In the Matter of LIVINGSTON PARISH

June 30, 2014

CBCA 3608-FEMA

In the Matter of LIVINGSTON PARISH

Hilary S. Cairnie, William T. DeVinney, Maria R. Coor, Lauren A. Deeb, and

Robert T. Razzano of Baker & Hostetler LLP, Washington, DC, counsel for Applicant.

Mark Riley, Deputy Director, Mark DeBosier, State Coordinating Officer, Carla

Richard, Appeals Manager, and William J. Patrigo, Appeals Specialist, Governor’s Office

of Homeland Security and Emergency Preparedness, Baton Rouge, LA, appearing for

Grantee.

Linda D. Litke, Office of Chief Counsel, Federal Emergency Management Agency,

Department of Homeland Security, Biloxi, MS; and Brock Pierson and Caroline Hong,

Office of Chief Counsel, Federal Emergency Management Agency, Department of Homeland

Security, Washington, DC, counsel for Federal Emergency Management Agency.

Before the Arbitration Panel consisting of Board Judges DANIELS (Chairman), SOMERS,

and KULLBERG.

Livingston Parish, Louisiana, has asked that a panel of the Civilian Board of Contract

Appeals determine, through arbitration, that the Parish is eligible to recover $59,183,143

from the Federal Emergency Management Agency (FEMA), as a public assistance grant

under the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C.

§ 5121 et seq. (2006). This figure represents, according to the Parish, the cost of clearing

debris created by Hurricane Gustav in September 2008, in addition to amounts the Parish has

already received from FEMA for this effort. The total consists of three components:

$14,096,899 for pruning or removing trees hanging or leaning over public areas or improved

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property, $44,002,901 for clearing debris from waterways, and $1,083,344 in direct

administrative costs.1

We consider this case under the authority of section 565 of the Consolidated and

Further Continuing Appropriations Act, 2013, Pub. L. No. 113-6, § 565, 127 Stat. 198, 381

(2013). In a previous decision, the panel determined that it has jurisdiction over the case

because all requirements of that section are met. Livingston Parish, CBCA 3608-FEMA,

14-1 BCA ¶ 35,517.

The panel received voluminous explanations of position and documentation from both

the applicant, Livingston Parish, and FEMA. We also listened to testimony from many

witnesses – seventeen from the Parish and eleven from FEMA – over five days. We

considered all of the arguments and evidence in reaching our conclusions.

Public Assistance Grants for Debris Removal

The Stafford Act authorizes FEMA to make public assistance grants for “[performing

on public or private lands or waters any work or services essential to saving lives and

protecting and preserving property or public health and safety, including . . . debris removal.”

42 U.S.C. § 5170b(a)(3)(A). FEMA has implemented this statute by prescribing, in

regulation, that if it determines that debris removal is in the public interest, it –

may provide assistance for the removal of debris and wreckage from publicly

and privately owned lands and waters. Such removal is in the public interest

when it is necessary to:

(1)

Eliminate immediate threats to life, public health, and safety; or

(2)

Eliminate immediate threats of significant damage to improved

public or private property.

44 CFR 206.224(a) (2008).2

1

We note that the total of the components is actually one dollar more than the

total amount sought.

2

The regulation lists two other instances in which debris removal is in the public

interest; neither is at issue here.

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The agency has also prescribed in regulation general requirements for public

assistance grants, which apply to grants for debris removal:

To be eligible for financial assistance, an item of work must:

(1)

Be required as the result of the major disaster event,

(2)

Be located within a designated disaster area . . . , and

(3)

Be the legal responsibility of an eligible applicant.

44 CFR 206.223(a). An applicant “is responsible . . . for ensuring that the applicant has

identified all eligible work and submitted all costs for disaster-related damages for funding.”

Id. 206.202(d)(1).

Through published guidance, FEMA has further explained the parameters of public

assistance grants for debris removal. In Public Assistance Guide 322, the agency has stated:

In general, debris on public property that must be removed to allow continued

safe operation of governmental functions or to alleviate an immediate threat

is eligible. Debris that is blocking streets and highways is a threat to public

health and safety because it blocks passage of emergency vehicles or it blocks

access to emergency facilities such as hospitals. Debris in a natural stream or

flood channel may cause flooding from a future storm. If such flooding would

cause an immediate threat of damage to improved property, removal of the

disaster-related debris only to the extent necessary to protect against an

immediate threat would be eligible.

