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.,

Respondent.

On Writ of Certiorari to the United States

Court of A ppeals for the Eighth Circuit

BRIEF OF OWNERS’ COUNSEL

OF AMERICA AS AMICUS CURIAE

IN SUPPORT OF PETITIONERS

Vince Eisinger

Counsel of Record

Robert El-Jaouhari

Landin Johnston

Cranfill Sumner LLP

5440 Wade Park Boulevard,

Suite 300

Raleigh, NC 27607

(919) 828-5100

veisinger@cshlaw.com

Maxwell Shafer

Cranfill Sumner LLP

5535 Currituck Drive,

Suite 210

Wilmington, NC 28403

Attorneys for Amicus Curiae

August 2026

395443

(800) 274-3321 • (800) 359-6859

i

TABLE OF CONTENTS

Page

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . . ii

INTERESTS OF AMICUS CURIAE . . . . . . . . . . . . . . 1

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

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

a.

Natural Gas Act procedures and practices

ma g n i f y t he l a ndow ner ’s pr a c t ic a l

disadvantage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

b.

Natural Gas Act cases demonstrate the

consequences landowners face when they

must litigate to obtain compensation . . . . . . . . . . 8

c.

State law protections would be stripped in

twenty-one states . . . . . . . . . . . . . . . . . . . . . . . . . 10

d.

T he d i f fe r enc e b et we en st at e a nd

federal law is not limited to recovery of

litigation expenses . . . . . . . . . . . . . . . . . . . . . . . . 17

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

ii

TABLE OF CITED AUTHORITIES

Cases

Page

Agins v. City of Tiburon,

447 U.S. 255 (1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Bauman v. Ross,

167 U.S. 548 (1897) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

City of Monterey v.

Del Monte Dunes at Monterey, Ltd.,

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

Dade Co. v. Brigham,

47 So. 2d 602 (Fla. 1950) . . . . . . . . . . . . . . . . . . . . . . . 12

Department of Transportation v.

Rite Touch Investments, LLC,

No. COA26-413 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Dolan v. City of Tigard,

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

E. Tenn. Nat. Gas Co. v. Sage,

361 F.3d 808 (4th Cir. 2004) . . . . . . . . . . . . . . . . . . . . . 5

First English Evangelical Lutheran Church v.

Los Angeles County,

482 U.S. 304 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . 1-2

Ga. Power Co. v. Sanders,

617 F.2d 1112 (5th Cir. 1980) . . . . . . . . . . . . . . . . . . . . 4

iii

Cited Authorities

Page

Kaiser Aetna v. United States,

444 U.S. 164 (1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Kelo v. City of New London,

545 U.S. 469 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

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

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

Lucas v. South Carolina Coastal Council,

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

Nollan v. Cal. Coastal Comm’n,

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

Palazzolo v. Rhode Island,

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

Petersburg Sch. Dist. v. Peterson,

103 N.W. 756 (N.D. 1905) . . . . . . . . . . . . . . . . . . . . . . 19

Sabal Trail Transmission, LLC v.

18.27 Acres of Land in Levy County,

59 F.4th 1158 (11th Cir. 2023) . . . . . . . . . . . . 3-4, 7, 8, 9

Sabal Trail Transmission, LLC v.

3.291 Acres of Land in Lake County,

947 F.3d 1362 (11th Cir. 2020) . . . . . . . . . . . . . . . 6, 7, 9

San Remo Hotel, L.P. v.

City and County of San Francisco,

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

iv

Cited Authorities

Page

Tahoe-Sierra Pres. Council, Inc. v.

