U.S. v. Green Acres Enterprises, Inc.

• Decision Date: 12 June 1996
• Docket Number: No. 95-2541,95-2541
• Citation: 86 F.3d 130
• Parties: UNITED STATES of America, Appellee, v. GREEN ACRES ENTERPRISES, INC., W.R. Jenkins, Sr., Appellants.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 130

86 F.3d 130

UNITED STATES of America, Appellee, v. GREEN ACRES ENTERPRISES, INC., W.R. Jenkins, Sr., Appellants.

No. 95-2541.

United States Court of Appeals Eighth Circuit.

Submitted Jan. 8, 1996.

Decided June 12, 1996.

Edwin Gordon Harvey, argued, St. Louis, Missouri (Bruce D. Ryder, on the brief), for appellants.

Alleen S. Castellani Van Bebber, argued, Kansas City, Missouri (Stephen L. Hill, Jr., on the brief), for appellee.

Before WOLLMAN, CAMPBELL, ^* and MURPHY, Circuit Judges.

WOLLMAN, Circuit Judge.

Green Acres Enterprises, Inc. and W.K. and M. Earline Jenkins (collectively the landowners) appeal the district court's grant of summary judgment and injunctive relief for the United States (the government), which barred them from repairing levees on their land and enjoined them from denying government agents from entering their land to inspect the levees and surrounding areas. We reverse and remand with directions to vacate the injunction and to grant judgment to the landowners.

I.

In 1976 and 1977, the government bought easements on two farms giving the government the right "occasionally to overflow, flood and submerge [the land] ... in connection with the operation and maintenance of the Harry S. Truman Dam and Reservoir Project." The tracts of land are along the Marmaton River in Bates County, Missouri. One tract of land is owned by Green Acres Enterprises, Inc. (Green Acres), and the other tract of land was purchased in 1978 by W.K. and M. Earline Jenkins (the Jenkins) from Richter Farm Associates. Robert Jenkins, the Jenkins's son, now manages both farms.

The relevant parts of the easements on both tracts of land are identical. They provide that the landowner retains the right "to use and maintain the levee(s)," subject to the government's right to destroy the levees, provided that if the levees are destroyed, the landowners may restore them "to the present existing height and alinement" upon written authorization from the District Engineer. The contracts also give the landowners the right to excavate without consent for the purpose of maintaining the levees at their "present height and alinement." In addition, the easement provided that the United States would acquire title to any "buildings and improvements" on the land that were not removed by November 30, 1978.

The flooding of 1993 destroyed parts of the levees on the two tracts of land. Robert Jenkins made repairs to the damaged sections of the Green Acres tract and planned to make similar repairs to the Jenkins tract. On July 21, 1994, the government filed an action to enjoin Green Acres from repairing its levee without prior written authorization from the United States Army Corps of Engineers. The Jenkins were subsequently added as parties. The government claimed that its flowage easements prohibited any levee repairs without the Corps' prior consent. The district court granted a preliminary injunction enjoining the landowners from conducting further activity to repair or reconstruct the levees and from denying access to the Corps upon reasonable notice for inspection of the areas subject to the injunction. The parties then filed cross-motions for summary judgment. The district court granted the government's motion, making the injunction permanent.

The landowners argue on appeal that the district court erred in granting the injunction because the government offered no evidence that it would suffer irreparable harm if the repairs were made, the contract did not bar the landowners from making the repairs, and the District Engineer had authorized them to make the repairs.

II.

We review the district court's grant of a permanent injunction for an abuse of discretion. See Taylor Bay Protective Ass'n v. Administrator, United States EPA, 884 F.2d 1073, 1079 (8th Cir.1989). In order for a district court to grant a permanent injunction the plaintiff must show that he will suffer irreparable harm if the injunction is not granted. See Amoco Prod. Co. v. Village of Gambell, Alaska, 480 U.S. 531, 546 n. 12, 107 S.Ct. 1396, 1404 n. 12, 94 L.Ed.2d 542 (1987) (standard for preliminary and permanent injunction essentially the same, except for permanent injunction plaintiff must show actual success on the merits); Dataphase Sys., Inc. v. C L Sys., Inc., 640 F.2d 109, 114 (8th Cir.1981) (en banc) (irreparable harm is element of preliminary injunction); see also National Football League v. McBee & Bruno's, Inc., 792 F.2d 726, 733 (8th Cir.1986).

Although the government has vigorously asserted, both in the court below and on appeal, that this is not a Clean Water Act case but is instead an action for breach of contract, the only irreparable harm the government has asserted is the landowners' alleged violation of the Clean Water Act, 33 U.S.C. § 1251 et seq. The government has, however, refused to address any of the landowners' arguments that their actions do not violate the Clean Water Act. The government cannot have it both ways. If the action is a contract action, the irreparable harm that it asserts must be related to the contract. See, e.g. National Football League, 792 F.2d at 733 (injury that had "never been the focus of" the lawsuit was insufficient to find irreparable harm). Because the purpose of the contract was to control flooding in the area, the government must assert irreparable harm that is connected to flood control. The record before us contains no allegation that other land will be damaged if the landowners repair the levees. Thus, we find no irreparable harm.

The government cites cases for the proposition that "when the actions to be enjoined are clearly against the public interest, no more showing of irreparable harm or balance of harms is necessary." Those cases are inapposite, however, since the government has not shown that the landowners' actions are clearly against the public interest. Moreover, it has not allowed the landowners to dispute whether they are violating the Clean Water Act. If the government wishes to bring an action for a violation of the Clean Water Act, it may of course do so, but it must allow the landowners the benefit of a defense.

III.

We turn, then, to the merits of the district court's grant of summary judgment to the government. We review de novo a district court's grant of summary judgment, and we will affirm only if the evidence, viewed in the light most favorable to the landowners, shows that no dispute of material fact exists and that the government is entitled to judgment as a matter of law. See Brown v. United Missouri Bank, N.A., 78 F.3d 382, 386 (8th Cir.1996). We also review the district court's interpretation of state law de novo. Id. (citing Salve Regina College v. Russell, 499 U.S. 225, 231, 111 S.Ct. 1217, 1221, 113 L.Ed.2d 190 (1991)).

The parties agree that Missouri law governs the contract claim. Under Missouri law, the court must first determine as a matter of law whether a contract is ambiguous. Royal Banks v. Fridkin, 819 S.W.2d 359, 361 (Mo.1991) (en banc). In determining whether the language of a contract is ambiguous, we give the words their natural and ordinary meaning. J.E. Hathman, Inc. v. Sigma Alpha Epsilon Club, 491 S.W.2d 261, 264 (Mo.1973) (en banc). A contract is ambiguous if reasonable minds could fairly and honestly differ in their construction of its terms, Kingston Elec., Inc. v. Wal-Mart Properties, Inc., 901 S.W.2d 260, 263 (Mo.Ct.App.1995), considering the whole instrument in making the determination, Automobile Ins. Co. v. United H.R.B. Gen. Contractors, Inc., 876 S.W.2d 791, 793 (Mo.Ct.App.1994).

The...