Amicus Curiae Brief — Leonard W. Hoffmann, et al., Petitioners v. WBI Energy Transmission, Inc.

No. 25-159

In The

Supreme Court of the United States

LEONARD W. HOFFMAN, ET AL.,

Petitioners,

v.

WBI ENERGY TRANSMISSION, INC.,

Respondent.

On Petition for Writ of Certiorari

to The United States Court of Appeals

For the Eighth Circuit

BRIEF OF AMICUS CURIAE

OWNERS’ COUNSEL OF AMERICA IN

SUPPORT OF THE PETITION FOR A WRIT OF

CERTIORARI

VINCE EISINGER*

ROBERT EL-JAOUHARI

MAXWELL SHAFER

CARA COOK

CRANFILL SUMNER LLP

5440 Wade Park Blvd.

Suite 300

Raleigh, NC 27607

(919) 863-8703

veisinger@cshlaw.com

* Counsel of Record

Counsel for Amici Curiae

QUESTION PRESENTED

The Natural Gas Act authorizes private

companies to condemn land in order to build certain

natural-gas infrastructure, but it says nothing about

how to determine the amount of just compensation

owed for the property taken. 15 U.S.C. § 717f. The

Third, Fifth, Sixth, and Eleventh Circuits have all

held that compensation awards in private

condemnations under the Natural Gas Act must

therefore be determined by reference to state law,

which often mandates higher compensation than the

floor set by the Fifth Amendment. In this case, the

Eighth Circuit expressly split with its sister circuits

and instead held that the Natural Gas Act permits

only the constitutional minimum of compensation

required by the Fifth Amendment. The question

presented is:

In private condemnations under the Natural Gas

Act, should just compensation be determined by

reference to state law?

i

TABLE OF CONTENTS

Page

QUESTION PRESENTED ......................................... i

TABLE OF CONTENTS ............................................ ii

TABLE OF AUTHORITIES ..................................... iii

INTEREST OF AMICUS CURIAE ........................... 1

SUMMARY OF ARGUMENT.................................... 2

ARGUMENT .............................................................. 5

I. THE EIGHTH CIRCUIT’S FLAWED

CHOICE-OF-LAW ANALYSIS WOULD

NEGATE THE LAWS OF NUMEROUS

STATES THAT HAVE EXCEEDED THE

CONSTITUTIONAL FLOOR FOR “JUST

COMPENSATION” .......................................... 5

CONCLUSION ......................................................... 19

ii

TABLE OF AUTHORITIES

Page

Cases

Agins v. City of Tiburon,

447 U.S. 255 (1980) ..................................................2

Bison Pipeline, LLC v. 102.84 Acres of Land,

560 Fed. Appx. 690 (10th Cir. 2013) .......................7

City of Monterey v. Del Monte Dunes

at Monterey, Ltd.,

526 U.S. 687 (1999) ..................................................2

Columbia Gas Transmission Corp. v.

Exclusive Nat. Gas Storage Easement,

962 F.2d 1192 (6th Cir. 1992) ..................................7

Dade Co. v. Brigham,

47 So. 2d 602 (Fla. 1950) .......................................10

Dolan v. City of Tigard,

512 U.S. 374 (1994) ..................................................2

First English Evangelical Lutheran Church v.

