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. HOFFMANN, ET AL., PETITIONERS

v.

WBI ENERGY TRANSMISSION, INC.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

D. JOHN SAUER

Solicitor General

Counsel of Record

ADAM R. F. GUSTAFSON

Principal Deputy Assistant

Attorney General

MALCOLM L. STEWART

Deputy Solicitor General

ZOE A. JACOBY

Assistant to the

Solicitor General

AMBER BLAHA

CHRISTOPHER ANDERSON

Attorneys

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

QUESTION PRESENTED

Whether the Fifth Amendment, as opposed to state

law, determines the measure of compensation due in a

condemnation action brought by a private entity exercising the federal power of eminent domain under the

Natural Gas Act, 15 U.S.C. 717f(h).

(I)

TABLE OF CONTENTS

Page

Interest of the United States....................................................... 1

Introduction................................................................................... 1

Statement ...................................................................................... 2

Discussion ...................................................................................... 7

A. The Fifth Amendment determines the

measure of compensation owed by a private

entity exercising the federal eminentdomain power under the Natural Gas Act .................... 8

B. The question presented warrants this

Court’s review ................................................................ 18

Conclusion ................................................................................... 23

TABLE OF AUTHORITIES

Cases:

Almota Farmers Elevator & Warehouse Co. v.

United States, 409 U.S. 470 (1973) ...................................... 9

Bowen v. Massachusetts, 487 U.S. 879 (1988) ............... 22

Brockett v. Spokane Arcades, Inc.,

472 U.S. 491 (1985) ....................................................... 22

City of Milwaukee v. Illinois, 452 U.S. 304 (1981) ............ 14

Columbia Gas Transmission Corp. v.

Exclusive Natural Gas Storage Easement,

962 F.2d 1192 (6th Cir.), cert. denied,

506 U.S. 1022 (1992) ..................................................... 18

DelCostello v. International Brotherhood of

Teamsters, 462 U.S. 151 (1983) ......................................... 16

Dohany v. Rogers, 281 U.S. 362 (1930) ................................. 9

Ellingburg v. United States, 146 S. Ct. 564 (2026) ........ 22

Georgia Power Co. v. Sanders,

617 F.2d 1112 (5th Cir. 1980), cert. denied,

450 U.S. 936 (1981)........................................................ 17, 19

Kohl v. United States, 91 U.S. 367 (1875) ..................... 10, 16

(III)

IV

Cases—Continued:

Page

Lackey v. Stinnie, 604 U.S. 192 (2025) ................................ 15

Mississippi River Transmission Corp. v.

Tabor, 757 F.2d 662 (5th Cir. 1985) ............................. 18

Monongahela Navigation Co. v. United States,

148 U.S. 312 (1893)................................................................ 9

Montana Dakota Utilities Co.,

21 F.E.R.C. ¶ 62,299 (1982) ................................................. 4

National R.R. Passenger Corp. v. Two Parcels

of Land, 822 F.2d 1261 (2d Cir.), cert. denied,

484 U.S. 954 (1987).............................................................. 19

PennEast Pipeline Co. v. New Jersey,

594 U.S. 482 (2021)........................2, 3, 7, 9, 11, 12, 14, 16-18

Petersburg School District v. Peterson,

103 N.W. 756 (N.D. 1905) ............................................. 22

Sabal Trail Transmission, LLC v. 18.27 Acres of

Land, 59 F.4th 1158 (11th Cir. 2023) ................ 18, 19, 29

Sabal Trail Transmission, LLC v. 3.921 Acres

of Land, 74 F.4th 1346 (11th Cir. 2023) ................ 11, 14, 19

Stenberg v. Carhart, 530 U.S. 914 (2000) ....................... 22

Tennessee Gas Pipeline Co. v. Permanent Easement

for 7.053 Acres, 931 F.3d 237 (3d Cir. 2019) ............... 11, 18

Texas Indus., Inc. v. Radcliff Materials, Inc.,

451 U.S. 630 (1981).............................................................. 14

United States v. Bodcaw Co.,

440 U.S. 202 (1979)................................................... 2, 7, 9-11

United States v. Kimbell Foods, Inc.,

440 U.S. 715 (1979) .............................................. 6, 12, 13

United States v. Little Lake Misere Land Co.,

412 U.S. 580 (1973).............................................................. 16

United States v. Miller, 317 U.S. 369 (1943)....... 2, 10, 11, 13

United States v. 93.970 Acres of Land,

360 U.S. 328 (1959)........................................................ 10, 11

V

Cases—Continued:

Page

Williston Basin Interstate Pipeline Co. & MontanaDakota Utilities Co., 30 F.E.R.C. ¶ 61,143 (1985) ............ 4

Winooski Hydroelectric Co. v. Five Acres of Land,

769 F.2d 79 (2d Cir. 1985) .................................................. 19

Constitution, statutes, regulations, and rule:

U.S. Const.:

Amend. V (Just Compensation Clause) ....... 1, 2, 7, 9, 10,

12, 13, 18

Act of July 25, 1947, ch. 333, 61 Stat. 459 .............................. 3

Equal Access to Justice Act, 28 U.S.C. 2412:

28 U.S.C. 2412(a)(1) ........................................................... 9

28 U.S.C. 2412(d)(2)(H)..................................................... 9

Federal Power Act, 16 U.S.C. 791a et seq.:

