                  United States Court of Appeals
                        FOR THE EIGHTH CIRCUIT
                                ___________

                                No. 04-2399
                                ___________

Green Acres Enterprises, Inc.; Green *
Acres Land & Cattle Co.; Robert      *
Jenkins; Kris Jenkins; Karl Jenkins; *
Marsha Jenkins; Hugh Jenkins; Barbara*
Jenkins; W. K. Jenkins; M. Earlene   *
Jenkins; Mary Ann Green; Karla       *
Jenkins Wilson; Patricia Inglish,    * Appeal from the United States
                                     * District Court for the
            Appellants,              * Western District of Missouri.
                                     *
      v.                             *
                                     *
United States of America,            *
                                     *
            Appellee.                *
                                     *
      ______________________         *
                                     *
Pacific Legal Foundation,            *
                                     *
            Amicus on Behalf of      *
            Appellant.               *
                                ___________

                          Submitted: April 11, 2005
                             Filed: August 10, 2005
                              ___________

Before WOLLMAN, BEAM, and MURPHY, Circuit Judges.
                          ___________
WOLLMAN, Circuit Judge.

      Green Acres Enterprises, Green Acres Land & Cattle Co., and the individual
owners of each entity (collectively, the landowners) appeal from the district court’s1
grant of the government’s motion to dismiss for lack of subject matter jurisdiction.
We affirm.

                                         I.
       The landowners are the former owners of two large properties located along the
Marmaton River—also known as the Little Osage River—in Missouri (the “Green
Acres farm” and the “Richter farm”). Until April 1998, the landowners farmed
portions of both properties and leased other portions to third-party farmers, who
planted and harvested the crops on the leased land for themselves. Since the 1960s,
each property had been protected from flooding by two large levee systems, which
were each composed of the levees themselves, a system of internal drainage ditches,
and large pumps that served to draw water from the farms and drainage ditches to the
river through pipes embedded in the levees.

       Both levee systems, however, suffered extensive damage in the great flood of
1993. The landowners subsequently commenced repairs to the levee systems in the
spring of 1994. The government, claiming that such repairs violated the terms of
easements granted in favor of the United States Army Corps of Engineers (Corps),
obtained an injunction prohibiting the landowners from carrying out the repairs. The
landowners appealed, and we held that the easements did not require the landowners
to obtain the Corps’s consent prior to repairing the levee systems. United States v.
Green Acres Enters., Inc., 86 F.3d 130, 135 (8th Cir. 1996) (Green Acres I).




      1
      The Honorable Fernando J. Gaitan, Jr., United States District Judge for the
Western District of Missouri.

                                         -2-
Accordingly, we reversed and remanded the case to the district court with instructions
to vacate the injunction.2 Id.

       In late 1996, the landowners sought to continue with and complete the repairs
to the Green Acres farm levee. The proposed repairs consisted of: (1) excavation of
the area surrounding a pump intake to allow the intake to operate properly; (2)
excavation of a drainage ditch system to remove silt and sediment deposited there by
flooding; (3) expansion of the levee at the pump station to enable vehicles to turn
around when fueling the pump; and (4) restoration of various damaged portions of the
levee to return them to pre-flood height. The landowners requested a formal
determination from the Corps—pursuant to 33 C.F.R. § 320.1(a)(6)—that the repairs
would not be subject to or would otherwise be exempted from the Clean Water Act
(33 U.S.C. §§ 1251, et seq.).3

       In February 1997, the Corps sent a letter responding to the landowners’ request
(the “February 3 letter”) and determined that a portion of the proposed work would
require a specific Clean Water Act permit (known as a “section 404 permit”) because,
in the Corps’s opinion, the work would involve a discharge of dredged or fill material
into the wetlands surrounding the levee system. See 33 U.S.C. § 1344 (dredged and
fill material discharge permits); 33 C.F.R. § 328.3(a)(7) (“waters of the United States”


      2
       Although we held in Green Acres I that the landowners did not require the
Corps’s consent in order to commence repairs, see 86 F.3d at 135, the easements
themselves state that any use of the land must comply with federal and state water
quality laws.
      3
        The Clean Water Act prohibits the discharge of any pollutant into navigable
waters, including “waters of the United States,” except in compliance with certain
statutory exemptions and permitting procedures. 33 U.S.C. §§ 1311(a), 1362(7)
(definition of navigable waters), 1362(12)(A) (definition of discharge). Materials that
qualify as pollutants are, inter alia, dredged spoil, rock, and sand. 33 U.S.C. §
1362(6).

