In the Matter of TOWN OF PARADISE, CALIFORNIA

February 14, 2025

CBCA 7924-FEMA

In the Matter of TOWN OF PARADISE, CALIFORNIA

Wendy Huff Ellard of Baker, Donelson, Bearman, Caldwell & Berkowitz, PC,

Jackson, MS; and Danielle M. Aymond of Baker, Donelson, Bearman, Caldwell &

Berkowitz, PC, Baton Rouge, LA, counsel for Applicant.

Ryan Buras, Deputy Director, Eli Owen, Assistant Director, Robert Larsen, Public

Assistance Officer, Susan Lee, Associate Governmental Program Analyst, Fan Jia,

Infrastructure Branch Chief, Jennifer Bollinger, Chief Counsel, Carl DeNigris, Assistant

Chief Counsel, and Michael Romero, Counsel, Governor’s Office of Emergency Services,

Mather, CA, appearing for Grantee.

Emanuel Rier Soto, Office of Chief Counsel, Federal Emergency Management

Agency, Department of Homeland Security, Guaynabo, PR; and Maureen Dimino, 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 GOODMAN, SHERIDAN, and

O’ROURKE.

O’ROURKE, Board Judge, writing for the Panel.

The applicant, Town of Paradise, California, seeks reimbursement for costs of

hazardous tree removal services on private property in the wake of widespread damage

caused by the 2018 wildfires known as the Camp Fire. Although the work was initially

approved by FEMA as eligible for public assistance (PA) funding, the applicant’s request to

change the scope of work to account for thousands of additional hazardous trees was

submitted years after the project’s initial scope of work was completed and funded and,

consequently, was untimely.

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Background

Between November 8 and 25, 2018, the Camp Fire caused catastrophic damage in

California throughout Butte, Los Angeles, and Ventura Counties. The fire burned 150,000

acres, destroyed 19,000 structures including homes, schools, and businesses, and took the

lives of eighty-five people. It was the deadliest and most destructive wildfire in California

history.

Presidential Disaster Declaration

Four days after the fire started, the President issued a major disaster declaration

(FEMA-DR-4407) under the Robert T. Stafford Disaster Relief and Emergency Assistance

Act (Stafford Act), 42 U.S.C. §§ 5121-5207 (2018), for the affected areas, authorizing

individual assistance, public assistance, and state-wide hazard mitigation. The declaration

specifically authorized debris removal and emergency protective measures under the PA

program. The fire burned for another two weeks before it was contained. Heavily treed

areas, including the Town of Paradise (the Town), were devastated by the fire, prompting a

massive debris removal and clean-up effort that ultimately removed 7.3 billion pounds of

ash, debris, metal, concrete and contaminated soil from affected areas.

FEMA’s Approval of California’s Private Property Debris Removal Request

The State of California has broad legal authority to remove hazardous and toxic debris

from private property when it poses an immediate threat to the public health and safety of the

community. These authorities include the California Health and Safety Code, the State’s

Emergency Powers Act, the State’s police powers, and a number of local ordinances and

regulations that authorize State and local agencies to enter onto private property without a

court order or consent from the land owner to abate hazards and to mitigate the effects of the

disaster.

In the wake of the Camp Fire, thousands of fire-damaged trees on private property

presented a significant health and safety threat to the public given their close proximity to

public rights of way (ROW) and other types of improved public property, such as utility

infrastructure. Applicant’s Request for Arbitration (RFA), Exhibit 21 at 1-3. To ameliorate

this threat, the State sought assistance from FEMA. By letter dated November 28, 2018, the

California Office of Emergency Services (Cal OES) requested FEMA’s assistance with

removing fire-damaged tree debris on private property to eliminate immediate threats to life,

public health, and safety. Id. at 8.

