Holly Berry v. United States

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
HOLLY BERRY,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
______________________
2022-2031
______________________
Appeal from the United States Court of Federal Claims
in No. 1:21-cv-01017-KCD, Judge Kathryn C. Davis.
______________________
Decided: February 29, 2024
______________________
D ONALD A. L EPP , Drummond Law PLLC, Tulsa, OK,
argued for plaintiff-appellant.
T HEKLA HANSEN-YOUNG, Appellate Section, Environ-
ment and Natural Resources Division, United States De-
partment of Justice, Washington, DC, argued for
defendant-appellee. Also represented by TODD K IM .
______________________
Before CHEN, STOLL , and CUNNINGHAM , Circuit Judges.
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BERRY v. US 2
CUNNINGHAM , Circuit Judge.
Ms. Holly Berry appeals from the decision of the United
States Court of Federal Claims dismissing her amended
complaint for failing to state a viable Fifth Amendment
takings claim. Berry v. United States, 159 Fed. Cl. 844
(2022) (“Decision”). For the reasons below, we affirm.
I. BACKGROUND
Ms. Berry owns land in Oklahoma. J.A. 31 ¶ 7; J.A. 38;
Decision at 846. In July 2014, the Cherokee Nation sub-
mitted an application requesting the United States Depart-
ment of the Interior’s Bureau of Indian Affairs acquire in
trust land (“the Cherokee Springs Site”) for gaming and
other purposes, which was located adjacent to Ms. Berry’s
land. See J.A. 42–43; Decision at 846.
In January 2017, the Department of the Interior issued
a letter approving the Nation’s application to acquire in
trust the Cherokee Springs Site for the benefit of the Na-
tion pursuant to Section 5 of the Indian Reorganization
Act. See J.A. 42–44, 57; Decision at 846; 25 U.S.C. § 5108.
The letter identified an environmental assessment, see J.A.
53–57, which concluded that the Nation’s proposed “[c]on-
struction of the casino/hotel would create a greater area of
impervious surfaces than currently exists on the project
site, potentially increasing surface flow rates.” J.A. 54; see
Decision at 846. But the assessment also stated that “im-
plementation of mitigation measures” and “Best Manage-
ment Practices” would mitigate potential environmental
impacts. See J.A. 54; Decision at 846.
In March 2021, Ms. Berry filed suit against the United
States, alleging that the federal government, as trustee of
the Cherokee Springs Site, took a flowage easement and
detention pond on Ms. Berry’s property. J.A. 18 ¶ 1, 19 ¶ 8
& n.2, 22 ¶¶ 22–24; Decision at 846–47. The United States
moved to dismiss the complaint for failure to state a claim
and for lack of subject-matter jurisdiction. Decision at 847.
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BERRY v. US 3
Ms. Berry then amended her complaint.1 J.A. 30–37; Deci-
sion at 847. In the amended complaint, Ms. Berry alleges
her land “experienced severe flooding, erosion, and im-
poundment of water” “due to the failure of [the United
States] to ensure properly designed water runoff” from the
Nation’s property held in trust. J.A. 35 ¶ 20; see Decision
at 846. Ms. Berry further alleges that “[s]ince the [Nation]
commenced construction in 2016, diverted water has sub-
stantially interfered” with her use of her land. J.A. 35 ¶ 20.
Ms. Berry contends that the Nation entered her land, re-
moved vegetation, and dug a drainage ditch without her
permission, “creating a drainage easement for the commer-
cial improvements” that are now at the Nation’s gaming
facility on the Cherokee Springs Site. J.A. 35 ¶ 21; see De-
cision at 846. In sum, Ms. Berry contends that “increased
flooding, caused by [the United States’] actions and inac-
tions, constitutes a taking” upon her property. J.A. 35 ¶ 22;
see Decision at 846. The United States moved to dismiss
the amended complaint for failure to state a claim. Deci-
sion at 847.