Tahoe Reg’l Planning Agency,

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

U.S. v. Reynolds,

397 U.S. 14 (1970) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Winter v. Natural Res. Def. Council,

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

Yee v. City of Escondido,

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

Statutes and Other Authorities

U.S. Const, amend. V . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

15 U.S.C. § 717f(h) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5

A laska R. Civ. Pro. 72 . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

A rk. Code A nn. § 18-15-103(11) . . . . . . . . . . . . . . . . . . . 11

Andrew Prince Brigham & Lindsey Brigham

Knott, A Practitioner’s Perspective on How

Best to Avoid the Risk of Unjust Compensation,

10 Brigham-Kanner Prop. Rts. J 351 (2021) . . . . . . 2, 6

Colo. Rev. Stat. § 38-11-22 . . . . . . . . . . . . . . . . . . . . . . . 12

v

Cited Authorities

Page

JAMES W. ELY, THE GUARDIAN OF EVERY

OTHER RIGHT: A CONSTITUTIONA L

H I S T ORY OF PROPERT Y RIGH T S

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

Fed. R. Civ. P. 71.1(h) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Fla. Stat. § 73.092 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Idaho Code § 7-711A(8) . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Iowa Code § 6A.24(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Iowa Code § 6B.33 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Iowa Code § 6B.34 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

La. Rev. Stat. § 19:8(A)(3) . . . . . . . . . . . . . . . . . . . . . . . . 13

La. Rev. Stat. § 48:453(E) . . . . . . . . . . . . . . . . . . . . . . . . 13

Mich. Comp. Laws Serv. § 213.66 . . . . . . . . . . . . . . . . . . 14

Minn. Stat. § 117.031(a) . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Mont. Code A nn. § 70-30-305 . . . . . . . . . . . . . . . . . . . . . 14

Mont. Code A nn. § 70-30-306 . . . . . . . . . . . . . . . . . . . . . 14

Neb. Rev. Stat. § 76-720 . . . . . . . . . . . . . . . . . . . . . . . . . 14

vi

Cited Authorities

Page

N.Y. Em. Dom. Proc. Law § 701 . . . . . . . . . . . . . . . . . . . . 15

N.d. Cent. Code § 32-15-32 . . . . . . . . . . . . . . . . . . . . . . . 15

N.d. Cent. Code § 32-15-35 . . . . . . . . . . . . . . . . . . . . . . . 15

Okla. Stat. tit. 27, §§ 11–12 . . . . . . . . . . . . . . . . . . . . . . . 15

Or. Rev. Stat. § 35.300 . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Or. Rev. Stat. § 35.346(7) . . . . . . . . . . . . . . . . . . . . . . . . 15

S.C. Code A nn. § 28-2-510(A) . . . . . . . . . . . . . . . . . . . . . 16

S.C. Code A nn. § 28-2-510(B)(1) . . . . . . . . . . . . . . . . . . . 16

S.C. Code A nn. § 28-2-510(B)(2) . . . . . . . . . . . . . . . . . . . 16

S.D. Codified Laws § 21-35-23 . . . . . . . . . . . . . . . . . . . . 16

Utah Code A nn. §§ 78B-6-509(7) . . . . . . . . . . . . . . . . . . 17

Wash. Rev. Code § 8.25.070(1)(b) . . . . . . . . . . . . . . . . . . 17

Wis. Stat. § 32.28(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Wyo. Stat. A nn. §§ 12-65-02 to 1-26-817 . . . . . . . . . . . . 17

1

INTERESTS OF AMICUS CURIAE

Owners’ Counsel of America (OCA) is an invitationonly national network of the most experienced eminent

domain and property rights attorneys.1 They have joined

together to advance, preserve and defend the rights of

private property owners, and thereby further the cause

of liberty, because the right to own and use property is

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

free society. See JAMES W. ELY, THE GUARDIAN

OF EVERY OTHER RIGHT: A CONSTITUTIONAL

HISTORY OF PROPERTY RIGHTS (2d ed. 1998). As the

lawyers at the front lines of takings law, OCA’s members

understand the importance of the issues in this case, and

how the rule adopted by the Eighth Circuit, if allowed

to stand, will undermine the constitutional right to “just

compensation.”

OCA brings unique expertise to this task. OCA is a

non-profit 501(c)(6) organization sustained solely by its

members. Only one member lawyer is admitted from

each state. Since its founding, OCA has sought to use

its members’ combined knowledge and experience as a

resource in the defense of private property ownership, and

OCA member attorneys have been involved in landmark

property law cases in nearly every jurisdiction nationwide.

