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, I NC.,

Respondent.

_________

On Writ Of Certiorari

To The United States Court Of

Appeals For The Eighth Circuit

_________

BRIEF AMICUS CURIAE OF

PACIFIC LEGAL FOUNDATION IN

SUPPORT OF PETITIONERS

_________

KATHRYN D. VALOIS

Pacific Legal Foundation

4440 PGA Blvd.

Suite 307

Palm Beach Gardens,

FL 33410

(561) 691-5000

AARON NEWELL

Counsel of Record

CHRISTOPHER M. KIESER

Pacific Legal Foundation

3100 Clarendon Blvd.

Suite 1000

Arlington, VA 22201

(202) 888-6881

ANewell@pacificlegal.org

Counsel for Amicus Curiae Pacific Legal Foundation

i

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?

ii

TABLE OF CONTENTS

Identity and Interest of Amicus Curiae........................ 1

Summary of Argument ..................................................... 1

Argument............................................................................. 4

I. The Meaning of “Just Compensation” Depends

upon Traditional Property Principles and

Historical Practice................................................... 4

II. History and Tradition Answer the Question

Presented: State Law Supplies the

Compensation Rule ................................................. 6

A. For many years after the founding, federal

acquisitions within the States proceeded

under state statutes and state practice,

and § 717f(h)’s conformity clause continues

that tradition ...................................................... 6

B. Courts construed delegations of eminent

domain to private grantees strictly, and

tradition required the private condemnor

to make the owner whole, including the

owner’s costs ..................................................... 10

C. This Court’s cases, including Bodcaw,

concern only takings by the sovereign and

say nothing about the compensation a

private condemnor owes ................................ 14

Conclusion ......................................................................... 20

iii

TABLE OF AUTHORITIES

Page(s)

Cases:

Ark. Game & Fish Comm’n v.

United States,

568 U.S. 23 (2012)........................................................ 1

Cedar Point Nursery v. Hassid,

594 U.S. 139 (2021) ............................................. 1-2, 5

Chappell v. United States,

160 U.S. 499 (1896) ...............................................8, 10

Columbia Gas Transmission Corp. v.

Exclusive Nat. Gas Storage Easement,

962 F.2d 1192 (6th Cir. 1992) .......................... 16, 19

Custiss v. Georgetown & Alexandria

Turnpike Co.,

10 U.S. (6 Cranch) 233 (1810) ................................... 7

Dohany v. Rogers,

281 U.S. 362 (1930) .......................................12-13, 15

Ga. Power Co. v. Sanders,

617 F.2d 1112 (5th Cir. 1980) ....... 10, 13, 16, 18-19

Hall v. Meisner,

51 F.4th 185 (6th Cir. 2022) ...................................... 5

Horne v. Dep’t of Agric.,

576 U.S. 351 (2015) ..................................................... 1

Joslin Mfg. Co. v. City of Providence,

262 U.S. 668 (1923) ............................................ 13, 15

Kohl v. United States,

91 U.S. 367 (1876).................................................... 2, 7

Mitchell v. United States,

267 U.S. 341 (1925) ................................................... 15

iv

Monongahela Navigation Co. v.

United States,

148 U.S. 312 (1893) .......................................2, 4-5, 11

PennEast Pipeline Co. v. New Jersey,

594 U.S. 482 (2021) ..................................... 7-8, 17-19

Petersburg Sch. Dist. of Nelson Cnty. v.

Peterson,

103 N.W. 756 (N.D. 1905) ........................................ 13

Phillips v. Wash. Legal Found.,

524 U.S. 156 (1998) ................................................. 2, 5

Ruckelshaus v. Monsanto Co.,

467 U.S. 986 (1984) ..................................................... 5

Sabal Trail Transmission, LLC v.

18.27 Acres of Land in Levy Cnty.,

59 F.4th 1158 (11th Cir. 2023)......................... 16, 19

Sabal Trail Transmission, LLC v.

3.921 Acres of Land in Lake County,

74 F.4th 1346 (11th Cir. 2023)................................ 17

Searl v. Sch. Dist. No. 2 of Lake Cnty.,

133 U.S. 553 (1890) ................................................... 10

Sheetz v. Cnty. of El Dorado,

601 U.S. 267 (2024) ..................................................... 1

Stacy v. Vermont Central R.R. Co.,

27 Vt. 39 (1854) .......................................................... 12

Tenn. Gas Pipeline Co. v.