In May 2022, the Court of Federal Claims granted the
United States’ motion to dismiss the amended complaint.
Id. at 846, 851. The Court of Federal Claims found that
Ms. Berry’s takings claim failed because she did not allege
direct governmental action effecting a taking. See id. at
846–49, 851.
Ms. Berry appealed. We have jurisdiction under
28 U.S.C. § 1295(a)(3).
II. STANDARD OF REVIEW
We review de novo dismissal of a complaint by the
Court of Federal Claims for failure to state a claim. Taylor
1 The United States’ motion to dismiss the original
complaint became moot after Ms. Berry filed her amended
complaint. Decision at 847 n.1.
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BERRY v. US 4
v. United States, 959 F.3d 1081, 1086 (Fed. Cir. 2020) (ci-
tation omitted). “The complaint must allege facts plausibly
suggesting (not merely consistent with) a showing of enti-
tlement to relief.” Id. (internal quotation marks omitted)
(quoting Palmyra Pac. Seafoods, L.L.C. v. United States,
561 F.3d 1361, 1366–67 (Fed. Cir. 2009)). “[A]t this stage
of the proceedings we must accept the facts alleged in the
complaint and draw all reasonable inferences in favor of
the plaintiff[.]” Palmyra, 561 F.3d at 1366 (citation omit-
ted).
III. D ISCUSSION
On appeal, Ms. Berry argues that the Court of Federal
Claims erred in dismissing her takings claim because the
government took the Cherokee Springs Site into trust, al-
lowing the construction of a gaming facility, which ulti-
mately led to the flooding of Ms. Berry’s property. See
Appellant’s Br. 5–6. Ms. Berry contends that such alleged
acts constitute a viable takings claim that was wrongly dis-
missed at the pleading stage. See id. We find Ms. Berry’s
arguments unpersuasive.
A.
Ms. Berry argues that she has pled a viable takings
claim because the government’s affirmative acts of taking
the Cherokee Springs Site into trust and allowing the Na-
tion’s construction on the site resulted in the flooding of her
property. See Appellant’s Br. 5–6, 8–15. We disagree.
A taking may occur where the government “floods
lands belonging to an individual as to substantially destroy
their value[.]” Nw. La. Fish & Game Pres. Comm’n v.
United States, 446 F.3d 1285, 1289 (Fed. Cir. 2006) (cita-
tion omitted). “The language of the Fifth Amendment itself
requires that the United States, not a third party, commit
the taking action.” Navajo Nation v. United States, 631
F.3d 1268, 1274 (Fed. Cir. 2011) (cleaned up) (quoting All.
of Descendants of Tex. Land Grants v. United States, 37
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BERRY v. US 5
F.3d 1478, 1482 (Fed. Cir. 1994)); see also id. (“A takings
claim must be predicated on actions undertaken by the
United States . . . .”). “In the flooding context, in particu-
lar, both Supreme Court precedent and our own precedent
have uniformly based potential takings claims on affirma-
tive government acts.” St. Bernard Par. Gov’t v. United
States, 887 F.3d 1354, 1361 (Fed. Cir. 2018); see also id. at
1361 & n.4 (“In both physical takings and regulatory tak-
ings, government liability has uniformly been based on af-
firmative acts by the government or its agent.”) (collecting
cases). By contrast, “takings liability does not arise from
government inaction or failure to act.” Id. at 1361.
A claim for a “taking of a flowage easement” requires
proof that the invasion to the property was the “direct, nat-
ural, or probable result” of the government’s actions. Id. at
1359–60 (citations omitted); see, e.g., Ridge Line, Inc. v.
United States, 346 F.3d 1346, 1355 (Fed. Cir. 2003). It is
the plaintiff’s burden to establish causation by “show[ing]
that in the ordinary course of events, absent government
action, plaintiffs would not have suffered the injury.” St.
Bernard, 887 F.3d at 1362.
