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Clark v. United States

ELR Citation: 16 ELR 20057
Nos. No. 631-84L, 8 Cl. Ct. 649/(Cl. Ct., 08/15/1985)

The court holds that contamination of groundwater by activities on McChord Air Force Base In Washington State may constitute a taking and that the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) does not provide the exclusive remedy for such an injury. The court rules that whether an act constitutes a taking or merely a tort depends on whether it (1) was within the actor's authority, (2) was deliberate or intentional, (3) had foreseeable consequences, and (4) caused permanent or recurring damage. The only factor in dispute is the last, and plaintiff has raised sufficient issues of fact about the nature of the injury to preclude summary judgment. Even if the government provides plaintiff with an alternate water supply, it may be liable for a temporary taking, or perhaps for a permanent taking if the new supply would not make the plaintiff whole. The court notes that although plaintiff has also filed a tort suit against the government for the same injury, the government concedes that the second suit does not rob the court of jurisdiction because it was filed after the present suit. Finally, the court holds that CERCLA does not bar hazardous waste suits brought under the common law of Tucker Act.

Counsel for Plaintiff
G. Lee Raaen
Raaen & Dionne
6700 Columbia Ctr., Seattle WA 98104
(206) 682-9580

Counsel for Defendant
Dorothy R. Burakreis
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-5390