Los Angeles County,

482 U.S. 304 (1987) ..................................................2

Ga. Power Co. v. Sanders,

617 F.2d 1112 (5th Cir. 1980) ..................................6

Kaiser Aetna v. United States,

444 U.S. 164 (1979) ..................................................2

Kelo v. City of New London,

545 U.S. 469 (2005) ...................................... 2, 17, 18

Lingle v. Chevron U.S.A., Inc.,

544 U.S. 528 (2005) ..................................................2

iii

Lucas v. South Carolina Coastal Council,

505 U.S. 1003 (1992) ................................................2

Monongahela Navigation Co. v. U.S.,

148 U.S. 312 (1893) ..................................................6

Nollan v. Cal. Coastal Comm’n,

483 U.S. 825 (1987) ..................................................2

Palazzolo v. Rhode Island,

533 U.S. 606 (2001) ..................................................2

Petersburg Sch. Dist. v. Peterson,

103 N.W. 756 (N.D. 1905) ........................................3

Preseault v. Interstate Commerce Comm’n,

494 U.S. 1 (1990) ....................................................18

Ruckelshaus v. Monsanto Co.,

467 U.S. 986 (1984) ................................................18

Sabal Trail Transmission, LLC v.

18.27 Acres of Land in Levy Cnty.,

59 F.4th 1158 (11th Cir. 2023) ........................6, 7, 8

San Remo Hotel, L.P. v.

City and County of San Francisco,

545 U.S. 323 (2005) ..................................................2

Tahoe-Sierra Pres. Council, Inc. v.

Tahoe Reg’l Planning Agency,

535 U.S. 302 (2002) ..................................................2

Tenn. Gas Pipeline Co., LLC v.