                                          -3-
include wetlands adjacent to protected waters). The Corps also determined that a
number of nationwide permits (covering activities for which the landowners would
not be required to seek individual approval) were inapplicable to the proposed work
and that most of the proposed work was ineligible for either the Clean Water Act’s
levee maintenance exception, see 33 U.S.C. § 1344(f)(1)(B), or its ditch maintenance
exception, see 33 U.S.C. § 1344(f)(1)(C).4

       The February 3 letter sparked an extended and increasingly contentious series
of correspondence between the landowners and the Corps. In their initial response
to the February 3 letter, the landowners disputed that the nationwide permits and the
ditch maintenance exception were inapplicable. More importantly, the landowners
argued that the Corps’s determination that a permit was required for the proposed
work was squarely in violation of a nationwide injunction entered against the Corps
by the United States District Court for the District of Columbia in American Mining
Congress v. United States Army Corps of Engineers, 951 F. Supp. 267 (D.D.C. 1997)
(American Mining Congress I). The injunction prohibited the Corps from enforcing
the so-called Tulloch Rule, which had previously allowed the Corps to exercise Clean
Water Act jurisdiction over all excavation activities, including those that resulted
only in “incidental fallback,” on the theory that such activities almost always resulted
in a discharge into waters of the United States.5 Id. at 270 & n.3.



      4
       Although the landowners initially disputed that the Corps had determined that
the levee maintenance exception was inapplicable, the Corps clarified that
determination in a subsequent letter. The Corps contended that while the levee
maintenance exception applied to activities on the levee itself, it did not apply to
excavation or dredging activities conducted in connection therewith.
      5
       The American Mining Congress I court defined incidental fallback as “the
incidental soil movement from excavation, such as the soil that is disturbed when dirt
is shoveled, or the back-spill that comes off a bucket and falls back into the same
place from which it was removed.” 951 F. Supp. at 270.

                                          -4-
       The landowners contended that the February 3 letter violated the injunction
both generally by asserting Clean Water Act jurisdiction over the proposed work in
the first instance and specifically by making the following statement:

      As you may know, because of a recent Federal case [(American Mining
      Congress I)], the Corps has been directed to suspend enforcement of the
      [Tulloch Rule] until the issue is ultimately settled in the courts.
      However, until the Courts rule on the efficacy of the Tulloch Rule, we
      advise you to not perform any work which would be considered a
      discharge under the [Tulloch Rule].

The landowners asserted that these acts showed a conscious decision on the part of
the Corps to disregard the American Mining Congress I injunction. The Corps
clarified its position regarding the injunction in a subsequent letter (the March 13
letter):

      [O]ur February 3, 1997 letter states “…the Corps has been directed to
      suspend enforcement of the [Tulloch Rule] until the issue is ultimately
      settled in the courts.” That remains our position. Our next statement
      “…we advise you to not perform any work which would be considered
      a discharge under the [Tulloch Rule].” is ambiguous and [we] will
      clarify it.
             Potential permit activities proposing activities involving only
      incidental fallback, will not be required to obtain individual permits.
             …
             Our past experience with the work performed at the Green Acres
      and Richter Farms is that it has involved bulldozer work where soil was
      redeposited from one place to another in waters of the United States by
      bulldozer blades, while trees, limbs, vegetation, root wads and brush
      were pushed into stockpiles, and land was leveled. These kinds of
      activities result in more than “incidental fallback”.

     Correspondence between the landowners and the Corps continued for eight
months, with the landowners arguing that the Corps’s assertion of jurisdiction

                                        -5-
violated the American Mining Congress I injunction and the Corps maintaining that
its actions fully comported with the injunction and, accordingly, that the proposed
projects on both the Green Acres farm and the Richter farm—which the landowners
detailed in another request for a 33 C.F.R. § 320.1(a)(6) ruling—were properly
subject to the Clean Water Act. Finally, in November 1997, the landowners agreed
to sell both properties to the Missouri Department of Conservation. The sale was
consummated in April 1998.