Permanent Easement for 7.053 Acres,

931 F.3d 237 (3d Cir. 2019) ................ 3, 9, 16, 18-19

Tyler v. Hennepin Cnty.,

598 U.S. 631 (2023) .......................................... 1-2, 4-5

United States v. 1,380.09 Acres of Land,

574 F.2d 238 (5th Cir. 1978).................................... 14

United States v. Bodcaw Co.,

440 U.S. 202 (1979) ................................. 2-4, 9, 14-17

v

United States v. Carmack,

329 U.S. 230 (1946) .................................. 3, 11, 17-18

United States v. Causby,

328 U.S. 256 (1946) ..................................................... 6

United States v. Jones,

109 U.S. 513 (1883) .......................................... 2, 8, 10

United States v. Kimbell Foods, Inc.,

440 U.S. 715 (1979) ................................................... 16

United States v. Miller,

317 U.S. 369 (1943) .................................. 9, 11, 17-18

United States v. Worley,

281 U.S. 339 (1930) ...............................................4, 15

Village of Norwood v. Baker,

172 U.S. 269 (1898) ................................................... 13

W. Union Tel. Co. v. Pa. R.R.,

195 U.S. 540 (1904) ........................................ 3, 10, 18

Webb’s Fabulous Pharmacies, Inc. v.

Beckwith,

449 U.S. 155 (1980) ..................................................... 6

Statutes:

15 U.S.C. § 717f(e) ............................................................. 8

15 U.S.C. § 717f(h)............................3, 6, 8-10, 13, 16-19

28 U.S.C. § 2412 ............................................................... 15

40 U.S.C. § 258 ................................................................... 7

42 U.S.C. § 4654 ............................................................... 16

Act of Aug. 1, 1888, ch. 728, § 1,

25 Stat. 357 ................................................................... 6

Act of Aug. 1, 1888, ch. 728, § 2,

25 Stat. 357 ............................................................... 3, 7

Act of Mar. 3, 1809, 2 Stat. 539 ...................................... 7

vi

Rules:

Fed. R. Civ. P. 71.1 ........................................................ 7, 9

Fed. R. Civ. P. 71A............................................................. 9

Fed. R. Civ. P. 71A(l)....................................................... 15

Sup. Ct. R. 37.6................................................................... 1

Other Authorities:

Cooley, Thomas M., A Treatise on the

Constitutional Limitations (7th ed.

1903) ............................................................ 3, 11-12, 19

1 Lewis, John, A Treatise on the Law of

Eminent Domain (3d ed. 1909) ......................... 10-11

2 Lewis, John, A Treatise on the Law of

Eminent Domain (3d ed. 1909) ........3, 12-13, 17, 19

Mills, Henry E., A Treatise Upon the

Law of Eminent Domain

(2d ed. 1888) ............................................................8, 13

1 Nichols, Philip, The Law of Eminent

Domain (2d ed. 1917) ....................................... 3, 7, 12

2 Nichols, Philip, The Law of Eminent

Domain (2d ed. 1917) .......................................... 10-13

1

IDENTITY AND INTEREST OF

AMICUS CURIAE 1

Pacific Legal Foundation (PLF) is a nonprofit legal

organization organized for the purpose of litigating

matters affecting the public interest in private property rights, individual liberty, and economic freedom.

Founded fifty years ago, PLF is the most experienced

legal organization of its kind. PLF attorneys have

participated as lead counsel in numerous landmark

United States Supreme Court cases generally in defense of the right to make reasonable use of property

and the corollary right to obtain just compensation

when that right is infringed. See, e.g., Tyler v. Hennepin Cnty., 598 U.S. 631 (2023); Cedar Point Nursery v.

Hassid, 594 U.S. 139 (2021); Sheetz v. Cnty. of El Dorado, 601 U.S. 267 (2024). PLF also routinely participates in important property rights cases as amicus curiae. See, e.g., Horne v. Dep’t of Agric., 576 U.S. 351

(2015); Ark. Game & Fish Comm’n v. United States,

568 U.S. 23 (2012).

SUMMARY OF ARGUMENT

WBI Energy, a private pipeline company, condemned the Hoffmanns’ land under the Natural Gas

Act. The owners spent three years securing just compensation for what was taken, and when the case was

over, the district court awarded the Hoffmanns attorneys’ fees under North Dakota law as part of just com-

1 Pursuant to Rule 37.6, Amicus Curiae states that no counsel

for any party authored this brief in whole or in part and that no

person or entity other than amicus curiae made a monetary

contribution to fund the preparation or submission of this brief.

2

pensation. The Eighth Circuit vacated the fee recovery, holding that the Fifth Amendment limits just

compensation to the value of the land, and no more.

Deciding between these two approaches demands

an inquiry into traditional property law principles and

historical practice. See Tyler, 598 U.S. at 638-39 (defining property through state law, traditional property principles, historical practice, and precedent); Cedar Point, 594 U.S. at 149-50 (tracing the right to exclude through Blackstone and longstanding propertylaw authorities); Monongahela Navigation Co. v.