Permanent Easement for 7.053 Acres,

931 F.3d 237 (3d Cir. 2019) .....................................7

U.S. v. Bodcaw Co.,

440 U.S. 202 (1979) ..................................................6

U.S. v. Reynolds,

397 U.S. 14 (1970) ....................................................5

iv

Webb’s Fabulous Pharmacies, Inc. v. Beckwith,

449 U.S. 155 (1980) ................................................18

Winter v. Natural Res. Def. Council,

555 U.S. 7 (2008) ......................................................2

Yee v. City of Escondido,

503 U.S. 519 (1992) ..................................................2

Constitutional Provisions

U.S. Const. amend. V ..............................................5, 6

Statutes, Rules and Regulations

ALASKA R. CIV. PRO. 72................................................9

ARK. CODE ANN. § 18-15-103(11) ................................9

COLO. REV. STAT. § 38-1-122 .....................................10

FLA. STAT. § 73.092..............................................10, 11

IDAHO CODE § 7-711A(8) ...........................................11

IOWA CODE § 6A.24(3) ...............................................12

IOWA CODE § 6B.33 ....................................................11

IOWA CODE § 6B.34 ....................................................12

LA. REV. STAT. § 48:453(E) ........................................12

LA. REV. STAT. § 19:8(A)(3) ........................................12

MICH. COMP. LAWS SERV. § 213.66 ............................12

MINN. STAT. § 117.031(a) ..........................................13

MONT. CODE ANN. § 70-30-305 ..................................13

MONT. CODE ANN. § 70-30-306 ..................................13

N.D. CENT. CODE §§ 32-15-32, 32-15-35 ...................14

N.Y. EM. DOM. PROC. LAW § 701................................14

NEB. REV. STAT. § 76-720 ..........................................14

v

OKLA. STAT. tit. 27, §§ 11–12 ....................................15

OR. REV. STAT. §§ 35.300; 35.346(7)..........................15

S.C. CODE ANN. § 28-2-510(A)...................................15

S.C. CODE ANN. § 28-2-510(B)(1) ..............................16

S.C. CODE ANN. § 28-2-510(B)(2)...............................16

S.D. CODIFIED LAWS § 21-35-23 ................................16

UTAH CODE ANN. §§ 78B-6-509(7).............................16

WASH. REV. CODE § 8.25.070(1)(b) ............................17

WIS. STAT. § 32.28(3) .................................................17

WYO. STAT. ANN. §§ 1-26-502 to 1-26-817.................17

Other Authorities

JAMES W. ELY, THE GUARDIAN OF EVERY OTHER

RIGHT: A CONSTITUTIONAL HISTORY OF

PROPERTY RIGHTS (2d ed. 1998) ...............................1

Andrew Prince Brigham & Lindsey Brigham

Knott, A Practitioner’s Perspective on

How Best to Avoid the Risk of Unjust

Compensation, 10 PROP. RTS. J. 351 (2021) ........3, 8

vi

INTEREST OF AMICUS CURIAE

Owners’ Counsel of America (OCA) is an

invitation-only national network of the most

experienced eminent domain and property rights

attorneys. 1 They have joined together to advance,

preserve and defend the rights of private property

owners, and thereby further the cause of liberty,

because the right to own and use property is “the

guardian of every other right,” and the basis of a free

society. See JAMES W. ELY, THE GUARDIAN OF EVERY

OTHER RIGHT: A CONSTITUTIONAL HISTORY OF

PROPERTY RIGHTS (2d ed. 1998). As the lawyers at the

front lines of takings law, OCA’s members

understand the importance of the issues in this case,

and how the rule adopted by the Eighth Circuit, if

allowed to stand, will undermine the constitutional

right to “just compensation.”

OCA brings unique expertise to this task. OCA

is a non-profit 501(c)(6) organization sustained solely

by its members. Only one member lawyer is admitted

from each state. Since its founding, OCA has sought

to use its members’ combined knowledge and

experience as a resource in the defense of private

property ownership, and OCA member attorneys

have been involved in landmark property law cases in

nearly every jurisdiction nationwide. Additionally,

OCA members and their firms have been counsel for

1 Counsel of record for all of the parties received notice of OCA’s

intention to file an amicus brief at least 10 days prior to the

deadline to file this brief. No counsel for any party authored this

brief in whole or in part, and no monetary contribution intended

to fund the preparation or submission of this brief was made by

any person or entity other than the amicus curiae, its members,

or its counsel.

1

a party or amicus in many of the property cases this

Court has considered in the past forty years. 2

OCA members have also authored and edited

treatises, books, and law review articles on property

law and property rights.

SUMMARY OF ARGUMENT

This case concerns whether property owners’

guaranteed rights under several states’ “just

compensation” laws can be undermined by private

condemnors invoking eminent domain under the

Natural Gas Act. In undermining those state laws the

Eighth Circuit contravened four sister circuits and

robbed property owners of the just compensation

guaranteed to them by state law and—arguably—by

Congress. Although only North Dakota’s guarantee

of attorneys’ fees in just compensation cases is

specifically at issue in this case, state-created rights

to attorneys’ fees will be stricken in six of the seven

states of the Eighth Circuit, and will be at serious risk

in at least 14 other states if the Eighth Circuit’s

2 See, e.g., Kaiser Aetna v. United States, 444 U.S. 164 (1979);

Agins v. City of Tiburon, 447 U.S. 255 (1980); First English

Evangelical Lutheran Church v. Los Angeles County, 482 U.S.

304 (1987); Nollan v. Cal. Coastal Comm’n, 483 U.S. 825 (1987);

Yee v. City of Escondido, 503 U.S. 519 (1992); Lucas v. South

Carolina Coastal Council, 505 U.S. 1003 (1992); Dolan v. City of

Tigard, 512 U.S. 374 (1994); City of Monterey v. Del Monte Dunes

at Monterey, Ltd., 526 U.S. 687 (1999); Palazzolo v. Rhode

Island, 533 U.S. 606 (2001); Tahoe-Sierra Pres. Council, Inc. v.

Tahoe Reg’l Planning Agency, 535 U.S. 302 (2002); San Remo

Hotel, L.P. v. City and County of San Francisco, 545 U.S. 323

(2005); Lingle v. Chevron U.S.A., Inc., 544 U.S. 528 (2005); Kelo

v. City of New London, 545 U.S. 469 (2005); Winter v. Natural

Res. Def. Council, 555 U.S. 7 (2008).

2

new-fashioned split widens. 3 See Andrew Prince

Brigham & Lindsey Brigham Knott, A Practitioner’s

Perspective on How Best to Avoid the Risk of Unjust

Compensation, 10 PROP. RTS. J. 351, 361–65 (2021).