16 U.S.C. 814 (1976) .......................................................... 8

16 U.S.C. 824p(f ) ............................................................. 17

General Bridge Act of 1946, 33 U.S.C. 525 et seq. .............. 10

33 U.S.C. 532 .................................................................... 10

Natural Gas Act, 15 U.S.C. 717 et seq. .................................. 1

15 U.S.C. 717(a) ........................................................... 2, 20

15 U.S.C. 717(b) ................................................................. 2

15 U.S.C. 717f .................................................................... 3

15 U.S.C. 717f(c) ................................................................ 3

15 U.S.C. 717f(d) ................................................................ 3

15 U.S.C. 717f(e) ................................................................ 3

15 U.S.C. 717f(h) ................. 2, 4, 7, 8, 10, 11, 13, 14, 16, 17

Rail Passenger Service Act, Pub. L. No. 91-518,

84 Stat. 1327:

45 U.S.C. 545(d)(1)(B) (1982) ......................................... 19

Rules of Decision Act, 28 U.S.C. 1652 ................................. 15

Uniform Relocation Assistance and Real Property

Acquisition Policies Act, 42 U.S.C. 4601 et seq. ............... 15

VI

Statutes, regulations, and rules—Continued:

Page

42 U.S.C. 4654(a) ............................................................. 15

N.D. Cent. Code Ann. § 32-15-32 (West 2022) ...................... 6

18 C.F.R.:

Section 157.6(d).................................................................. 3

Sections 157.201-157.218................................................... 4

Exec. Order No. 14,154, Unleashing American

Energy, 90 Fed. Reg. 8353 (Jan. 29, 2025) .................... 2

Exec. Order No. 14,156, Declaring a

National Energy Emergency,

90 Fed. Reg. 8433 (Jan. 29, 2025) ................................ 20

Exec. Order No. 14,260, Protecting American

Energy from State Overreach,

90 Fed. Reg. 15,513 (Apr. 14, 2025)..................................... 4

Fed. R. Civ. P:

Rule 71.1 ........................................................................... 14

Rule 71.1(a) ...................................................................... 14

Miscellaneous:

82 Fed. Reg. 60,007 (Dec. 18, 2017) ....................................... 5

S. Rep. No. 429, 80th Cong., 1st Sess. (1947) ........................ 3

In the Supreme Court of the United States

No. 25-159

LEONARD W. HOFFMANN, ET AL., PETITIONERS

v.

WBI ENERGY TRANSMISSION, INC.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

INTEREST OF THE UNITED STATES

This brief is submitted in response to the Court’s order inviting the Solicitor General to express the views

of the United States. In the view of the United States,

the petition for a writ of certiorari should be granted.

INTRODUCTION

The Natural Gas Act (NGA or Act), 15 U.S.C. 717

et seq., delegates to certain private entities the federal

power of eminent domain to obtain rights-of-way necessary to construct and maintain interstate pipelines. 15

U.S.C. 717f(h). The Act does not specify the measure of

compensation owed for such takings, and as the decision

below acknowledged, Pet. App. 7a n.2, the courts of appeals are divided over what standard should apply. The

court below held that the Fifth Amendment standard of

“just compensation” governs. Other circuits, however,

have held that the NGA’s failure to specify the appropriate measure of compensation leaves a “gap” to fill

(1)

2

through judicial lawmaking, and that as a matter of federal common law, state law—which sometimes provides

for compensation more generous than the Fifth Amendment requires—should be incorporated to fill that gap.

The Eighth Circuit’s approach below is the correct

one. The NGA’s delegation of the federal eminentdomain power is “categorical.” PennEast Pipeline Co.

v. New Jersey, 594 U.S. 482, 498 (2021). When the federal government exercises the federal eminent-domain

power, it must pay a property owner “just compensation” under the Fifth Amendment, unless Congress affirmatively adopts state compensation rules or otherwise mandates greater compensation. See United

States v. Miller, 317 U.S. 369, 380 (1943); United States

v. Bodcaw Co., 440 U.S. 202 (1979) (per curiam). The

same principles apply where, as here, Congress has delegated to a private party the entire federal eminentdomain power. Because the NGA does not specify a

state-law or other heightened measure of compensation, the default Fifth Amendment standard applies.

This Court should grant the petition to resolve the conflict among the circuits and affirm the judgment below.

STATEMENT

1. In 1938, Congress enacted the Natural Gas Act to

regulate “the transportation of natural gas in interstate

commerce.” 15 U.S.C. 717(b). The Act reflects Congress’s determination that “[f]ederal regulation in matters relating to the transportation of natural gas and the

sale thereof in interstate and foreign commerce is necessary in the public interest.” 15 U.S.C. 717(a).

The Act vests the Federal Energy Regulatory Commission (FERC or Commission), formerly the Federal

Power Commission, with primary authority to approve

the construction and extension of interstate natural-gas

3

pipelines. See 15 U.S.C. 717f. In order to build or extend an interstate pipeline, a private entity must first

obtain from FERC a “certificate of public convenience

and necessity” authorizing the project. 15 U.S.C. 717f(c).

A company seeking such a certificate must submit to

FERC an application that describes the proposed pipeline, 15 U.S.C. 717f(d), and the company must make a

“good faith effort to notify all affected landowners”

whose property may be crossed by the proposed pipeline or used during construction, 18 C.F.R. 157.6(d). If

FERC determines that the proposed interstate pipeline

“is or will be required by the present or future public

convenience and necessity,” FERC issues a certificate

authorizing its construction. 15 U.S.C. 717f(e).