United States, 148 U.S. 312, 325-27 (1893) (deriving

“just compensation” from ordinary usage and equitable tradition). If the condemning authority could fix

the measure of compensation by its own law alone, a

government could “sidestep the Takings Clause by

disavowing traditional property interests.” Phillips v.

Wash. Legal Found., 524 U.S. 156, 167 (1998). But

the Eighth Circuit did no such analysis. Instead, it

held that the Natural Gas Act’s delegation put WBI

Energy into the federal government’s shoes with all

its rights and obligations, thereby relieving WBI Energy of the duty to pay attorneys’ fees to the Hoffmanns. See United States v. Bodcaw Co., 440 U.S.

202, 204 (1979) (per curiam) (holding that a landowner’s appraisal expenses in a condemnation

brought by the United States are not part of the “just

compensation” the Fifth Amendment requires).

But historical practice shows that for many years

after the founding, the United States acquired land

within the states through state condemnation statutes. This practice continued even after this Court

confirmed the federal government’s independent

power to condemn. Kohl v. United States, 91 U.S. 367

(1876); United States v. Jones, 109 U.S. 513 (1883);

3

1 Philip Nichols, The Law of Eminent Domain § 34, at

107 (2d ed. 1917). The 1888 Act carried this tradition

forward, making conformity to state practice the express statutory rule. Act of Aug. 1, 1888, ch. 728, § 2,

25 Stat. 357 (proceedings “shall conform, as near as

may be,” to state practice). The Natural Gas Act

stands in the shoes of this tradition. 15 U.S.C.

§ 717f(h) (practice and procedure “shall conform as

nearly as may be” with state practice).

Furthermore, courts traditionally construed delegations of eminent domain strictly against the

grantee. The delegate received only the powers expressed in the grant or necessarily implied by it. W.

Union Tel. Co. v. Pa. R.R., 195 U.S. 540, 569 (1904);

United States v. Carmack, 329 U.S. 230, 243 n.13

(1946). The sovereign’s immunities were neither.

Courts cannot tax litigation costs against the United

States unless a statute allows it. See Bodcaw, 440

U.S. at 203 n.3. The reason is that this immunity

shields the public treasury. But no federal dollars are

at stake when a private company condemns for its own

profit. See Tenn. Gas Pipeline Co. v. Permanent Easement for 7.053 Acres, 931 F.3d 237, 249 (3d Cir. 2019).

A company can build its pipeline without immunity,

so a grant of condemnation power does not carry it

along by necessary implication. See Carmack, 329

U.S. at 243 n.13. Private condemnors were required

to make the owner whole, and statutes and charters

often conditioned the taking on payment of just compensation and the costs of the proceeding. See 2 John

Lewis, A Treatise on the Law of Eminent Domain

§ 812, at 1434-35 (3d ed. 1909); Thomas M. Cooley, A

Treatise on the Constitutional Limitations 761 n.3 (7th

ed. 1903).

4

The Eighth Circuit relied on Bodcaw, but the Court

there decided only what the Fifth Amendment compels. Indeed, its treatment of costs invoked the sovereign immunity of the United States, which WBI lacks.

Bodcaw, 440 U.S. at 203 n.3 (litigation costs “cannot

be assessed against the United States in the absence

of statutory authorization”) (citing United States v.

Worley, 281 U.S. 339, 344 (1930)). Further, Bodcaw’s

concession that fee recovery is a matter of “legislative

grace” leaves open the question presented: what law

fills the statutory silence? Id. at 204.

Every source this Court should consult points the

same way. North Dakota law supplies the compensation rule in this private condemnation. The Court

should reverse.

ARGUMENT

I.

The Meaning of “Just Compensation” Depends upon Traditional Property Principles

and Historical Practice

For more than a century, in interpreting the Takings Clause, this Court has consulted state law together with “traditional property law principles,” “historical practice[,] and this Court’s precedents.” Tyler,

598 U.S. at 638. The practice long predates Tyler,

which is only one of this Court’s most recent statements. As early as 1893, this Court derived the meaning of “just compensation” from ordinary usage and

longstanding tradition. Monongahela, 148 U.S. at

325-27. While state law is often an important starting

point, it is not the only consideration. After all, if state

law were all that mattered, a state could by statute

5

“sidestep the Takings Clause by disavowing traditional property interests.” Tyler, 598 U.S. at 638

(quoting Phillips, 524 U.S. at 167).

The reason is that the Takings Clause restrains the

very governments whose positive law defines property

and compensation in the first instance. If the Clause’s

terms meant only what the enacting government said

they meant, the restraint would fail; the Clause

“would be a dead letter if a state could simply exclude

from its definition of property any interest that the

state wished to take.” Ibid. (quoting Hall v. Meisner,

51 F.4th 185, 190 (6th Cir. 2022)). Monongahela applied the same logic to compensation itself: “The legislature may determine what private property is

needed for public purposes[,]” but once “the taking has

been ordered, then the question of compensation is judicial[,]” and it “does not rest with the public, taking

the property, . . . to say what compensation shall be

paid, or even what shall be the rule of compensation.”