On December 6, 2018, FEMA approved the request pursuant to 44 CFR 206.224(a)(1)

(2018). RFA, Exhibit 21 at 62. In the approval letter, FEMA specifically authorized the

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removal of trees on private property “that pose[d] a safety hazard to debris removal crews

and the public at large” and acknowledged that the State “unconditionally agree[d] to

indemnify the federal government against any claim arising from debris removal,” which the

federal law requires. Id. at 63; see 42 U.S.C.§ 5173(b) (2018). The approval letter further

acknowledged the State’s position that “although it [the State] has authority to enter onto

private property to remove dangerous debris without homeowner consent by means of its

nuisance abatement, condemnation, or police powers, the [S]tate will use these powers only

as a last resort and will first attempt to obtain a Right of Entry from the owner.” RFA,

Exhibit 21 at 63.

Finally, FEMA’s approval letter addressed the statutory requirement to avoid

duplication of benefits while undertaking the debris removal. FEMA warned that property

owners could not receive public assistance from FEMA and collect insurance settlements that

cover the same work and further explained that the State had a duty to “facilitate recovery

of insurance benefits and credit them against eligible costs.” Id. at 64.

Hazardous Tree Removal Through the State Program or By Individual Homeowners

The State program was a private property debris removal (PPDR) program approved

for the eradication of hazardous debris caused by the Camp Fire. Through the State program,

private homeowners signed a right of entry, allowing the State’s contractors to remove

hazardous trees from their property. RFA, Exhibit 7 at 15. Homeowners who did not grant

the State a right of entry onto their property could remove any hazardous trees at their own

expense. RFA at 12. After an initial hazardous tree assessment was conducted by the Town,

the homeowners would either be required to cut down the hazardous trees at their own

expense or opt-in to the State program and have CalRecycle, the State’s contractor, remove

the hazardous trees at the State’s expense. RFA, Exhibit 7 at 16-17; RFA at 12. For those

not enrolled in the State program, the Town had to follow up and verify that the hazardous

trees were removed by the homeowners. If the trees had not been removed as required, the

Town was allowed to pursue abatement methods consistent with its legal authority. RFA at

12.

The Town’s Request to FEMA for Approval of a Town-Administered PPDR Program to

Remove Hazardous Trees

Despite the fact that FEMA already approved the hazardous tree removal program,

the Town reached out to Cal EOS by letter, dated July 1, 2019, stating that, although

“ongoing debris removal operations are a first step on the road to recovery . . . , the enormity

of the standing burnt trees throughout the town will need to be addressed before rebuilding

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will be possible.”1 RFA, Exhibit 21 at 74. To that end, the Town requested “FEMA’s

approval of the Town’s program for administering the PPDR program for removal of

standing burnt trees,” and “[Cal OES’s] assistance in the contracting and performance of the

removal of the trees.” Id. The Town explained that the cost of removing standing burnt trees

on private property often exceeded the value of the property itself, a fact that would

discourage rebuilding of homes, which, in turn, would impede the generation of tax revenue

essential to the recovery effort. The Town also commented that removing standing burnt

trees would be a daunting task for property owners, resulting in leaving the trees where they

were—which would only prolong the public safety threat. Id. at 78.

In its follow-up request, the Town proposed the following approach to administering

the PPDR hazardous tree removal program. The Town would manage: (1) homeowner

intake, including collecting the rights of entry (ROE) from homeowners; (2) communication

with the public about the program; (3) performing due diligence/property assessments to

facilitate a determination of whether a property qualifies for the program; (4) duplication of

benefits prevention functions; and (5) coordinating with the State to remove the standing

burnt trees for properties in the State program or under abatement. RFA, Exhibit 21 at 78.

The Town assured the State and FEMA that the Town’s request met the requirements for a

voluntary program under 44 CFR 206.223, General Work Eligibility, since the work/program

requested was: (1) required as a the result of the disaster, (2) located within the designated

disaster area, and (3) was the legal responsibility of the eligible applicant. Id. at 74.

