Notice & Comment

Homeland Security/Emergency Management: 8th Circuit Decision in Great Rivers Habitat Alliance v. FEMA, by Jonathan Rusch

On August 12th, the U.S. Court of Appeals for the Eighth Circuit, in Great Rivers Habitat Alliance v. FEMA, No. 09-3183, affirmed a decision by the U.S. District Court for the Eastern District of Missouri that the appellants had failed to exhaust their administrative remedies before the Federal Emergency Management Agency (FEMA) and that the Administrative Procedure Act (APA) did not apply because another statute, the National Flood Insurance Act of 1968 (NFIA), provided an adequate remedy.

As part of the National Flood Insurance Program that it administers, FEMA publishes Flood Insurance Rate Maps (FIRM). A FIRM is an official map of a community “delineat[ing] both the special hazard areas and the risk premium zones applicable to the community.” 44 C.F.R. § 59.1. FIRMs are used to assess premiums for flood insurance policies that the NFIP regulates.

The basis for the lawsuit was a FEMA determination to issue a Letter of Map Revision (LOMR), requested by the City of St. Peters, to revise a particular FIRM by removing a tract of land from the Mississippi River floodplain. Although the appellants had sent St. Peters a letter challenging the proposed LOMR, they filed suit to challenge the determination without first taking an administrative appeal of FEMA’s determination under subsection 4104(b) of the NFIA. The Eighth Circuit agreed with the district court that the NFIA provided an adequate remedy, and that the appellants’ challenge was not based upon the scientific or technical accuracy of the LOMR “and thus did not constitute an appeal within the meaning of 44 C.F.R. § 67.6.” (Slip op. at 8.)

This post was originally published on the legacy ABA Section of Administrative Law and Regulatory Practice Notice and Comment blog, which merged with the Yale Journal on Regulation Notice and Comment blog in 2015.

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