148 U.S. at 327. Traditional property principles and

historical practice supply fixed points of reference that

no self-interested definition can move.

Tyler and Cedar Point are concrete recent examples

of this. In Tyler, the Court refused to defer to a 1935

statute that purported to extinguish a homeowner’s

property right in his or her excess equity after a tax

sale. In Cedar Point, the Court rejected the argument

that a 1975 California regulation could extinguish the

traditional right to exclude the public from private

property. These cases were consistent with the

Court’s traditional treatment of property. See, e.g.,

Phillips, 524 U.S. at 165-68 (the traditional rule that

“interest follows principal” was one no state could disavow); Ruckelshaus v. Monsanto Co., 467 U.S. 986,

6

1001-04 (1984) (state law defined the trade-secret interest protected by the Takings Clause); United States

v. Causby, 328 U.S. 256, 260-67 (1946) (common-law

tradition shaped the owner’s interest in the airspace

above his land). A state may not “by ipse dixit” transform private property into public property. Webb’s

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

164 (1980).

History and tradition thus work alongside state

law to define the scope of the Takings Clause. State

law identifies the interests at stake, while traditional

property principles and historical practice confirm

which of those interests the Clause protects and what

compensating their loss requires. The same sources

supply the answer when, as here, the question is what

a private condemnor owes the owner whose land it

takes.

II. History and Tradition Answer the Question

Presented: State Law Supplies the Compensation Rule

A. For many years after the founding, federal

acquisitions within the States proceeded

under state statutes and state practice,

and § 717f(h)’s conformity clause continues

that tradition

Although state law does not by itself control in

these situations, here North Dakota law is consistent

with the relevant history and tradition. The Condemnation Act of 1888 authorized federal officers to acquire land “by condemnation, under judicial process,”

in the federal courts. Act of Aug. 1, 1888, ch. 728, § 1,

25 Stat. 357. Section 2 of that Act stated the procedural rules: “The practice, pleadings, forms and

7

modes of proceeding . . . shall conform, as near as may

be, to the practice, pleadings, forms and proceedings

existing at the time in like causes in the courts of record of the State . . . .” Id. § 2. That command was later

codified at 40 U.S.C. § 258 and governed until Rule

71A superseded it. See Fed. R. Civ. P. 71.1 advisory

committee’s notes (1951).

For many years after the founding, whenever the

federal government needed to condemn land within a

state, it was “the practice for the taking to be made in

a state court and by authority of a state statute.” 1

Nichols, supra, § 34, at 107. The federal government

bought what it needed, or a state condemned the land

under its own power and conveyed it to the United

States. As the Court in Kohl v. United States put it in

1876, the federal power “has not heretofore been exercised adversely,” and the States themselves “have condemned lands for the use of the general government.”

91 U.S. at 373. Direct federal takings occurred only

where federal jurisdiction was exclusive, as in the District of Columbia. PennEast Pipeline Co. v. New Jersey, 594 U.S. 482, 494 (2021) (citing Act of Mar. 3,

1809, 2 Stat. 539, and Custiss v. Georgetown & Alexandria Turnpike Co., 10 U.S. (6 Cranch) 233 (1810)).

Even the first adverse exercise of the federal condemnation power was measured against state practice. In Kohl, this Court, “admitting that the court

was bound to conform to the practice and proceedings

in the State courts in like cases,” resolved the owners’

demand for a separate trial by construing Ohio’s condemnation statute. 91 U.S. at 377-78. And ascertaining compensation is a condition on the exercise of the

power that Congress may commit to state tribunals:

the proceeding “is merely an inquisition to establish a

particular fact as a preliminary to the actual taking[,]”

8

and it “may be prosecuted before commissioners or

special boards or the courts,” as “the legislative power

may designate.” United States v. Jones, 109 U.S. 513,

519 (1883). From its establishment, the federal government “has been in the habit of using” the states’

“officers, tribunals, and institutions as its agents.” Id.

at 519-20. In Jones itself, a Wisconsin tribunal fixed

the compensation for a federal taking. Id. at 518-19.

After the 1888 Act, conformity to state practice was

expressly required. In Chappell v. United States,

state practice governed “as near as may be,” yielding

only where contradicted by federal legislation. 160

U.S. 499, 512-14 (1896); Henry E. Mills, A Treatise

Upon the Law of Eminent Domain § 347 (2d ed. 1888)

(federal condemnation proceedings “may be had in the

courts of the United States, or in the state courts,” and

the practice “should conform to the practice and proceedings in the state courts in like cases”); see also id.

