NOTE: This disposition is nonprecedential.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

______________________ 

DONALD A. LEPP, Drummond Law PLLC, Tulsa, OK, 

argued for plaintiff-appellant.

 THEKLA HANSEN-YOUNG, Appellate Section, Environment and Natural Resources Division, United States Department of Justice, Washington, DC, argued for 

defendant-appellee. Also represented by TODD KIM. 

______________________ 

Before CHEN, STOLL, and CUNNINGHAM, Circuit Judges.

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2 BERRY v. US

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 submitted an application requesting the United States Department 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 Nation 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]onstruction 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 “implementation of mitigation measures” and “Best Management 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; Decision at 847. In the amended complaint, Ms. Berry alleges 

her land “experienced severe flooding, erosion, and impoundment 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 substantially interfered” with her use of her land. J.A. 35 ¶ 20. 

Ms. Berry contends that the Nation entered her land, removed vegetation, and dug a drainage ditch without her 

permission, “creating a drainage easement for the commercial improvements” that are now at the Nation’s gaming 

facility on the Cherokee Springs Site. J.A. 35 ¶ 21; see Decision at 846. In sum, Ms. Berry contends that “increased 

flooding, caused by [the United States’] actions and inactions, 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. Decision 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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4 BERRY v. US

v. United States, 959 F.3d 1081, 1086 (Fed. Cir. 2020) (citation omitted). “The complaint must allege facts plausibly 

suggesting (not merely consistent with) a showing of entitlement 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 omitted). 

III. DISCUSSION

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, allowing the construction of a gaming facility, which ultimately 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 dismissed 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 Nation’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) (citation 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 particular, both Supreme Court precedent and our own precedent 

have uniformly based potential takings claims on affirmative 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 takings, government liability has uniformly been based on affirmative 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, natural, 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 liability against the United States. In the amended complaint, 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 activity predates the United States’ January 2017 acquisition, 

see J.A. 42, the flooding to Ms. Berry’s property could not 

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6 BERRY v. US

be a “direct, natural, or probable result” of the United 

States’ actions. See St. Bernard, 887 F.3d at 1359–60 (citations omitted). Similarly, Ms. Berry alleges that the Nation, 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 Nation—support her allegation that the United States’ approval 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 alleged taking. In Alliance of Descendants, this court concluded 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 . . . without Hopi Tribe approval,” not when the Hopi Tribe decided 

“to impose a moratorium on approval of Navajo construction projects.” 631 F.3d at 1274 (emphasis added). Unlike 

the governmental acts in Alliance of Descendants and Navajo 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 easement 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 construction 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 affirmative 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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8 BERRY v. US

B. 

Ms. Berry next argues there is a viable takings claim 

because the United States is liable for the Nation’s acts regardless of whether the government was directly involved 

in the design or construction of the casino facilities. Appellant’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 relationship,” 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 further the “federal policy of creating Tribal self-determination.” 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 government’s influence over the third-party was coercive rather than merely persuasive.” A & D Auto Sales, Inc. v. 

United States, 748 F.3d 1142, 1154 (Fed. Cir. 2014) (collecting cases). A third-party takings claim may also arise 

where an “agency relationship results from the manifestation 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 (citation 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 Navajo 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://oralarguments.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 provide 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 unable 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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