“As originally enacted, the NGA did not identify a

mechanism for certificate holders to secure property

rights necessary to build pipelines.” PennEast Pipeline Co. v. New Jersey, 594 U.S. 482, 489 (2021); see

S. Rep. No. 429, 80th Cong., 1st Sess. 1 (1947) (Senate

Report). Pipeline companies relied instead on state-law

mechanisms to acquire the needed land. Senate Report

1. Under that regime, States could (and did) withhold

authority to take land for projects that they disfavored,

such as those undertaken by out-of-state corporations.

Id. at 2-3. “The result was that certificate holders often

had only an illusory right to build.” PennEast, 594 U.S.

at 489.

In 1947, Congress amended the NGA to address that

impediment by authorizing private certificate holders

to exercise the federal power of eminent domain. Act of

July 25, 1947, ch. 333, 61 Stat. 459 (15 U.S.C. 717f(h));

see PennEast, 594 U.S. at 489. Specifically, Congress

provided:

4

When any holder of a certificate of public convenience and necessity cannot acquire by contract, or is

unable to agree with the owner of property to the

compensation to be paid for, the necessary right-ofway to construct, operate, and maintain a pipe line or

pipe lines for the transportation of natural gas

* * * , it may acquire the same by the exercise of the

right of eminent domain in the district court of the

United States for the district in which such property

may be located, or in the State courts.

15 U.S.C. 717f(h).

Congress further directed that the “practice and

procedure” in any such condemnation action brought in

federal district court “shall conform as nearly as may be

with the practice and procedure in similar action or proceeding in the courts of the State where the property is

situated.” 15 U.S.C. 717f(h). Federal jurisdiction over

such actions is limited to cases in which “the amount

claimed by the owner of the property to be condemned

exceeds $3,000.” Ibid.

2. Respondent is a company that transports and

stores natural gas. Pet. App. 2a. In 1985, FERC issued

respondent a certificate of public convenience and necessity, authorizing respondent to operate and maintain

an interstate pipeline system previously owned by another company. Williston Basin Interstate Pipeline Co.

& Montana-Dakota Utilities Co., 30 F.E.R.C. ¶ 61,143,

¶ 61,253 (1985). Respondent also inherited the other

company’s “blanket certificate,” which is an authorization to conduct relatively minor pipeline projects pursuant to a streamlined regulatory approval process. Ibid.;

Montana Dakota Utilities Co., 21 F.E.R.C. ¶ 62,299,

¶ 63,482 (1982); see 18 C.F.R. 157.201-157.218.

5

In November 2017, respondent requested authorization to construct approximately 12 miles of pipeline in

McKenzie County, North Dakota, and to expand certain

existing natural-gas facilities in the area. Pet. App. 29a.

Pursuant to respondent’s blanket certificate, FERC issued a notice of authorization for the project. See 82

Fed. Reg. 60,007 (Dec. 18, 2017).

To construct and maintain the new pipeline, respondent needed to secure several easements and rights-ofway in McKenzie County. See Resp. C.A. Br. 4. Respondent was able to purchase most of the necessary property

interests from the local landowners. Ibid. But respondent could not reach an agreement with certain landowners, who are petitioners in this Court. Respondent

therefore sought to obtain the relevant easements and

rights-of-way through eminent domain, pursuant to the

NGA.

3. In April 2018, respondent filed a condemnation

action in the United States District Court for the District of North Dakota. Compl. 1-2; see Pet. App. 28a.

The parties stipulated that respondent could immediately use and possess the relevant easements and

rights-of-way, leaving only the amount of compensation

to be determined. Pet. App. 29a. After three years of

litigation on that issue, the parties reached a settlement

on the value of the taken property interests. Id. at 29a,

50a. But petitioners reserved the right to move for attorney’s fees and expenses, and respondent reserved

the right to contest that motion. Id. at 50a.

Consistent with the parties’ stipulation, petitioners

moved for an award of attorney’s fees and expenses.

Pet. App. 30a. Petitioners argued that state law should

determine the compensation owed to them for the taking, and that “just compensation as measured in North

6

Dakota” “includes” “reasonable fees and expenses.”

D. Ct. Doc. 127, at 11 (Oct. 4, 2021); see D. Ct. Doc. 119,

at 1-14 (Aug. 12, 2021). Respondent opposed the motion. Respondent argued that “federal law defines just

compensation in a federal condemnation” under the

NGA, and that “attorney’s fees and other litigation expenses are not included in just compensation under the

Fifth Amendment” or otherwise provided for by federal

statute. D. Ct. Doc. 120, at 13 (Sept. 2, 2021).

The district court granted petitioners’ motion. Pet.

App. 46a. The court observed that the NGA is “silent”

as to the applicable law and measure of compensation in

a condemnation action brought by a private party, and

indeed that the Act does not expressly require “that just

compensation be awarded.” Id. at 32a. The court concluded that the Act’s silence on that point left a gap to

be filled through common lawmaking. Ibid. The court

then applied the analytical framework of United States

v. Kimbell Foods, Inc., 440 U.S. 715 (1979), to determine

whether to adopt state law or instead to fashion a uniform federal rule to fill that asserted gap. Pet. App.

33a-35a. After examining out-of-circuit appellate decisions applying Kimbell Foods in the same context, id. at

35a-40a, the court chose to “adopt[ ] state substantive

law as the federal standard of just compensation.” Id.

at 45a. The court concluded that under North Dakota

law, attorney’s fees and expenses are a component of

just compensation. Id. at 45a-46a (citing N.D. Cent.

Code Ann. § 32-15-32 (West 2022)).