§ 349.

The Natural Gas Act, as enacted in 1938, continued

the practice of proceeding under state law. To build

an interstate pipeline, a company needed a federal

certificate approving the project, but the certificate

carried no power to condemn. PennEast, 594 U.S. at

488-89; see 15 U.S.C. § 717f(e) (granting of certificates). For the land itself, companies negotiated purchases or invoked state eminent domain law; because

many states withheld their eminent domain power

from pipelines, companies often had “only an illusory

right to build.” PennEast, 594 U.S. at 489. Congress

remedied that defect in 1947. The new § 717f(h) delegated the federal eminent domain power, but it also

included a conformity clause nearly identical to the

1888 Act: “The practice and procedure in any action

or proceeding for that purpose in the district court of

9

the United States 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). Rule 71A, now

Rule 71.1, replaced that clause for federal-court procedure in 1951, though the statute’s conformity clause

remains. And the statute still sends smaller takings

to state courts, a feature the Third Circuit treated as

evidence that incorporating state law “would not upset any important interest in national uniformity.”

§ 717f(h); Tenn. Gas, 931 F.3d at 243-45, 252.

In sum, history and tradition show that federal takings proceeded under state statutes and state practice. The 1888 Act then made conformity to state practice the express statutory rule. Finally, the Natural

Gas Act, through the 1947 addition of § 717f(h),

adopted virtually the same conformity rule.

One objection to that history comes from United

States v. Miller, 317 U.S. 369 (1943), which states that

the conformity statutes governed procedure and “do

not, and could not, affect questions of substantive

right,—such as the measure of compensation,—

grounded upon the Constitution of the United States.”

Id. at 379-80 & nn.24-25. However, Miller was a case

involving a taking by the United States, where the

Fifth Amendment supplies the substantive measure

of just compensation. Miller says nothing about what

law applies when the condemnor is private.

And a private condemnor is different. What it must

pay beyond the Fifth Amendment’s own command is a

matter of “legislative grace,” Bodcaw, 440 U.S. at 204,

and legislation, including adopted state law, can supply that grace. For a century, federal takings proceeded through state procedures and state courts.

10

Jones, 109 U.S. at 519-20; Chappell, 160 U.S. at 51214. And federal courts applied state compensation

standards where state law supplied the rule. Searl v.

Sch. Dist. No. 2 of Lake Cnty., 133 U.S. 553, 565 (1890)

(applying Colorado’s statutory measure of compensation in a condemnation removed to federal court).

That practice was the legal background when Congress did not specify in § 717f(h) whether private condemnors owed attorneys’ fees. The sovereign-taking

cases never addressed private condemnors. The en

banc Fifth Circuit distinguished those cases for that

very reason, as in those cases “the United States is the

party condemning and paying for the land.” Ga.

Power Co. v. Sanders, 617 F.2d 1112, 1119-20 & n.9

(5th Cir. 1980) (en banc).

B. Courts construed delegations of eminent

domain to private grantees strictly, and

tradition required the private condemnor

to make the owner whole, including the

owner’s costs

Statutes granting eminent domain to corporations

traditionally were construed strictly against the

grantee and in favor of the landowner, because the

power runs “against common right” and must appear

in express terms or by necessary implication. Western

Union, 195 U.S. at 569. The delegation required “an

express warrant from the legislature,” because the

power “will never pass by implication[;]” even an express grant was strictly construed, and carried only

what was necessarily incident to the taking. 2 Philip

Nichols, The Law of Eminent Domain § 358, at 987 (2d

ed. 1917); see also id. § 360, at 992-94; 1 John Lewis,

A Treatise on the Law of Eminent Domain §§ 371, 388,

11

at 679, 708-10 (3d ed. 1909). Grants of power to a corporation are in derogation of common right and

strictly construed, “especially” when the power delegated is eminent domain. Cooley, supra, at 762. Not

only was the delegation of the eminent domain power

strictly construed, but provisions for the owner’s just

compensation were “liberally construed” in the

owner’s favor. 1 Lewis, supra, § 389, at 710.

This Court has drawn the same line between the

sovereign and the private delegate. In Carmack, this

Court declined to apply strict construction to federal

officials condemning for the United States itself, stating that an authorization to the sovereign’s own officers “carries with it the sovereign’s full powers,” while

grants to others, including “public utilities” authorized to condemn “on behalf of themselves[,]” are

“grants of limited powers” that carry only what is expressed or necessarily implied. 329 U.S. at 243 n.13.

A bare grant of condemnation authority conveys

the power to take, together with its conditions, and beyond that only what the grant necessarily implies. See

id.; 2 Nichols, supra, § 358, at 987. Nothing about

WBI’s pipeline certificate “necessarily implies” immunity from North Dakota’s imposition of attorneys’

fees here. The Eighth Circuit wrote that WBI stepped

into the federal government’s shoes, but tradition

measured that step precisely: the delegate received

the power expressed in the grant, and the sovereign

kept everything else.

