United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 09-3183
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Great Rivers Habitat Alliance; *
The Adolphus A. Busch Revocable *
Living Trust, *
*
Appellants, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Missouri.
Federal Emergency Management *
Agency; Department of Homeland *
Security; William R. Blanton, Jr., *
Chief, Engineering Management *
Branch, Mitigation Directorate, *
*
Appellees. *
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Submitted: April 15, 2010
Filed: August 12, 2010
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Before RILEY, Chief Judge, COLLOTON and BENTON, Circuit Judges.
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RILEY, Chief Judge.
Great Rivers Habitat Alliance (Great Rivers) and the Adolphus A. Busch
Revocable Living Trust (Busch Trust) (collectively, appellants) appeal the dismissal
of their case for lack of jurisdiction. The district court1 found appellants failed to
exhaust their administrative remedies before the Federal Emergency Management
Agency (FEMA) pursuant to the National Flood Insurance Act of 1968 (NFIA), 42
U.S.C. § 4001 et seq. and further found the judicial review provisions of the
Administrative Procedure Act (APA), 5 U.S.C. § 701 et seq. did not apply. Appellants
argue the case was dismissed in error because they had in fact exhausted their
administrative remedies, and in any event should be allowed to proceed under the
APA. We affirm.
I. BACKGROUND
Finding the private insurance industry could not economically “make flood
insurance available to those in need of such protection on reasonable terms and
conditions,” Congress enacted the NFIA to “authorize a flood insurance program by
means of which flood insurance . . . [could] be made available on a nationwide basis
through the cooperative efforts of the Federal Government and the private insurance
industry” and to provide flexibility in the program. 42 U.S.C. §§ 4001(b), (d).
Congress therefore authorized FEMA to create and establish the National Flood
Insurance Program (NFIP). See § 4011(a).
The NFIP is FEMA’s regulatory implementation of the NFIA. FEMA “is
required to identify flood-prone areas, publish flood-risk-zone data, and revise that data
as needed. Any federally regulated lender making a loan secured by improved real
estate located in a designated flood-risk zone must as a condition of making the loan
require the purchase of insurance through the [NFIP].” Paul v. Landsafe Flood
Determination, Inc., 550 F.3d 511, 513 (5th Cir. 2008) (internal citation omitted). As
part of the NFIP, FEMA publishes Flood Insurance Rate Maps (FIRM), which are
1
The Honorable David D. Noce, United States Magistrate Judge for the Eastern
District of Missouri, presiding with the consent of the parties pursuant to 28 U.S.C.
§ 636(c).
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official maps of communities “delineat[ing] both the special hazard areas and the risk
premium zones applicable to the community.” 44 C.F.R. § 59.1. The FIRMs are then
used to assess premiums for flood insurance policies regulated by the NFIP.
Occasionally, a FIRM must be updated. When this is necessary, FEMA issues
a Letter of Map Revision (LOMR), which is a
modification to an effective [FIRM] . . . . LOMRs are generally based on
the implementation of physical measures that affect the hydrologic or
hydraulic characteristics of a flooding source and thus result in the
modification of the existing regulatory floodway, the effective base flood
elevations, or the [Special Flood Hazard Area]. The LOMR officially
revises the FIRM . . . and, when appropriate, includes a description of the
modifications.
44 C.F.R. § 72.2.
On December 29, 2006, the City of St. Peters, Missouri (St. Peters), requested
a LOMR from FEMA, seeking to remove a tract of land from the Mississippi River
floodplain. St. Peters’s LOMR request was based upon the completion of the Premier
370 Business Park and Lakeside 370 Levee District. According to the request, a new
levee, built as part of the project, protected the area from a 500-year flood. In the
parlance of the NFIP, St. Peters requested a zone change from its then-current AE Zone
(100-Year Flood Zone) to an X Zone (500-Year Flood Zone, or 100-Year Flood Zone
protected by a flood control structure).
In considering St. Peters’s request for a LOMR, FEMA apparently expressed
concern about the levee’s closure structures and its ability to protect against either a
100-year or 500-year flood. Nevertheless, on June 13, 2008, FEMA issued a proposed
LOMR reflecting the changes and published it twice in a local newspaper and once in
the Federal Register. On September 29, 2008, appellants sent St. Peters a letter
challenging the proposed LOMR, pointing to alleged deficiencies in the levee,
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particularly its closure structure and the level of its freeboard. On October 10, 2008,
St. Peters forwarded appellants’ letter to FEMA along with St. Peters’s comments. St.
Peters commented, among other things, that appellants’ letter did not constitute an
appeal because it lacked required scientific or technical data. FEMA determined
modifications to the LOMR were unwarranted, and the LOMR became effective on
October 30, 2008, thereby revising the FIRM.