In Public Assistance Debris Management Guide 325, FEMA has provided this explanation

regarding removal of tree debris, which is of particular relevance to this case:

Hazardous Trees

Removing a hazardous tree may be eligible for Public Assistance grant

funding. A tree is considered hazardous if its condition was caused by the

disaster; it is an immediate threat to lives, public health and safety, or

improved property; it has a diameter breast height of six inches or greater; and

one or more of the following criteria are met:

•

It has more than 50 percent of the crown damaged or destroyed;

CBCA 3608-FEMA

•

•

•

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It has a split trunk or broken branches that expose the

heartwood;

It has fallen or been uprooted within a public-use area; and/or

It is leaning at an angle greater than 30 degrees.

....

Hazardous Limb Removal (Hangers)

Removing hanging limbs may be eligible for Public Assistance grant

assistance. Limbs must be:

•

•

•

Located on improved public property;

Greater than two inches in diameter at the point of breakage; and

Still hanging in a tree and threatening a public-use area . . . .

Only the minimum amount of work necessary to remove the hazard is eligible.

Pruning, maintenance trimming, and landscaping are not eligible. . . .

....

Documentation required for Public Assistance grant consideration:

•

•

•

•

Describe the immediate threat, e.g. photos of hanging limbs or

leaning trees;

Clearly define the scope of work to remove the immediate

threat;

Specify the improved public property location by recording the

nearest building address and/or GPS [global positioning system]

location; and

Denote date, labor (force account or contract), and equipment

used to perform the work.

Leaners and Hangers

The Parish’s contractors made about 88,000 cuts on 16,000 trees which individuals

monitoring the work of the contractors considered to be leaning or hanging over public areas

or improved property, such that the cuts qualified for a public assistance grant as debris

removal. The documentation of this work – “tree tickets,” narrative diaries, and photographs

made by the monitors – has been subject to extensive review.

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FEMA initially analyzed 20% of the documentation, concluded that 34% of the

leaners and 16% of the hangers qualified, and made a public assistance grant to the Parish

for that much of the asserted work. Later, the engineering company which was responsible

for the monitoring analyzed all of the documentation and concluded that 89% of it was

eligible for payment. Because FEMA’s policy is to make a public assistance grant for all of

the work if 80% or more is eligible, the Parish believes that the engineering firm’s study

supports its entire request for payment.

FEMA later made a second analysis of the documentation, reviewing a sample

selected by the State of Louisiana’s Governor’s Office of Homeland Security and Emergency

Preparedness which that Office alleged was statistically significant. This time, FEMA

concluded that only 19% of the leaners and 13% of the hangers were eligible.3 At the request

of the Parish president, the Louisiana Legislative Auditor made an independent review and

concluded that only 7% of the photographs submitted were consistent with FEMA guidance.

After the Parish asked for arbitration, FEMA engaged a licensed arborist in Louisiana, Scott

Courtright, to perform yet another independent review of the documentation. Mr. Courtright

examined 70% of FEMA’s 20% sample – 16,000 photographs – and determined that only

about 5% of the leaners and 5% of the hangers met FEMA requirements as established in

regulation and guidance.

The panel finds Mr. Courtright’s analysis particularly compelling. As he found, much

of the data presented by the Parish is deficient. This data does not demonstrate that cuts were

on public property or over a right of way, rather than on private property; that the damage to

the trees was caused by Hurricane Gustav; that the tree trunks or cuts were greater than the

minimum prescribed diameters; or that breaks were present on branches which were cut.

Additionally, the data show that some of the branches were cut multiple times and that others

were cut at places which damaged the trees themselves.

The panel concludes that the public assistance grant made by FEMA to Livingston

Parish for work on leaners and hangers was more generous than the documentation supports.

The Parish should not be given an additional grant for this work.

3

One of the Parish’s witnesses asserted that FEMA’s spreadsheet which showed

the agency’s data was replete with errors. As a FEMA witness explained, the allegation is

based on an incomplete understanding of how the agency documented its analysis.

