Welty v. United States, 926 F.3d 1319

Landowners own the Welty Farm, adjacent and upstream to Givens’ farm, which borders the Whitewater River; Givens installed a levee and ditch system that the Landowners say causes upstream flooding and ruined their farmland.
Givens enrolled his farm in the USDA Conservation Reserve Program (CRP), which required maintenance of a vegetated "filter strip" along the river; CRP participants receive federal payments but CRP contracts did not expressly require a levee.
Landowners sued Givens in Missouri state court alleging nuisance/trespass from the levee; the state courts rejected their tort claim as permissible use and time-barred.
Landowners sued the United States in the Court of Federal Claims alleging a Fifth Amendment taking because the government "required and/or approved" the levee by inducing Givens’ participation in the CRP; the Claims Court dismissed for failure to state a takings claim, finding no plausible agency or coercion by the government.
On appeal, the Federal Circuit affirmed: plaintiffs failed to plead facts showing Givens acted as the government’s agent or that USDA coercively compelled construction/maintenance of the levee; the court noted the causal link was too attenuated for takings liability.
The Federal Circuit affirmed but discussed leave to amend: the court said leave to amend should be granted to allege coercion, but Landowners forfeited the amendment request by not seeking it below, and they provided no basis showing amendment could cure defects.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the gov't caused a Fifth Amendment taking by "requiring/approving" Givens’ levee via CRP	CRP contracts required a filter strip; USDA payments coerced Givens to participate and maintain practices (including levee) that cause upstream flooding — a taking	CRP only required a filter strip, not a levee; Givens acted independently and participation was voluntary; payments alone are persuasive, not coercive	No taking: plaintiffs failed to plead that government action directly caused the alleged flooding; causal link too attenuated
Whether Givens was an agent of the United States when building/maintaining the levee	Givens’ CRP obligations and his affidavit that removing the levee would breach CRP show he acted for the government	No contract provision or facts show the government hired, directed, or controlled Givens to build/maintain a levee; financial incentives ≠ agency	No agency: plaintiffs did not plausibly allege control or that Givens acted as government’s agent
Whether USDA’s influence over Givens was coercive (v. persuasive)	Federal payments created coercive pressure effectively forcing compliance with land-use that caused the taking	Offering payments and conditional programs is persuasive; inducement of voluntary participation is not coercion for takings purposes	No coercion pleaded: payments alone insufficient; plaintiffs failed to allege facts showing compulsion

Lucas v. S.C. Coastal Council, 505 U.S. 1003 (1992) (defines regulatory takings doctrine and requirement of a compensable property right)
Lingle v. Chevron U.S.A. Inc., 544 U.S. 528 (2005) (paradigmatic taking is direct appropriation or physical invasion; regulatory takings framework)
Air Pegasus of D.C., Inc. v. United States, 424 F.3d 1206 (Fed. Cir.) (2005) (attenuated causal links between government action and private third-party conduct do not establish takings)
A & D Auto Sales, Inc. v. United States, 748 F.3d 1142 (Fed. Cir.) (2014) (third-party actions can be attributed to government only if agent or coercion is shown)
Preseault v. United States, 100 F.3d 1525 (Fed. Cir.) (en banc) (government’s actions through intermediaries can give rise to takings if acts are governmental and causally direct)
Casa de Cambio Comdiv S.A. v. United States, 291 F.3d 1356 (Fed. Cir.) (2002) (no takings where government did not direct third party to act; requires direct and substantial impact)
B & G Enters., Ltd. v. United States, 220 F.3d 1318 (Fed. Cir.) (2000) (receipt of federal funds and compliance with conditions does not automatically create agency or takings liability)
Griggs v. Allegheny County, 369 U.S. 84 (1962) (federal funding conditions do not necessarily make federal government liable for local actions resulting in property impacts)