When drawing all inferences in favor of Ms. Berry and
accepting all alleged facts in her amended complaint as
true, Ms. Berry has failed to state a claim for takings lia-
bility against the United States. In the amended com-
plaint, Ms. Berry at most alleges that the United States
took the Cherokee Springs Site into trust. See J.A. 34 ¶ 18;
Decision at 848. But Ms. Berry exclusively identifies the
Nation’s affirmative acts as the direct cause of the flooding
on her property. See J.A. 35 ¶¶ 20–21. For example, and
as the Court of Federal Claims explained, Ms. Berry alleges
that the Nation, not the government, began construction in
2016, and diverted water has substantially interfered with
her use of her real property since that time. Decision at
848; J.A. 35 ¶ 20. Because this alleged construction activ-
ity predates the United States’ January 2017 acquisition,
see J.A. 42, the flooding to Ms. Berry’s property could not
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BERRY v. US 6
be a “direct, natural, or probable result” of the United
States’ actions. See St. Bernard, 887 F.3d at 1359–60 (ci-
tations omitted). Similarly, Ms. Berry alleges that the Na-
tion, not the United States, unlawfully entered her
property to remove vegetation and dig a drainage ditch.
J.A. 35 ¶ 21; Decision at 848. Accordingly, when examining
the “character of the government’s action” alleged in the
amended complaint, we conclude that Ms. Berry failed to
allege an affirmative action by the United States that was
a direct cause of the flooding. See Alves v. United States,
133 F.3d 1454, 1458 (Fed. Cir. 1998) (citation omitted)
(finding no governmental action where the alleged taking
was by livestock under the tribe’s direct control, despite
government’s regulatory control over the livestock).
Ms. Berry argues two cases relied upon by the Court of
Federal Claims—Alliance of Descendants and Navajo Na-
tion—support her allegation that the United States’ ap-
proval of the Nation’s construction plans caused the taking
on her land. See Appellant’s Br. 11. We disagree.
Neither Alliance of Descendants nor Navajo Nation
supports Ms. Berry’s argument because both involved an
affirmative governmental act that directly caused the al-
leged taking. In Alliance of Descendants, this court con-
cluded that the United States’ ratification of a treaty
satisfied the governmental action requirement of a takings
claim. See 37 F.3d at 1481–82 (“The claimants’ takings
claims thus accrued when the [treaty] went into effect.”).
In Navajo Nation, this court similarly concluded that “the
Navajo Nation’s takings claim, if any, accrued when the
United States precluded it from developing land . . . with-
out Hopi Tribe approval,” not when the Hopi Tribe decided
“to impose a moratorium on approval of Navajo construc-
tion projects.” 631 F.3d at 1274 (emphasis added). Unlike
the governmental acts in Alliance of Descendants and Nav-
ajo Nation, Ms. Berry did not plausibly allege that the
United States’ acquisition of the Cherokee Springs Site
into trust deprived Ms. Berry of “all or most of [her]
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BERRY v. US 7
property interest.” Id. (quoting Nw. La. Fish, 446 F.3d at
1289). Rather, Ms. Berry alleged that it was only upon the
Nation’s development of the Cherokee Springs Site that the
flooding occurred and any alleged taking arose of Ms.
Berry’s property. J.A. 35 ¶¶ 20, 22; see Decision at 848; see
also All. of Descendants, 37 F.3d at 1482 (holding that an
action by a third party “is not a specific taking action of the
United States” and “create[s] no liability for the United
States”) (citation omitted).
Ms. Berry also argues that the Court of Federal Claims
erred by relying on Griggs v. County of Allegheny, 369 U.S.
84 (1962). Appellant’s Br. 9, 11. According to Ms. Berry,
Griggs is inapposite because the court found that the
county was solely responsible for the taking of an air ease-
ment over plaintiff’s property. Id. at 11. We disagree that
Griggs is so distinguishable from the case at hand. In
Griggs, the Supreme Court held that Allegheny County,
the owner of the airport, took an air easement over the land
owner’s property because it was the county that ultimately
decided where to build the airport. See 369 U.S. at 88–90.
