NOTE: This disposition is nonprecedential.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, Edwardsville, IL, for plaintiffs-appellants. Also represented by 

JENNIFER GELMAN.

 ERIKA KRANZ, Environment and Natural Resources Division, 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 (“Landowners”) 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”) alleging 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 actions 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 contains 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 atypical 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 attributed 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 involvement in building, expanding, or repairing the Levee until a

1943 flood, although the Levee appears to have been damaged 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 repaired the Levee following severe damage caused by flooding 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 millions 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 September 1993, local interests again asked the Corps to help repair 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 damages 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.” Appellee’s Br. 16. 

The Levee was again breached in 2008, resulting in severe 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 structures 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 required repair after the 2008 flood.

2 The government contends that at least three plaintiffs in this case signed up to be relocated. Landowners 

dispute this assertion. Whether or not some of the Landowners 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 repair the Levee.

The parties agree that the six-year statute of limitations would bar any claim that accrued before August 3, 

2012, which is six years before Landowners filed their complaint.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 millions of tons of sands, and several miles of road were covered by flooding. The local community again requested 

that the Corps help repair the levee. However, the Corps’ 

mandatory cost-benefit analysis determined that the proposed 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, multiple 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 training 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 experienced 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 complaint, 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 “deleted 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 contained 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, asserting that they suffered “a taking by recurrent flooding 

after the 2016 breach in the Len Small Levee,” J.A. 32, rather 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 complaint, asserting that Landowners’ claims were barred by 

the six-year statute of limitations, that Landowners’ 

“claims sound in tort, not takings law,” and that Landowners’ claims were improperly premised on government inaction. J.A. 107.

The Claims Court held a hearing on the motion to dismiss and received both oral testimony and documentary 

material submitted by both parties. The Claims Court determined 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 [Landowners] 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’] properties 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 determined that “[c]ertainly by the time of the 2011 flood, it was 

obvious that the area was liable to ‘intermittent but inevitably 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 written since the mid-1970s alleging that river training structures 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 “attributed the breaches of the levee in 1993 and 2011 to the 

Corps’ use of river training structures” and that Landowners 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 jurisdiction 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 Landowners’ 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 jurisdictional 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 structures 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 taking occurs by a gradual physical process, claim accrual can 

be determined using the stabilization doctrine, first articulated in United States v. Dickinson, 331 U.S. 745 (1947). 

Dickinson involved the permanent flooding of the respondents’ lands by construction of the Winfield Dam. 331 U.S. 

at 746. The Claims Court awarded respondents compensation for a taking by flooding. The government appealed, 

claiming that the statute of limitations governing respondents’ 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 until the situation becomes stabilized,” i.e., when “a final account may be struck.” Id. at 749.

Under the stabilization doctrine, “the statute of limitations 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 environmental damage has made such substantial inroads into 

the property that the permanent nature of the taking is evident 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.” Boling, 220 F.3d at 1370–71. Further, even “temporary, government-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 “vulnerable 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 remained 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 stabilized 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 before 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 after 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 discussed in a GAO report that was issued in December 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 Landowners’ 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 argument 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.

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