Welty v. United States

          Appeal from the United States Court of Federal Claims in No. 1:16-cv-01017-PEC, Judge Patricia E. Campbell-Smith.

          Richard Magee, Jr., The Magee Law Firm LLC, Clayton, MO, argued for plaintiffs-appellants.

          Joan M. Pepin, Environment and Natural Resources Division, United States Department of Justice, Washington, DC, argued for defendant-appellee. Also represented by Eric Grant, Jeffrey H. Wood.

          Before Dyk, Mayer, and Bryson, Circuit Judges.

          Mayer, Circuit Judge.

         Russell B. Welty, Sharon A. Stanley, and Linda K. Fulton (collectively, "the Landowners") appeal the judgment of the United States Court of Federal Claims dismissing their complaint alleging that the United States took their property without just compensation by requiring or approving the construction and maintenance of a levee on a farm adjacent to their property. See Welty v. United States, 135 Fed.Cl. 538, 550-51 (2017) ("Welty I"). We affirm.

         I. Background

         The Landowners inherited a farm ("the Welty Farm") as joint tenants with the right of survivorship when their mother died. The Welty Farm, which is located in Cape Girardeau County, Missouri, is bordered on the west by the Whitewater River. Terry Givens purchased a farm ("the Givens Farm") bordering the Welty Farm to the south in 1998. The Welty Farm is directly upstream from the Givens Farm.

         Givens maintains a drainage ditch and levee system on portions of his property near the Whitewater River. Since 1998, the Givens Farm has been enrolled in the Conservation Reserve Program ("CRP"). See 16 U.S.C. § 3831. Under the CRP, landowners can enter into contracts to remove environmentally sensitive land from agricultural production and to manage it in accordance with an approved conservation plan. See 7 C.F.R. § 1410.20. In exchange, participants in the CRP are eligible for monetary compensation from the United States Department of Agriculture ("USDA"). Id. § 1410.21. Under the CRP, conservation plans for land adjacent to streams or rivers commonly require the maintenance of a "filter strip," which is defined as "a strip or area of vegetation adjacent to a body of water the purpose of which is to remove nutrients, sediment, organic matter, pesticides, and other pollutants from surface runoff and subsurface flow." Id. § 1410.2(b).

         In 2014, the Landowners filed suit against Givens in Missouri state court, alleging that the levee and ditch system that he built on his property had resulted in the drainage of wetlands on the Welty Farm. See Welty v. Givens, No. ED106864, slip op. at 2-5 (Mo.Ct.App. Apr. 2, 2019) (non-precedential memorandum supplementing order affirming judgment) ("Welty II"). They asserted, moreover, that Givens' levee and ditch system had "caused unnatural flooding," which had rendered the Welty Farm "unfit for cultivation." Id. at 5.

         Givens moved to dismiss, asserting that under Missouri law a landowner has the right "to make a reasonable use of his land even though the flow from surface waters is thereby altered and causes more harm to others." Supplemental App. ("S.A.") 32. Givens also submitted an affidavit stating that his CRP contracts with the USDA required him to maintain a filter strip around the perimeter of his farm. Id. at 28-29. According to Givens, the function "of the filter strip is to protect bank erosion of the Whitewater River, provide wildlife habitat and serve as a buffer and filter between the farmland and the Whitewater River." Id. at 29. Givens asserted, moreover, that the removal of the levee on his property would "substantially eliminate and destroy the filter strip running along it," resulting in the breach of his CRP contracts. Id.

         The Missouri Court of Appeals recently affirmed the dismissal of the Landowners' tort action against Givens. See Welty II, slip op. at 8-12. The court explained that under Missouri law "each possessor is legally privileged to make a reasonable use of his land," id. at 7, and that it could not "say Givens' use of [his] ditch and levee [was] unreasonable [or] inappropriate to defend against surface water," id. at 8. The court concluded, moreover, that the Landowners' cause of action was time-barred since "Givens' levee and ditch were constructed and known to [the Landowners] sixteen years before they filed their petition, and eleven years after the statute of limitations had run." Id. at 11-12.

         In August 2016, the Landowners filed suit against the United States in the Court of Federal Claims. They alleged that the government had taken their property without just compensation by "requiring and/or approving the construction and maintenance" of the levee on Givens' property. J.A. 23. According to the Landowners, the "positioning" of Givens' levee was such that it caused upstream flooding and the "permanent loss of all beneficial use of the Welty Farm as productive agricultural land." Id. at 29-30.

         On December 8, 2017, the Court of Federal Claims granted the government's motion to dismiss the Landowners' complaint for failure to state a claim upon which relief could be granted. See Welty I, 135 Fed.Cl. at 550-51. Although the court rejected the government's contention that the Landowners' complaint was time-barred, ^[1]id. at 549, it determined that the Landowners had failed to allege facts sufficient to demonstrate that the government, as opposed to Givens, was responsible for the alleged flooding on their farm, id. at 550-51. The court explained that no taking occurs when the challenged activities "are those of private parties, not the government," and that the "voluntary nature" of the CRP contracts between Givens and the USDA was "fundamentally at odds with the coercion required to support a takings claim." Id. According to the court, "[t]o the extent any of the alleged damage to [the Landowners'] property [was] related to modifications made or maintenance performed ...