In the Matter of LARIMER COUNTY, COLORADO

January 4, 2023

CBCA 7450-FEMA

In the Matter of LARIMER COUNTY, COLORADO

Lori R. Hodges, Director of Office of Emergency Management, Larimer County,

Colorado, Johnstown, CO, appearing for Applicant; and Wendy Huff Ellard and Erin Greten,

Baker, Donelson, Bearman, Caldwell & Berkowitz, P.C., Jackson, MS, counsel for

Applicant.

Michael Haney, State Public Assistance Officer, Division of Homeland Security and

Emergency Management, Colorado Department of Public Safety, Centennial, CO; and

Danielle Lewis, Ingrid C. Barrier, and Jennifer H. Hunt, State of Colorado Department of

Law, Office of the Attorney General, Colorado Division of Homeland Security and

Emergency Management, Denver, CO, appearing for Grantee.

Christiana Cooley, Federal Emergency Management Agency, Department of

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

Before the Arbitration Panel consisting of Board Judges RUSSELL, GOODMAN, and

O’ROURKE.

RUSSELL, Board Judge, writing for the panel.

The applicant, Larimer County, Colorado (the County), seeks arbitration of the

Federal Emergency Management Agency’s (FEMA’s) denial of the County’s request for

public assistance (PA) funding for private property debris removal (PPDR) on twenty-four

roads.

The panel decides this matter under its authority set forth in 42 U.S.C. § 5189a(d)

(2018). For the foregoing reasons, we conclude that, under the Stafford Act, the County’s

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first appeal request was timely and, additionally, that the County has established entitlement

to PA funding for its PPDR activities.

Background

The Cameron Peak Fire burned in Colorado from September 6 to November 5, 2020.

The fire caused significant damage, leaving hazardous dead or dying trees on private rights

of way and properties in the County. As a result of the fire, the President declared a major

disaster in Colorado (FEMA-DR-4581-CO).

Larimer County hired an arborist to assess all trees along public and private roadways

in the County. Request for Arbitration in the Matter of Larimer County, Colorado, Exhibit

9. The arborist expressly limited his review to only those trees that were directly impacted

by the fire with the objective of saving as many as possible. Id. Using specified criteria,

including the distance of a tree from the roadway, the arborist identified trees that were most

at risk of falling and, thus, posing a public safety hazard. Id. Hazardous trees were identified

based on structural weakness due to burn severity, soil instability, weakened root systems,

wind impacts, and the proximity of the trees to roadways traveled by the public. Id.

On June 3, 2021, Larimer County submitted its initial request for PA funding for

PPDR and, on June 8, 2021, provided additional justification to support its request. On

August 21, 2021, FEMA partially approved the County’s request for PPDR concluding that

only four of the twenty-eight private roads included in the County’s request met FEMA’s

criteria of having hazardous trees along the roadways, the removal of which was in the public

interest. FEMA concluded that the removal of hazardous trees along the other private road

segments in the County’s request did not serve the public interests because the roads were

restricted by locks or gates, offered only informal access to public roads, or did not offer

through-travel to public roads. County Exhibit 2.3.

On September 8, 2021, the County provided additional information to support its

request for PA funding on roads in two areas with gates. County Exhibit 3. The County

explained that the Monument Gulch gate is owned by the United States Forest Service

(USFS), and, therefore, this gate should not be used as a basis for denial. Id. Additionally,

the County noted that the presence of a gate does not necessarily preclude PPDR funding

when it can be shown that debris removal is in the public interest. Id. The County provided

a map showing that Monument Gulch neighborhoods lead to USFS roads and another public

road that are used frequently by USFS personnel and emergency services personnel for

emergency rescues of members of the public that access public national lands. Id. The

County also challenged FEMA’s denial of funds for the Crystal Mountain area, arguing that

public roads are accessible from this area and that, like the Monument Gulch area, USFS and

emergency services personnel use Crystal Mountain for emergency services. Id.

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On November 8, 2021, FEMA issued a determination memorandum denying the

County’s PA request, asserting that the debris removal was not in the public’s interest.

FEMA concluded that, contrary to the County’s assertion, the twenty-four roads at issue do

not provide public access to USFS roads or trailways, nor do the roads offer through-travel

to other public roads. County Exhibit 2.1. FEMA also noted that certain areas had private

property or private road signs. Id.

