RUSSELL B. WELTY, SHARON A. STANLEY, LINDA K. FULTON, Plaintiffs-Appellants
UNITED STATES, Defendant-Appellee
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.
M. Pepin, Environment and Natural Resources Division, United
States Department of Justice, Washington, DC, argued for
defendant-appellee. Also represented by Eric Grant, Jeffrey
Dyk, Mayer, and Bryson, Circuit Judges.
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.
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
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).
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
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
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.
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.
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, 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