Maudlin v. Fed. Emergency Mgmt. Agency
| Decision Date | 30 September 2015 |
| Docket Number | No. 3:14–cv–00144–RLY–WGH.,3:14–cv–00144–RLY–WGH. |
| Citation | 138 F.Supp.3d 994 |
| Parties | Nathan B. MAUDLIN, Jeanne G. Maudlin, and Flanders–Scott, LLC, Plaintiffs, v. FEDERAL EMERGENCY MANAGEMENT AGENCY, Defendant. |
| Court | U.S. District Court — Southern District of Indiana |
Nathan B. Maudlin, Klezmer & Associates, New Harmony, IN, pro se.
Shelese M. Woods, United States Attorney's Office, Indianapolis, IN, for Defendant.
RICHARD L. YOUNG
, Chief Judge.
Plaintiffs, Nathan B. and Jeanne G. Maudlin and Flanders–Scott, LLC, brought suit against the Federal Emergency Management Agency ("FEMA"), seeking declaratory and injunctive relief against FEMA's implementation of its new flood insurance rate map ("FIRM") affecting New Harmony, Indiana. Plaintiffs argue that FEMA failed to follow certain statutory requirements set forth in the National Historic Preservation Act of 1966 ("NHPA"), amended and codified as 54 U.S.C. § 300101 et seq.,
rendering the FIRM unlawful. FEMA moves to dismiss Plaintiffs' Amended Complaint for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1), or, in the alternative, for failure to state a claim under Rule 12(b)(6). For reasons set forth below, FEMA's Motion to Dismiss is GRANTED.
New Harmony sits on the Lower Wabash River in Southwestern Indiana. In 1965, the Department of the Interior designated New Harmony as a National Historic Landmark District. In 1966, it was placed on the National Register of Historic Places. . New Harmony received its designation "under themes of social and humanitarian movement, with areas of significance including architecture, social history, and science." (Id. ).
In 2011, FEMA began the process of updating its flood elevation determinations for New Harmony. A flood elevation determination is FEMA's determination of water level elevations for 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
. FEMA then depicts these determinations and any special flood hazard areas ("SFHA")1 in a FIRM. FEMA published its proposed determinations in the Federal Register on May 16, 2013, and in the Posey County News on June 12 and 19, 2013. (Filing No. 11–1 at 1). FEMA received no administrative appeals challenging its proposed determinations and, thus, the FIRM was set to take effect on November 5, 2014. (Id. ).
Plaintiffs allege, and the court accepts as true, that FEMA's new floodplain determinations designate more than sixty percent of real estate in New Harmony as "Zone A"2 property. This determination implicates the mandatory flood insurance requirements for property owners and lessees under the National Flood Insurance Act ("NFIA"), 42 U.S.C. § 4001 et seq.
(Am. Compl. ¶ 12). This designation, according to Plaintiffs, will cause property values to decline anywhere from forty to sixty percent and will depress local tax revenue and investment and, ultimately, the local economy. (Id. ).
Plaintiffs challenge FEMA's new FIRM for New Harmony on two principal grounds. First, Plaintiffs claim FEMA failed to "use the most reliable, accurate data reasonably available" in revising the FIRM for New Harmony. Second, Plaintiffs argue the revised FIRM is "contrary to law" because FEMA failed to observe mandatory procedures set forth in the NHPA and enforced by the Advisory Council on Historic Preservation ("ACHP"). Plaintiffs, therefore, ask the court to (1) find that FEMA did not "use the most reliable, accurate data" when revising the FIRM for New Harmony; (2) find that FEMA did not engage in the NHPA's Section 106 review process, thus rendering the revised FIRM contrary to law; and (3) enjoin FEMA from implementing the FIRM.
A motion to dismiss under Rule 12(b)(1)
tests the sufficiency of the complaint, not the merits of the case. Ctr. for Dermatology & Skin Cancer, Ltd. v. Burwell, 770 F.3d 586, 588 (7th Cir.2014). Rule 12(b)(1) requires dismissal of claims over which the court lacks subject matter jurisdiction. The court accepts as true all well-pleaded factual allegations and draws all reasonable inferences in plaintiff's favor, "but a plaintiff faced with a 12(b)(1) motion to dismiss bears the burden of establishing that the jurisdictional requirements have been met." Id. at 588–89 (citations omitted).
To survive a Rule 12(b)(6)
challenge, the complaint must contain sufficient factual allegations to state a claim upon which relief may be granted. The court accepts all facts in the complaint as true and views them in the light most favorable to the plaintiff. Bonte v. U.S. Bank, N.A., 624 F.3d 461, 463 (7th Cir.2010).
