Improved Property

Appeal Brief

Summary Paragraph

From February 5, 2020 through March 6, 2020, Alabama experienced severe storms and flooding. The University of Alabama (Applicant) requested Public Assistance for damage to an area within Moundville Archaeological Park, where heavy rain caused landslides, and dislodged archaeological items, including human skeletal remains. FEMA conducted a site inspection. Photographs from the site inspection show erosion to a heavily wooded slope. On April 26, 2022, FEMA issued a Determination Memorandum denying requested funding of $1,935,788.00. FEMA found that the Applicant did not demonstrate that the slope was an eligible facility, nor that it had legal responsibility for the damaged slope. The Applicant submitted a first appeal, providing ownership documentation, and asserting that the damaged area is not a natural feature, rather it was intentionally built along the natural terrace slope that includes burial urn internments belonging to Native American tribes. On March 23, 2023, the FEMA Region 4 Regional Administrator denied the appeal. FEMA found the Applicant provided documentation showing it had legal responsibility for the damaged area. However, FEMA also found that the Applicant did not provide documentation to support that the damage site was an improved natural feature or an eligible facility. The Applicant submitted a May 22, 2023 dated second appeal, asserting that the damaged area is a structure, within its archaeological site, built by the ancestral native inhabitants, and used as a burial place. The Applicant provided photographs and a letter from its Director of Archaeology.

Authorities and Second Appeals

• Stafford Act §§ 102(10), 406(a)(1)(A).
• 16 U.S. Code § 470bb(1).
• 2 C.F.R. § 200.300.
• 44 C.F.R. § 206.221(h).
• PAPPG, at 8, 15, and 166.

Headnotes

• FEMA is authorized to provide funding for repair of eligible facilities damaged or destroyed by a disaster. An eligible public facility is one that a State, Territorial, Tribal, or local government owns or has legal responsibility for maintaining, including public structures used for cultural purposes, such as historic properties, including archaeological sites included in the National Register of Historic Places (National Register).
  • The Applicant provided documentation supporting its claim that the area under appeal is a structure within an archaeological site on the National Register for which the Applicant has responsibility. The structure is therefore an eligible public facility. Accordingly, the repair and restoration of the burial site is eligible for PA subject to applicable Federal environmental and historic preservation laws, their implementing regulations, and applicable Executive Orders.

Conclusion

FEMA finds that the Applicant has demonstrated that the damaged area is a public facility eligible for Public Assistance. Therefore, the appeal is granted.

Appeal Letter

Appeal Analysis

Background

From February 5, 2020 through March 6, 2020, Alabama experienced severe storms and flooding. The University of Alabama (Applicant) requested Public Assistance (PA) for damage to an area within Moundville Archaeological Park (Moundville), an archaeological site included in the National Register of Historic Places.[1] The damaged area was located along the top of a slope (Facility), where heavy rain caused landslides, and dislodged archaeological items, including human skeletal remains. FEMA prepared Grants Manager Project 153935 to document the Applicant’s estimated repair and restoration costs ($742,528.00) and Hazard Mitigation Proposal ($1,193,260.00). The Applicant provided documents, including location maps and maintenance records, to support eligibility. 

On August 5, 2020, FEMA conducted a site inspection. Photographs from the site inspection showed erosion to a heavily wooded slope along the edge of the Black Warrior River.[2] On April 26, 2022, FEMA issued a Determination Memorandum denying $1,935,788.00, finding that the Applicant did not demonstrate that the Facility: (1) had any improvement to its natural characteristics; (2) had a constructed improvement that enhanced the function of the unimproved natural feature; or (3) had an improvement the Applicant maintained on a regular schedule.[3] FEMA also determined that the Applicant did not demonstrate ownership or legal responsibility for the Facility, noting the United States Army Corps of Engineers’ (USACE) previous riverbank work in the area and lack of documentation establishing legal responsibility.                         