The threat to landowners and private property thus

spans the nation. To protect those owners in at least

these 21 states the circuit split should be resolved,

and resolved in favor of guaranteed rights.

OCA has been on the front lines of critical

just-compensation litigation nationwide, and across

the country has argued against abrogation of critical

property rights specifically established by states or

constitutions to protect citizens from unlawful

government takings. The Eighth Circuit’s decision is

precisely such an abrogation. Strikingly, the Eighth

Circuit’s abrogation is of the North Dakota

constitution’s guarantee of just compensation, which

as early as 1905 meant that the landowner must

receive “just compensation for his property, and not

that the just compensation assessed by a jury shall be

diminished to the extent of his costs.” Petersburg Sch.

Dist. v. Peterson, 103 N.W. 756, 759 (N.D. 1905). Put

succinctly, “if the owner must disburse for costs the

money received for his land, the compensation cannot

be regarded as ‘just,’ within the meaning of the

constitutional provision.” Id. at 759 (citation

omitted). The Eighth Circuit’s decision slashes this

constitutional guarantee and like guarantees across

3 Thirteen states comprise the “Third, Fifth, Sixth, and Eleventh

Circuits[,]” where “questions of compensation in Natural Gas Act

condemnations are determined by state law[,]” (Cert. Pet. p. 6),

and are thus protected from the Eighth Circuit’s decision’s

effects.

3

its jurisdiction, diminishing just compensation

lawfully owed when private property is taken.

Without correction by this Court, the Eighth

Circuit’s upturned rationale similarly exposes

landowners in other circuits across the country.

Paying the full and complete amount of just

compensation required under state law—equivalent

to the compensation required when the condemnor is

a state or local government—is an important check

and balance against unrestrained private takings by

for-profit enterprises. Without that check landowners

are exposed to for-profit ravaging, taking more from

them than when the same taking is exercised by those

landowners’ own elected state and local officials.

Indeed, the Eighth Circuit’s decision means that

private condemnors under the Natural Gas Act can

take land in several states more cheaply than those

states’ own governments could—and thus that

private landowners in those states are less

compensated when the condemnor is a for-profit

enterprise than they would be had their state or local

government taken the land. Subjecting American

landowners to discounted land grabs by private

parties not only contravenes those landowners’

guarantees under their states’ constitutions and laws,

but has no basis in rational government.

The Eighth Circuit’s decision thus has a real,

tangible impact on landowners. OCA herein presents

a synopsis of that impact to the Court. This brief

identifies the states where landowners facing

eminent domain are entitled to recover attorneys’ fees

under state law, but where that protection is now lost,

or is at risk of being lost, as a result of the Eighth

4

Circuit’s decision. For each such state this brief

summarizes landowners’ rights to recover attorneys’

fees in condemnation actions, and thus summarizes

what the Eighth Circuit’s decision would strip away.

ARGUMENT

I.

THE EIGHTH CIRCUIT’S

FLAWED CHOICE-OF-LAW

ANALYSIS WOULD NEGATE

THE LAWS OF NUMEROUS

STATES THAT HAVE

EXCEEDED THE

CONSTITUTIONAL FLOOR

FOR “JUST

COMPENSATION”

The Fifth Amendment to the United States

Constitution (the “Fifth Amendment”) provides that

private property shall not “be taken for public use,

without just compensation.” U.S. Const, amend. V;

see also U.S. v. Reynolds, 397 U.S. 14, 16 (1970)

(stating that the Fifth Amendment to the United

States Constitution provides that “private property

shall not be taken for public use and without just

compensation”). The question of what constitutes

“just compensation” has resulted in a body of federal

case law interpreting this fundamental right.

“‘Just compensation’ means the full monetary

equivalent of the property taken. The owner is to be

put in the same position monetarily as he would have

occupied if his property had not been taken.”