       In June 2002, the landowners filed suit against the government in the United
States District Court for the Western District of Missouri, pursuant to the Federal Tort
Claims Act (FTCA). Their complaint sought monetary relief on four counts: (1)
trespass; (2) nuisance; (3) substantive due process violations; and (4) inverse
condemnation. The government moved to dismiss the complaint for lack of subject
matter jurisdiction, or, in the alternative, to dismiss for failure to state a claim or to
grant summary judgment. The district court found that counts 1 and 2 failed the
FTCA’s private analogue requirement, see 28 U.S.C. § 1346(b)(1), and were further
barred by the FTCA’s discretionary function exception, see 28 U.S.C. § 2680(a). It
therefore concluded that it did not have jurisdiction to hear those claims and granted
the government’s motion to dismiss.6 See also Fed. R. Civ. P. 12(b)(1) (dismissal for
lack of subject matter jurisdiction).

                                         II.
      We review a district court’s decision to dismiss a complaint for lack of subject
matter jurisdiction de novo, placing the burden of proving the existence of subject
matter jurisdiction on the plaintiff. V S Ltd. Partnership v. Dept. of Housing and
Urban Dev., 235 F.3d 1109, 1112 (8th Cir. 2000). Because jurisdiction is a threshold
question, the court may look outside the pleadings in order to determine whether



      6
       Counts 3 and 4 were voluntarily dismissed.

                                           -6-
subject matter jurisdiction exists. Osborn v. United States, 918 F.2d 724, 728-30
(8th Cir. 1990).

        The FTCA waives federal sovereign immunity and grants federal district courts
jurisdiction over a certain category of claims against the United States only to the
extent that a private person, under like circumstances, would be liable to the plaintiff
under the substantive law of the state where the alleged wrongful conduct took place
(in this case, Missouri). Washington v. Drug Enforcement Admin., 183 F.3d 868, 873
(8th Cir. 1999). Thus, to state a claim that is cognizable under the FTCA, a claim
against the government must have a “private analogue”; in other words, the claim
must be such that a similarly situated private party would be liable for the same
conduct in Missouri. Id.; Howell v. United States, 932 F.2d 915, 917 (11th Cir.
1991).

       The landowners contend that a private analogue to their claims against the
government exists because, under Missouri law, the violation of an injunction
supports claims for trespass and nuisance if all other elements of the claims are
satisfied. Even assuming, arguendo, that this statement is true as a matter of law, the
landowners’ argument fails because the Corps did not violate the American Mining
Congress I injunction.

       The landowners assert that the injunction prevented the Corps from asserting
jurisdiction over any excavation activities. As both the District of Columbia Circuit
and the district court that issued the injunction later explained, however, the
injunction prohibited the Corps only from regulating excavation that produced
incidental fallback. See Nat’l Mining Ass’n v. United States Army Corps of Eng’rs,
145 F.3d 1399, 1403-05 (D.C. Cir. 1998); Am. Mining Cong. v. United States Army
Corps of Eng’rs, 120 F. Supp. 2d 23, 28-29 (D.D.C. 2000) (American Mining
Congress II). Even after the issuance of the injunction, the Corps was permitted to
exercise jurisdiction over excavation activities that produced more than incidental

                                          -7-
fallback. See Nat’l Mining Ass’n, 145 F.3d at 1405; American Mining Congress II,
120 F. Supp. 2d at 28-29.

       Our review of the correspondence between the landowners and the Corps
indicates that, rather than asserting unqualified jurisdiction over all excavation
activities, the Corps simply stated a single position: that it believed that the
landowners’ proposed projects were subject to the Clean Water Act because it
believed that the projects would produce more than incidental fallback. The March
13 letter stated this position explicitly, and the Corps’s subsequent correspondence
with the landowners repeatedly reaffirmed it. Given the “considerable deference”
shown by the District of Columbia Circuit toward the Corps’s attempt (post-American
Mining Congress I) to distinguish between incidental fallback and regulable
redeposits, see Nat’l Mining Ass’n, 145 F.3d at 1405, we cannot say that the Corps’s
attempts to do so in this case violated the American Mining Congress I injunction.

       The language contained in the February 3 letter does not alter our conclusion.
Although the landowners construe the Corps’s “advice” to them as an implicit threat
to enforce the Tulloch Rule even after the imposition of the American Mining
Congress I injunction, that language is tempered by the Corps’s representation that
it was doing so only because the validity of the Tulloch Rule had not been squarely
settled by the courts. In short, because the Corps could have filed either a motion for
reconsideration in the district court or a notice of appeal to the District of Columbia
Circuit—and in fact filed both—the statement in the February 3 letter warned the
landowners that they might be subject to enforcement actions by the Corps in the
event that the Tulloch Rule was upheld on reconsideration or on appeal. At worst,
the statement, when taken as a whole, is ambiguous (as the Corps acknowledged in
its March 13 letter, which was in turn a response to a March 5, 1997, letter from the
landowners’ counsel challenging the Corps’s assertion of jurisdiction over the
landowners’ proposed work), and is clarified when read in concert with the Corps’s
other correspondence with the landowners.

