Washington Journal of Environmental Law & Policy


David W. Spohr


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.

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