Strict construction governed how the grant was

read, but the owner’s recovery was protected as well.

Just compensation meant indemnity: “a full and perfect equivalent,” Monongahela, 148 U.S. at 326, that

puts the owner “in as good position pecuniarily” as if

12

the property had never been taken, Miller, 317 U.S. at

373. Nichols put the measure as “what the owner has

lost.” 1 Nichols, supra, § 208, at 630.

Whether the owner would actually be paid turned

on whether it was the United States or a private corporation doing the condemnation. Payment is assured

when the United States is the condemnor, as the

award is a charge on the public treasury, and power

to tax stands behind it. 2 Lewis, supra, § 679, at 1166.

When a private corporation is the condemnor, however, the owner holds just a money judgment against

a corporation that could fail, and that judgment alone

is inadequate security for the owner’s compensation.

1 Nichols, supra, § 211, at 638-39.

Against that background, statutes and charters often made the private condemnor bear the costs of the

condemnation proceeding, including commissioners’

fees, appraisers’ fees, court costs, and attorneys’ fees.

See, e.g., Cooley, supra, at 761 n.3 (Vermont statute,

construed in Stacy v. Vermont Central R.R. Co., 27 Vt.

39 (1854), required the railroad to pay the commissioners’ award “together with the costs and charges

accruing thereon” before entering); 2 Lewis, supra,

§ 816, at 1442-43 (Wisconsin required the condemnor

to pay “the cost and expense of the proceeding,” which

its courts held to include attorneys’ fees); 2 Nichols,

supra, § 348, at 965-66 (New Hampshire required payment of the damages assessed plus fifty percent, a condition the courts, this Court among them, sustained

against a grantee who accepted it); Dohany v. Rogers,

281 U.S. 362, 368-69 (1930) (recognizing that a State

may allow attorneys’ fees in condemnations by railroad condemnors while denying them when the State

condemns). The duty of ascertaining compensation “is

necessarily cast upon the party seeking to condemn,”

13

which “should pay all the expenses which attach to the

process”; a law casting that burden on the owner,

“should . . . be held to be unconstitutional and void.” 2

Lewis, supra, § 812, at 1434-35; see Mills, supra, § 335;

2 Nichols, supra, § 343, at 951 (“there would be no justice in making the owner pay the costs of determining

the compensation to which he is entitled by the constitution”).

These cost rules did not come from the Fifth

Amendment. They were state law, and this Court upheld them without any suggestion that federal law

displaced them. In Dohany, this Court sustained

Michigan’s scheme, which allowed attorneys’ fees in

condemnations brought by railroad companies while

denying them when the state itself condemned. 281

U.S. at 368-69. What Joslin called “extra-constitutional compensation” was the legislature’s to grant

and to classify. Joslin Mfg. Co. v. City of Providence,

262 U.S. 668, 675-77 (1923). And by analogy, a special

assessment exacting from the owner substantially

more than the benefit conferred was itself “a taking,

under the guise of taxation.” Village of Norwood v.

Baker, 172 U.S. 269, 277-79 (1898). North Dakota’s

law was settled four decades before Congress wrote

§ 717f(h): forcing the owner to bear the taxable costs

of the proceeding “would nullify to a certain extent”

the constitutional guaranty. Petersburg Sch. Dist. of

Nelson Cnty. v. Peterson, 103 N.W. 756, 759 (N.D.

1905).

The question presented asks which law fills

§ 717f(h)’s silence. History and tradition show that

state law supplied these cost rules for a century and

continues to supply them until Congress displaces it,

and § 717f(h) displaces nothing. Ga. Power, 617 F.2d

at 1115-16 (holding that state law supplies the federal

14

rule absent contrary legislative intent or significant

conflict).

C. This Court’s cases, including Bodcaw, concern only takings by the sovereign and say

nothing about the compensation a private

condemnor owes

History and tradition answer the question presented. This Court’s cases have never said otherwise,

including Bodcaw, which is a case about appraisal fees

in a condemnation by the United States, and its reasoning repeatedly reflects the identity of the condemnor. 440 U.S. at 202-03.

In Bodcaw, the United States condemned a permanent easement across Bodcaw Company’s land. After

a jury decided the value of just compensation, the district court added $20,512.50 for the owner’s fees for

appraisals and expert witnesses. Id. at 202. The Fifth

Circuit upheld the appraisal-fee portion of the award,

though not the expert witness fees, stating that the

owner had not been “made whole” without the appraisal fees. Id. at 202-03 (quoting United States v.

1,380.09 Acres of Land, 574 F.2d 238, 241 (5th Cir.