Reynolds, 397 U.S. at 16. Precedent dictates that

“just compensation is for the property, and not to the

5

owner,” meaning that “indirect costs to the property

caused by the taking of his land are generally not part

of the just compensation to which he is

constitutionally entitled.” U.S. v. Bodcaw Co., 440

U.S. 202, 203 (1979) (internal quotations omitted)

(quoting Monongahela Navigation Co. v. U.S., 148

U.S. 312, 326 (1893)). As such, at a constitutional

level, “attorneys’ fees and expenses are not embraced

within just compensation.” Id. While there are some

federal statutes that allow for the recovery of

attorneys’ fees and costs, those allowances are “a

matter of legislative grace rather than constitutional

command” required by the Fifth Amendment. Id. at

204.

But when a statute is silent as to the meaning

of “compensation,” the federal judiciary then

determines whether state law or federal common law

applies. See generally Sabal Trail Transmission, LLC

v. 18.27 Acres of Land in Levy Cnty., 59 F.4th 1158,

1163 (11th Cir. 2023) (determining that state law

supplies the definition of “compensation” for eminent

domain actions taken by licensees under the Natural

Gas Act); see also Ga. Power Co. v. Sanders, 617 F.2d

1112 (5th Cir. 1980) (concluding that state law

supplies the definition of “compensation” for eminent

domain actions taken by licensees under the Federal

Power Act).

Directly at issue in this case, the Natural Gas

Act is one such statute that is silent on the meaning

of “compensation.” Several federal circuit courts,

however, have concluded that state law provides the

measure of just compensation in condemnation

proceedings brought by federal licensees.

See

6

generally Sabal Trail Transmission, LLC, 59 F.4th at

1163; Tenn. Gas Pipeline Co., LLC v. Permanent

Easement for 7.053 Acres, 931 F.3d 237, 255 (3d Cir.

2019); Columbia Gas Transmission Corp. v. Exclusive

Nat. Gas Storage Easement, 962 F.2d 1192, 1199 (6th

Cir. 1992); see also Bison Pipeline, LLC v. 102.84

Acres of Land, 560 Fed. Appx. 690, 695 (10th Cir.

2013) (stating that for the purpose of the appeal, the

court assumed “that the law of the state where the

subject property is located can prescribe the measure

of just compensation in an eminent-domain

proceeding under the Natural Gas Act”).

In one such case, litigated by OCA’s Florida

member, the Eleventh Circuit concluded that,

because “state law provides the measure of

compensation in proceedings that arise under Section

717(f) of the Natural Gas Act,” the property owner

was entitled to attorneys’ fees and costs pursuant to

state law. See generally Sabal Trail Transmission, 59

F.4th at 1163. The court in Sabal Trail Transmission,

LLC based its decision to apply state law to

condemnation actions under the Natural Gas Act

partly on the fact that Natural Gas Act condemnation

proceedings are brought under state law—and “the

federal standard for compensation in eminent-domain

cases establishes the floor, not the ceiling, on

compensation.” Id. at 1170.

Thus, although the Constitution provides a

minimum for just compensation, it is clear that states

can go beyond that floor in their determination of

what aspects constitute just compensation, including

the recovery of attorneys’ fees and costs. Multiple

federal circuit courts have accepted this principle in

7

the context of condemnation actions brought

pursuant to the Natural Gas Act and have allowed

parties to those actions to collect attorneys’ fees and

costs as allowed by state law. 4

The Eighth Circuit is the sole Court of Appeals

to hold otherwise. Its reading of the law would mean

Congress struck through a massive swath of property

rights nationwide, otherwise guaranteed to

landowners under state laws, when it adopted the

Natural Gas Act. With nary an explicit word for such

sweeping impact. Worse, the Eighth Circuit’s ruling

would mean that Congress did of all of this where the

entity exercising the eminent domain power is a

private entity. See Brigham & Knott, supra, at 358–

61 (explaining why the protections of state law are

particularly necessary in cases of a private

condemnor); see also id. at 366–83 (describing the

Sabal Trail Transmission lawsuit, including that the

defendant-pipeline company’s experts had “always

opin[ed] to ‘zero damages’” (emphasis removed)).

