221(a), (e)(1); 206.222(b).
  • PAPPG, at 43, 45, 48.
  • Coastal Education Foundation, FEMA-4286-DR-SC, at 3-4.

Headnotes

  • An eligible PNP facility is one that provides a critical service or a noncritical but essential social service to the general public.
  • For education to be considered an eligible critical service, it must be: (1) primary or secondary education as determined under state law and provided in a day or residential school; or (2) provided in higher-education institutions that meet additional criteria.  Proof that a school is accredited or recognized by the state Department of Education is required.
    • FEMA’s regulations limit eligible PNP educational facilities to those owned and operated by an educational institution.
    • Educational institutions are defined as elementary or secondary schools, as further defined by the Elementary and Secondary Education Act of 1965, or institutions of higher learning as further defined by the Higher Education Act of 1965.
    • The Applicant has not demonstrated that it is a state-recognized elementary or secondary school, or an accredited institution of higher learning.

Conclusion

The Applicant has not demonstrated that it is a state-recognized educational institution.  Consequently, FEMA does not consider the Facility to be an educational facility that provides an eligible PNP critical service.  Therefore, this appeal is denied.  The Applicant retains its right to appeal future eligibility determinations related to individual structures within the Facility or any separate facilities, as well as subsequent eligibility determinations made related to work and costs.

Appeal Letter

Andrew Phelps

Director

Oregon Office of Emergency Management

P.O. Box 14370

Salem, Oregon 97309-5062

 

Re:  Second Appeal – Opal Creek Ancient Forest Center, PA ID: 047-U8DE1-00, FEMA-4562-DR-OR, Private Nonprofit

 

Dear Mr. Phelps:

This is in response to a letter from your office dated March 30, 2022, which transmitted the referenced second appeal on behalf of Opal Creek Ancient Forest Center (Applicant).  The Applicant is appealing the U.S. Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) determination regarding the Private Nonprofit (PNP) educational programs provided at the Jawbone Flats property (Facility).

As explained in the enclosed analysis, I have determined that the Applicant has not demonstrated that it is a state-recognized educational institution.  Consequently, FEMA does not consider the Facility to be an educational facility that provides an eligible PNP critical service.  Therefore, this appeal is denied.  The Applicant retains its right to appeal future eligibility determinations related to individual structures within the Facility or any separate facilities, as well as subsequent eligibility determinations made related to work and costs.

Please inform the Applicant of my decision.  This determination is the final decision on this matter pursuant to 44 C.F.R. § 206.206, Appeals.

 

                                                                                                           Sincerely,

                                                                                                              /S/

                                                                                                           Ana Montero

                                                                                                          Division Director

                                                                                                          Public Assistance Division

 

Enclosure

cc:  Willie G. Nunn

Regional Administrator

FEMA Region X

Appeal Analysis

Background

From September 7 to November 3, 2020, wildfires destroyed numerous structures owned by the Opal Creek Ancient Forest Center (Applicant) at its Jawbone Flats property (Facility) in Oregon.[1]  The Applicant submitted a Request for Public Assistance (RPA) to FEMA for emergency work and permanent work to restore the Facility.  FEMA issued several Requests for Information (RFIs) related to the Applicant’s potential eligibility as a Private Nonprofit (PNP) and the services it offered through the Facility.  The Applicant responded with information related to the Facility and the services it claimed to provide there, e.g., hydroelectric power generation, a water utility, emergency services, educational services, and a museum.  The Applicant stated, “our primary service … is education about the old growth forest and how we interact with it,” and that it offered this service through “Outdoor School,” a state-sponsored program for school-aged students.[2]

In a Determination Memorandum signed February 23, 2021, FEMA denied the Applicant’s RPA.  FEMA determined that the Applicant met the definition of a PNP organization under Title 44 Code of Federal Regulations (44 C.F.R.).  However, FEMA found that the Applicant was not eligible for Public Assistance (PA) funding, as the Facility was not an eligible PNP facility.  Specifically, FEMA determined that the available information did not substantiate the provision of hydroelectric power, water, or emergency services at the Facility, except for the Applicant’s own use or benefit.  FEMA also found that the documentation did not demonstrate that the Applicant operated an eligible museum at the time of the disaster.  Regarding educational services, FEMA determined that the Applicant had not provided documentation demonstrating that it operated an eligible educational facility recognized by the State of Oregon.