On January 7, 2022, the County submitted its appeal to the recipient, the Colorado

Division of Homeland Security and Emergency Management (DHSEM). Although the

County’s appeal to DHSEM was timely submitted under FEMA’s regulations, FEMA

nevertheless denied the County’s appeal as untimely because DHSEM submitted the

County’s appeal to FEMA on March 9, 2022, one day late. According to FEMA, this date

was outside the 120-calendar-day time frame required by FEMA’s regulations for recipients

to submit first appeals on an applicant’s behalf to FEMA. 44 CFR 206.206 (2021). FEMA

thus concluded that its first appeal decision became the final agency determination. Id.

206.206(a), (b)(1)(ii)(A).

In this arbitration, FEMA moves to dismiss the arbitration as untimely or,

alternatively, asks the panel to uphold its determination that PPDR was not in the public

interest. If the panel decides in favor of the County on the PPDR issue, FEMA asks that the

panel return this matter to FEMA to determine the reasonable costs incurred by the County

for the debris removal.

The County asks the panel to issue a decision in its favor on both the timeliness issue

and on the merits. As for the former, the County asks that the panel find its first appeal

timely or, alternatively, toll the limitations period. Regarding the merits, in its request for

arbitration and at the hearing, the County argued that debris removal measures on the

privately owned roads were necessary to allow safe access for the public including

emergency services personnel.

The County produced documents providing details on the roads for which it seeks PA

funding, including the number of hazardous trees along each roadway and the number of

structures accessible by the roads. The County argues that roads, like those at issue in this

arbitration, are not safe when there are a significant number of hazardous trees, any one of

which could fall and injure or kill a person. The County supported its argument with

testimony and affidavits, including from the Larimer County sheriff who also serves as the

County’s fire warden and lead public safety official. County Exhibit 15. The sheriff is

responsible for coordinating all search and rescue operations in the County and led the

County’s response to 778 wildfires. Id. He explained that the Cameron Peak Fire was the

largest and most destructive. Id. The panel found his testimony persuasive on the need for

the County to clear the hazardous trees on the roads at issue for the safety of the public,

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including emergency services personnel. Id. His testimony was also consistent with and

buttressed by testimony provided by a captain with the sheriff’s office and the Director of

Larimer County’s Emergency Management, both of whom, like the sheriff, have familiarity

with the roads, the terrain within the County, and the way that the public uses the roads and

trails in the County.

The County also identified 1286 forest sites near the Cameron Peak Fire area and,

through testimony, noted the public’s tendency to explore the wilderness from any access

point even those identified as private roads or roads with warning signs posted. The County

explained that the gates at issue in this arbitration are not the same as those in what is

generally thought of as a “gated community.” In the areas at issue in this arbitration, there

are no guard posts or points accessible only by key entry. Instead, the gates are typically

wood or metal posts on either side of the roadway with a gate that can be latched; however,

the County noted, the gates are frequently left open. And even if the gates are locked, the

public typically just walks around them to access the private road and forest land beyond

them. See, e.g., County Exhibits 15 and 16.

Discussion

I.

The County’s Appeal was Timely

Under the Stafford Act, “[a]ny decision regarding eligibility for, from, or amount of

assistance . . . may be appealed within 60 days after the date on which the applicant for such

assistance is notified of the award or denial of award of such assistance.” 42 U.S.C.

§ 5189a(a). FEMA has promulgated regulations under the statute, and those regulations

state:

The applicant may make a first appeal through the recipient within 60 calendar

days from the date of the FEMA determination that is the subject of the appeal

and the recipient must electronically forward to the Regional Administrator the

applicant’s first appeal with a recommendation within 120 calendar days from

the date of the FEMA determination that is the subject of the appeal. If the

applicant or the recipient do not meet their respective 60-calendar day and

120-calendar day deadlines, FEMA will deny the appeal.

44 CFR 206.206(b)(ii)(A). Instead of pursuing a second appeal, an applicant may request

arbitration from the Board under section 423 of the Stafford Act (as amended by section

1219 of the Disaster Recovery Reform Act of 2018). 42 U.S.C. § 5189a(d); see also 44 CFR

206.206(b)(3)(i)(C), (b)(3)(ii).

