B-160573, JUL. 6, 1967

B-160573, JUL. 6, 1967

PROPERTY - PRIVATE - GOVT. FUNDS FOR REPAIR DECISION TO THE MAYOR OF WINONA, MINN. THAT FEDERAL DISASTER ACT DOES NOT COVER COSTS OF REPAIRING OR RESTORING RAILROAD TRACKS OF THE CHICAGO/NORTHWESTERN DAMAGED DURING CONSTRUCTION OF DIKES DURING FLOOD EMERGENCY.

TO THE HONORABLE R. K. ELLINGS:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MARCH 30, 1967, CONCERNING A CLAIM BY THE CITY OF WINONA, MINNESOTA, FOR $52,500 WHICH REPRESENTS THE AMOUNT THE CITY PAID TO THE CHICAGO AND NORTHWESTERN RAILWAY COMPANY TO COVER EXPENSES INCURRED IN REPAIRING CERTAIN OF ITS DAMAGED TRACKAGE.

THE CLAIM PREVIOUSLY WAS CONSIDERED IN OUR DECISION OF JANUARY 17, 1967, B-160573, WHEREIN WE ADVISED THE DIRECTOR, OFFICE OF EMERGENCY PLANNING, THAT THE ACT OF SEPTEMBER 30, 1950, 64 STAT. 1109, AS AMENDED, 42 U.S.C. 1855 ET SEQ; KNOWN AS THE FEDERAL DISASTER ACT, DID NOT PROVIDE FOR THE REPAIR OR RESTORATION OF PRIVATE PROPERTY AND, CONSEQUENTLY, PAYMENT OF THE CLAIM WAS NOT AUTHORIZED. SINCE THE FACTS RELATING TO THE CLAIM WERE FULLY SET FORTH IN THAT DECISION THEY WILL NOT BE REPEATED IN DETAIL HERE. IT APPEARS SUFFICIENT TO STATE THAT THE TRACKS, INCLUDING TIES AND BALLAST WERE REMOVED SO THAT HEAVY EARTH MOVING EQUIPMENT COULD BE USED BY CITY WORK FORCES TO MOVE FILL THROUGH THE AREA FOR USE IN THE CONSTRUCTION OF DIKES DURING AN EMERGENCY CAUSED BY SEVERE STORMS AND FLOODING IN EARLY 1965.

THE OFFICE OF EMERGENCY PLANNING DOES NOT QUESTION THE DECISION BY THE CITY OFFICIALS TO BROACH THE RAILROAD TRACKS BUT AGREES WITH OUR EARLIER DECISION THAT THE FEDERAL DISASTER ACT DOES NOT COVER COSTS OF REPAIRING OR RESTORING PRIVATE PROPERTY, NOTWITHSTANDING THAT THE PROPERTY WAS DELIBERATELY DAMAGED OR DESTROYED IN ORDER TO PROTECT LIFE, HEALTH, AND OTHER PROPERTY. YOU AGREE THAT THE LAW DOES NOT PROVIDE FOR THE RESTORATION OF PRIVATE PROPERTY DIRECTLY DAMAGED OR DESTROYED BY FLOOD, FIRE, ETC; BUT YOU CONTEND THAT THE COSTS HERE INVOLVED ARE REIMBURSABLE UNDER THAT PART OF SECTION 3 OF THE ACT WHICH PROVIDES FOR FEDERAL ASSISTANCE "BY PERFORMING ON PUBLIC OR PRIVATE LANDS PROTECTIVE AND OTHER WORK ESSENTIAL FOR THE PRESERVATION OF LIFE AND PROPERTY, CLEARING DEBRIS AND WRECKAGE * * *;,

THIS SAME BASIS FOR REIMBURSEMENT, AFTER THOROUGH CONSIDERATION, WAS REJECTED IN OUR EARLIER DECISION AND OUR REASONS THEREFOR ARE FULLY SET OUT THEREIN. WHILE WE AGREE THAT AN INTERPRETATION OF THE ACT IN THE MANNER YOU SUGGEST MIGHT NOT BE AN UNREASONABLE ONE, WE REMAIN OF THE BELIEF THAT OUR EARLIER DECISION REACHED THE PROPER CONCLUSION THAT YOUR CLAIM WAS NOT ALLOWABLE UNDER THE ACT.