First Appeal

The Applicant submitted its first appeal on April 15, 2021, requesting FEMA reverse the denial of the RPA.  The Applicant reiterated its earlier statement describing the primary purpose of the Facility as an educational center.  The Applicant explained that Outdoor School is an environmental education program that provides fifth- and sixth-grade students with an outdoor “educational experience” that is “integrated with local school curricula in a manner that assists students in meeting state standards.”[3]  It stated that the program was established by Oregon State law and is administered by the Oregon State University Extension Service (OSUES).[4]  Further, the Applicant stated that it was affiliated with OSUES in providing Outdoor School service at the Facility, and is required to comply with all program criteria in order to receive funding.  The Applicant subsequently submitted an update to its first appeal submission, adding the assertion that the Facility was also eligible as a community center.[5]  On June 7, 2021, the Oregon Office of Emergency Management (Grantee) transmitted the first appeal to FEMA without an eligibility recommendation.

FEMA issued an RFI requesting additional information regarding the Facility’s operation “as a community center with multiple services in order to determine the primary service that the facility provides.”[6]  In response, the Applicant stated that it “operates primarily as an environmental educational facility” that “provided state-funded outdoor school experiences to 5th and 6th graders, as well as wilderness medicine, educational workshops, and backpacking expeditions to all ages.”[7]  The Applicant stated that it provided educational programming at the Facility for 35 weeks out of an annual 40-week season.  Thus, it calculated that 245 out of 280 days, or 87.5 percent of its seasonal opening time was used to provide educational programs.  It stated that the Facility comprised 27 buildings prior to the disaster, and gave a brief description of the function of each building.  The Applicant stated that 22 of 27 buildings, or 81.5 percent, were dedicated to educational uses.  It asserted that, based on either percentage, it could demonstrate that “our facility was a critical service provider of educational programming.”[8]

On December 8, 2021, the FEMA Region X Acting Regional Administrator granted the first appeal and approved the Applicant’s RPA.  FEMA found that the Applicant’s Outdoor School program “constitutes the majority of use” of the Facility and that the remaining activities were “a mix of eligible and ineligible activities but are incidental” to the Facility’s primary use.[9]  FEMA found that the educational programming the Applicant provided at the Facility was an eligible noncritical, essential social service as defined in the PA Program and Policy Guide (PAPPG).

Second Appeal

The Applicant submitted its second appeal on February 6, 2022.  It contests FEMA’s determination that it provided a noncritical essential social service; rather, it states that the Facility was primarily used as an educational facility, and therefore it provided an eligible critical service as defined in the PAPPG.  The Applicant reiterates prior statements regarding its Outdoor School program and the Facility’s percentage of use for educational purposes.  It asserts that it is recognized by state and local education agencies “as providing elementary and secondary education as determined under state law.”[10]  Finally, the Applicant notes that eligibility as a provider of noncritical essential social services “removes support and administration buildings from eligibility” under FEMA policy for PNPs.[11]  In a transmittal letter dated March 30, 2022, the Grantee expresses support for the appeal.  The Grantee states that inclusion on an OSUES registry of Outdoor School programs supports the Applicant’s claim that it is “a recognized educational provider in the state of Oregon,” since no accrediting agency exists.[12]  It provides a screenshot of an OSUES website showing the Applicant listed among other Outdoor School providers.

 

Discussion

FEMA may provide funding for repair, restoration, reconstruction, or replacement of eligible PNP facilities damaged or destroyed by a major disaster.[13]  To be eligible for PA funding, a PNP applicant must own or operate an eligible facility.[14]  An eligible PNP facility is one that provides a critical service or a noncritical but essential social service to the general public.[15]  PNP eligible critical services are defined as education, utility, emergency, or medical services.[16]  For education to be considered an eligible critical service, it must be: (1) primary or secondary education as determined under state law and provided in a day or residential school; or (2) provided in higher-education institutions that meet additional criteria.[17]  Proof that a school is accredited or recognized by the state Department of Education is required.[18]

On second appeal, the Applicant asserts that its educational programming, specifically the Outdoor School program, is an eligible critical service because the Facility met the definition of an educational facility found in 44 C.F.R.[19]  However, 44 C.F.R. § 206.221(e)(1) defines eligible PNP educational facilities as classrooms plus related supplies, equipment, machinery, and utilities of an educational institution.[20]  Thus, although FEMA’s regulations define “educational facility” broadly, such facilities are still limited to those “of an educational institution.”[21]  Educational institutions are defined as elementary or secondary schools, as further defined by the Elementary and Secondary Education Act of 1965, or institutions of higher learning as further defined by the Higher Education Act of 1965.[22]

Here, nothing in the administrative record substantiates the Applicant’s status as an educational institution.  While the Applicant may provide the state-recognized Outdoor School program periodically to elementary and/or secondary school students, it has not demonstrated that it is a state-recognized elementary or secondary school, or an accredited institution of higher learning.[23]  Consequently, because the Facility is not “of an educational institution,” it is not eligible as a PNP educational facility that provides a PNP critical service.