Plaintiffs alleged federal question jurisdiction under 28 U.S.C. § 1331
and waiver of sovereign immunity under the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701 –706, as a basis for the court's jurisdiction. FEMA challenges jurisdiction on grounds that Plaintiffs failed to exhaust administrative remedies provided for in the NFIA. Accordingly, FEMA argues, sovereign immunity is not waived under the APA and the court therefore lacks subject matter jurisdiction.3
When bringing suit against the United States or its agencies, the plaintiff must show that the United States has waived sovereign immunity with respect to its claims. FDIC v. Meyer, 510 U.S. 471, 475, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994)
(). "A waiver of the Federal Government's sovereign immunity must be unequivocally expressed in statutory text." Lane v. Pena, 518 U.S. 187, 192, 116 S.Ct. 2092, 135 L.Ed.2d 486 (1996). "The plaintiff not only must identify a statute that confers subject matter jurisdiction on the district court but also a federal law that waives the sovereign immunity of the United States to the cause of action." Macklin v. U.S., 300 F.3d 814, 819 (7th Cir.2002). Failure to satisfy either requirement requires dismissal of the complaint. Id.
Section 702 of the APA both creates a right to seek review of a final agency action and provides a waiver of sovereign immunity. Michigan v. U.S. Army Corps of Eng'rs, 667 F.3d 765, 774 (7th Cir.2011)
. The waiver only applies to actions that seek relief other than money damages, such as the case here. Id. ; 5 U.S.C. § 702. Id. (citations omitted); see also 5 U.S.C. § 704.
limits waiver, however, providing for judicial review of agency action "for which there is no other adequate remedy in a court." This exhaustion requirement is a prerequisite to judicial review. Shawnee Trail Conservancy v. U.S. Dept. of Agric., 222 F.3d 383, 389 (7th Cir.2000). Although courts may in some cases excuse a party's failure to exhaust administrative remedies, see Iddir v. Immigration & Naturalization Serv., 301 F.3d 492, 498 (7th Cir.2002), courts must strictly apply the doctrine when an agency's regulations or enabling statute require exhaustion as a prerequisite to judicial review. See Shawnee Trail Conservancy, 222 F.3d at 389 ; see also Woodford v. Ngo, 548 U.S. 81, 84–85, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006).
Plaintiffs concede that they did not exhaust the NFIA's process for challenging proposed FIRMs. Rather, they argue that (1) exhaustion would have been futile, and (2) they have a cause of action under the NHPA.4 To resolve FEMA's jurisdictional challenge, the court must turn to the NFIA and NHPA.
To help curb the personal and economic devastation that flooding causes throughout the United States, Congress enacted the NFIA, which authorizes the National Flood Insurance Program ("NFIP"). Finding the private insurance industry unfit to make flood insurance widely available, see 42 U.S.C. § 4001(b)
, Congress commissioned FEMA to establish and administer the NFIP to make flood insurance available on a nationwide basis. § 4011(a).
The NFIP consists of three principal components: 1) floodplain identification and mapping; 2) floodplain management, and 3) flood insurance. See Nat'l Wildlife Fed'n v. FEMA, 345 F.Supp.2d 1151, 1155 (W.D.Wash.2004)
. It encourages property owners in participating communities to purchase federally subsidized insurance as protection against flood losses. In exchange, participating communities must enact certain floodplain management ordinances aimed at reducing the risk of future flood damages. See 42 U.S.C. § 4022 ; see also 44 C.F.R. § 59.2(b).
The NFIA requires FEMA to "identify flood-prone areas, publish flood-risk zone data, and revise that data as needed." Great Rivers Habitat All. v. FEMA, 615 F.3d 985, 987 (8th Cir.2010)
(citation omitted); 42 U.S.C. § 4101(a). To carry out its mandate, FEMA conducts studies and publishes FIRMs depicting the SFHAs and the risk premium zones applicable to the communities within the flood-risk zones. 44 C.F.R. § 59.1 ; see 42 U.S.C. § 4104(a) -(b). The FIRM forms the technical basis for actuarial flood insurance rates as well as any necessary floodplain ordinances required of the community. City of Trenton v. FEMA, 545 F.Supp. 13, 15 (E.D.Mich.1981). SFHA designations have significant implications for property owners because the NFIP prohibits federally regulated lenders from making loans secured by improved real estate located in designated SFHAs, unless insurance is purchased under the NFIP. Great Rivers Habitat All., 615 F.3d at 987
(internal alterations omitted); see also 42 U.S.C. § 4012a(b)(1).
FEMA must periodically assess the need to revise and update all floodplain areas and flood-risk zones as represented in the FIRM. 42 U.S.C. § 4101(e)
-(f). When proposing new flood elevation determinations and SFHA designations, FEMA must give...
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