After further briefing on the appropriate fee award,

the district court awarded petitioners $383,375.76 in attorney’s fees and expenses. Pet. App. 23a.

4. The court of appeals vacated the fee award. Pet.

App. 1a-10a. The court explained that a private entity

7

exercising the federal power of eminent domain under

the NGA “step[s] into the federal government’s shoes”

and “inherit[s] all its rights and obligations.” Id. at 4a.

When the federal government conducts a taking, the

court observed, the Just Compensation Clause does not

require it to pay attorney’s fees. Id. at 6a (citing United

States v. Bodcaw Co., 440 U.S. 202, 203 (1979) (per curiam)). The court further explained that, although some

federal statutes mandate compensation above the constitutional floor by requiring attorney’s fees for certain

federal takings, the NGA provision at issue does not.

Id. at 5a-6a.

The court of appeals next rejected the district court’s

Kimbell Foods-based determination to adopt state law

as the applicable rule of decision. Pet. App. 6a-9a. The

court of appeals acknowledged that other circuits had

taken the district court’s approach, but it concluded that

“first principles counsel otherwise.” Id. at 7a n.2 (citation omitted). The court of appeals explained that “when

it comes to eminent domain, congressional silence leaves

no ‘gaps’ to fill” with state law or federal common law on

the measure of just compensation. Id. at 7a. Instead,

“any gaps are filled by the Fifth Amendment itself.” Id.

at 8a. The court also viewed this Court’s decision in

PennEast as confirming that the NGA delegates to private entities “the entire federal eminent-domain power,

not just some diluted form of it.” Ibid. And it concluded

that petitioners’ policy arguments for applying state

law in this context were better directed to Congress. Id.

at 9a.

DISCUSSION

The Eighth Circuit correctly held that the Fifth

Amendment, not state law, supplies the standard for determining the measure of compensation when a private

8

entity exercises the federal power of eminent domain

under the Natural Gas Act. Pet. App. 6a. This Court’s

review is nonetheless warranted because other circuits

have reached the opposite conclusion. See id. at 7a n.2

(acknowledging contrary out-of-circuit decisions). The

question presented is important and recurring, and this

case is a suitable vehicle to resolve the disagreement

among the courts of appeals. The petition for a writ of

certiorari therefore should be granted.1

A. The Fifth Amendment Defines The Measure Of Compensation Owed By A Private Entity That Exercises The

Federal Eminent-Domain Power Under The Natural

Gas Act

1. a. Under the NGA, the holder of a certificate of

public convenience and necessity may obtain the rightsof-way needed to construct and operate an interstate

pipeline “by the exercise of the right of eminent domain

in the district court.” 15 U.S.C. 717f(h). Section 717f(h)

delegates to private certificate holders the “federal eminent domain power” that the federal government posIn two petition-stage amicus briefs filed over 45 years ago, the

government similarly expressed the view that federal law defines

the measure of compensation owed by private entities exercising the

federal eminent-domain power under an analogous provision of the

Federal Power Act, 16 U.S.C. 814 (1976). See U.S. Amicus Br. at

14-16, Boswell v. Georgia Power Co., No. 77-1866 (Jan. 25, 1979);

U.S. & FERC Amici Br. at 8-9, Georgia Power Co. v. 138.30 Acres

of Land, No. 80-255 (Jan. 13, 1981). Those briefs opined that the

issue “appears to have less significance” in the parallel context of

the NGA, although they acknowledged that “state rules allowing attorneys’ fees” could affect the cost of pipelines’ acquisitions. U.S.

Amicus Br. at 13, Boswell, supra (No. 77-1866); see U.S. & FERC

Amici Br. at 3 n.4, 138.30 Acres of Land, supra (No. 80-255). Since

then, a circuit conflict has developed on the NGA issue, and the

question presented has become important. See pp. 18-23, infra.

1

9

sesses. PennEast Pipeline Co. v. New Jersey, 594 U.S.

482, 489 (2021) (emphasis omitted). That delegation empowers a certificate holder to step into the shoes of the

federal government and condemn both private and

state-owned property, just as the federal government

can. Id. at 498.

When the federal government exercises the federal

power of eminent domain, the Fifth Amendment requires it to pay “just compensation” to the property

owner. U.S. Const. Amend. V. A significant body of

case law clarifies the scope of “just compensation” under the Fifth Amendment. In general terms, the Just

Compensation Clause entitles a property owner “to the

fair market value of his property at the time of the taking.” Almota Farmers Elevator & Warehouse Co. v.

United States, 409 U.S. 470, 474 (1973). Just compensation under the Amendment “is for the property, and

not to the owner.” Monongahela Navigation Co. v.

United States, 148 U.S. 312, 326 (1893). Accordingly,

“indirect costs to the property owner caused by the taking of his land,” such as “ ‘attorney’s fees and expenses,’ ” are “generally not part of the just compensation to which he is constitutionally entitled.” United

States v. Bodcaw Co., 440 U.S. 202, 203 (1979) (per curiam) (brackets and citation omitted) (quoting Dohany

v. Rogers, 281 U.S. 362, 368 (1930)).

Congress is free to, and sometimes does, mandate

relief that exceeds that constitutional floor. For example, although attorney’s fees are not part of “just compensation” under the Fifth Amendment, the Equal Access to Justice Act requires the federal government to

pay such fees in certain condemnation actions that are

not resolved “by settlement.” 28 U.S.C. 2412(a)(1) and

(d)(2)(H). “[S]uch compensation is a matter of legisla-

10

tive grace rather than constitutional command.” Bodcaw, 440 U.S. at 204. But when Congress is silent as to

the measure of compensation for a particular class of

takings, the default Fifth Amendment “just compensation” standard applies.