On December 23, 2008, appellants sued FEMA; the Department of Homeland
Security; and William R. Blanton, Jr., Chief for the Engineering Management Branch
of the Risk Analysis Division in FEMA’s Mitigation Directorate (collectively,
appellees), praying for the district court to (1) declare FEMA based its LOMR decision
upon flawed scientific and technical information and upon an inadequately designed
and constructed levee; (2) vacate FEMA’s LOMR determination; (3) permanently
enjoin FEMA from issuing the LOMR until St. Peters’s levee meets NFIA standards;
and (4) award appellants fees and costs. Appellants alleged the levee did not meet
FEMA’s requirements and therefore FEMA’s decision to issue the LOMR was
arbitrary and capricious, in violation of the NFIA and APA. Appellees moved to
dismiss pursuant to Fed. R. Civ. P. 12(b)(1), arguing the district court lacked subject
matter jurisdiction under any of the cited statutes. The district court granted appellees’
motion and dismissed appellants’ complaint, holding appellants had not exhausted their
remedies under the NFIA and the APA did not apply because the NFIA provided an
adequate remedy.
II. DISCUSSION
A. Standard of Review
“We review de novo the grant of a motion to dismiss for lack of subject matter
jurisdiction under Rule 12(b)(1).” Hastings v. Wilson, 516 F.3d 1055, 1058 (8th Cir.
2008) (quoting OnePoint Solutions, LLC v. Borchert, 486 F.3d 342, 347 (8th Cir.
2007)) (quotation marks omitted). “We must accept all factual allegations in the
pleadings as true and view them in the light most favorable to the nonmoving party.”
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Id. The burden of proving federal jurisdiction, however, is on the party seeking to
establish it, and “[t]his burden may not be shifted to” the other party. Newhard, Cook
& Co. v. Inspired Life Ctrs., Inc., 895 F.2d 1226, 1228 (8th Cir. 1990).
B. Sovereign Immunity
Appellants’ claims in this case are against agencies of the United States
government. As the sovereign, the United States of America enjoys immunity from
suit, absent a waiver. See F.D.I.C. v. Meyer, 510 U.S. 471, 475 (1994). The NFIA
contains two limited waivers of sovereign immunity based upon the subject matter of
the suit. The NFIA waives FEMA’s sovereign immunity for challenges to the agency’s
disallowance of all or part of a flood insurance claim. See 42 U.S.C. § 4072. In
addition, the NFIA allows federal court challenges to FEMA’s flood elevation
determinations. See 42 U.S.C. § 4104(g) (“Any appellant aggrieved by any final
determination of the Director upon administrative appeal . . . may appeal such
determination to the United States district court for the district within which the
community is located . . . .”). Disallowance of a flood insurance claim is not at issue
in this appeal and therefore § 4072 does not apply. Because appellants alternatively
argue their claims may be reviewed under either the NFIA or the APA, our first task
is to resolve whether FEMA’s revision of the FIRM constitutes a flood elevation
determination.
The APA waives sovereign immunity as to suits seeking judicial review where
such review has not been expressly authorized by statute, except when either the statute
precludes judicial review or “agency action is committed to agency discretion by law.”
See 5 U.S.C. § 701(a). It is undisputed that decisions on base flood elevations (BFE)
are committed to FEMA’s discretion. Appellants contend this means if we “were to
hold that § 4104(g) of the NFIA governs only appeals of flood elevation
determinations, then judicial review of FEMA’s determination to remove a tract of land
from the floodplain is reviewable under the [APA].” Our review of the record reveals
FEMA’s action was in fact a flood elevation determination.
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C. APA Claim
In order to determine whether FEMA’s decision to issue the LOMR is a flood
elevation determination, we first review the structure of the NFIP. A “flood elevation
determination” is “a determination by the Federal Insurance Administrator of the water
surface elevations of the base flood, that is, the flood level that has a one percent or
greater chance of occurrence in any given year.” 44 C.F.R. § 59.1. A “base flood
elevation” is a measurement of “the potential water level height during a base flood.”
Colum. Venture LLC v. S.C. Wildlife Fed’n, 562 F.3d 290, 292 (4th Cir. 2009).
Turning to FEMA’s LOMR, we recognize the revisions to the FIRM involve a
decrease in flood zone from Zone AE to Zone X. Zone AE is an “[a]rea of special
flood hazard,” which is “land in the flood plain within a community subject to a 1
percent or greater chance of flooding in any given year.” 44 C.F.R. § 59.1. The parties
agree “Zone X” means a “500 Year Flood Zone, or areas protected from the 100 Year
Flood Zone by a flood control structure.”
Because moving land from Zone AE to Zone X is a flood elevation
determination, the case was properly litigated under the NFIA, and not the APA. By
definition, land in Zone X has a base flood elevation of zero, because it is protected
from the base flood by either its nature or by a flood control structure. FEMA’s act of
revising the FIRM to move land from Zone AE to Zone X is functionally identical to
adjusting the base flood elevation from its previous level to zero. This adjustment is
assuredly a flood elevation determination which may be reviewed pursuant to 42
U.S.C. § 4104(g). Because the APA only grants judicial review of final agency action
in cases “for which there is no other adequate remedy in a court,” 5 U.S.C. § 704, the
district court did not err in dismissing appellants’ APA claim, because 42 U.S.C.