                                         -8-
      Because the Corps’s assertion of probable jurisdiction did not violate the
American Mining Congress I injunction, the landowners may satisfy the private
analogue requirement only if they show that a private person under like
circumstances, i.e., one who allegedly wrongfully determines that certain proposed
excavation projects are subject to the Clean Water Act, would be liable for trespass
and nuisance under Missouri law for engaging in such action. Because the Corps
alone has the authority to enforce the Clean Water Act and to make permit decisions,
see 33 C.F.R. §§ 320.2, 326.1-326.6, no private analogue exists for the relevant
conduct in this case. Thus, the FTCA’s waiver of sovereign immunity does not apply,
and the district court is without subject matter jurisdiction to hear the case.7

      The judgment is affirmed.

BEAM, Circuit Judge, dissenting.

       I respectfully dissent from the judgment of the court. I would, instead, reverse
the district court and remand this matter for a determination of liability and damages.

        The appellants suffered substantial damage to their farmland as a result of the
catastrophic flood of 1993 on the Missouri River and its tributaries. Officials of the
United States Corps of Engineers (Corps) apparently saw this unfortunate occurrence
as an opportunity to help the Missouri Department of Conservation (MDC) obtain
title to appellants’ farm property. MDC wanted this land because of its view that the
property provided a strategic connection between two important state-owned wildlife
refuges. Accordingly, the Corps appears to have instituted a plan to use (actually


      7
       Because we hold that the landowners have not satisfied the private analogue
requirement, we need not address the separate question of whether the discretionary
function exception of the FTCA applies in this case. Klett v. Pim, 965 F.2d 587, 590
n.5 (8th Cir. 1992).

                                         -9-
misuse) governmental power to render the land valueless for agricultural purposes,
thus coercing a sale of the property to MDC.

        The strategy commenced with the Corps’ effort to interfere with appellants’
attempt to fix levees damaged by the flood, remove sediment deposits and repair
drains. After preliminary contacts by Corps’ employees, which contacts carried with
them the obvious inference of Corps’ jurisdiction under the Clean Water Act (CWA),
33 U.S.C. § 1344(a), over at least some details of the restoration effort, the Corps
sought and obtained a United States District Court injunction prohibiting appellants’
work, some of which was underway. As noted by the court, we reversed this
injunction order and assessed fees and costs against the Corps, noting the weakness
of its legal position in the litigation. Judge Wollman’s opinion in this earlier case
highlights some of the inconsistent acts of the Corps. He said:

      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.

United States v. Green Acres Enters., Inc., 86 F.3d 130, 133 (8th Cir. 1996). Losing
on the contract litigation, the Corps undertook a bait and switch approach in which
it attempted to assert both CWA jurisdiction and uncertainty about CWA jurisdiction,
depending upon which approach seemed most expedient at the moment. In my view,
these activities spawned a “federal tort claim,” providing the appellants a valid cause
of action in this case.




                                         -10-
       As outlined in more detail later, the Corps told appellants that they needed an
excavation permit required under section 404 of the CWA. 33 U.S.C. § 1344(a). But,
the Corps has no jurisdiction under the CWA unless the proposed activities would
result in discharges into the “waters of the United States.” 33 U.S.C. §§ 1311(a),
1362(7), 1362(12)(A). “If an activity takes place outside the waters of the United
States, or if it does not involve a discharge [of prohibited pollutants], it does not need
a section 404 permit, whether or not it is part of an established farming, silviculture
or ranching operation.” 33 C.F.R. § 323.4(a)(1)(ii). Waters of the United States
include “wetlands.” 33 C.F.R. § 328.3(a)(2). So, unless appellants’ farmland was
classified as “wetlands” under the Act, the Corps had no jurisdiction over the work
proposed by appellants. Yet, even though authorized to determine jurisdiction under
the CWA, 33 C.F.R. § 325.9, the Corps failed to make this determination at any time.
Indeed, it refused to do so while at the same time threatening appellants with the
imposition of onerous CWA remedies. This refusal likely stemmed from the Corps’
belief that the long established farmable lands were not “wetlands” at all.

