### *The HONORABLE LEVIN H. CAMPBELL, United States Circuit

Judge for the First Circuit, sitting by designation. ___________ No. 95-2541

___________ United States of America, * * Appellee, * * Appeal from the United States v. * District Court for the * Western District of Missouri. Green Acres Enterprises, Inc.; * W. R. Jenkins, Sr., * * Appellants. *

___________ Submitted: January 8, 1996 Filed: June 12, 1996

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

___________ WOLLMAN, Circuit Judge.

Green Acres Enterprises, Inc. and W.K. and M. Earline Jenkin s (collectively the landowners) appeal the distric t court's grant of summary judgme nt and injunctive relief for the United States (the government) , which barred them from repairing levees on their land and enjoined the m fromdenying government agents from entering their land to inspect th e levees and surrounding areas. We reverse and remand with directions t o vacate the injunction and to grant judgment to the landowners.

I.
In 1976 and 1977, the government bought easements on two farm s giving the government the right "occasionally to overflow,

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flood and submerge [the land] . . . in connection with the operation and maintenance of the Harry S. Truman Dam and Reser voir Project." The tracts of land are along the Marmaton River in Bates Co unty, 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. Rob ert Jenkins, the Jenkins's son, now manages both farms.

The r elevant parts of the easements on both tracts of land ar e identical. They prov ide 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 ma y restore them "to the present existing height and alinement" upon written authorization from the District Engineer. The contracts also give th e landowners the right to excavate without consent for the purpose o f maintaining the levees at their "present height and alinement." I n 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 dam aged sections of the Green Acres tract and plann ed to make similar repairs to the Jenkins tract. On July21, 1994, the government filed an action to enjoin Green Acres from repair ing its levee without prior written authorization from the Unite d States Army Corps of Engineers. The Jenkins were subsequently added a s parties. The government claimed that its flowag e easements prohibited any levee repairs without the Corps' prior consent. The district court grante d a preliminary injunct ion enjoining the landowners from conducting further activity to repair or reconstruct the levees and from denying access to th e Corps upon reasonable notice for inspection of the areas subject to the

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injunc tion. The parties then filed cross-motions for summary judgment

. The district court gr anted the government's motion, making the injunction permanent.

The lando wners argue on appeal that the district court erred i n granting the injunction because the government o ffered no evidence that it would suffer irreparable harm if the repairs were made, the contract did not bar the landowner s from making the repairs, and the District Engineer had authorized them to make the repairs.

II.

We revie w the district court's grant of a permanent injunction fo r an abuse of discretion. See Taylor Bay Protecti ve Ass'n v. Administrator, Unite d States EPA , 884 F.2d 1073, 1079 (8th Cir. 1989). In order for a dis trict court to grant a permanent injunction, the plaintiff must sho w that he will suffer irreparable harm if the injunction is not granted. Se e Amo co Prod. Co. v. Village of Gambell, Alaska , 480 U.S. 531, 546 n.1 2 (1987) (standard for preliminary and permanent injunction essentially the same, except for permanent injunction plaintiff must show actual success on the merits); Datap hase Sys., Inc. v. C L Sys., Inc. , 640 F.2d 109, 114 (8th Ci r. 1981) (en banc) (irreparable harm is element of preliminar y injunction); see also National Football League v. McBee & Bruno's, Inc. , 792 F.2d 726, 733 (8th Cir. 1986).
Althoughthe government has vigorously asserted, both in the cour t below and on appeal, that this is not a Clean Water Act case but is instea d an action for breach of contract, the only irrep arable harm the government has asserted is the l andowners' alleged violation of the Clean Water Act, 33 U.S.C. § 1251 et s eq. The government has, however, refused to address any o f the landowners' arguments that their actions do not violate th e Clean Water Act. The government cannot have it both ways. If the action

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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 73 3 (injury that had "never been the focus of" the l awsuit was insufficient to find irreparable harm). Because the purpose of the contract was to contro l 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 a ctions to be enjoined are clearly against the public in terest, no more showing of irre parable harm or balance of harms is necessary." Those cases ar e inappo site, however, since the government has not shown that th e landowners' actions are clearly against the publ ic 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 allo w the landowners the benefit of a defense.

III.
We turn, then, to the merits of the district court's grant of s ummary judgment to the government. We review de novo a district court's grant of summaryjudgment, 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. Un ited Missouri Bank, N.A. , 78 F.3d 382, 386 (8th Cir. 1996). We also review the district court's inte rpretation of state law de
nov o. Id. (citing Salve Regina College v. Russell , 499 U.S. 225, 23 1 (1991)).