Congress may also adopt state-law measures of compensation that exceed the federal constitutional minimum. See Pet. App. 5a. When States exercise the power

of eminent domain, they sometimes provide compensation more generous than the Fifth Amendment requires. Such state laws do not apply of their own force

to the federal government when it exercises the federal

power of eminent domain. See United States v. Miller,

317 U.S. 369, 379-380 (1943); Kohl v. United States, 91

U.S. 367, 374 (1875). Instead, federal law applies where

the “substantive right” to “compensation” is “grounded

upon the Constitution of the United States.” Miller, 317

U.S. at 380; United States v. 93.970 Acres of Land, 360

U.S. 328, 332-333 (1959).

Congress may choose to adopt state substantive law

as the federal standard for compensation. The General

Bridge Act of 1946, 33 U.S.C. 525 et seq., for example,

authorizes certain takings and requires compensation to

be “ascertained and paid according to the laws of [the]

State” where the condemnation occurs. 33 U.S.C. 532.

Federal standards remain the default, however, unless

Congress affirmatively “chooses to make state laws applicable.” 93.970 Acres of Land, 360 U.S. at 332-333.

b. The NGA explicitly authorizes private condemnation actions but does not affirmatively incorporate substantive state-law standards or specify any particular

measure of compensation for takings by certificate

holders. See 15 U.S.C. 717f(h). In that circumstance,

the default Fifth Amendment standard of “just compen-

11

sation” applies. See Bodcaw, 440 U.S. at 203; Miller,

317 U.S. at 379-380. That standard does not allow for

attorney’s fees. Bodcaw, 440 U.S. at 203.

The fact that Section 717f(h) authorizes a private entity to exercise the federal eminent-domain power on

the government’s behalf does not change the foregoing

analysis. When Congress authorizes an exercise of eminent domain without specifying a measure of compensation, a landowner’s right to compensation is “grounded

upon the Constitution of the United States,” Miller, 317

U.S. at 380, and therefore is governed by federal law.

See 93.970 Acres of Land, 360 U.S. at 333. That is true

regardless of who exercises the federal eminent-domain

power. See Tennessee Gas Pipeline Co. v. Permanent

Easement for 7.053 Acres, 931 F.3d 237, 247-251 (3d Cir.

2019) (Chagares, J., dissenting); Sabal Trail Transmission, LLC v. 3.921 Acres of Land, 74 F.4th 1346, 1349

(11th Cir. 2023) (Grant, J., concurring). “[T]he rules of

the road do not change, in other words, when the federal

government hands the keys over to a private party.”

Pet. App. 8a.

This Court’s decision in PennEast confirms how completely a certificate holder acting under Section 717f(h)

stands in the federal government’s shoes. There, the

Court rejected New Jersey’s state-sovereign-immunity

defense to a certificate holder’s condemnation of stateowned land, explaining that States had consented in

the plan of the Convention to the exercise of the federal

eminent-domain power “in its entirety.” PennEast, 594

U.S. at 508. The Court held that because “the federal

eminent domain power can be delegated,” and Section

717f(h) “speaks with sufficient clarity to delegate th[at]

power,” States “have no immunity left to waive or abrogate when it comes to condemnation suits by the Fed-

12

eral Government and its delegatees.” Ibid. PennEast

thus confirmed that “the gas company received what

amounted to the entire federal eminent-domain power,

not just some diluted form of it.” Pet. App. 8a.

2. a. The court of appeals correctly applied those

principles to vacate the district court’s fee award in this

case. See Pet. App. 1a-10a. The court of appeals recognized that the federal eminent-domain power carries

with it the obligation to pay “just compensation” within

the meaning of the Fifth Amendment, or whatever compensation above that constitutional floor Congress may

require. Id. at 6a. The court correctly concluded that,

because the NGA does not specify any particular measure of compensation for private takings effected under

that statute, “the default rule applies: ‘just compensation’ under the Fifth Amendment.” Ibid. Because the

Fifth Amendment does not confer any right to attorney’s fees incurred in takings litigation, the district

court’s fee award could not stand. Id. at 8a.

The court of appeals also correctly rejected petitioners’ argument, which the district court had accepted,

that state law should be used to determine the measure

of compensation owed in private condemnations under

the NGA. See Pet. App. 6a-8a. Petitioners and the district court had viewed the NGA’s silence on the measure

of compensation as creating a “gap” to be filled through

judicial lawmaking. See Pet. C.A. Br. 3-4; Pet. App. 33a.

In crafting a rule of federal common law, the district

court analyzed the factors outlined in United States v.

Kimbell Foods, Inc., 440 U.S. 715 (1979), to determine

whether to adopt state law or to create a uniform federal rule. Those factors include (1) whether the federal

program by its nature requires uniformity; (2) whether

the application of state law would frustrate specific ob-

13

jectives of the federal program; and (3) whether a uniform federal rule would disrupt existing commercial relationships predicated on state law. See id. at 728-729.

Petitioners contended, and the district court agreed,

that those factors counsel in favor of incorporating state

law, rather than choosing a uniform rule. Pet. App. 40a.

As the court of appeals explained, that argument

fails to recognize that “when it comes to eminent domain, congressional silence leaves no ‘gaps’ to fill.” Pet.

