Case: 20-1113 Document: 41 Page: 1 Filed: 04/20/2021
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
JACKSON-GREENLY FARM, INC., OEHLER FARM,
INC., JAMES TAFLINGER TRUST, BENCHMARK
FARMS, INC., LAURIE CALDWELL REVOCABLE
TRUST, CALDWELL FARMS, LLC, LOIS M. FARRIS
FAMILY TRUST, WILLIAM L. GLASS, DBA SISTER
ISLAND PARTNERS, INC., ELIZABETH
HENDERSON, DBA SISTER ISLAND PARTNERS,
INC., TRAVIS HONEY, PATRICIA HONEY, TRAVIS
HONEY HOLDINGS, LLC, D & H FARMS, INC.,
HORSESHOE BAR & GRILL, LLC, KENNETH S.
PECORD, SHERRY PECORD, JOHN P. MAGINEL,
PAIGE H. MAGINEL, JOHN P. MAGINEL AND
PAIGE H. MAGINEL JOINT REVOCABLE TRUST,
HENRY M. RENAUD, DOROTHY J. RENAUD, MIKE
RENAUD FARMS, LLC, ADAM L. THOMAS,
WALTER GRACE FARMS, LLC, BONNIE S. WILLIS,
CARL WILLIS AND SONS, INC., DAVID C. WILLIS,
LYNN WILLIS, LINDA DILLMAN, JAJ FAMILY,
LLC, BASS VENTURES, LLC, JOAN WILKERSON,
DONALD R. BILLINGS REVOCABLE TRUST,
JASON BILLINGS, LISA CIMMINO, JERRY
CLUTTS, BRENT LAY, BART LAY, BILLY LAY,
JAKE LAY, JOHN LAY, BILL MASTERS, MASTERS
FARMS, INC., JOSH MILLER, SCOTT MILLER,
CHERYL MILLER, J & R LAND CO., DARIN JAMES
PETTIT AND AUTUMN MARY PETTIT FAMILY
REVOCABLE TRUST, RIVER DELTA FARMS, INC.,
RYAN ROLWING, JAMES SIEBERT, DIANA
STEVENS, STEVE WILLIAMS, ALEXANDER
COUNTY, ILLINOIS, JOHN GALLAGHER, ANN
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2 JACKSON-GREENLY FARM, INC. v. US
WISSINGER, JOHN P. WISSINGER, JERRY L.
SMITH, MARK WILLIS, EDWARD F. MILLER,
CARIN KAELIN, MARK MEISENHEIMER, MILLER
BROTHERS FARM,
Plaintiffs-Appellants
v.
UNITED STATES,
Defendant-Appellee
______________________
2020-1113
______________________
Appeal from the United States Court of Federal Claims
in No. 1:18-cv-01141-EDK, Judge Elaine Kaplan.
______________________
Decided: April 20, 2021
______________________
ADAM MICHAEL RILEY, Flint Law Firm LLC, Edwards-
ville, IL, for plaintiffs-appellants. Also represented by
JENNIFER GELMAN.
ERIKA KRANZ, Environment and Natural Resources Di-
vision, United States Department of Justice, Washington,
DC, for defendant-appellee. Also represented by JEFFREY
B. CLARK, ERIC GRANT, JOHN LUTHER SMELTZER.
______________________
Before DYK, LINN, and MOORE, Circuit Judges.
DYK, Circuit Judge.
On August 3, 2018, sixty-two landowners (“Landown-
ers”) with property on or near Dogtooth Bend Peninsula in
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JACKSON-GREENLY FARM, INC. v. US 3
Alexander County, Illinois, filed a takings claim in the
United States Court of Federal Claims (“Claims Court”) al-
leging that the Army Corps of Engineers (“Corps”) caused
recurrent atypical flooding of their land that constituted a
taking. The Claims Court dismissed the action without
prejudice, concluding that the Landowners’ claims were
barred by the six-year statute of limitations governing ac-
tions brought under the Tucker Act,
28 U.S.C. § 1491(a)(1).
Because Landowners’ claims stabilized before August 3,
2012, we affirm.
BACKGROUND
I
Alexander County, Illinois, is located in the alluvial
plain of the Mississippi River. It encompasses several
towns, including Olive Branch and Miller City. It also con-
tains the Dogtooth Bend Peninsula, which is bordered on
three sides by the Mississippi River. The primary use of
this land is agricultural. This land has historically been
subjected to periodic destructive flooding as well as milder
flooding.