### -5- The parties agree that Missouri law governs the contract claim

. Und er Missouri law, the court must first determine as a matter of la w 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 ordinar y meaning. J.E. Hathma n, Inc. v. Sigma Alpha Epsilon Club , 491 S.W.2d 261, 264 (Mo. 1973) (en banc). A contract is ambiguous if reasonable mind s coul d 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. Ap p. 1995), considering the whole instrument in making th e determination, Automobile Ins. Co. v. United H.R.B. Gen. Contractors, Inc. , 876 S.W.2d 791, 793 (Mo. Ct. App. 1994).
The easement contracts provide that the landowners retain: [1] the right and privilege at the owner's expense to use and maintai n the levee(s) . . . [2] provided, however, that th e aforesaid privilege of use and maintenance shall be totall y subordinate to the absolute right of the United Sta tes, without no tice and without incurring liability of any nature , whatsoever, to remove, breach, flood or otherwise damage o r destroyin any manner whatsoever, the said levee(s) . . . [3] provi ded, however, if the levee(s) is removed, breached , flooded, or otherwise damaged or destroyed and the owner or its succes sors and assigns desires to reconstruct, repair, o r otherwise restore said l evee(s) to the present existing height and alinement he may do so at his expense, providedthat he has obtained prior written authorization from the Distric t Engineer.
The easement also provides that the landowner ma y not excavate on the land without approval, unl ess "required for normal use and maintenance of said levee(s) at its present height and alinement."

Th e landowners contend that the right to maintain the levees, a s provided in the first clause, includes the right to repair breaches in the levees caused by floods and that written authorization for repairs, a s provided in the third clause, becomes

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neces saryonly when the government has destroyed the levees. Th e government contends that the right to maintain t he levees does not include the right to repair the levees. Further, the go vernment argues that there is no difference between the government's actively destroying the levees
or allowing them to be destroyed by floods, with the result that prio r written authorization for the repairs is required. The district cour t agreed with the government that the right to maintain the levees did not include the right to repair the flood damage.
We disagree with the district court' s interpretation of the contract language, and we find that the unambiguous language makes clear that the right to maintain the levees includes the right to repair breaches in the levees caused by floo ds. To "maintain" means to perform "acts of repairs and other acts to prevent decline, lapse, or ces sation from existing state
or conditi on." Black's Law Dictionary 953 (6th ed. 1990). Repairin g breaches in the levees is an act of maintaining the levees in their preexisti ng state by preventing decline in their condition. Maintenanc e presupposes that some damage has occurred, and the government's implicit argu ment that too much damage had occurred here to label the repair s maintenance would require us to determine exactly how much damage mus t
occur before a repair is no longer maintenance. We decline to interpret "maint enance" to require such a determination. The easement contrac t itself assumes that excavation is necessary to maintain the levees at thei r "present height and alinement."

We find s upport for our position in a decision by the United States Claims Court concerning an easement contract identical in its relevan t aspects, which was also for the operation of the Harry S. Truman Dam. See Hen dricks v. United States , 14 Cl. Ct. 143 (1987). In Hendricks , th e landowners brought anaction against the government for taking their land without just compensation, claiming the land was flooded to such an extent that it had no

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econo mic value. As one of the bases for its finding that no taking ha d occurred, the court found that the Hendricks were partially responsible fo r the flooding because they did not properly maintain the levee. Id. at 153
. The court stated that "[p]roper levee maintenanc e entails more than merely pushing dirt into a breach to keep some water out." Id.

The government argues that the repairs cannot be a part o f main tenance because the third clause of the contract states that th e landowners may repair the levees only with writt en consent of the District Engineer. Reading the contract as a whole, however, we find that the thir d clause i s merely a proviso to the second clause, which allows th e government to "remove, breach, flood or otherwise damage or destroy" the levees. The third cl ause uses the same language in requiring consent for repairs, stating that such repairs are allowed if the levee is "removed, breach ed, flooded, or otherwise damaged or destroyed." We conclude , therefore, that consent to repair is required on ly in those cases in which the damage to the levees has occurred as a result of the government' s exercise of the rights retained by it under the second clause. This is no t to say, although we need not decide, that the proper exercise of thos e rights could never include preventing the rebuilding of a naturally

destroyed levee.

The government's rights under the second clause, however, ar e dependent upon the st ated purpose of the contract: to flood the land "in connection with the operation and maintenance of the Harry S. Truman Dam and Resevoir Project." The government has not a sserted, nor have we found in the record, a flood control purpose in refusi ng to allow repairs to the levees.
The government argues that it owns the levees under the clause of the easement giving it title to "buildings and improvements" on the land not removed by November 3 0, 1978, and that thus it may do whatever it pleases to the levees. Whether or not the government

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owns the levees is immaterial, as the contract provides the landowners wit h the right to maintain the levees regardless of ownership.

Because we find that the landowners did not need to obtain consen t to repair the levees, we need not address their argument that they ha d obtained consent from the District Engineer prior to making the repairs.

IV.

The jud gment is reversed, and the case is remanded to the distric t court with directions to vacate the injunction a nd enter judgment in favor of the landowners.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.