Supplemental 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 a writ of certiorari

to the United States Court of Appeals

For the Eighth Circuit

RESPONDENT’S SUPPLEMENTAL BRIEF

PAUL W. HUGHES

Counsel of Record

ANDREW A. LYONS-BERG

CHARLES SEIDELL

McDermott Will & Schulte LLP

500 North Capitol Street NW

Washington, DC 20001

(202) 756-8988

phughes@mwe.com

Counsel for Respondent

i

CORPORATE DISCLOSURE STATEMENT

Respondent WBI Energy Transmission, Inc. is an

indirect, wholly-owned subsidiary of MDU Resources

Group, Inc. MDU Resources Group, Inc. is publicly

traded on the New York Stock Exchange.

ii

TABLE OF CONTENTS

Corporate Disclosure Statement ................................ i

Table of Authorities................................................... iii

Respondent’s Supplemental Brief ..............................1

Conclusion ...................................................................2

iii

TABLE OF AUTHORITIES

Cases

PennEast Pipeline Co. v. New Jersey,

594 U.S. 482 (2021) ............................................. 1

United States v. Bodcaw Co.,

440 U.S. 202 (1979) ............................................. 2

Statutes

15 U.S.C. § 717f(h) ............................................... 1, 2

RESPONDENT’S SUPPLEMENTAL BRIEF

Respondent WBI Energy Transmission, Inc. respectfully submits this supplemental brief to inform

the Court that, in light of arguments advanced by the

Solicitor General in its amicus curiae brief, WBI acquiesces in the grant of certiorari and urges the Court

to affirm the Eighth Circuit.

The Eighth Circuit observed in the decision below

that its holding conflicted with those of several other

circuits. Pet. App. 7a. WBI principally argued in its

Brief in Opposition that, notwithstanding a potential

conflict regarding the meaning of federal law, unique

features of North Dakota law would nonetheless resolve this matter in WBI’s favor; that is, even if the

Court resolves the question presented in petitioners’

favor, WBI would prevail because of state law. BIO 1221. The Solicitor General notes that these are “reasonable arguments,” but nonetheless asks the Court to

“assume without deciding” that North Dakota law is

to the contrary, in order to resolve the question presented. U.S. Br. 22.

WBI agrees with the Solicitor General that the

question presented is central to nationwide natural

gas infrastructure. U.S. Br. 20-21. WBI will therefore

acquiesce in certiorari to resolve the question of federal law presented, provided that it reserves the right

to argue on remand, should it become relevant, that

North Dakota law does not in fact include attorneys’

fees in the state’s measure of just compensation.

For the reasons WBI and the Solicitor General

have explained, the Court should affirm the Eighth

Circuit. See U.S. Br. 8-18; BIO 21-31. The delegation

of the federal eminent domain power in Section

717f(h) is “categorical.” PennEast Pipeline Co. v. New

2

Jersey, 594 U.S. 482, 498 (2021). Because WBI stands

in the shoes of the federal government when condemning land under the Natural Gas Act, there is no basis

to apply a different rule to WBI than would apply to

the federal government—i.e., that “[a]ttorneys’ fees

and expenses are not embraced within just compensation.” United States v. Bodcaw Co., 440 U.S. 202, 203

(1979).

Congress amended the NGA to include Section 717f(h) to clear away obstacles created by the application of state eminent domain law to interstate

pipeline projects. To ensure the viability of critical federal energy projects, it is imperative that the Court

affirm the holding below, which correctly interpreted

Congress’s delegation of eminent domain authority.

CONCLUSION

WBI acquiesces in certiorari and urges the Court

to grant the petition and affirm the judgment of the

Eighth Circuit.

3

Respectfully submitted.

PAUL W. HUGHES

Counsel of Record

ANDREW A. LYONS-BERG

CHARLES SEIDELL

McDermott Will & Schulte LLP

500 North Capitol Street NW

Washington, DC 20001

(202) 756-8988

phughes@mwe.com

Counsel for Respondent

JUNE 2026