                                   ___________

                                   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 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,




     *The HONORABLE LEVIN H. CAMPBELL, United States Circuit
     Judge for the First Circuit, sitting by designation.
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




                                    -2-
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




                                     -3-
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)).




                                        -4-
      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




                                      -5-
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 pre-
existing 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




                                       -6-
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 naturally-
destroyed 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




                                            -7-
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.




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