Beginning in the 1800s, the Corps began placing river
training structures in the Middle Mississippi River in order
to improve its navigability. Examples of such structures
include wing dikes, bendway weirs, and chevron dikes. The
wing dike is built using wooden pilings or rocks that extend
perpendicularly from the riverbank into the river channel
in order to redirect flow and sediment. The bendway weir
is a fully submerged rock structure used to create a wider
and safer navigation channel. Finally, the chevron dike is
an arch-shaped structure that is placed within the channel
to alter sediment flow. Landowners allege that the Corps’
placement of these structures in the River raised the river
stage, resulting in a taking of their land by recurrent atyp-
ical flooding. In particular, Landowners allege that “newer
varieties of river training structures, introduced in the
1990s, had a more profound effect on water surface
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4 JACKSON-GREENLY FARM, INC. v. US
elevations than earlier structures.” Appellants’ Br. 18; see
also J.A. 43 (“Starting in approximately 1989, the Corps
began constructing large numbers of bendway weirs along
the Middle Mississippi River.”).
II
Following a severe flood in 1927, remediation efforts
were undertaken to prevent or moderate the effects of
flooding. The record does not suggest that these efforts at-
tributed the flooding to the government’s construction of
river training structures. In 1927, the state of Illinois,
along with local interests in Alexander County, built the
Len Small Levee (the “Levee”) along the western edge of
the Dogtooth Bend Peninsula to help protect the land from
future flooding. In the decades that followed, the Levee
was expanded several times until it spanned roughly 19
miles in length. There is no suggestion of federal involve-
ment in building, expanding, or repairing the Levee until a
1943 flood, although the Levee appears to have been dam-
aged by floods in at least 1929, 1931, and 1935.
In 1943, the Levee required complete reconstruction
that was financed by the federal government even though
the Levee was not federally owned. Since 1943, the Levee
has been repeatedly damaged by flooding. The Corps re-
paired the Levee following severe damage caused by flood-
ing in 1944 and 1947. In 1973, flooding caused “30 breaks
and severe crown and slope scour caused by overtopping,
and wave wash erosion,” and local interests again asked for
federal assistance with repairs to the Levee. J.A. 616. The
Corps provided the majority of the funds needed to fix the
Levee after its analysis showed a 1.10 to 1.0 benefit-cost
ratio. This cost benefit analysis reflected the Corps’ ability
to approve rehabilitation projects for non-Federal flood
control works only when the work could be economically
justified, a requirement now appearing in
33 C.F.R.
§ 203.44.
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JACKSON-GREENLY FARM, INC. v. US 5
Water burst through the Levee again in July 1993,
flooding the Dogtooth Bend Peninsula and “depositing mil-
lions of tons of sand.” Appellee’s Br. 15. Recurrent flooding
occurred in September–October 1993, November 1993, and
April 1994, damaging even more of the Levee. In Septem-
ber 1993, local interests again asked the Corps to help re-
pair the Levee in a letter explaining that “37,000 acres of
prime farmland were flooded and the livelihoods of dozens
of farmers and their families [were] lost,” resulting in dam-
ages of approximately $15 million. J.A. 809. The letter
additionally stated that, until the Levee was repaired, “the
additional flooding potential ma[de] it almost impossible
for the area to regain any semblance of normalcy.”
J.A. 809. “The federal government—this time via FEMA—
provided financial assistance for repair of the levee.” Ap-
pellee’s Br. 16.
The Levee was again breached in 2008, resulting in se-
vere flooding and significant damage to the area around
the town of Olive Branch. 1 Then, in May 2011, another
significant breach occurred, flooding more than 200 struc-
tures with over six feet of water and causing approximately
$13 million in damages. Following this flood, 90 percent of
the town of Olive Branch signed up for a buyout application
to FEMA, which proposed relocating residents of the town
away from the floodplain because of the “repeated flood
damages including extensive flood damage after levee
breaches in the Len Small Levee System during the 1993,
2008 and 2011 floods.” 2 J.A. 578. However, the relocation
1 The record does not indicate whether the Levee re-
quired repair after the 2008 flood.
2 The government contends that at least three plain-
tiffs in this case signed up to be relocated. Landowners
dispute this assertion. Whether or not some of the Land-
owners decided to participate in FEMA’s relocation plan
does not affect our decision.
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6 JACKSON-GREENLY FARM, INC. v. US
plan was not implemented, and the Corps again helped re-
pair the Levee.
The parties agree that the six-year statute of limita-
tions would bar any claim that accrued before August 3,
2012, which is six years before Landowners filed their com-
plaint. 3 The first relevant event thereafter occurred in
2016, when Illinois and Missouri experienced “two months
of highest-ever-recorded rainfall” and “a record-breaking
flooding event” that broke a mile-long breach in the Levee.