OCA submits this amicus brief to survey for the

Court the laws of many states that—like North

Dakota’s—allow for an award of attorneys’ fees to a

property owner in certain circumstances. Property

owners in the following several states would be

stripped of their guaranteed rights if the Eighth

Circuit’s choice-of-law analysis were adopted

nationwide.

4 OCA’s Florida member has written about the importance of the

potential for an award of attorneys’ fees and costs as one of the

“checks and balances” against “unjust compensation.” See

Brigham & Knott, A Practitioner’s Perspective, supra, at 381–

92.

8

State

Applicable Law for

Recovering Attorneys’ Fees

and Costs

Alaska

The condemnor is required to pay

the owner’s attorneys’ fees and

costs when (1) the taking of the

property is denied, (2) the

condemnor appeals from the

master’s

award

and

the

landowner does not appeal,

(3) the award of the court was at

least ten (10) percent larger than

the amount deposited by the

condemning authority or the

allowance of the master from

which an appeal was taken by

the defendant, (4) the action was

dismissed, or (5) the allowance of

costs and attorneys’ fees appears

necessary to achieve a just and

adequate compensation of the

owner. ALASKA R. CIV. PRO. 72.

Arkansas

Owner’s costs, expenses, and

reasonable

attorney’s

fees

related to the final hearing if the

amount awarded is greater than

the condemning entity’s offer by

20% or more. ARK. CODE ANN.

§ 18-15-103(11).

Colorado

Litigation costs can be recovered

if the costs were reasonably

incurred, but the landowner

9

must prove their reasonableness.

If immediate possession is taken

and the award exceeds the

deposit, the owner can receive

interest on the difference of those

amounts. Reasonable attorneys’

fees can be recovered if the court

finds the government lacked

authority to condemn the

property and/or if the award is

over $10,000 and at least 30%

more than the last written offer

before filing suit. COLO. REV.

STAT. § 38-1-122.

Florida

Reasonable attorneys’ fees and

costs are part of Florida’s

constitutional standard of “full

compensation” to be paid by the

Dade

Co.

v.

condemnor.

Brigham, 47 So. 2d 602 (Fla.

1950).

In actions where the

property is acquired, FLA. STAT.

§ 73.092 sets attorneys’ fees

based upon a percentage of the

benefit achieved as a difference

between the initial offer and

settlement or final judgment

(including monetary and nonmonetary

benefits

or

the

owner). If the owner defeats a

taking or attorneys’ fees are

incurred in a supplemental

proceeding, the court will award

10

fees based upon facts set forth in

FLA. STAT. §73.092.

Idaho

The court determines if the

owner will receive reasonable

costs and fees. IDAHO CODE

§ 7-711A(8). This is determined

by whether the owner obtained a

trial judgment at least 10%

higher than the condemner’s last

timely offer before filing suit or

whether the owner contested the

taking or possession of the

property. Id.

Iowa

If the appraisement by the

compensation

commission

exceeds by 10% the last and

final offer of condemnor, the

compensation commission is

entitled to award the condemnee

reasonable attorneys’ fees and

costs, including the reasonable

cost of one appraisal. IOWA CODE

§ 6B.33. All costs of the appeal,

including reasonable attorney’s

fees and costs, as well as “the

reasonable cost incurred by the

property

owner

for

one

appraisal” is recoverable, “unless

on the trial thereof the same or a

lesser amount of damages is

awarded than was allowed” by

the commission. IOWA CODE

§ 6B.33.

Under

a

2006

11

amendment to § 6A.24(3),

attorneys’ fees and costs are

awarded to the prevailing

challenger

of

condemnation

authority or proceedings. When

a condemnation is abandoned or

the condemnor refuses to pay

final award, attorneys’ fees, costs

and

actual

damages

are

awarded. IOWA CODE § 6B.34.