Cal OES’s Letter Seeking Confirmation and Approval of FEMA PPDR Program for

Hazardous Tree Removal and FEMA’s Response

Cal OES reviewed the Town’s latest request and forwarded it to FEMA, along with

the State’s own letter, dated August 22, 2019, endorsing the Town’s request. Cal OES’s

letter to FEMA acknowledged FEMA’s support of the PPDR program already underway but

reiterated its concerns about the standing burnt trees, due to the substantial number of burnt

trees on private property. Id. at 2. “The fire-damaged trees are so widespread . . . the public

health and safety as well as the economic recovery of the Town and County continue to be

threatened unless these trees can be removed and disposed of in an expeditious manner.” Id.

at 1.

Cal OES asked FEMA to confirm and approve “the removal and disposal of all

hazardous fire-damaged trees on private properties that are a threat to the public at large,

1

The record includes an estimate of 58,000 fire-damaged trees across 11,500

properties that present a public safety hazard and must be removed before any meaningful

rebuilding is possible. RFA, Exhibit 21 at 76.

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including public rights of way (ROWs).” Id. at 2. Cal OES added that the trees along local

“orphan roads” were also a public safety risk.2 Id. at 3. FEMA’s response, dated September

19, 2019, confirmed its approval of hazardous tree removal “on private property under the

2018 PPDR grant as incidental to the mission to abate hazardous debris and ash.”3 RFA,

Exhibit 12 at 2 (emphasis added). By this time, however, FEMA recognized that the

abatement work was nearly complete, yet no trees had been removed. Although the primary

rationale for approving the tree removal had disappeared with the debris (the potential harm

to debris abatement crews), FEMA nonetheless approved the request for public assistance

since the trees remained a threat to public safety. Id. FEMA’s approval was not without

limitations, however. The following specifications applied:

Removal and disposal of hazard[ous] trees on private property that pose an

imminent threat of falling on the public ROW, or other improved property, are

eligible for PPDR assistance. For any tree removed under the approval

granted by this letter, a subject matter expert’s opinion will be required to

substantiate that the tree was in fact an eligible hazard tree (so damaged by the

Camp Fire that it posed an imminent threat of falling onto public ROW or

other improved public property). A tree that does not meet this requirement

is not eligible because it cannot be considered “debris.” This grant applies to

all private properties in the Town of Paradise or Butte County where eligible

hazard trees are located without regard to whether that property would have

previously been eligible for the 2018 PPDR Program.[4]

Id. at 2-3 (internal footnote omitted). Finally, FEMA reiterated that the PPDR program for

removing hazardous trees must be mandatory, not voluntary. Id.

2

Orphan roads are roads that are not maintained by a public agency but which

are traveled and used every day by the public in carrying out their regular business.

Examples include children who walk to school or ride the bus, residents commuting to work

and running errands, and first responders and public utility crews responding to emergencies.

3

Removing fire-damaged trees was considered incidental to the larger debris

removal operation because fire-damaged trees could have fallen on the abatement crews

while the crews worked to remove other debris.

4

According to FEMA, only properties containing completely-destroyed

residences, or specifically approved commercial structures, were eligible for the 2018 PPDR

program.

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FEMA’s Response to Removing Hazardous Trees on Orphan Roads

Regarding the Town’s request for public assistance for the removal of fire-damaged

trees that threatened private roads, FEMA explained that the PA program “is limited to

assistance that benefits the public interest.” RFA, Exhibit 12 at 3. FEMA “may grant this

request if Cal OES can provide additional information supporting that the roads are

frequently traveled by the public, and therefore, in the public’s interest.” Id. This included

evidence that demonstrated how removing the trees on orphan roads was in the public

interest. FEMA also required documentation from a subject matter expert that: (1) identified

trees that were eligible for removal because the trees “pose[d] an immediate threat of falling

on the orphan roadway” and (2) explained “why other cost-effective means to mitigate the

threat, such as rerouting school bus routes, [was] impractical.”5 Id. Five months later, after

much back and forth, FEMA determined that a number of the orphan roads were “potentially

eligible for FEMA assistance” while others remained ineligible. RFA, Exhibit 15 at 1.

