Cite as: 518 U. S. 839 (1996)
Rehnquist, C. J., dissenting
refrain from exercising regulatory authority, but is one to shift the risk of a change in regulatory rules, the unmistakability doctrine does not apply. And, perhaps more remarkable, the principal opinion tells us that the Government will virtually always have assumed this risk in the regulatory context, by operation of law. Ante, at 869-870, 905-906.
The first problem with the principal opinion's formulation is a practical one. How do we know whether "the award of damages" will be "the equivalent of [an] exemption," ante, at 879- 880, before we assess the damages? In this case, for example, "there has been no demonstration that awarding damages for breach would be tantamount" to an exemption to the regulatory change, ante, at 881; and there has been no demonstration to the contrary either. Thus we do not know in this very case whether the award of damages would "amount to" an injunction, ante, at 882. If it did, under the principal opinion's theory, the unmistakability doctrine would apply, and that application may preclude respondents' claim.
But even if we could solve that problem by determining the damages before liability, and by finding the award to be some amount other than the cost of an exemption, we would still be left with a wholly unsatisfactory distinction. Few, if any, of the plaintiffs in the unmistakability-doctrine cases would have insisted on an injunction, exemption, or their damages equivalent if they had known they could have avoided the doctrine by claiming the Government had agreed to assume the risk, and asking for an award of damages for breaching that implied agreement. It is impossible to know the monetary difference between such awards and, as the principal opinion suggests, the award for a breach of the risk-shifting agreement may even be more generous.
The principal opinion's newly minted distinction is not only untenable, but is contrary to our decisions in Cherokee Nation and Bowen. The Cherokee Nation sought damages and compensation for harm resulting from the Government's navigational servitude. Cherokee Nation, 480 U. S., at 701.
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