App. 7a. Because the NGA authorizes certificate holders to “acquire” property rights “by the exercise of the

right to eminent domain,” 15 U.S.C. 717f(h), but does

not mention “just compensation,” the landowner’s right

to such compensation stems from the Fifth Amendment

itself. It follows that the Fifth Amendment also supplies the measure of that compensation. See Miller, 317

U.S. at 380. Had Congress wished to require greater

compensation, or to incorporate state substantive compensation rules, it could have done so—as it has in other

statutes. See p. 10, supra. But Congress’s failure to

mandate an alternative approach to calculating compensation awards for NGA takings did not create a “gap” to

be filled through judicial lawmaking. Rather, it left in

place the default Fifth Amendment “just compensation”

standard.

b. Other considerations reinforce the conclusion

that Congress did not leave a gap to be filled by state

law. Section 717f(h) provides that condemnation actions

may be brought in federal or state court, and that if they

are brought in federal court, state-law “practice and

procedure” should apply where possible. 15 U.S.C.

14

717f(h).2 By specifying that state procedural law should

govern, that language implies that state substantive law

should not apply. State-law rules that define the measure of compensation payable to persons whose property

is taken are plainly substantive.

Statutory history points in the same direction. Before Section 717f(h) was enacted, certificate holders

could secure rights-of-way only by “rely[ing] on state

eminent domain procedures,” and those procedures

“were frequently made unavailable to them.” PennEast,

594 U.S. at 489. In 1947, Congress addressed that problem by amending the statute to “authorize certificate

holders to exercise the federal eminent domain power,”

thereby ensuring that their certificates “could be given

effect.” Id. at 489-490. Given the problem that Section

717f(h) was enacted to address, it is implausible that

Congress would have chosen to subject certificate holders to disparate and potentially obstructionist state-law

compensation regimes. See p. 20, infra.

Treating the NGA as creating a gap to be filled

through judicial lawmaking would “improperly expand[ ]

federal common law.” 3.921 Acres of Land, 74 F.4th at

1349 (Grant, J., concurring). Federal courts may make

federal common law only in “few and restricted” instances, Texas Indus., Inc. v. Radcliff Materials, Inc.,

451 U.S. 630, 640 (1981) (citation omitted), including

when federal questions “cannot be answered from federal statutes alone,” City of Milwaukee v. Illinois, 452

U.S. 304, 314 (1981) (citation omitted). The NGA, howThat “practice and procedure” language has effectively been

abrogated by Federal Rule of Civil Procedure 71.1, formerly Rule

71A, which establishes uniform rules for federal condemnation actions. See Fed. R. Civ. P. 71.1(a); cf. 93.970 Acres of Land, 360 U.S.

at 333 n.7.

2

15

ever, does supply an answer to the question of compensation: by delegating the whole of the federal eminentdomain power, without specifying the amount of compensation due, Congress adopted the same standard of

compensation that would apply if the federal government itself were taking property. See Pet. App. 7a.

Petitioners’ argument is also inconsistent with this

Court’s repeated admonitions that, under the “American Rule,” federal courts may not award attorney’s fees

to a party in litigation unless “there is express statutory

authorization” to do so. Lackey v. Stinnie, 604 U.S. 192,

199 (2025) (citations omitted). The Uniform Relocation

Assistance and Real Property Acquisition Policies Act

of 1970, 42 U.S.C. 4601 et seq., authorizes fee awards in

condemnation proceedings involving delegees, but only

in two narrow circumstances: when the final judgment

is that the property cannot be acquired by condemnation, and when the proceeding is abandoned. 42 U.S.C.

4654(a). Neither of those circumstances is present here.

See Pet. App. 5a n.1. If the NGA in fact were wholly

silent on the question of attorney’s fees in private condemnation suits brought under the Act, the American

Rule would dictate that fees may not be awarded.

3. Petitioners’ remaining arguments lack merit. Relying on the Rules of Decision Act, 28 U.S.C. 1652, petitioners contend (Pet. 13) that “the general rule is that

federal courts must follow state law unless commanded

otherwise.” Petitioners’ reliance on that statute is misplaced. The Rules of Decision Act requires federal

courts to apply state law only where the “Constitution

or treaties” or “Acts of Congress” do not “otherwise require or provide.” 28 U.S.C. 1652. Here, because the

Fifth Amendment itself “provide[s]” the measure of

just compensation, state law is inapplicable under the

16

Rules of Decision Act’s plain terms. See pp. 10-12, supra. And even if the NGA left a gap to fill, the Rules of

Decision Act would not apply. “Since Erie, no decision

of this Court has held or suggested that the Act requires

borrowing state law to fill gaps in federal substantive

statutes.” DelCostello v. International Brotherhood of

Teamsters, 462 U.S. 151, 160 n.13 (1983); see United

States v. Little Lake Misere Land Co., 412 U.S. 580,

592-593 (1973).

Petitioners next contend (Pet. 15) that “a delegation

of the eminent domain power” does not “necessarily

carr[y] with it federal law in every aspect.” That argument is difficult to square with PennEast’s holding that

the NGA’s delegation is so “categorical” as to encompass the right to condemn state-owned property. 594

U.S. at 498. Petitioners do not explain why Congress

would have simultaneously given certificate holders

such significant rights against the States but withheld

the federal government’s ordinary protection from

state compensation laws. See Kohl, 91 U.S. at 374; Miller, 317 U.S. at 380.