Appellee’s Br. 17. Agricultural lands were covered by mil-
lions of tons of sands, and several miles of road were cov-
ered by flooding. The local community again requested
that the Corps help repair the levee. However, the Corps’
mandatory cost-benefit analysis determined that the pro-
posed repair project was not eligible for assistance, and the
Landowners were so advised on July 21, 2016. The Levee
remained unrepaired and, according to Landowners, mul-
tiple floods per year “destroy[ed] all agricultural value of
the land.” Appellants’ Br. 5.
III
On August 3, 2018, Landowners filed this action in the
Claims Court, alleging that the construction of river train-
ing structures caused their property to “become inundated
more frequently, at higher elevations, for longer durations,
and at unusual times of year.” J.A. 855. The complaint
stated that Landowners’ “property has incredibly experi-
enced at least four 100-year floods in the past 25 years” and
“seven 25-year floods in the past 25 years.” J.A. 888.
3 Section 2501 provides in relevant part that “[e]very
claim of which the United States Court of Federal Claims
has jurisdiction shall be barred unless the petition thereon
is filed within six years after such claim first accrues.”
28
U.S.C. § 2501.
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JACKSON-GREENLY FARM, INC. v. US 7
The government moved to dismiss the initial com-
plaint, arguing that Landowners’ claims were time barred
under the six-year statute of limitations provided by
28
U.S.C. § 2501 and that Landowners failed to state a proper
takings claim. Rather than responding to the motion to
dismiss, Landowners filed an amended complaint that “de-
leted previous references to the relationship between the
river training structures and the floods that occurred in
1993 and 2011.” J.A. 11. The complaint no longer con-
tained a discussion of the number of 100-year or 25-year
floods experienced in the 25 years before the complaint was
filed, instead focusing on the 2016 flood and its aftermath.
Additionally, Landowners changed their allegations, as-
serting that they suffered “a taking by recurrent flooding
after the 2016 breach in the Len Small Levee,” J.A. 32, ra-
ther than “a taking by recurrent flooding from breaches in
the Len Small levee and other atypical flooding events,”
J.A. 858.
The government moved to dismiss the amended com-
plaint, asserting that Landowners’ claims were barred by
the six-year statute of limitations, that Landowners’
“claims sound in tort, not takings law,” and that Landown-
ers’ claims were improperly premised on government inac-
tion. J.A. 107.
The Claims Court held a hearing on the motion to dis-
miss and received both oral testimony and documentary
material submitted by both parties. The Claims Court de-
termined that Landowners “failed to carry their burden of
establishing by preponderant evidence that their claims
did not accrue before August 3, 2012, six years before they
filed this suit.” J.A. 1.
The court found that “[n]inety-one percent of the [river
training] structures were in place by 2000.” J.A. 9. The
court also explained that it “d[id] not understand [Land-
owners] to be arguing that it was only after 2016 that the
number and variety of river training structures in the
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8 JACKSON-GREENLY FARM, INC. v. US
[Middle Mississippi River] reached sufficient critical mass
to cause atypical flooding in the Dogtooth Bend area.”
J.A. 15.
The Claims Court explained that it was “undisputed
that the Dogtooth Bend area in which [Landowners’] prop-
erties are located has been subject to frequent flooding
since the nineteenth century. It [wa]s also undisputed that
. . . the area was subject to severe flooding more recently in
1973, 1993, 1994, 2008, and 2011 as a result of breaches or
failures of the levee.” J.A. 13. The Claims Court deter-
mined that “[c]ertainly by the time of the 2011 flood, it was
obvious that the area was liable to ‘intermittent but inevi-
tably recurring overflows’ (or breaches) of the levee.”
J.A. 14.
The Claims Court also emphasized that Landowners
were or should have been aware of their theory of liability
long before 2012 because academic articles had been writ-
ten since the mid-1970s alleging that river training struc-
tures caused water level rises in the Middle Mississippi
River and that this information was “easily available” to
the Landowners through “public sources.” J.A. 15. The
court noted that Landowners’ original complaint “at-
tributed the breaches of the levee in 1993 and 2011 to the
Corps’ use of river training structures” and that Landown-
ers had not disavowed those statements despite removing
them from their amended complaint. J.A. 14.
In short, the Claims Court explained that Landowners
bore the burden to produce evidence to show that the claim
did not accrue before August 3, 2012, and found that the
Landowners “knew or should have known before August 3,
2012: 1) that the Corps had by then placed hundreds of
river training structures in the [Middle Mississippi River];
and 2) that—assuming the validity of Plaintiffs’ theory—
those structures were the cause of the floods that had
breached or overtopped the levee in previous years.”
