Written by: Amie Alexander, JD/MPS Candidate, William H. Bowen School of Law

The United States Court of Federal Claims granted a motion to dismiss a lawsuit alleging an unconstitutional taking based on a levee system which altered the flow of drainage over plaintiff’s land on December 8.

In its complaint, plaintiffs allege the defendant is liable for the taking of the land without compensation through inverse condemnation without exercising its power of eminent domain. Plaintiffs allege this taking took place when the United States Department of Agriculture (USDA), the Commodity Credit Corporation (CCC), the United States Corps of Engineers (USCE), and the Natural Resource Conservation Service (NRCS) approved the construction and maintenance of a levee on a conservation easement on the property to the immediate south of the plaintiff’s property. According to plaintiffs, the levee system constructed resulted in increasingly frequent flooding of the plaintiff’s land, amounting to a taking of a flowage easement across the farm.

Previous Actions

Plaintiffs filed a previous complaint against the United States in the Eastern District Court of Missouri in 2005, asking the court to order the levee system built by the landowner to the north, Terry Givens, on his adjoining farm to be removed as a result of its redirection of flood waters across Plaintiff’s farmland and wetlands. The case was dismissed by the court for lack of jurisdiction.

Plaintiffs filed another suit against Givens in Missouri State Court in 2014. Plaintiff alleged Givens’s drainage ditch and levee system caused the Whitewater River to flow more heavily onto plaintiff’s property, which damaged plaintiff’s farming. The suit was dismissed without prejudice in 2016. The complaint in this case followed.

Dismissal of the Claim

The Fifth Amendment to the U.S. Constitution guarantees that the federal government may not appropriate private property for the public use without just compensation. The Tucker Act (See 28 U.S.C. § 1491) grants the court jurisdiction over such claims to enforce the owner’s compensatory right. However, claims must be brought within six years of accrual, which begins when the act that constitutes the taking occurs. This time frame may be extended in limited circumstances when the individual could not have been aware of the harm.

Here, the court stated that the plaintiffs were aware of the levee and resulting floodwaters’ damage to their property no later than 2005, when they filed their first suit. However, the court reasoned that the time of accrual was postponed pursuant to the stabilization doctrine; that is, the gradual process set into motion by the government effected a permanent taking, not when the process was ceased or when the entire extent of the damage was determined.

Even so, the court determined that plaintiffs failed to state a claim for which relief could be granted. The court reasoned that plaintiffs failed to allege any coercive or appropriating action by the defendants because the defendants’ contracts with Givens were voluntary. The court therefore granted the defendant’s motion to dismiss.