Petitioners further contend (Pet. 15-16) that courts

should apply state substantive laws that define the

scope of available compensation in takings cases because Section 717f(h)’s text expressly contemplates a

role for state courts and state law. They emphasize

(ibid.) the provision’s language about applying state

“practice and procedure.” 15 U.S.C. 717f(h). Petitioners draw the wrong inference from that language. By

specifying that state law would govern matters of “practice and procedure,” Congress clearly implied that state

law would not govern substantive matters like the

amount of compensation owed. See pp. 13-14, supra.

17

Petitioners also misunderstand (Pet. 16) Section

717f(h)’s historical context. In petitioners’ view, Section

717f(h) should not be interpreted to “sweep[ ] aside all

state-law rules about compensation” because the “federal eminent domain power” was not “directly” invoked

until “just a few decades prior” to Section 717f(h)’s enactment. Ibid. But as the PennEast Court recently explained, displacing state eminent-domain law was Congress’s very purpose in enacting Section 717f(h). See

594 U.S. at 489; p. 14, supra.

Petitioners point (Pet. 16-17) to a Federal Power Act

provision that Congress enacted as part of the Energy

Policy Act of 2005, which created new eminent-domain

proceedings and defined “just compensation” in those

proceedings as fair market value (including severance

damages). 16 U.S.C. 824p(f ). Petitioners ask (Pet. 17)

why Congress would “bother adopting a definition that

tracks ordinary federal compensation rules” if state-law

rules were not the default. But as petitioners point out

(ibid.), the Fifth Circuit had previously held that a different Federal Power Act provision, which was silent as

to the measure of compensation, incorporated state

compensation law. See Georgia Power Co. v. Sanders,

617 F.2d 1112, 1115 (5th Cir. 1980) (en banc), cert. denied, 450 U.S. 936 (1981); p. 8 n.1, supra. In that circumstance, Congress understandably enacted an express definition of “just compensation” that prevents

repetition of the Fifth Circuit’s interpretive error.

Petitioners finally argue (Pet. 18) that applying state

compensation law to takings by private entities does not

raise the same sovereign-immunity and fiscal concerns

as applying state law to the federal government. But

notwithstanding potential differences between governmental and private takings, Congress “categorical[ly]”

18

delegated the federal eminent-domain power to certificate holders. PennEast, 594 U.S. at 498. The necessary

consequence of that delegation is that the same compensation rules will apply regardless of the identity of the

condemnor. Petitioners’ policy objections to that choice

are best directed to Congress, not this Court. See Pet.

App. 9a.

B. The Question Presented Warrants This Court’s Review

Although the decision below is correct, this Court’s

review is warranted in light of the conflict among the

circuits and the importance of the question presented.

1. The court of appeals acknowledged that its decision conflicts with decisions of other circuits that have

considered the question presented, all of which have

applied state law to determine the compensation owed

in private condemnation actions under the NGA. See

Pet. App. 7a n.2. In particular, the Third and Eleventh

Circuits have addressed the precise issue that is disputed here and have adopted state law as the measure

of just compensation “when deciding whether attorney

fees are available under the Natural Gas Act.” Ibid.;

see Tennessee Gas Pipeline Co., 931 F.3d at 247-251;

Sabal Trail Transmission, LLC v. 18.27 Acres of Land,

59 F.4th 1158, 1168-1172 (11th Cir. 2023). Those decisions squarely conflict with the holding below that the

Fifth Amendment governs the compensation owed in

such actions and “provides no right to attorney fees.”

Pet. App. 10a.

In cases not involving attorney’s fees, the Fifth and

Sixth Circuits have also held that state law supplies the

standard for compensation owed in an NGA condemnation suit. See Mississippi River Transmission Corp. v.

Tabor, 757 F.2d 662, 665 n.3 (5th Cir. 1985); Columbia

Gas Transmission Corp. v. Exclusive Natural Gas Stor-

19

age Easement, 962 F.2d 1192, 1195 (6th Cir.), cert. denied, 506 U.S. 1022 (1992). Respondent views Tabor as

largely irrelevant on the ground that its reasoning was

thin. See Br. in Opp. 19 n.4. But the Fifth Circuit had

previously issued a more extensive opinion holding that

state law supplied the compensation standard under a

parallel provision of the Federal Power Act. See Georgia Power Co., 617 F.2d at 1115; p. 17, supra. Although

Georgia Power involved a different statute, it has had

significant “influence” on other courts “interpreting the

Natural Gas Act,” 3.921 Acres of Land, 74 F.4th at 1348

n.2 (Grant, J., concurring), and the Eleventh Circuit

held that Georgia Power “control[led]” its decision in

Sabal Trail, 59 F.4th at 1168; see id. at 1160 n.1 (explaining that “[d]ecisions of the former Fifth Circuit

rendered prior to October 1, 1981, constitute binding

precedent in the Eleventh Circuit”).3

Respondent suggests (Br. in Opp. 11) that decisions

like Columbia Gas and Tabor do not directly conflict

with the decision below because the compensation disputes in those cases did not “involve[ ] attorney fees at

all.” But the question presented is not limited to issues

involving attorney’s fees. Instead, it asks more generally whether “just compensation” should “be determined by reference to state law” in private condemnation actions under the NGA. Pet. i. On that broader

question, the Fifth and Sixth Circuits’ approach is

The Second Circuit has also adopted Georgia Power’s approach

to compensation under the Federal Power Act, see Winooski Hydroelectric Co. v. Five Acres of Land, 769 F.2d 79, 81-82 (1985), and

has applied the same framework to the Rail Passenger Service Act,

45 U.S.C. 545(d)(1)(B) (1982), see National R.R. Passenger Corp. v.

Two Parcels of Land, 822 F.2d 1261, 1265-1267, cert. denied, 484

U.S. 954 (1987).