J.A. 14.
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JACKSON-GREENLY FARM, INC. v. US 9
The Claims Court therefore dismissed Landowners’
complaint. Landowners appealed. We have jurisdiction
under
28 U.S.C. § 1295(a)(3).
DISCUSSION
We review dismissal for lack of subject matter jurisdic-
tion de novo. Applegate v. United States,
25 F.3d 1579,
1581 (Fed. Cir. 1994). “To the extent jurisdictional facts
are in dispute, however, the findings of fact are reviewed
for clear error.” Hamlet v. United States,
872 F.2d 1414,
1416 (Fed. Cir. 1989).
For the Claims Court to have jurisdiction over Land-
owners’ claims, the petition must have been “filed within
six years after such claim[s] first accrue[d].”
28 U.S.C.
§ 2501. This six-year statute of limitations “is a jurisdic-
tional requirement attached by Congress as a condition of
the government’s waiver of sovereign immunity and, as
such, must be strictly construed.” Hopland Band of Pomo
Indians v. United States,
855 F.2d 1573, 1576–77 (Fed. Cir.
1988).
I
We first address whether the Claims Court erred in
finding that the majority of the river training structures
that allegedly caused the flooding had been placed in the
river before August 3, 2012, and that Landowners did not
argue that there was a material change in the number of
river training structures that would justify claim accrual
after that date.
Landowners do not contest that river training struc-
tures have been used in the Middle Mississippi River for
many decades. The record shows that the vast majority of
river training structures were in place before August 3,
2012, with “[n]inety-one percent of the structures . . . in
place by 2000.” J.A 9. Even the newer varieties of river
training structure cited by Landowner (e.g., bendway weirs
and chevron dikes) were developed and primarily
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10 JACKSON-GREENLY FARM, INC. v. US
constructed in the 1990s. The record does not demonstrate
that there was a recent increase in the construction of river
training structures that would justify claim accrual after
August 3, 2012.
II
We next address Landowners’ argument that their
claims did not stabilize until after August 3, 2012.
A cause of action accrues “when all the events which fix
the government’s alleged liability have occurred and the
plaintiff was or should have been aware of their existence.”
Hopland Band,
855 F.2d at 1577. “Thus, the key date for
accrual purposes is the date on which the plaintiffs’ land
has been clearly and permanently taken.” Boling v. United
States,
220 F.3d 1365, 1370 (Fed. Cir. 2000). When a tak-
ing occurs by a gradual physical process, claim accrual can
be determined using the stabilization doctrine, first articu-
lated in United States v. Dickinson,
331 U.S. 745 (1947).
Dickinson involved the permanent flooding of the respond-
ents’ lands by construction of the Winfield Dam.
331 U.S.
at 746. The Claims Court awarded respondents compensa-
tion for a taking by flooding. The government appealed,
claiming that the statute of limitations governing respond-
ents’ claims began to run either when the dam began to
impound water in October 1936 or when the respondents’
land was partially submerged for the first time in May
1937, both before the six-statute of limitations.
Id. at 747.
The Supreme Court disagreed, explaining that “[t]he
source of the entire claim—the overflow due to rises in the
level of the river—is not a single event; it is continuous,”
and that “there [wa]s nothing in legal doctrine[] to preclude
the law from meeting such a process by postponing suit un-
til the situation becomes stabilized,” i.e., when “a final ac-
count may be struck.”
Id. at 749.
Under the stabilization doctrine, “the statute of limita-
tions d[oes] not bar an action under the Tucker Act for a
taking by flooding when it was uncertain at what stage in
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JACKSON-GREENLY FARM, INC. v. US 11
the flooding operation the land had become appropriated
for public use.” United States v. Dow,
357 U.S. 17, 27
(1950). This court has explained that the “touchstone for
any stabilization analysis is determining when the envi-
ronmental damage has made such substantial inroads into
the property that the permanent nature of the taking is ev-
ident and the extent of the damage is foreseeable.” Boling,
220 F.3d at 1372. Therefore, “a claim does not accrue until
the claimant suffers damage.” Northwest Louisiana Fish
& Game Preserve Com’n v. United States,
446 F.3d 1285,
1291 (Fed. Cir. 2006) (concluding that a takings claim
stemming from overgrowth of a water weed, hydrilla, did
not accrue until “the hydrilla had grown, and had grown to
harmful levels, and the Corps refused to drain the lake to
alleviate the harm caused”). However, the stabilization
doctrine does not require that “the process has ceased” or
that “the entire extent of the damage is determined.” Bol-
ing,
220 F.3d at 1370–71. Further, even “temporary, gov-
ernment-induced flooding may give rise to a claim for the
taking of a flowage easement.” St. Bernard Par. Gov’t v.