Project Worksheet 219

FEMA granted PA funding for project 97307 for the Town’s arborists to assess

hazardous trees and limbs in its ROW. RFA, Exhibit 20 at 1. Project Worksheet (PW) 219

was written and obligated on February 20, 2020, for that work. Id. at 4. The “Damage,

Descriptions, and Dimensions” section of PW 219 stated, “Town of Paradise, a public ROW,

4760 each of damaged trees marked for removal only.” Id. at 1. The scope of PW 219 was

limited to an arborist assessment, which involved identifying and marking the 4760

hazardous trees for removal. Id. at 2. The scope did not include the actual removal or

disposal of the trees. According to the project notes portion of the PW, “removal of

hazardous trees will be performed by the State of California’s tree removal mission and

captured in future project(s) written for California Department of Resources, Recycling, and

Recovery. Id. “No debris removal was done.” Id.

PW 219 also noted that the arborist assessment work was completed by contract

between May 22 and September 25, 2019, and the money for the work ($92,620) had been

obligated. RFA, Exhibit 20 at 1. Subsequent to the obligation of PW 219 in February 2020,

thousands of properties were identified as failing to participate in the State program. Thus,

the work continued beyond the period of performance specified in PW 219. Weekly team

meetings were held between the Town, County, Cal OES, and FEMA to review progress for

more than 7000 properties.

5

Immediate threat is defined as “the threat of additional damage or destruction

from an event which can reasonably be expected to occur within five years.” 44 CFR

206.221(c).

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The Town’s Multiple Extension Requests

COVID-19 became a national emergency around the same time that hazardous tree

removal operations were ramping up. The onset of the pandemic delayed recovery efforts

in Paradise and elsewhere in California. To address this and other delays, the Town sought

various extensions from FEMA, including in June and November 2019, May and August

2020, and May 2021. FEMA did not respond to any of the extensions but continued to work

with the various agencies to ensure that hazardous tree removal operations continued.

PW 219 - Requests for New Version and Change in Scope to the Statement of Work

In addition to submitting multiple extension requests, the Town and Cal OES began

drafting a new version of PW 219 to capture the work and costs for hazardous tree removal

that took place after the obligation of PW 219. The Town formally requested a version

change for PW 219 by letter, dated July 11, 2022. RFA, Exhibit 13. One month later, the

Town also requested a change to the scope of the statement of work (SOW) for PW 219.

RFA, Exhibit 14. In the scope change request, the Town sought: (1) $955,000 for the

arborist, Tetra-Tech, to inspect private properties and to mark hazardous trees;

(2) $177,178.26 for project management costs; and (3) $7,002.55 for postage. Id. at 3.

FEMA denied the SOW change request for PW 219 on March 1, 2023, stating that the

period of performance for PW 219 expired in May 2019, rendering the SOW change request

untimely. The Town appealed this determination on April 6, 2023.

FEMA’s Denial of the Town’s Appeal

In denying the Town’s appeal, FEMA argued that the work was not eligible because

it was not performed by the applicant—the Town. Instead, the work was performed by the

Town’s contractor, Tetra-Tech. “Consequently, because debris removal was not performed

[by the Town], the site assessment arborists costs, and any other costs associated with, or in

support of the assessment of claimed debris removal, are ineligible for PA funding, including

previously approved funding.” RFA, Exhibit 4 at 6. FEMA also stated that the appeal

should be denied because FEMA never approved the “Town Program.” FEMA’s Response

to RFA at 12. Lastly, FEMA argued that the SOW change was untimely because it was

submitted years after the disaster was declared. FEMA’s Response to RFA at 13-15. FEMA

then corrected its previous eligibility determination and denied the request. The applicant

filed a request for arbitration at the Board.