 

Conclusion

The Applicant has not demonstrated that it is a state-recognized educational institution.  Consequently, FEMA does not consider the Facility to be an educational facility that provides an eligible PNP critical service.  Therefore, this appeal is denied.  The Applicant retains its right to appeal future eligibility determinations related to individual structures within the Facility or any separate facilities, as well as subsequent eligibility determinations made related to work and costs.

 

[1] The President issued a major disaster declaration on September 15, 2020.

[2] Email from Facility Dir., Opal Creek Ancient Forest Ctr., to Pub. Assistance Grp. Supervisor, FEMA Region X, at 1 (Jan. 1, 2021, 1613 PST); Email from Exec. Dir., Opal Creek Ancient Forest Ctr., to Pub. Assistance Grp. Supervisor, FEMA Region X, at 1 (Jan. 7, 2021, 1346 PST).

[3] Letter from Exec. Dir., Opal Creek Ancient Forest Ctr., to Eng’r, Or. Dep’t of Emergency Mgmt., at 2

(Apr. 15, 2021).

[4] The Applicant also stated that it was affiliated with the National Outdoor Leadership School’s wilderness medicine accreditation program, the Wilderness Upgrade for the Medical Professional, through the University of Utah and Western Colorado University; Id. at 3.

[5] Letter from Exec. Dir., Opal Creek Ancient Forest Ctr., to Eng’r, Or. Dep’t of Emergency Mgmt., at 2 (June 7, 2021).

[6] Letter from Acting Reg’l Adm’r, FEMA Region X, to Alternate Governor’s Representative, Or. Dep’t of Emergency Mgmt. and Exec. Dir., Opal Creek Ancient Forest Ctr., at 1 (Aug. 16, 2021).

[7] Letter from Facilities Dir., Opal Creek Ancient Forest Ctr., to Eng’r, Or. Dep’t of Emergency Mgmt., at 1 (Sept. 15, 2021).  In describing itself, the Applicant also stated that “[o]ur primary business purpose since 1989 is to increase the public’s understanding of the natural resources, scenic beauty, plant and animal resources and ecological integrity of Opal Creek and the surrounding public lands; to encourage its sound management and conservation by government agencies; and to promote a public discussion of the optimum uses of public resources in the Opal Creek area [emphasis in the original]”; Id.

[8] Id. at 4.

[9] FEMA First Appeal Analysis, Opal Creek Ancient Forest Ctr., FEMA-4562-DR-OR, at 4 (Dec. 8, 2021).

[10] Letter from Exec. Dir., Opal Creek Ancient Forest Ctr., to Or. Dep’t of Emergency Mgmt., at 4 (Feb. 6, 2022) [hereinafter Applicant Second Appeal].

[11] Id.  The Applicant references Table 2 in the Public Assistance Program and Policy Guide, which states that “[w]ith [the] exception of custodial care facilities and museums, administrative and support facilities essential to the provision of PNP noncritical service are ineligible facilities”; see Public Assistance Program and Policy Guide, FP 104-009-2, at 46 (June 1, 2020) [hereinafter PAPPG].

[12] Letter from Alternate Governor’s Representative, Or. Dep’t of Emergency Mgmt., to Assistant Adm’r for Recovery, FEMA, at 2 (Mar. 30, 2022).

[13] Robert T. Stafford Disaster Relief and Emergency Assistance (Stafford) Act § 406(a)(1)(B), Title 42 United States Code (42 U.S.C.) § 5172(a)(1)(B) (2018).

[14] Title 44 Code of Federal Regulations (44 C.F.R.) § 206.222(b) (2019); PAPPG, at 43.

[15] 44 C.F.R. § 206.221(e); PAPPG, at 43.

[16] Stafford Act § 406(a)(3)(B), 42 U.S.C. § 5172(a)(3)(B); PAPPG, at 43.

[17] PAPPG, at 45.

[18] Id. at 48.

[19] Applicant Second Appeal, at 1–2 (“[t]he primary use of our mixed-use Opal Creek Ancient Forest Center was as an educational facility, per the definition of 44 C.F.R. § 206.221(e)(1), and thus was a critical service as defined in the PAPPG Table 1”).

[20] 44 C.F.R. § 206.221(e)(1).

[21] See FEMA Second Appeal Analysis, Coastal Education Foundation, FEMA-4286-DR-SC, at 3–4 (Oct. 1, 2018).

[22] 44 C.F.R. § 206.221(a).

[23] For example, the OSUES website referenced by the Grantee lists the Applicant as a “provider” of the Outdoor School program, but clearly distinguishes “providers” from schools or school districts; see Or. State Univ. Extension Serv., Outdoor School Providers and Sites, https://outdoorschool.oregonstate.edu/‌program-information/outdoor-school-providers-and-sites/ (last visited May 25, 2022).

Last updated July 6, 2022