United States,
887 F.3d 1354, 1359 (Fed. Cir. 2018).
Landowners’ amended complaint alleged that since the
2016 breach of the Levee, Landowners have been “vulner-
able to the increasingly damaging atypical flooding events
brought on by the Corps’ construction of [river training
structures]” and that “[t]his flooding is now substantial and
frequent” and “of an entirely different character than the
flooding on the [Mississippi River] in its earlier state.”
J.A. 56–57. Landowners’ amended complaint alleged that
“each successive construction in the [Mississippi River]
adds to and exacerbates flooding” and that “as sediment
gradually accumulates on or around the [river training
structures], their effect on [water surface elevations]
grows.” J.A. 52.
The Claims Court concluded that Landowners’ claims
“clearly stabilized before August 3, 2012,” six years before
the filing of their claim. J.A. 15. The Claims Court
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12 JACKSON-GREENLY FARM, INC. v. US
explained that “the record show[ed] . . . that recurrent
flooding had been ‘a reality’ for decades in the Dogtooth
Bend area before the 2016 event.” J.A. 16. The Claims
Court additionally found that Landowners’ “takings claims
accrued before August 3, 2012 because they knew or should
have known by that date that their property was subject to
inevitable recurrent flooding.” J.A. 18. The government
submitted evidence that the river stage (for a given river
discharge) increased between 1969–1980 and has re-
mained relatively constant since that time. Landowners
needed to show that there was a material change in the
effect of river training structures during the statutory time
period that would justify finding that their claims stabi-
lized after August 3, 2012. This they did not do.
Finally, the Claims Court found that Landowners’
“knew or should have known before August 3, 2012
. . . that—assuming the validity of [Landowners’] theory—
those structures were the cause of the floods that had
breached or overtopped the levee in previous years.”
J.A. 14. We conclude that the Claims Court’s findings of
fact were not clearly erroneous and that the Claims Court
properly concluded that Landowners’ claims stabilized be-
fore the 2016 breach of the Levee.
The record plainly supports the Claims Court’s finding
that Landowners knew or should have known about their
theory of liability before August 3, 2012. As the Claims
Court explained:
[T]he theory that river training structures caused
water levels to rise on the [Middle Mississippi
River] has been the subject of academic discussion
since the mid-1970s. Moreover, there was local and
national news coverage both before and shortly af-
ter the major flood event in 2011 concerning the
contribution of river training structures in the
[Middle Mississippi River] to the flooding that had
occurred in 1993, 2008, and 2011. The theory also
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JACKSON-GREENLY FARM, INC. v. US 13
surfaced in congressional testimony and was dis-
cussed in a GAO report that was issued in Decem-
ber 2011.
J.A. 15. This publicly available information, extending
back many decades and providing detailed discussions
about the alleged impact of river training structures, was
enough to put Landowners on notice about this theory of
liability. See, e.g., Yankton County v. United States,
135
Fed. Cl. 620, 630 (2017) (explaining that “data, articles,
and reports” relating to plaintiff’s claims “were publicly
available” and that “‘[a] party will be charged with knowing
any facts that are discoverable in public records’” (quoting
Central Pines Land Co. v. United States,
61 Fed. Cl. 527,
534 (2004))).
We therefore conclude that the Claims Court’s findings
were not clearly erroneous and that Landowners have not
demonstrated that their claims stabilized after August 3,
2012. 4 We affirm the Claims Court’s dismissal of Land-
owners’ claims for lack of subject matter jurisdiction.
AFFIRMED
4 In their reply brief, Landowners rely on Applegate,
25 F.3d 1579, and Banks v. United States,
314 F.3d 1304
(Fed. Cir. 2003), to argue that the government’s past repair
of the Levee prevented their claims from accruing until the
government declined to repair the Levee following the 2016
breach. This argument was not sufficiently developed in
the opening brief to properly raise the issue for review. See
SmithKline Beecham Corp. v. Apotex Corp.,
439 F.3d 1312,
1319–20 (Fed. Cir. 2006) (concluding that an argument was
waived even though “there [we]re various places in its
opening brief where [appellant] alluded” to the relevant ar-
gument because “mere statements of disagreement with
the district court as to the existence of factual disputes do
not amount to a developed argument”).
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14 JACKSON-GREENLY FARM, INC. v. US
COSTS
No costs.
