*The HONORABLE LEVIN H. CAMPBELL, United States Circuit

Judge for the First Circuit, sitting by designation.

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No. 95-2541

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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. *

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 Submitted: January 8, 1996

 Filed: June 12, 1996

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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,
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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
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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

(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
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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 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

(1991)).
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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 easement contracts provide that the landowners retain:

[1] the right and privilege at the owner's expense to use and

maintain the levee(s) . . . [2] provided, however, that the

aforesaid privilege of use and maintenance shall be totally

subordinate to the absolute right of the United States, without

notice and without incurring liability of any nature,

whatsoever, to remove, breach, flood or otherwise damage or

destroy in any manner whatsoever, the said levee(s) . . . [3]

provided, however, if the levee(s) is removed, breached,

flooded, or otherwise damaged or destroyed and the owner or its

successors and assigns desires to reconstruct, repair, or

otherwise restore said levee(s) to the present existing height

and alinement he may do so at his expense, provided that he has

obtained prior written authorization from the District

Engineer.

The easement also provides that the landowner may not excavate on the land

without approval, unless "required for normal use and maintenance of said

levee(s) at its present height and alinement."

The landowners contend that the right to maintain the levees, as

provided in the first clause, includes the right to repair breaches in the

levees caused by floods and that written authorization for repairs, as

provided in the third clause, becomes
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necessary only when the government has destroyed the levees. The

government contends that the right to maintain the levees does not include

the right to repair the levees. Further, the government 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 prior

written authorization for the repairs is required. The district court

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 floods. To "maintain" means to perform "acts of repairs

and other acts to prevent decline, lapse, or cessation from existing state

or condition." Black's Law Dictionary 953 (6th ed. 1990). Repairing

breaches in the levees is an act of maintaining the levees in their preexisting state by preventing decline in their condition. Maintenance

presupposes that some damage has occurred, and the government's implicit

argument that too much damage had occurred here to label the repairs

maintenance would require us to determine exactly how much damage must

occur before a repair is no longer maintenance. We decline to interpret

"maintenance" to require such a determination. The easement contract

itself assumes that excavation is necessary to maintain the levees at their

"present height and alinement."

We find support for our position in a decision by the United States

Claims Court concerning an easement contract identical in its relevant

aspects, which was also for the operation of the Harry S. Truman Dam. See

Hendricks v. United States, 14 Cl. Ct. 143 (1987). In Hendricks, the

landowners brought an action 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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economic value. As one of the bases for its finding that no taking had

occurred, the court found that the Hendricks were partially responsible for

the flooding because they did not properly maintain the levee. Id. at 153.

The court stated that "[p]roper levee maintenance 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 of

maintenance because the third clause of the contract states that the

landowners may repair the levees only with written consent of the District

Engineer. Reading the contract as a whole, however, we find that the third

clause is merely a proviso to the second clause, which allows the

government to "remove, breach, flood or otherwise damage or destroy" the

levees. The third clause uses the same language in requiring consent for

repairs, stating that such repairs are allowed if the levee is "removed,

breached, flooded, or otherwise damaged or destroyed." We conclude,

therefore, that consent to repair is required only 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 not

to say, although we need not decide, that the proper exercise of those

rights could never include preventing the rebuilding of a naturallydestroyed levee.

The government's rights under the second clause, however, are

dependent upon the stated 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 asserted, nor have we found

in the record, a flood control purpose in refusing 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 30, 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 with

the right to maintain the levees regardless of ownership.

Because we find that the landowners did not need to obtain consent

to repair the levees, we need not address their argument that they had

obtained consent from the District Engineer prior to making the repairs.

IV.

The judgment is reversed, and the case is remanded to the district

court with directions to vacate the injunction and enter judgment in favor

of the landowners.

A true copy.

Attest:

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