Louisiana

An

award

of

reasonable

attorneys’ fees is authorized in

connection with expropriation

proceedings if certain conditions

are met: (1) if the amount of

compensation awarded to owner

is higher than the highest offer

from the expropriating authority,

LA. REV. STAT. § 19:8(A)(3), or

(2) in a “quick take” the court

may award reasonable attorneys’

fees

if

the

compensation

deposited with the court “is less

than the amount of compensation

awarded in the judgment[,]” LA.

REV. STAT. § 48:453(E).

Michigan

Attorneys’ fees, expert fees, and

costs

incurred

in

the

condemnation action may be

awarded. See MICH. COMP. LAWS

SERV. § 213.66.

Minnesota

If final judgment or award is

more than 40% greater than

12

condemning authority’s last

written

offer

before

condemnation petition is filed,

then award of “reasonable

attorney

fees,

litigation

expenses, appraisal fees, other

experts fees, and other related

costs” is mandatory. See MINN.

STAT. § 117.031(a). If the award

is 20–40% more than the final

offer, the court chooses the

recoverable amount. Id.

Montana

If

the

court

denies

the

condemnation or the owner is

awarded more than a final offer

from the comdenmor, the owner

is entitled to the “necessary

expenses of litigation[.]” MONT.

CODE

ANN.

§ 70-30-305.

“Necessary

expenses

of

litigation”

is

defined

as

including, among other expenses,

attorneys’ fees, exhibit costs,

expert witness fees, and court

costs. Id. at § 70-30-306.

Nebraska

A district judge must award the

owner a reasonable amount for

attorney fees and the fees of two

expert witnesses, if: (1) the

owner appealed and the final

judgment is at least 15% more

than Board of Appraisers’ award,

or (2) condemning authority

13

appealed and the final judgment

is not less than 85% below the

Board of Appraisers’ award, or

(3) both appealed and the final

judgment is more than the Board

of Appraisers’. NEB. REV. STAT.

§ 76-720.

New York

Fees,

including

reasonable

attorneys’ fees, can be recovered

if

the

court’s

award

is

substantially higher than the

condemnor’s offer and if the court

finds extra payment to be

necessary for the owner to

receive fair compensation. N.Y.

EM. DOM. PROC. LAW § 701.

North Dakota

The court has discretion to

determine

the

amount

in

attorneys’ fees, court costs,

expert fees, and interest to award

the owner. N.D. CENT. CODE

§§ 32-15-32, 32-15-35.

Oklahoma

All fees can be recovered if the

“final judgment is that the real

property cannot be acquired by

condemnation,” “the proceeding

is abandoned,” or if the jury

verdict is at least 10% higher

than the commissioners’ award.

The condemnor is always

responsible

for

filing

and

commissioners’ fees. Even if the

owner loses, they don’t have to

14

pay attorney or expert fees.

OKLA. STAT. tit. 27, §§ 11–12.

Oregon

Fees may be recovered if the final

award is higher than the

condemnor’s last written offer,

the court finds the first written

offer was not made in good faith

or unreasonably low, or the

condemnor fails to take the

property within 60 days or

abandons it. OR. REV. STAT.

§§ 35.300; 35.346(7).

South

Carolina

In

actions

wherein

the

condemnor’s right to take is

challenged,

if

the

court

determines that the condemnor

has no right “to take all or any

part of the property, the

landowner’s reasonable costs and

litigation expenses . . . must be

awarded” to the owner. S.C.

CODE ANN. § 28-2-510(A). A

landowner that prevails in a

condemnation

action

may

recover “reasonable litigation

expenses by serving on the

condemnor and filing with the

clerk of court an application

within fifteen days of the entry of

judgment” showing that he

prevailed; stating the amount

sought; including an “itemized

statement from an attorney or

15

expert witness” stating and

explaining the fees charged; and

explaining “all actual expense for

which recovery is sought.” S.C.

