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FAQS: FEMA’s Ongoing Failures

FEMA’s failures to respond to the Hermit’s Peak/Calf Canyon Fire in accordance with federal and state law has led to the ongoing trauma of thousands of New Mexicans, many of whom remain displaced to this day. CFFF has compiled 10 specific examples of FEMA’s failures, which underscore the gravity of the situation. Each example runs afoul of President Biden’s promise of full and total compensation for New Mexico fire victims.

1. Dozens of Claims Past Statutory Payment Deadline. 

At least 170 current claims are past the 180-day deadline. FEMA provides no substantive answers when asked to explain a delay, the status of a claim, or an anticipated time when a preliminary claim determination will be made. 

2. Numerous Flaws in Letters of Determination. 

Numerous glaring and concerning omissions appear on FEMA’s Letters of Determination. For example, Proof of Loss line items are not addressed, line items are not labeled properly, and FEMA provides no substantive or meaningful explanation for claims rejected in whole or in part. Most of these errors go unrectified despite efforts to engage FEMA to address them.

3. Undefined Appeals Process.

FEMA has not established any appeals process or set time restrictions on rendering a final decision for any claims that are appealed.

4. Unfamiliarity with Law and Protocols.

Claims reviewers are well-intentioned people but lack the legal training or background to know (1) what is recoverable, and (2) what is required to prove-up damages. This is leading to victims going uncompensated or receiving a fraction of the amount to which they are legally entitled. Moreover, there is widespread unfamiliarity over protocols governing the processing of expert report costs, undertaking or canceling site inspections, using electronic signatures on claims, and sharing claims information online.  

5. Erosion Damages. 

The flaws in FEMA’s approach are perhaps best demonstrated by its failure to pay for future erosion damages. However, when watersheds and vegetation are destroyed (as they were in the affected area), that constitutes a major component of damages recoverable under black-letter law. Knowing this requires an understanding of  “proximate cause” and how to read the case law controlling recovery of damages. Thus far, all erosion damages claims have been denied. Many claims have been  completely ignored.  In other instances, FEMA says, “we do not have documentation to substantiate the amount requested” (even though a detailed expert report was submitted); or “you already received compensation from another source for this claim (providing no explanation or proof of the other source). The arborist reports that are used for claim estimates are also consistently being denied in part, but FEMA gives no explanation as to what they are covering vs. not covering. 

6. Vegetation and Tree Damage.

FEMA says vegetation and tree damages are not recoverable unless the timber was for commercial use or otherwise subsidized. The relevant National Resources Conservation Service (NRCS) reports, which FEMA is encouraging claimants to utilize, did not include any analysis of damages for reforestation replacement. Moreover, FEMA is advertising the NRCS report as fully compensating victims for their land damage. However, these reports also do not address the significant, related problem of erosion caused by loss of vegetation coverage that makes barren land more susceptible to degradation from rain and other severe weather events. Victims are being pressured to accept awards that, at a first glance may seem large but clearly are not comprehensive. These victims are being asked to sign releases without being fully informed of their rights.  By then, it is too late as they realize the full extent of their damages after the fact and how large a gap exists between the claim they filed and what is necessary to remedy their situation. 

7. Response Rate to Victims Is Abysmal. 

FEMA’s current response rate to victim inquiries averages about 20%.

8. FEMA Promises Changes but Never Delivers. 

Every few months, FEMA informs victims of operational changes that suggest better and more consistent engagement but fails to deliver on making meaningful improvements.

9. Refusing to Communicate with Represented Victims.

In several cases, FEMA has told victims that they will not discuss a claim until the victim has signed a “termination of representation” letter. In other cases, victims who elected to have a National Resources Conservation Service (NRCS) evaluation done were told that if they fired their attorneys and signed a full waiver of all claims, they could receive that money immediately. Most, if not all, of these instances occurred before FEMA – by their own admission – had even hired the necessary experts to evaluate the full extent of land damages these victims suffered and are entitled to under the law.

10. Pressuring Victims to Fire Attorneys.

FEMA has been deliberately trying to get people to settle quickly and cheaply since Day 1. FEMA has reached out to numerous victims either directly unsolicited or advised them when they entered a claims office/attended a town hall that they should fire their attorneys so they could “get paid now.”

It is clear. The Hermit’s Peak/Calf Canyon Claims Office needs a claims director who has the necessary legal expertise and administrative experience in New Mexico to manage the fund and claims office competently. Moreover, the claims office needs to first recognize its obligations under the law, and then abide by those obligations at every level of the organization.

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