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(When) Does A Contract Claim Trump a Takings Claim? Lessons from the Water Wars

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dc.contributor.author Spohr, David W.
dc.date.accessioned 2012-07-02T16:30:14Z
dc.date.available 2012-07-02T16:30:14Z
dc.date.issued 2012-06
dc.identifier.citation 2 Wash. J. Env. Law & Pol'y 125 (2012) en_US
dc.identifier.issn 2160-4169
dc.identifier.uri http://hdl.handle.net/1773.1/1149
dc.description Volume 2, Issue 1, June 2012 en_US
dc.description.abstract David W. Spohr, J.D., University of Virginia; A.B., Bowdoin College. The author is a mediator, hearing examiner, and the land use ombudsman for King County, Washington, where he works to investigate, provide an impartial perspective on, and resolve citizens’ complaints regarding county regulatory actions. He previously served as a property rights ombudsman for the State of Utah, after spending six years as a trial attorney on the “Takings Team” within the U.S. Department of Justice, where he was lead counsel for some portions of the Casitas and Hage cases discussed below. The views expressed herein do not reflect the views of his current or former employers. Abstract: As in other river basins, the disparity in the Columbia is growing between ever-expanding water demands and ever-shrinking water availability. Looming near the forefront of decisions on how to manage such waters is the potential liability the government faces if it reduces water distributions to further environmental objectives. While recent cases raise fascinating takings and contract issues, the most interesting issue may be the intersection of the available remedies. Does the contractual relationship between an aggrieved water user and the government preclude a takings claim, even where the contract claim ultimately fails? On one end of the spectrum, courts have held that a takings claim is available even if the contract terms expressly allowed the governmental action alleged to be the taking. Conversely, courts have held that a contract completely subsumes any takings claim even if the government breached the contract but escaped contract liability. This article suggests a middle ground: the availability of a takings claim should depend on why the contract claim failed. en_US
dc.language.iso en_US en_US
dc.publisher Seattle, WA: University of Washington School of Law en_US
dc.subject Article en_US
dc.title (When) Does A Contract Claim Trump a Takings Claim? Lessons from the Water Wars en_US
dc.type Article en_US
dc.rights.holder Copyright 2012 by Washington Journal of Environmental Law & Policy. en_US

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