CODE ANN. § 28-2-510(B)(1). “If

the condemnor abandons or

withdraws the condemnation

action,” the owner is “entitled to

reasonable

attorney

fees,

litigation expenses, and costs as

determined by the court.” S.C.

CODE ANN. § 28-2-510(B)(2).

South Dakota

If the final award is at least 20%

higher than the condemnor’s last

offer, the owner can recover

reasonable attorneys’ fees and up

to two expert witness fees. If the

owner is the prevailing party,

they may also recover litigation

expenses. S.D. CODIFIED LAWS

§ 21-35-23.

Utah

If the owner makes an offer and

award is more than their offer,

they can recover attorneys’ fees

and costs may not exceed onethird the difference between the

compensation awarded and the

condemnor’s settlement offer.

UTAH

CODE

ANN.

§§ 78B-6-509(7).

Washington

After trial, the condemnor pays

for reasonable attorney and

expert fees if the award is at least

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10% higher than the condemnor’s

best offer made 30 days before

trial.

WASH.

REV.

CODE

§ 8.25.070(1)(b).

Wisconsin

Fees can be recovered if the

owner wins, the condemnor

abandons the property, or if the

award is at least 15% or $2,700

(subject to adjustment by the

Department of Adminsitration)

higher than the condemnor’s

offer before the taking. WIS.

STAT. § 32.28(3).

Wyoming

The condemnor must pay the

owner’s attorneys’ fees and costs

when the final award exceeds the

condemnor’s presuit offer by

115%.

WYO.

STAT.

ANN.

§§ 1-26-502 to 1-26-817.

This Court has expressly recognized the states’

authority to provide property owners greater

protections than those provided under federal law.

Kelo v. City of New London, 545 U.S. 469, 489 (2005)

(“We emphasize that nothing in our opinion precludes

any State from placing further restrictions on its

exercise of the takings power. Indeed, many States

already impose ‘public use’ requirements that are

stricter than the federal baseline. Some of these

requirements have been established as a matter of

state

constitutional

law, while

others

are

expressed in state eminent domain statutes that

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carefully limit the grounds upon which takings may

be exercised.”). Judicial recognition of heightened

protections under state law is more important today

than ever, as the power of eminent domain over the

property of citizens continues to expand. See, e.g., id.

To the extent Congress desires to exempt a

condemnor from the requirements of heightened

protections under state law, it can do so. Congress

has not done so here.

State substantive law, not federal common law,

defines an owner’s interest in property. See Preseault

v. Interstate Commerce Comm’n, 494 U.S. 1, 20 (1990)

(O’Connor, J., concurring) (“In determining whether a

taking has occurred, we are mindful of the basic

axiom that [p]roperty interests . . . are not created by

the Constitution. Rather, they are created and their

dimensions are defined by existing rules or

understandings that stem from an independent

source such as state law.” (internal quotations

omitted) (quoting Ruckelshaus v. Monsanto Co., 467

U.S. 986, 1001 (1984), and Webb’s Fabulous

Pharmacies, Inc. v. Beckwith, 449 U.S. 155, 161

(1980))). OCA respectfully submits that the rule

should be no different in determining whether a

property owner deserves an award of attorneys’ fees

when his State has determined that such

reimbursement is part of his right to just

compensation.

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CONCLUSION

OCA respectfully urges the Court to grant the

Petition for Certiorari.

September 10, 2025

Respectfully submitted,

Vince Eisinger*

Robert El-Jaouhari

Maxwell Shafer

Cara Cook

Cranfill Sumner LLP

5440 Wade Park Blvd.

Suite 300, Raleigh, NC 27607

(919) 863-8703

veisinger@cshlaw.com

*Counsel of Record

Counsel for Amicus Curiae

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