Additionally, OCA members and their firms have been

counsel for a party or amicus in many of the property

cases this Court has considered in the past forty years. 2

1. No counsel for any party authored this brief in whole

or in part, and no monetary contribution intended to fund the

preparation or submission of this brief was made by any person or

entity other than the amicus curiae, its members, or its counsel.

2. See, e.g., Kaiser Aetna v. United States, 444 U.S. 164

(1979); Agins v. City of Tiburon, 447 U.S. 255 (1980); First English

2

OCA members have also authored and edited

treatises, books, and law review articles on property law

and property rights.

SUMMARY OF ARGUMENT

The realities of Natural Gas Act takings belie theory.

In 2016, under the auspices of the Natural Gas Act

(“NGA”), the Sabal Trail natural gas pipeline project

in Florida took land from Ryan B. Thomas and offered

him $6,800 in exchange. See Andrew Prince Brigham &

Lindsey Brigham Knott, A Practitioner’s Perspective on

How Best to Avoid the Risk of Unjust Compensation, 10

Brigham-Kanner Prop. Rts. J 351, 379 (2021). A Florida

jury later determined that the measure of compensation

for Sabal Trail’s taking was $463,439. Id. Sabal Trail had

thus initially offered Mr. Thomas 1.4% of his land’s value.

Between the initial offer and the jury’s determination of

compensation lay months of litigation work by Mr. Thomas

and his attorney.

Under Florida law, Thomas is entitled to recover

his attorneys’ fees for having to undertake litigation to

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

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

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

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

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

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

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

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

L.P. v. City and County of San Francisco, 545 U.S. 323 (2005);

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

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

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

3

vindicate the value of his property. The Eighth Circuit’s

rule in this matter would strip him of that value. It

would overrule Florida law and require Mr. Thomas,

and landowners like him, to pay for their own attorneys

when declining to voluntarily submit their land to private

enterprise in exchange for a modicum of its value.

Congress knows how to itself require the Eighth

Circuit’s result and require landowners like Mr. Thomas

to pay their own way if they decline voluntary submission.

In the NGA, Congress has not done so. It remains for

petitioner and respondent to address whether the Eighth

Circuit’s rule is the legally- or theoretically-just one. This

brief will show that the Eighth Circuit’s rule is unjust in

practice.

ARGUMENT

T he Fi f th A mendment to the Un it ed St at es

Constitution (the “Fifth Amendment”) provides that

private property shall not “be taken for public use, without

just compensation.” U.S. Const, amend. V; see also U.S.

v. Reynolds, 397 U.S. 14, 15 (1970) (stating that the Fifth

Amendment to the United States Constitution provides

that “private property shall not be taken for public use

without just compensation”).

The question of what constitutes “just compensation”

has resulted in a body of federal case law interpreting

this fundamental right. Until the Eighth Circuit’s ruling,

federal circuit courts concluded that when a statute is

silent as to the meaning of “compensation,” federal courts

define “compensation” using state law. See generally Sabal

Trail Transmission, LLC v. 18.27 Acres of Land in Levy

4

Cnty., 59 F.4th 1158, 1163 (11th Cir. 2023) (determining

that state law supplies the definition of “compensation”

for eminent domain actions taken by licensees under the

Natural Gas Act); see also Ga. Power Co. v. Sanders, 617

F.2d 1112 (5th Cir. 1980) (concluding that state law supplies

the definition of “compensation” for eminent domain

actions taken by licensees under the Federal Power Act).

The Eighth Circuit’s rule broke with four sister

circuits. Its rule is flawed both legally and practically.

As a legal matter, it overrides state-law compensation

protections in an area where Congress chose not to impose

a uniform federal rule. Practically, it alters the balance

between private condemnors and property owners in

the very proceedings used to determine the measure of

compensation.

The Eighth Circuit’s rule presses landowners into

submitting their lands to private enterprise at a sliver of its

value. It does so not merely by reducing owners’ measure

of compensation in the amount of attorneys’ fees required

to obtain that compensation, but also by magnifying the

discrepancy in the bargaining power between condemnor

and condemned. This discrepancy is not hypothetical, but

exemplified in NGA procedures, practices, and several

examples, all of which can be expected to flourish in the

twenty-one states where state-law protections would be

stripped under the Eighth Circuit’s rule.

a. Natural Gas Act procedures and practices magnify

the landowner’s practical disadvantage.