§ 4104(g) provides an adequate legal remedy.
D. NFIA Claim
Before challenging a flood elevation determination in federal court, a party must
first take an administrative appeal of FEMA’s determination. See § 4104(b) (“During
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the ninety-day period following the second publication [of flood elevation
determinations by FEMA], any owner or lessee of real property within the community
who believes his property rights to be adversely affected . . . may appeal such
determination to the local government.”). However,
The sole basis for such appeal shall be the possession of knowledge or
information indicating that the elevations being proposed by [FEMA]
with respect to an identified area having special flood hazards are
scientifically or technically incorrect, and the sole relief which shall be
granted under the authority of this section in the event that such appeal is
sustained . . . is a modification of the . . . proposed determination
accordingly.
Id. The district court agreed with FEMA that appellants did not adequately, if at all,
provide scientific or technical evidence and therefore did not file an “appeal” with the
agency within the meaning of the NFIA, leaving no final agency judgment upon which
to ground § 4104(g) jurisdiction. The jurisdictional question can therefore be reduced
to whether appellants challenged FEMA’s decision on the basis of the decisions’
scientific or technical accuracy in accordance with § 4104(b).
In order to appeal a determination on the basis of scientific or technical
accuracy, FEMA’s regulations require supporting documentation.
If an appellant believes the proposed base flood elevations are technically
incorrect due to a mathematical or measurement error or changed physical
conditions, then the specific source of the error must be identified.
Supporting data must be furnished to FEMA including certifications by
a registered professional engineer or licensed land surveyor, of the new
data necessary for FEMA to conduct a reanalysis.
44 C.F.R. § 67.6(b)(1). Similarly, allegations that proposed BFEs are technically
incorrect due to alleged error in applying hydrologic, hydraulic, or other methods, or
use of inferior data, must provide certification from an engineer or surveyor. See 44
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C.F.R. § 67.6(b)(2)(v). “Technically incorrect” means “[t]he methodology . . . utilized
has been erroneously applied due to mathematical or measurement error, changed
physical conditions, or insufficient quantity or quality of input data.” 44 C.F.R. § 59.1.
Appellants did not point to any mathematical or measurement error, changed
physical conditions, or lack of sufficient quality data to support the allegations in their
letter to St. Peters.2 Instead, appellants contested FEMA’s decision to grant the LOMR
generally on two grounds—the levee lacked a closure structure and the sufficiency of
freeboard. The district court found the exhibits appellants submitted in support of the
closure plan issue consisted of “nothing but blanket conclusions and
recommendations.” We agree. Regarding the freeboard issue, the district court found
the evidence submitted was supported by only one exhibit that contained any technical
data, and that table of data was provided by FEMA. Appellants argue (1) the
information submitted by FEMA’s technical consultant is “technical”; (2) appellants
were not required to demonstrate the inaccuracy of the proposed BFEs; (3) FEMA
cannot lawfully impose a requirement that appellants certify information submitted by
FEMA; and (4) their submissions satisfy the NFIA’s appeal requirements.
We agree with the district court that 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. A review of the relevant documents supports
our position. For example, the Baker Geotechnical Engineering Reviews are nothing
more than executive summaries of findings and proposed courses of action, not
2
Nor did appellants’ filing challenge the BFE as scientifically incorrect.
“Scientifically incorrect” means “[t]he methodology . . . or assumptions which have
been utilized are inappropriate for the physical processes being evaluated or are
otherwise erroneous.” 44 C.F.R. § 59.1. An appeal of the proposed BFE asserting
FEMA’s calculation is scientifically incorrect must, among other things, “[p]rovid[e]
technical support indicating why the appellant’s methods should be accepted as more
correct.” 44 C.F.R. § 67.6(b)(3)(iv).
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technical information FEMA could use to reevaluate its decision. Even if it is true
appellants are not required to demonstrate the inaccuracy of the elevations, as
appellants suggest, the requirement of new technical information exists so FEMA may
reevaluate its conclusions when new data is offered. FEMA is not required to rehash
data it already reviewed upon the chance FEMA would change its decision. Because
appellants offered no new data, we need not decide which party bears the burden of
showing inaccuracies in the elevations.
The NFIP does not invite motions for reconsideration. Where FEMA’s
regulations require new certified technical information, this is not a command to certify
the existing information in FEMA’s files. Rather, the regulations require appellants
to certify new information so FEMA can conduct another analysis. This is precisely
what appellants failed to do in this case. Instead, appellants attempt to force FEMA
to reanalyze the existing data, hoping for a different result, without submitting any new
certified technical data showing the first analysis contained mathematical or
measurement errors, or physical conditions have changed. Because appellants did not
submit new scientific or technical information, and what they did submit was not
certified by an engineer or surveyor, appellants are relying on nothing but the data in
FEMA’s files. The district court correctly concluded it lacked jurisdiction because
appellants failed to exhaust their administrative remedies by filing a proper appeal with
FEMA.
III. CONCLUSION
We affirm the district court’s judgment.
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