In an email dated May 8, 2022, to Colorado’s Recovery Grants Section Supervisor at

DHSEM, FEMA’s Recovery Division Director, FEMA Region VIII, appears to recognize

the challenges that both an applicant and FEMA might face in reconciling the timeliness

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provisions under the Stafford Act with FEMA’s regulations. The Recovery Division

Director stated:

Regarding your email on the Larimer Appeal for DR 4581[,] [t]he Region and

FEMA HQ are aware of the [Civilian Board of Contract Appeals’ (CBCA’s)],

decision regarding the City of Beaumont. FEMA, however, doesn’t have

unilateral authority to alter or ignore the regulatory appeal timelines. Similarly

the Region does not have the ability to extend the deadlines regarding timely

appeals – there is no express authority to waive the requirements. The

available courses of action for the applicant are outlined in the recent first

appeal determination letter, dated April 20, 2022, including: second appeal

through FEMA HQ or arbitration through the CBCA.

Similar to the applicant in City of Beaumont, CBCA 7222-FEMA, 22-1 BCA

¶ 38,018, the County, in this arbitration, challenges FEMA’s denial of its first appeal as

untimely. As mentioned previously, FEMA’s regulations require that an applicant submit

its appeal within sixty days to the recipient and then provide the recipient another sixty days

to submit the applicant’s appeal to FEMA. Technically, the County timely submitted its first

appeal to the recipient, but then the recipient forwarded that appeal to FEMA one day late

under FEMA’s regulations.

The procedural facts in City of Beaumont are nearly identical to those in this

arbitration. City of Beaumont involved a first appeal that FEMA deemed untimely because

the recipient failed to submit the applicant’s appeal to FEMA within the 120-day deadline

set forth in FEMA’s regulations. The City of Beaumont panel rejected FEMA’s finding and,

instead, found that the City of Beaumont’s first appeal, submitted within sixty days to the

recipient, was timely under the Stafford Act. The City of Beaumont panel explained:

[The Stafford Act] gives the right to appeal to the applicant, who perfects its

appeal by filing it within sixty days after receiving notice of the funding

denial. The statute does not contemplate that, once the applicant files a timely

appeal within the sixty-day deadline contemplated by the statute, the appeal

may retroactively be deemed untimely because FEMA’s designated agent for

accepting the applicant’s appeal [the recipient] did not act appropriately in

subsequently administering the timely-filed appeal.

22-1 BCA at 184,632. The City of Beaumont panel also noted:

Statutory time limits are not jurisdictional bars unless there is clear

congressional intent to make them such. A court may look at the plain

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language of the provision and the context of the time limit within the statute

to determine if a statutory time limit is jurisdictional.

Id.

As the City of Beaumont panel recognized, in recent years, federal courts have begun

moving away from broad categorizations of rules as jurisdictional. The Supreme Court in

Fort Bend County, Texas v. Davis, 139 S. Ct. 1843 (2019), explained the distinction between

jurisdictional and nonjurisdictional time limits:

While not demanding that Congress “incant magic words” to render a

prescription jurisdictional, [Sebilius v. Auburn Regional Medical Center] , 568

U.S. [145, 153 (2013)], . . . the Court has clarified that it would “leave the ball

in Congress’ court”: “If the Legislature clearly states that a [prescription]

count[s] as jurisdictional, then courts and litigants will be duly instructed and

will not be left to wrestle with the issue[;] [b]ut when Congress does not rank

a [prescription] as jurisdictional, courts should treat the restriction as

nonjurisdictional in character.” Arbaugh [v. Y&H Corp.], 546 U.S. [500,

515-16 (2006)] [] (footnote and citation omitted).

Id. at 1850.

The Supreme Court has specifically referenced so-called “claim-processing rules” that

primarily promote the orderly and procedural process of litigation as not jurisdictional.

Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428, 435 (2011). Filing deadlines are

specifically referenced as one of these “claim-processing rules.” Id.; see Fort Bend County,

Texas, 139 S. Ct. at 1849-50 (“The Court has characterized as nonjurisdictional an array of

mandatory claim-processing rules and other preconditions to relief,” including “time

prescriptions for procedural steps in judicial or agency forums.”). Here, the applicable

deadline incorporated into the statute operates as a classic “claim processing rule.” The

statutory language does not prescribe the time-filing requirement as jurisdictional. 42 U.S.C.

5189a; see City of Beaumont, 22-1 BCA ¶ 38,018, at 184,632.