Pre-taking negotiations under the NGA take place

against a powerful statutory backdrop. What begins

5

as a voluntary acquisition discussion is backed by the

condemnor’s ability to take the property if negotiations

fail. If a gas provider’s offer is untenable, it need not

abandon the project; it will simply take the land and push

landowners into court. 15 U.S.C. § 717f(h) (stating that

when the provider “cannot acquire by contract, or is unable

to agree with the owner of property to the compensation

to be paid for, the necessary right-of-way . . . and the

necessary land or other property, in addition to right-ofway . . . it may acquire the same by the exercise of the right

of eminent domain . . . .”). Thus, when a landowner declines

an offer, the natural gas provider need not walk away. It

may instead file a condemnation action and acquire the

property by the right of eminent domain.

That statutory leverage is significant. Without

voluntary submission, and once pushed into justcompensation litigation, landowners cannot insist that the

measure of compensation be paid before their property is

taken, or that the natural gas provider pay for the land

before profiting from it. Since 2004, condemnors under

the NGA have been able to obtain immediate possession

of the property—and begin to profit from the land—

while the measure of compensation to the landowner

remains subject to litigation and undetermined. As the

Fourth Circuit held, once the gas company establishes its

substantive right to condemn under the NGA, a district

court may grant immediate possession through the

issuance of a preliminary injunction. E. Tenn. Nat. Gas

Co. v. Sage, 361 F.3d 808, 828 (4th Cir. 2004).

The practical result is substantial. As a threshold

matter, landowners begin the takings exercise with no

bargaining power and nothing more than the prospect

6

of having to spend significant money to defend the value

of their land after it has been taken from them. The

landowner is left to litigate the amount of compensation

owed for the property already taken or burdened. It

requires the landowner to respond to the condemnor’s

appraisal evidence, retain experts, develop valuation

theories, and prove the value of the property interest

taken. In practice, defending the value means defending

against the condemnor’s appraisals and providing

competing appraisals.

Reported NGA cases confirm that compensation

litigation is, in practice, a battle of valuation evidence. In

Sabal Trail Transmission, LLC v. 3.291 Acres of Land in

Lake County, for example, the parties tried the amount

of compensation over four days, with each side presenting

real-estate expert appraisal testimony concerning the

value of permanent and temporary easements and

severance damages to the remainder. 947 F.3d 1362,

1365–68 (11th Cir. 2020). Sabal Trail’s appraiser valued

total compensation at $56,800, while the landowner’s

appraiser valued compensation at $315,039. Id. at 1365–66.

This disparity was driven largely by severance damages,

which Sabal Trail’s appraiser valued at $43,700 and the

landowner’s appraiser valued at $273,777. Id. at 1633.

Condemnors’ appraisals are weighty adversaries. In

the Sabal Trail pipeline litigation, condemnors spent a

combined $8.3 million on appraisal work alone across the

project. Andrew Prince Brigham & Lindsey Brigham

Knott, A Practitioner’s Perspective on How Best to Avoid

the Risk of Unjust Compensation, 10 Brigham-Kanner

Prop. Rts. J 351, 377 (2021).

7

Landowners may also have to fight for “severance”

damages. Severance damages compensate a landowner

for the reduction in value suffered by the portion of the

property that remains after a part of the property is taken.

See Bauman v. Ross, 167 U.S. 548, 574 (1897) (explaining

that compensation in a partial taking includes injury to

the remainder resulting from the taking). Determining

those damages also often requires competing appraisal

testimony and expert analysis. See e.g., Sabal Trail

Transmission, LLC v. 3.921 Acres of Land, 947 F.3d

1362, 1365–68 (11th Cir. 2020) (involving a dispute over

severance damages ranging from $43,700 to $273,777).

The federal r ules ref lect that condemnation

compensation is a fact-intensive adjudication. Rule

71.1 provides the procedure for federal condemnation

actions but does not define the substantive measure of

compensation. See Fed. R. Civ. P. 71.1(h). Specifically, Rule

71.1 governs “practice and procedure,” rather than the

substantive law resolving the measure of compensation.