THE DIRECTOR, OFFICE OF EMERGENCY PLANNING, HAS ADVISED US THAT HIS OFFICE HAS CONSISTENTLY DENIED CLAIMS SUCH AS YOURS AND IN HIS LETTER TO US OF JUNE 13, 1967, IN COMMENTING ON YOUR CLAIM HE STATED THAT THE BASIS OF SUCH DENIAL WAS TWOFOLD:

"FIRST, OEP IS ONLY AUTHORIZED UNDER THE PROVISIONS OF THE FEDERAL DISASTER ACT TO MAKE REPAIRS OR TEMPORARY REPLACEMENTS TO ESSENTIAL PUBLIC - FACILITIES OF STATES AND LOCAL GOVERNMENTS. THE DAMAGED FACILITIES IN QUESTION ARE -PRIVATE- AND NOT ELIGIBLE FOR ASSISTANCE. THE MAYOR'S LETTER DOES NOT QUESTION OUR DENIAL ON THIS BASIS.

"SECOND, WE HAVE POINTED OUT THAT THE PROVISIONS IN SECTION 3 OF THE ACT PERMITTING OEP TO REIMBURSE AN ENTITY FOR THE PERFORMANCE OF PROTECTIVE WORK ON PUBLIC OR PRIVATE LANDS DOES NOT AUTHORIZE THE REPAIR OR RESTORATION OF PRIVATE PROPERTY. THE MAYOR ACKNOWLEDGES THIS POINT IN THE LAST PARAGRAPH ON PAGE TWO OF HIS LETTER. HE STATES -IT IS CLEAR THAT DAMAGE CAUSED TO PRIVATE PROPERTY BY A DISASTER IS NOT COMPENSABLE.- HOWEVER, HE GOES ON TO STATE THAT -THIS IS NOT THE SAME AS DAMAGE CAUSED DELIBERATELY BY DIRECTION OF A LOCAL GOVERNMENTAL UNIT; THAT DAMAGE (OR WORK OR USE) IS NOT THE RESULT OF DISASTER, IT IS CAUSED TO PREVENT DISASTER; IT IS NECESSARY TO PROVIDE THE PROTECTION REQUIRED.- WE BELIEVE THIS STATEMENT RAISES THE CENTRAL ISSUE IN THIS CASE ALTHOUGH WE COMPLETELY DISAGREE WITH THE MAYOR'S CONCLUSION.

"FOLLOWING THE MAYOR'S THEORY, OEP WOULD BE REQUIRED TO PAY THE CITY FOR THE REPAIR OR REPLACEMENT OF DESTROYED PRIVATE PROPERTY IF THE CITY ACCEPTED RESPONSIBILITY FOR REIMBURSEMENT TO THE OWNERS. THE MAYOR'S THEORY SUGGESTS THAT THE ACT REQUIRES, OR SHOULD REQUIRE, THE UNITED STATES TO BE AN INSURER AGAINST PRIVATE LOSS IN THIS SITUATION AS LONG AS STATE OR LOCAL PROTECTIVE ACTION IS TAKEN PURSUANT TO LAWFUL AUTHORITY. WE CAN FIND NO BASIS IN THE ACT OR ITS LEGISLATIVE HISTORY TO SUPPORT THIS VIEW.

"WE ALSO POINT OUT THAT THE ENTIRE FEDERAL DISASTER ASSISTANCE PROGRAM IS IN THE NATURE OF SUPPLEMENTARY ASSISTANCE TO STATE AND LOCAL GOVERNMENTS. UNDER OUR PROGRAM, STATE OR LOCAL GOVERNMENTS HAVE THE RESPONSIBILITY TO BEAR DISASTER RELATED COSTS WHICH ARE NOT PROVIDED FOR IN THE ACT OR OUR REGULATIONS ISSUED THEREUNDER;,

FOR THE REASONS STATED IN OUR EARLIER DECISION WE BELIEVE SUCH ADMINISTRATIVE INTERPRETATION OF THE ACT IS A REASONABLE ONE AND GRANTING THAT THE ACT ALSO COULD BE SUSCEPTIBLE TO THE INTERPRETATION URGED BY YOU WE ARE FACED WITH THE RULE OF STATUTORY CONSTRUCTION THAT WHEN A STATUTE IS FAIRLY SUSCEPTIBLE OF DIFFERENT CONSTRUCTIONS, THE CONSTRUCTION GIVEN IT BY THOSE CHARGED WITH ITS ADMINISTRATION IS ALWAYS ENTITLED TO THE HIGHEST RESPECT AND, THOUGH NOT CONTROLLING, IF ACTED UPON FOR A NUMBER OF YEARS WILL NOT BE DISTURBED EXCEPT FOR THE MOST COGENT REASONS AND UNLESS CLEARLY ERRONEOUS.

ACCORDINGLY, YOU ARE ADVISED THAT UPON FURTHER CONSIDERATION OF YOUR CLAIM WE FIND NO PROPER BASIS TO DEPART FROM OUR PREVIOUS DECISION IN THE MATTER AND THE CLAIM BY THE CITY OF WINONA MUST AGAIN BE DENIED.