Additionally, even if the panel were to consider the 120-day, recipient-to-FEMA

deadline as part of our determination on the timeliness issue, the Stafford Act’s appeal

deadlines, like most others, can be equitably tolled in appropriate cases. See Boechler, P.C.

v. Commissioner of Internal Revenue, 142 S.Ct. 1493, 1501 (2022). “[A] litigant is entitled

to equitable tolling of a statute of limitations only if the litigant establishes two elements:

‘(1) that he has been pursuing his rights diligently, and (2) that some extraordinary

circumstance stood in his way and prevented timely filing.’” Menominee Indian Tribe of

Wisconsin v. United States, 577 U.S. 250, 255 (2016) (quoting Holland v. Florida, 560 U.S.

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631, 649 (2010)). The second prong is meant to cover circumstances beyond the party’s

control. Id. In this arbitration, the applicant diligently pursued its rights by timely filing its

appeal to DHSEM. The fact that DHSEM, under FEMA’s regulations, has responsibility for

timely filing the appeal to FEMA could arguably be shown as a circumstance beyond the

applicant’s control.

Following the panel in City of Beaumont, this panel decides the arbitration request

based on the statutory language and the Supreme Court’s decisions on filing deadlines. As

stated by Judge Lester, writing separately in City of Beaumont:

In drafting its regulations, FEMA has essentially designated the recipient as its

receiving agent for purposes of the filing of the appeal. If the recipient is late

in forwarding the timely-submitted appeal to FEMA, that is not a delay that is

attributable to the applicant. The statute provides the applicant the right to

appeal within a sixty-day window, and the City met that deadline by delivering

its appeal in the manner that FEMA has directed. Delays by FEMA or its

receiving agent in forwarding or deciding the appeal should not be viewed

retroactively rendering the appeal untimely.

22-1 BCA at 184,634. Thus, we find that the County’s first appeal was timely,

notwithstanding DHSEM’s delay in forwarding the appeal to FEMA.

II.

The County is Entitled to PA Funding for its PPDR Costs

Turning to the merits, the issue before the panel is whether the County has produced

sufficient evidence to support award of PA funding for its PPDR costs. It is the applicant’s

burden to support its application for PA funding. See Jackson County, Florida, CBCA

7279-FEMA, 22-1 BCA ¶ 38,075, at 184,907 (citing City of Hattiesburg, Mississippi, CBCA

7228-FEMA, 22-1 BCA ¶ 38,029).

The Stafford Act authorizes FEMA to make PA grants for “[p]erforming 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). Pursuant to regulations implementing this statute, FEMA may only

provide PA funding for debris removal that is in the “public interest.” 44 CFR 206.224(a).

One situation cited in the regulation for showing debris removal to be in the public interest

is “when it is necessary to . . . eliminate immediate threats to life, public health, and safety.”

Id. 206.224(a)(1). “Eligible vegetative debris . . . include[s] tree limbs, branches, stumps,

or trees that are still in place, but damaged to the extent they pose an immediate threat.”

Public Assistance Program and Policy Guide (PAPPG) (June 2020) at 101.

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Private property owners are generally responsible for any debris removal from their

property. PAPPG at 107. In limited circumstances, FEMA may determine that PPDR is

eligible for PA funding because an incident’s impact is so severe and the debris on the

private property is so widespread that the debris threatens public health and safety or the

economic recovery of the community. Id. However, “[t]he debris removal must be in the

public interest, not merely benefitting an individual or a limited group of individuals.” Id.

The County’s debris removal effort did not merely benefit private property owners.

Instead, as summarized above, the County persuasively showed through documents (in

particular, the arborist’s report), hearing testimony, and affidavits that the debris on private

roads and areas was widespread and posed a significant and potentially deadly hazard to the

public. The County also showed that the removal of the debris was necessary to protect the

public, including emergency services personnel, from this hazard. Accordingly, the panel

finds that the County has met its burden of showing its entitlement to PA funding for its

PPDR costs. This matter is returned to FEMA to determine the County’s reasonablyincurred costs for the purpose of providing PA funding to the County for its debris removal

efforts.

Decision

We find that the applicant timely submitted its first appeal to FEMA under the

Stafford Act and, further, that the costs in dispute are eligible for PA funding.

Beverly M. Russell

BEVERLY M. RUSSELL

Board Judge

Allan H. Goodman

ALLAN H. GOODMAN

Board Judge

Kathleen J. O’Rourke

KATHLEEN J. O’ROURKE

Board Judge