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

Levy County, 59 F.4th 1158, 1174 (11th Cir. 2023).

That distinction matters. The Eighth Circuit’s rule

would not only deny the landowner’s recovery of fees at

the end of litigation, but it would alter the landowner’s

position at the outset. The condemnor may invoke federal

power, obtain possession, build the project, and force

the landowner to bear significant costs to prove the

valuation of what has been taken. State fee-shifting rules

cater to that practical reality. They further embody the

traditional authority of the States to define and protect

property rights, reflecting each State’s judgment as to

what compensation is necessary to make its citizens whole

when they are compelled to surrender their property.

8

b. Natural Gas Act cases demonstrate the consequences

landowners face when they must litigate to obtain

compensation.

Reported Natural Gas Act cases show that the

difference between a pipeline company’s award and the

ultimate compensation award can often be extreme.

They also illustrate why state-law fee protections matter.

Without them, the landowner’s recovery is reduced by the

very litigation expenses required to prove the value of the

property taken. 3

In 2016, Sabal Trail Transmission, LLC, invoked the

NGA to condemn easements across two properties: an 837acre farm owned by Lee Thomas and a 40-acre residential

tract owned by Ryan Thomas. Sabal Trail Transmission,

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

1161 (11th Cir. 2023). The district court granted immediate

possession once Sabal Trail filed the condemnation actions,

and Sabal Trail built a pipeline across the two properties

before final compensation was determined. Id. at 1161–62.

Sabal Trail initially offered $6,800 to Ryan Thomas and

$59,700 to Lee Thomas. See Brigham & Knott, supra, at

382. A jury, however, ultimately awarded $861,264 to

Lee Thomas, including $782,083 in severance damages,

and $463,439 to Ryan Thomas, including $451,654 in

severance damages. Levy Cnty., 59 F.4th at 1161. The

3. This brief does not concede that litigation expenses and

fees are not recoverable under the United States Constitution.

Indeed, Pacific Legal Foundation asserts that the Constitution,

including the right to due process, mandates reimbursement for

fees and costs when they are necessary to make sure owners are

made whole as required by the Constitution’s protection of private

property.

9

court “also ruled the Thomas family would be entitled to

attorney’s fees and costs.” Id. Sabal Trail’s initial valuation

represented a miniscule fraction of the compensation the

jury ultimately determined was owed. See Brigham &

Knott, supra, at 382.

Those awards arose from litigation, not a windfall.

Ryan and Lee Thomas were forced to defend against

Sabal Trail’s valuation, present its own evidence, and

maintain the verdict on appeal. The Eleventh Circuit

later determined that state law supplied the measure

of compensation under the NGA and affirmed an award

of more than $765,000 in fees and costs for the Thomas

actions. Sabal Trail Transmission, 59 F.4th at 1162, 1175.

Under Florida law, those fees and costs were part of the

compensation owed, id. at 1160, but under the Eighth

Circuit’s rule, they would not be.

A different case involving the Sabal Trail pipeline

project case tells the same story. In a case involving

Sunderman Groves, Inc., Sabal Trail condemned easements

across a 40-acre parcel. Sabal Trail Transmission, LLC

v. 3.921 Acres of Land in Lake County, 947 F.3d 1362,

1364–65 (11th Cir. 2020). At trial, Sabal Trail’s expert

appraiser valued total compensation at $56,800, while

Sunderman Groves’s appraiser testified that compensation

was $315,039. Id. at 1365–66. The jury awarded $309,500,

including severance damages, and the district court

concluded that Sunderman Groves was entitled to recover

attorney’s fees and costs as part of the compensation

award. Id. at 1364.

10

Taken together, these cases illustrate the practical

consequences of the Eighth Circuit’s rules on landowners.