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Discussion

Before the arbitration panel are three issues: (1) whether the applicant performed

eligible work; (2) whether FEMA approved the Town program; and (3) the timeliness of the

applicant’s extension requests and SOW change request. The panel conducts reviews of

FEMA eligibility determinations on PA grants de novo. Monroe County, Florida, CBCA

6716-FEMA, 20-1 BCA ¶ 37,688, at 182,980.

Work Eligibility

Debris removal on private property is generally the responsibility of the individual

homeowners. However, “[i]n limited circumstances, based on the severity of the impact of

an incident, FEMA may determine that debris removal from private property is eligible under

the PA program.” Public Assistance Program and Policy Guide (PAPPG) (Apr. 2018) at 54.

“If debris on private property is so widespread that it threatens public health and safety, or

the economic recovery of the community, FEMA may provide PA funding for debris

removal from private property.” Id. In those circumstances, FEMA policy requires that the

debris removal be “in the public’s interest not merely benefitting an individual or a limited

group of individuals within the community.” Id. An applicant seeking PA funding for PPDR

must also have the legal authority to perform the work. Id.

In this case, FEMA determined that the applicant’s request for PA funding met all of

the above requirements when it approved two separate requests by the applicant for PPDR

work related to hazardous tree removal. The second approval letter from FEMA specifically

addressed the Town program, finding that “removal and disposal of hazardous trees on

private property that pose an imminent threat of falling on the public ROW, or other

improved property, are eligible for PPDR assistance.” RFA, Exhibit 12 at 2. FEMA’s

approval letter also addressed arborist assessments, stating: “[F]or any tree removed under

the approval granted by this letter, a subject matter expert’s opinion will be required to

substantiate that the tree was in fact an eligible hazard tree.” Id. Nothing in FEMA’s

approval letter specifically required the Town to remove and dispose of the trees. Rather,

the letter simply approved “the removal and disposal” of hazardous trees and required that

any tree removed under FEMA’s grant of approval be certified as eligible by a tree expert.

FEMA’s position is that debris removal only encompasses removing and disposing

of hazardous trees (the primary work) and that everything else—conducting arborist

assessments, compliance inspections, and duplication of benefits analyses—is secondary.

FEMA distinguishes costs in the same way. Costs to support tree removal and disposal are

considered direct costs, whereas costs associated with secondary work are indirect costs.

FEMA argues that when the direct costs of the work are not funded by FEMA, the indirect

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costs are ineligible for PA funding. FEMA explained that in such cases, FEMA has no

eligible project to which it can attach any indirect costs.

The applicant, on the other hand, asserts that the issue is not whether the PPDR work

was funded by FEMA but rather whether the work was eligible PPDR work. We agree with

the applicant. We find nothing in the statute, regulations, or PAPPG that ties PA funding to

which entity performed the debris removal. What matters is whether the work performed

was eligible work. See Hobby Center Foundation, CBCA 7732-FEMA, 23-1 BCA ¶ 38,467,

at 186,972 (where the panel found that reducing project repair costs to $0 after performing

a duplication of benefits analysis did not render the project ineligible for hazard mitigation

funding). Here, removal and disposal of hazardous trees was deemed eligible PPDR work

under FEMA’s grant of approval, and the work was carried out pursuant to FEMA’s grant

of approval. All of the work required to effect that debris removal, including the required

expert determination that a tree identified and marked for removal was, in fact, a hazardous

tree, was also eligible work. For these reasons, we conclude that FEMA’s initial

determination that the work was eligible is correct.

Timeliness of Extension Requests and Change in Scope Request

“FEMA only provides PA funding for work completed and costs incurred within

regulatory deadlines. The deadline for emergency work is six months from declaration date.”