The fact that the county’s decisions were subject to federal
regulatory approval did not make the federal government
liable for the taking. See id. at 89–90. Similarly, the
United States’ approval of the Nation’s proposed construc-
tion here does not make the United States liable for the
alleged taking on Ms. Berry’s property.
In sum, Ms. Berry has failed to plausibly allege any af-
firmative governmental action taken by the United States
that was a direct cause of the flooding underlying Ms.
Berry’s takings claim. Therefore, Ms. Berry has not stated
a viable takings claim against the government based on the
United States’ decision to acquire in trust the Cherokee
Spring Site and allow the Nation’s construction plans on
the site.
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BERRY v. US 8
B.
Ms. Berry next argues there is a viable takings claim
because the United States is liable for the Nation’s acts re-
gardless of whether the government was directly involved
in the design or construction of the casino facilities. Appel-
lant’s Reply Br. 6–8; see also id. at 2–3; Appellant’s Br. 17–
18. In particular, Ms. Berry contends the United States
and the Nation have a quasi-agency relationship with
“characteristics of both being an agency and coercive rela-
tionship,” and therefore, the United States should be liable
for the Nation’s actions. See Appellant’s Reply Br. 6–8. In
other words, Ms. Berry argues that the Nation acts like an
agent of the United States by engaging in gaming to fur-
ther the “federal policy of creating Tribal self-determina-
tion.” See id. at 2–3. We disagree that the Nation serves
as a quasi-agent for the government here.
Third-party takings claims may be brought where a
“third party is acting as the government’s agent or the gov-
ernment’s influence over the third-party was coercive ra-
ther than merely persuasive.” A & D Auto Sales, Inc. v.
United States, 748 F.3d 1142, 1154 (Fed. Cir. 2014) (collect-
ing cases). A third-party takings claim may also arise
where an “agency relationship results from the manifesta-
tion of consent by one person to another that the other shall
act on his behalf and subject to his control, and consent by
the other to so act.” Navajo Nation, 631 F.3d at 1275 (cita-
tion omitted).
Here, Ms. Berry has not alleged any viable third-party
takings claim because she does not allege that the Nation
acted as the United States’ agent or was coerced by the
United States to construct facilities on the Cherokee
Springs Site. See J.A. 34–36. Nor does Ms. Berry allege
any agency relationship between the Nation and the
United States. See id.; Navajo Nation, 631 F.3d at 1275
(“Here, the record contains nothing even to suggest that
the Hopi Tribe was acting under the direction or control of
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BERRY v. US 9
the United States when it imposed a moratorium on Nav-
ajo development efforts.”) (citation omitted). Ms. Berry
also concedes that she did not allege that the Nation acted
as a third party. J.A. 84 (Court of Federal Claims: “Does
Plaintiff make any allegations that the tribe was coerced or
is acting as an agen[t] of the United States?” Plaintiff’s
Attorney: “No, no.”); Oral Arg. at 6:19–45, https://oralargu-
ments.cafc.uscourts.gov/default.aspx?fl=22-
2031_07132023.mp3 (counsel for Ms. Berry admitting that
the Nation did not act as an agent of the United States
when the alleged taking of a flowage easement occurred).
Ms. Berry understandably wants compensation for the
flooding on her property. However, this court cannot pro-
vide such relief because the acts Ms. Berry points to in her
amended complaint cannot sustain a viable takings claim
against the United States. Although Ms. Berry will be un-
able to obtain the relief she seeks from the United States,
our decision does not preclude Ms. Berry from separately
attempting to seek relief from the Nation.
IV. CONCLUSION
We have considered Ms. Berry’s remaining arguments
and find them unpersuasive. For the reasons above, we
affirm the dismissal by the Court of Federal Claims of Ms.
Berry’s amended complaint for failure to state a claim.
AFFIRMED
COSTS
No costs.
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