1978)). This Court reversed without argument, holding that the owner’s appraisal expenses “were not part

of the ‘just compensation’ required by the Fifth

Amendment.” Id. at 204.

The Court, quoting the dissenting judge below,

called the dispute “the rather typical, oft-recurring situation where the landowner is dissatisfied with the

Government’s valuation.” Id. at 203 (quoting 574 F.2d

at 242). Yet it acknowledged that “[t]here may be exceptions to this general rule[,]” ibid., and that “[p]erhaps it would be fair or efficient to compensate a land-

15

owner for all the costs he incurs as a result of a condemnation action.” Id. at 204. Three things stand out

from that opinion in a way that matters here.

First, Bodcaw borrowed its rule from a case that

distinguishes private condemnors. Bodcaw’s key sentence, that such expenses are “not embraced within

just compensation,” quotes Dohany. 440 U.S. at 203

(quoting 281 U.S. at 368). In Dohany, the Court sustained Michigan’s scheme “allowing attorneys’ fees in

condemnation proceedings brought by railroad companies and denying them when brought by the state.”

281 U.S. at 368-69. The sentence Bodcaw borrowed

from Dohany states what the Fifth Amendment compels; the decision it came from upheld a state fee rule

that turned on who condemned. Bodcaw, 440 U.S. at

203; Dohany, 281 U.S. at 368-69. Dohany in turn cited

Joslin, which treats compensation beyond the Fifth

Amendment’s command as “extra-constitutional compensation” that the legislature may grant to some and

withhold from others. 262 U.S. at 675-77. The remaining case in Bodcaw’s string cite is a sovereign

taking. See Mitchell v. United States, 267 U.S. 341,

343-45 (1925).

Second, Bodcaw’s treatment of costs invoked sovereign immunity, which made the constitutional question the only question. Footnote 3 explains that the

court of appeals “necessarily rested its decision on constitutional grounds” because litigation costs “cannot

be assessed against the United States in the absence

of statutory authorization,” citing Worley, 281 U.S. at

344, a war-risk insurance case, along with 28 U.S.C.

§ 2412’s and Rule 71A(l)’s exclusion of condemnation

cases. 440 U.S. at 203 n.3. WBI has no such immunity.

16

Third, Bodcaw concedes that the answer can come

from legislation: fee recovery is “a matter of legislative grace rather than constitutional command.” 440

U.S. at 204. Bodcaw itself cited an example of that

grace. Under the Uniform Relocation Assistance Act,

the United States must pay an owner’s litigation expenses, including attorneys’ fees, when a condemnation proves unauthorized, when the government abandons it, or when the owner prevails in inverse condemnation. Ibid. (citing 42 U.S.C. § 4654). Even in sovereign takings, then, fee recovery comes from legislation; the only dispute here is which legislation.

Thus, Bodcaw decides only what the Constitution

commands in a taking by the United States. It never

asks what law governs when a statute like § 717f(h) is

silent, and that is the question presented. North Dakota supplied the grace. Whether the Fifth Amendment of its own force requires a private condemnor to

bear these costs is a question the Court need not

reach, because North Dakota law supplies them regardless. The courts of appeals resolve the resulting

choice of law under United States v. Kimbell Foods,

Inc., 440 U.S. 715 (1979); this history shows that the

state-law answer those courts reach is the traditional

one. See Tenn. Gas, 931 F.3d at 245-46, 250-54; Ga.

Power, 617 F.2d at 1115-16; Sabal Trail Transmission, LLC v. 18.27 Acres of Land in Levy Cnty., 59

F.4th 1158, 1165-66, 1175 (11th Cir. 2023); Columbia

Gas Transmission Corp. v. Exclusive Nat. Gas Storage

Easement, 962 F.2d 1192, 1199 (6th Cir. 1992).

Judge Grant’s concurrence, on which the Eighth

Circuit leaned, states that the statute authorizing

“the exercise of the right of eminent domain,” without

more, authorizes only the compensation the Fifth

Amendment commands, “regardless of whether the

17

United States or a private licensee exercises that

power.” Sabal Trail Transmission, LLC v. 3.921 Acres

of Land in Lake County, 74 F.4th 1346, 1349 (11th Cir.

2023) (Grant, J., concurring). The compensation authorities the concurrence cites are sovereign-condemnor cases. See Miller, 317 U.S. at 370 (“The United

States condemned a strip across the respondents’

lands . . . .”); Bodcaw, 440 U.S. at 202 (“The United

States brought this condemnation action . . . .”).

PennEast, Miller, and Bodcaw say nothing about

whether sovereign immunity passes to a private condemnor. But in Carmack, this Court held that officials condemning for the sovereign wield the sovereign’s full powers, while private grantees condemning

“on behalf of themselves” take what is expressed or

necessarily implied. 329 U.S. at 243 n.13.