       The Corps’ brief in this appeal discloses that as late as September 15, 1997,
well after the Tulloch Rule injunction violation, there had been no Natural Resources
Conservation Service (NRCS) delineation of wetlands for appellants’ property.8 The
record establishes repeated attempts by the appellants to have the Corps seek such a
delineation and repeated refusals by the Corps to do so. Within this jurisdiction/no
jurisdiction framework came the February 1997 letter at issue in this case.

      Janie Cavitt, an attorney in the Office of Counsel of the Kansas City District
of the Corps, speaking on behalf of the Acting District Engineer, Ronald Janak,

      8
        Footnote 8 of the Corps’ brief explains that “[a]s of January 1994, pursuant
to an interagency Memorandum of Agreement, the delineation of wetlands
(determination of whether land has the status of wetland) made by the [NRCS] on
agricultural lands was to be used by the Corps and the EPA as the official delineation
for the purpose of determining § 404 wetland jurisdiction.”

                                          -11-
(clearly inferring Corps’ jurisdiction without any attempt to address the jurisdiction
issue) sent the February 3, 1997, letter stating, in part:

      As you may know, because of a recent Federal case, the Corps has been
      directed to suspend enforcement of the excavation rule until the issue is
      ultimately settled in the courts. However, until the Courts rule on the
      efficacy of the Tulloch[9] Rule, we advise you to not perform any work
      which would be considered a discharge under the excavation rule.

       Yet, at this point, the district court of the District of Columbia had indeed ruled
on “efficacy of the Tulloch Rule,” enjoining its implementation. The injunction was
in full force and effect and fully binding on the Corps at all times relevant to the
Corps’ actions at issue in this case. Without withdrawing its obvious violation of the
injunction, the Corps, in a follow-up letter dated April 28, 1997, expanded its
warning, speculating on the potential for additional CWA violations. All of this
occurred, as earlier indicated, without any determination by the Corps that appellants’
property was within the CWA jurisdiction of the Corps.




      9
        In 1986, the Corps issued a regulation purporting to implement its section 404
CWA congressional authorization. In 1993, the Corps, in response to litigation
instituted by environmental groups, revised the regulation, greatly expanding its
claimed jurisdictional authority. The revised regulation became known as the Tulloch
Rule. Nat’l Mining Ass’n v. United States Corps of Eng’rs, 145 F.3d 1399, 1401-02
(D.C. Cir. 1998). The Tulloch Rule was then challenged in American Mining
Congress v. United States Army Corps of Engineers, 951 F. Supp. 267 (D.D.C. 1997).
This litigation resulted in a nationwide injunction entered by the District Court of the
District of Columbia on January 23, 1997, prohibiting implementation of the
regulation. Although stayed for a period of time beginning on June 25, 1997, the
injunction was in full force and effect during all times relevant to this action and was
ultimately affirmed by the United States Court of Appeals for the District of
Columbia Circuit in 1998. National Mining Ass’n, 145 F.3d at 1410.

                                          -12-
        Applying such tactics the Corps was again trying to have it “both ways.” That
is, it acted like it had section 404 CWA wetland jurisdiction while at the same time
insisting that it had no obligation to seek the NRCS determination. This approach
was likely dictated, as earlier noted, by the Corps’ recognition that the appellants’
farmland was very likely not CWA wetlands.

       Whether or not the Corps had authority to interfere with the appellants’
property rights, it did so. In the process, it violated the Tulloch Rule injunction to the
clear detriment of appellants. In Missouri, evidence of the violation of an injunction
with full knowledge of its terms provides the basis for recovery of damages in tort.
Coleman v. Espy, 986 F.2d 1184, 1192 (8th Cir. 1993) (holding that violation of a
viable injunction establishes a tort action remediable through the Federal Tort Claims
Act); State ex inf. Ashcroft v. Kansas City Firefighters Local No. 42, 672 S.W.2d 99,
109-16 (Mo. Ct. App. 1984) (holding that union’s act in defiance of court injunction
with knowledge of its contents provides basis for a tort recovery for damages);
Coonis v. Rogers, 429 S.W.2d 709, 713 (Mo. 1968) (holding that violation of court
injunction by interfering with contract right with full knowledge of situation provides
tort claim supporting recovery for damages). This precedent establishes the private
analogue requirement of the FTCA.

       I further note that the discretionary function defense in the FTCA does not
shield the Corps. Under the facts presented in this action, no properly assertable
element of judgment or choice was available to the Corps when it decided to violate
the injunction.

      I would reverse and remand for trial.
                      ______________________________




                                          -13-