First Appeal 

The Applicant submitted a first appeal in a letter dated June 28, 2022. The Applicant stated that the damaged Facility was a part of Moundville, which was under its ownership, and not a part of the riverbank under the jurisdiction of the (USACE). Further, the Applicant claimed that the Facility was not a natural feature. Instead, as part of a larger anthropogenically modified area, it was an intentionally built feature along the natural slope that included burial urn internments belonging to Native American tribes. The Alabama Emergency Management Agency (Recipient) transmitted the appeal to FEMA in a letter dated June 29, 2022.

In a letter dated March 23, 2023, the FEMA Region 4 Regional Administrator denied the first appeal. FEMA found that the Applicant provided documentation showing it had ownership of, and legal responsibility for, the Facility. However, FEMA also found that because the Applicant did not provide documentation to support a designed or constructed improvement to the slope, or routine maintenance, it did not establish that the Facility was an improved natural feature or otherwise eligible. As such, FEMA denied repair, restoration, and mitigation costs totaling $1,935,788.00.

Second Appeal

The Applicant submitted a second appeal dated May 22, 2023. The Applicant explains that the Facility was a structure that the previous, displaced native inhabitants of Moundville built by moving earthen and rich midden materials to level and prepare the landform above the Black Warrior River. These Native Americans then used it as a burial site for their ancestors and related funerary artifacts. The Applicant provides a letter from the Director of its Office of Archeological Research (Archaeology Letter)[4] and photographs supporting its claim. The Archeology Letter explains that the area at issue was built by the terraforming work at Moundville performed by Native Americans. It points out that the photographs show human skeletal remains and funerary objects exposed due to the disaster, and the Facility’s artificial midden material on top of the natural slope. The Applicant asserts that the disaster’s damage to the Facility was analogous to the failures that occurred at several other earthen mounds within Moundville, which FEMA approved PA funding to repair. Accordingly, it argues that the Facility should be eligible, insofar as it is an anthropogenic structure built into the natural landscape. On May 23, 2023, the Recipient transmitted the second appeal to FEMA.

Discussion

The Robert T. Stafford Disaster Relief and Emergency Assistance (Stafford) Act allows FEMA to provide funding for repair, restoration, reconstruction, or replacement of eligible facilities damaged or destroyed by a disaster.^[5] An eligible public facility is one that a State, Territorial, Tribal, or local government owns or has legal responsibility for maintaining. These include public structures used for cultural purposes, such as historic properties, including archaeological sites and traditional cultural properties included in the National Register of Historic Places.^[6]

FEMA’s site inspection photographs show a heavily wooded area, and FEMA’s guidance notes hillsides, slopes, and forests as examples of ineligible facilities.^[7] However, the Applicant maintains that the Facility is not a natural feature, but is instead a key historical and cultural element, built by ancestral Native American inhabitants. On second appeal, the Applicant provided photographs to support its claim that the Facility was a deliberately built structure, used as a burial place within the archaeological site. The photographs show fragments of burial urns and human skeletal remains that were disturbed during the disaster, as well as the artificial midden built on top of the slope. In the Archeology Letter submitted with the second appeal, the Director of the Applicant’s Office of Archaeological Research provides an archaeological opinion, characterizing the damaged area as “anthropogenic,” and “intentionally designed and used for interring the community’s dead…in large shell tempered vessels or burial urns.”[8] Further, the Director explains that “[t]he feature is artificially built and stands more than 1.5 m above the original ground surface.” Moreover, the Director states that the burial site location “[was] not a natural slope, but rather an artificial construct…a place to inter the ancestors.”[9] Finally, the Archeology Letter also distinguishes the organic material and sediments at the Facility from the area’s natural material.[10]

Based on the above, the Applicant provided documentation supporting its claim that this archeological site, although located on top of a slope, is an intentionally built structure, constructed by indigenous inhabitants centuries ago. The Applicant owns and maintains the Facility for cultural purposes. Therefore, the Applicant has demonstrated that the damaged area under appeal is an eligible public facility. Accordingly, the repair and restoration of the burial site is eligible for PA, subject to applicable Federal environmental and historic preservation laws, their implementing regulations, and applicable Executive Orders.^[11]

Conclusion

FEMA finds that the Applicant has demonstrated that the damaged area is a public facility eligible for Public Assistance. Therefore, the appeal is granted.