PAPPG at 141. Applicants may request extensions in writing that include documentation

substantiating that the delays were beyond the applicant’s control, providing a status of the

project and a project time with the expected project completion date. Id. The recipient (here,

the State) has the authority to extend project deadlines for six months. FEMA has the

authority to extend individual project deadlines beyond six months in extenuating

circumstances. 44 CFR 206.204(c)(2). The PAPPG lists circumstances that would generally

be considered beyond an applicant’s control, such as historical preservation permitting or

inclement weather. PAPPG at 141-42. The PAPPG likewise lists circumstances not outside

an applicant’s control, such as a lack of funding, compilation of documentation, its own

permit delays, or administrative challenges such as cost accounting system changes. Id. at

142.

Even if FEMA found the magnitude of the Camp Fire and the added complication of

contending with a worldwide pandemic during the recovery phase of a devastating disaster

to be sufficient justification for delays in project completion, the record contains no evidence

that FEMA approved continuing requests. Arguably, FEMA’s approval of the Town’s

program in September 2019 substantiated FEMA’s approval of the prior extensions,

especially in light of the extent of the damage and the thousands of hazardous trees that

remained standing at that time. FEMA even requested additional information before

approving PA funding for certain orphan roads, then subsequently approved a number of

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those roads after the Town supplied the requested documentation. Furthermore, FEMA has

acknowledged that wildfires are different from other natural disasters. They typically have

longer incident periods, which impact the timeline between a disaster declaration and project

formulation, execution, and completion. We conclude that these facts sufficiently

demonstrate FEMA’s approval of continuing work.

The record is less clear regarding FEMA’s stance on the Town’s much later extension

requests in August 2020 and May 2021. The Town’s requests were submitted, but FEMA

did not respond to them and now asserts the requests were not approved. We realize that

FEMA was working side-by-side with the applicant and the recipient on the ground,

attending weekly meetings and keeping track of the tens of thousands of hazardous trees

identified, marked, removed, and disposed of under a grant of approval. We also recognize

that FEMA, as the steward of the PA funding program, must verify compliance with myriad

requirements and procedures before, during, and after a disaster and, therefore, that

individual applicants must ensure that they obtain the necessary approvals during project

performance when circumstances require prior approval.

However, under the circumstances here, the Town’s request for a change in scope to

the SOW was untimely. The record shows that the Town understood that PW 219 was

completed and obligated in early 2020, yet the Town waited two years to officially request

the scope change. Even if the Town had sufficient evidence of FEMA’s assent to the Town’s

various extension requests, it would nonetheless be inadequate to meet the timeliness

requirements to change the scope of the SOW under PW 219. The Town submitted that

request in July 2022, more than one year after the last extension request and three years after

the project’s documented period of performance under PW 219 had ended.

Years after the incident, the work to identify, remove, and dispose of hazardous trees

continued. Yet, the period of performance and scope of work documented in PW 219 did not

reflect that work. How and why that happened is unclear, but the burden of obtaining

approvals for new projects, additional versions, and scope changes is on the applicant. “If,

during [performance], an applicant discovers additional, hidden damage, it must report this

damage with a description of the damage and an explanation of how the [disaster] caused the

damage.” School Board of Bay County, Florida, CBCA 7665-FEMA, 24-1 BCA ¶ 38,701,

at 188,168 (citing PAPPG at 136-37). Any requests to fund the additional work should be

made before taking action. In general, Federal regulations provide that “the recipient of a

federal award is ‘required to report deviations from budget or project scope or objective, and

request prior approvals from Federal awarding agencies for budget and program revisions.’”

City of Longview, Texas, CBCA 8123-FEMA, 24-1 BCA ¶38,706, at 188,188 (quoting

2 CFR 200.308(b)).

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Decision

The applicant’s request for PA funding is denied.

Kathleen J. O’Rourke

KATHLEEN J. O’ROURKE

Board Judge

Allan H. Goodman

ALLAN H. GOODMAN

Board Judge

Patricia J. Sheridan

PATRICIA J. SHERIDAN

Board Judge