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Work in Waterways

Much of Louisiana is low-lying and contains many waterways, and Hurricane Gustav

was declared a disaster area for the entire state. Despite these facts, as a result of the

hurricane, only three parishes in Louisiana requested public assistance grants for removing

debris from waterways. The amounts sought and received were $300,000 for one parish,

$5,000,000 for another, and more than $44,000,000 for Livingston Parish. We also know

that Gravity Drainage District 1, a taxing authority which maintains waterways within about

8% of Livingston Parish, sought and received $231,000 for removing Gustav-generated

debris from its waterways. The relatively high figure claimed by Livingston Parish caused

FEMA to review carefully this parish’s request.

The Parish’s contractor cleared a considerable amount of debris from waterways. The

Parish has not demonstrated, however, what portion of that debris was generated by

Hurricane Gustav. In virtually all the waterways which were cleaned, the contractor cleared

all debris from bank to bank, rather than simply removing debris which could reasonably

have been thought to have been deposited by the hurricane. The Parish did not provide any

maintenance logs to show the condition of the waterways prior to the event. Due to its

essentially flat geography and innumerable waterways, Livingston Parish has flooded

frequently both before and after Gustav, whenever rain has fallen heavily. The panel is not

convinced that the hurricane-caused debris appreciably increased the likelihood of flooding.

The panel found particularly instructive as to this matter testimony by Professor

Richard Keim of Louisiana State University, a forest hydrologist who was presented as an

expert witness by FEMA. Dr. Keim explained that although the hurricane increased the

amount of debris in the waterways, the hydraulic effect of that debris was generally

negligible. Most debris piles, he found after careful examination, resulted in blocking less

than half of a stream. In some places, the contractor actually increased the amount of debris

in the waterways, by using heavy equipment which pushed trees into the water and damaged

the banks. Many of the contractor’s actions modified and reshaped channels, instead of

removing debris. These actions made significant ecological and hydrological changes to the

streams, and may even have exacerbated flooding problems in that cleaning the streams

upstream increased the efficiency of drainage there, creating flooding downstream during

rain events.

We do not find credible the surveys performed by FEMA’s “tiger team” which the

agency points to as support for the decision not to provide any funding for waterway debris

removal. Nevertheless, the Parish’s utter failure to provide a rational basis for concluding

that any particular portion of the waterway cleanup actually removed debris generated by the

hurricane precludes the panel from finding that any sum should be paid by the agency as a

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public assistance grant for this purpose.4 To the extent that the Parish might be due some

grant money for removing hurricane-generated debris from waterways, we believe that the

sum has already been amply covered by FEMA’s overpayment for removal of leaner and

hanger debris.

Decision

The panel affirms FEMA’s determinations regarding the public assistance grants at

issue.

During the course of the hearing, it became apparent to us that there is considerable

controversy in Livingston Parish as to who is responsible for various matters – the Parish

government (and if so, the president, council, or emergency preparedness director), any of

three Gravity Drainage Districts, the school district, the park district, the Parish’s contractor,

the Parish’s monitor of the contractor’s operations, and/or private land owners. The panel

4

We also note that the Parish relies heavily on statements made by FEMA’s

debris task lead for the State of Louisiana, at a meeting in November 2008, in asserting that

the agency promised to cover as a grant the costs the Parish might incur in clearing

waterways. The task lead, Jeffery Jones, stated, “[I]f you have debris that’s storm-generated

that’s in your canals and ditches that’s preventing drainage and can be an immediate threat

against your citizens, then you can remove that debris. You can remove that debris without

FEMA seeing it first. You can take photographs and GPSs, and that will be fine. FEMA will

accept that.” The panel believes that Mr. Jones’ statement was consistent with agency

regulation and guidance, but that the Parish removed vastly more debris than was deposited

by the hurricane. Mr. Jones also stated, in the course of the meeting, “The [Army] Corps [of

Engineers] has nothing to do with this.” The Parish has taken this comment to be a

commitment that the Corps would not require permitting for any actions the contractor might

take in clearing waterways of debris. The panel finds that this interpretation is unreasonable;

it distorts the meaning of the statement by taking it out of context. Mr. Jones had no

authority to bind the Corps; his comment, reasonably understood, was simply to the effect

that the Corps had nothing to do with FEMA’s determinations of eligibility for public

assistance grants.

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does not express an opinion on this subject. We restrict our views to the sole matter raised

by the request for arbitration – the amount of public assistance grants to be made by FEMA

to the Parish for debris removal.

_________________________

STEPHEN M. DANIELS

Board Judge

_________________________

JERI KAYLENE SOMERS

Board Judge

_________________________

H. CHUCK KULLBERG

Board Judge