Immunity from the owner’s costs is neither. It appears nowhere in § 717f(h). Nor does necessary implication supply it, because the immunity exists for the

sovereign’s own sake: it guards the treasury that pays

the award in a federal condemnation. See Bodcaw,

440 U.S. at 203 n.3; 2 Lewis, supra, § 679, at 1166. A

certificated company can still condemn land and build

its pipeline while paying the ordinary costs that state

law assigns to condemnors.

Miller also says nothing about a private condemnor. There, the United States condemned land for a

federal reclamation project and paid the award from

the treasury. 317 U.S. at 370. When the landowners

invoked California law through the conformity statutes, the Court explained that those statutes supply

only state “forms and methods of procedure” and cannot reach questions of substantive right, such as the

measure of compensation “grounded upon the Constitution.” Id. at 379-80.

18

For that reason, the en banc Fifth Circuit limited

Miller to cases where the United States condemns and

pays. The national interest behind a uniform federal

measure is weaker when the condemnor is a private

company seeking profit and no federal money is at

risk. Ga. Power, 617 F.2d at 1118-20 & n.9. The Third

Circuit agreed that Miller concerned a taking by the

federal government and that nothing in it or its progeny extends the federal measure to private condemnors. Tenn. Gas, 931 F.3d at 248-49.

Lastly, PennEast decides a different question entirely: whom the delegate may sue. 594 U.S. at 488,

501. In PennEast, the state of New Jersey asserted

sovereign immunity from a certificate holder’s condemnation suit, and this Court held that the States

consented in the plan of the Convention to the federal

eminent domain power, regardless of who is using the

power. Id. at 500-08. Below, the Eighth Circuit

stressed the Court’s description of § 717f(h)’s delegation as “categorical,” but that word measures the delegation’s scope, reaching any necessary rights-of-way

including land in which a State holds an interest. Id.

at 498-99. It says nothing about what the delegate

owes.

On compensation, PennEast helps the Hoffmanns.

The Court let the delegate sue a State because the eminent domain power is “inextricably intertwined” with

the ability to condemn and authorization to take property interests “impl[ies] a means through which those

interests can be peaceably transferred.” Id. at 503-04.

A bare delegation carries with it what is essential to

exercising the power. See Carmack, 329 U.S. at 243

n.13 (explaining that delegations of the condemnation

power are grants of limited powers, carrying only

what is expressed or necessarily implied); W. Union

19

Tel. Co., 195 U.S. at 569. A forum is essential because

the power cannot be exercised without one. PennEast,

594 U.S. at 503-04. Immunity from the owner’s costs

is not necessary. WBI could take the land, litigate its

value, and pay the fees North Dakota imposes. Private condemnors did so for a century, supra Part II.B;

Cooley, supra, at 761 n.3; 2 Lewis, supra, § 816, at

1442-43, and the state-law rule of four circuits requires it, Ga. Power, 617 F.2d at 1115-16; Tenn. Gas,

931 F.3d at 254-55; 18.27 Acres, 59 F.4th at 1175; Columbia Gas, 962 F.2d at 1199. What the delegate

owes in just compensation was never before the Court.

PennEast, 594 U.S. at 488. And the history PennEast

recounted, of delegations to build mills, roads, and

bridges, id. at 493-97, is the same tradition in which

state law fixed what those grantees paid. Supra Part

II.

Nor does state-by-state variation pose a problem.

Congress built that variation into the Act itself. Section 717f(h) sends takings of $3,000 or less to state

courts, and the Third Circuit read that provision as

evidence that incorporating state law “would not upset any important interest in national uniformity.” 15

U.S.C. § 717f(h); Tenn. Gas, 931 F.3d at 252. A statute

that already sorts cases by forum and dollar amount

can tolerate cost rules that turn on who the condemnor is.

History, tradition, state law, and this Court’s precedent point the same way. The Hoffmanns spent

three years litigating to secure the compensation the

Constitution promises. Under North Dakota law, the

condemnor pays for that fight. Only the sovereign’s

immunity could excuse WBI from paying, and WBI is

not the sovereign.

20

CONCLUSION

The judgment of the court of appeals should be reversed.

Respectfully submitted,

KATHRYN D. VALOIS

Pacific Legal Foundation

4440 PGA Blvd.

Suite 307

Palm Beach Gardens,

FL 33410

(561) 691-5000

AARON NEWELL

Counsel of Record

CHRISTOPHER M. KIESER

Pacific Legal Foundation

3100 Clarendon Blvd.

Suite 1000

Arlington, VA 22201

(202) 888-6881

ANewell@pacificlegal.org

Counsel for Amicus Curiae Pacific Legal Foundation

A U GU ST 2026