3

20

clearly inconsistent with the Eighth Circuit decision below, which held that the governing standard is “ ‘just

compensation’ under the Fifth Amendment.” Pet. App.

6a (citation omitted).

Absent this Court’s intervention, the conflict among

the circuits is unlikely to resolve itself. Respondent predicts (Br. in Opp. 20) that “courts reviewing their precedent” after PennEast “will likely conform” to the

Eighth Circuit’s view. But the Eleventh Circuit is the

sole court of appeals to reconsider the issue after PennEast, and it held that PennEast did not abrogate its

prior precedent. See Sabal Trail, 59 F.4th at 1173-1174.

2. The existing circuit conflict warrants this Court’s

review. The NGA reflects Congress’s determination that

the interstate transportation of natural gas “is affected

with a public interest.” 15 U.S.C. 717(a). The Executive

Branch has also emphasized the importance of interstate pipelines to the country’s economic competitiveness and national security. See Exec. Order No. 14,154,

Unleashing American Energy, 90 Fed. Reg. 8353, 83538354 (Jan. 29, 2025); Exec. Order No. 14,156, Declaring

a National Energy Emergency, 90 Fed. Reg. 8433, 8433

(Jan. 29, 2025). Petitioners appear to acknowledge that,

under the majority rule in the circuits, States could enact and enforce laws that “require so much compensation that pipeline construction would grind to a halt.”

Pet. 7. Petitioners assert that no such extreme state

laws “exist in reality,” and that actual state laws do “not

frustrate any federal policy.” Ibid. But Congress delegated the federal eminent-domain power in its entirety

to ensure that pipeline certificate holders need not depend on States’ voluntary forbearance.

Treating state law as determinative with respect to

the proper measure of compensation would conflict with

21

the NGA’s general purpose of ensuring a reliable and

affordable interstate supply of natural gas. See p. 14,

supra; cf. Exec. Order No. 14,260, Protecting American

Energy from State Overreach, 90 Fed. Reg. 15,513 (Apr.

14, 2025). And in States that define just compensation

to include attorney’s fees, the majority rule incentivizes

landowners to draw out disputes in order to increase the

size of a potential fee award. That too would impede

achievement of the NGA’s objectives.

3. This case is a suitable vehicle to resolve the circuit

conflict. Both of the courts below squarely addressed

and resolved the question presented, which they understood to be outcome-determinative as to petitioners’ entitlement to attorney’s fees. The court of appeals explained that “[t]he availability of attorney fees depends

on whether state or federal law determines the compensation that is due.” Pet. App. 3a. The district court likewise characterized “the precise issue before the Court”

as “whether state law or federal law governs the measure of just compensation in condemnation proceedings

brought by a private entity under the Natural Gas Act.”

Id. at 30a (emphasis omitted).

Respondent contends (Br. in Opp. 12-21) that this

case does not actually present any issue concerning the

role of state law in calculating just compensation in a

private NGA condemnation action. Respondent argues

that, contrary to the understanding of the courts below,

North Dakota makes attorney’s fees available on a discretionary basis in condemnation actions but does not

treat such fees as part of just compensation. See id. at

13-16. Respondent contends (id. at 15-16) that attorney’s fees therefore are unavailable here regardless of

whether state law governs the measure of just compensation in private NGA suits. In respondent’s view (id.

22

at 18-19), that feature of North Dakota law distinguishes this case from other cases in the asserted split,

in which “[d]etermining which measure of just compensation applied” was “crucial.”

Respondent’s interpretation of North Dakota law

poses no barrier to this Court’s resolution of the question presented. Both of the courts below decided this

case on the explicit understanding that in takings cases

North Dakota law treats attorney’s fees as part of just

compensation. See Pet. App. 3a; id. at 30a, 45a. This

Court “rarely reviews a construction of state law agreed

upon by the two lower federal courts.” Stenberg v. Carhart, 530 U.S. 914, 940 (2000) (citation omitted). Instead, it has a “settled and firm policy of deferring to

regional courts of appeals in matters that involve the

construction of state law,” Bowen v. Massachusetts, 487

U.S. 879, 908 (1988), unless that construction is “clearly

erroneous,” Brockett v. Spokane Arcades, Inc., 472 U.S.

491, 500 n.9 (1985) (citation omitted).

The Court should apply that settled policy here.

Although respondent raises (Br. in Opp. 13-16) reasonable arguments about North Dakota law, the lower

courts’ interpretation finds support in Petersburg

School District v. Peterson, 103 N.W. 756 (N.D. 1905),

which held that requiring a landowner to pay his “taxable costs” in “resisting attempts to take his land against

his consent” would “result in giving him less than just

compensation for his property.” Id. at 759; see Pet.

App. 3a (citing Petersburg School District, supra). The

Court may therefore assume without deciding that the

two courts below correctly applied North Dakota law

here, and resolve the question presented on that

assumption. Cf. Ellingburg v. United States, 146 S. Ct.

23

564, 567 n.2 (2026) (declining to disturb the “understanding” on which “the Eighth Circuit decided this case”).

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted.

D. JOHN SAUER

Solicitor General

ADAM R. F. GUSTAFSON

Principal Deputy Assistant

Attorney General

MALCOLM L. STEWART

Deputy Solicitor General

ZOE A. JACOBY

Assistant to the

Solicitor General

AMBER BLAHA

CHRISTOPHER ANDERSON

Attorneys

MAY 2026