As shown, substantial differences can arise between

a condemnor’s initial valuation and the compensation

ultimately awarded after litigation. The condemnor may

obtain possession, construct the project, and leave the

amount of compensation to be resolved through a lengthy,

appraisal-driven process. Where state law generally

treats the cost of that process as part of compensation,

the Eighth Circuit’s rule eliminates the protection that

states choose to provide. As a result, the ultimate award

is reduced, and the parties’ positions during negotiations

and litigation changes, as the landowner wanting to

challenge a valuation must consider that the attorney

and expert expenses necessary to establish compensation

may ultimately be borne by the landowner, rather than

the condemnor.

c. State law protections would be stripped in twentyone states.

The Eighth Circuit’s decision thus has a real, tangible

impact on landowners. Indeed, it is OCA’s experience that

the accounts from the Sabal Trails matters above resemble

NGA takings actions in many other states.

Below is a summary of states where landowners

facing eminent domain are entitled to recover attorneys’

fees under state law, but where that protection would be

lost if this Court upholds the Eighth Circuit’s decision.

For each such state this chart summarizes landowners’

rights to recover attorneys’ fees in condemnation actions

11

and thus summarizes what the Eighth Circuit’s decision

would strip away.4

State

Alaska

Arkansas

Applicable Law for Recovering

Attorneys’ Fees and Costs

The condemnor is required to pay the

owner’s attorneys’ fees and costs when

(1) the taking of the property is denied,

(2) the condemnor appeals from the master’s

award and the landowner does not appeal,

(3) the award of the court was at least

ten (10) percent larger than the amount

deposited by the condemning authority or

the allowance of the master from which an

appeal was taken by the defendant, (4) the

action was dismissed, or (5) the allowance of

costs and attorney’s fees appears necessary

to achieve a just and adequate compensation

of the owner. A laska R. Civ. Pro. 72.

Owner’s costs, expenses, and reasonable

attorney’s fees related to the final hearing

if the award awarded is greater than the

condemning entity’s offer by 20% or more.

A rk. Code A nn. § 18-15-103(11).

4. The issue of reimbursement of fees and costs to property

owners under North Carolina state law is pending in a case of first

impression currently before the North Carolina Court of Appeals.

The trial court there held that the Constitution of North Carolina

requires reimbursement to an owner when the condemnor forces

the owner to litigate to receive the value of the property taken.

See Department of Transportation v. Rite Touch Investments,

LLC, No. COA26-413.

12

Colorado

Florida

Idaho

Litigation costs can be recovered if the

costs were reasonably incurred, but the

landowner must prove their reasonableness.

If immediate possession is taken and the

award exceeds the deposit, the owner can

receive interest on the difference of those

amounts. Reasonable attorneys’ fees can be

recovered if the court finds the government

lacking authority to condemn the property

and/or if the award is over $10,000 and at least

30% more than the last written offer before

filing suit. Colo. Rev. Stat. § 38-11-22.

Reasonable attorneys’ fees and costs are

part of Florida’s constitutional standard

of “full compensation” to be paid by the

condemnor. Dade Co. v. Brigham, 47 So. 2d

602 (Fla. 1950). In actions where the

property is acquired, Fla. Stat. § 73.092

sets attorneys’ fees based upon a percentage

of the benefit achieved as a difference

between the initial offer and settlement or

final judgment (including monetary and

non-monetary benefits for the owner). If the

owner defeats a taking or attorneys’ fees

are incurred in a supplemental proceeding,

the court will award fees based upon facts

set forth in Fla. Stat. §73.092.

The court determines if the owner will

receive reasonable costs and fees. Idaho

C ode § 7-711A(8). This is determined

by whether the owner obtained a trial

judgment at least 10% higher than the

condemner’s last timely offer before filing

suit or whether the owner contested the

taking or possession of the property. Id.

13

Iowa

Louisiana

If the appraisement by the compensation

commission exceeds by 110% the last and

final offer of condemnor, the compensation

commission is entitled to award the

condemnee reasonable attorneys’ fees and

costs, including the reasonable cost of one

appraisal. Iowa Code § 6B.33. All costs of

the appeal, including reasonable attorney’s

fees and costs, as well as “the reasonable

cost incurred by the property owner for

one appraisal” is recoverable, “unless on the

trial thereof the same or a lesser amount of

damages is awarded than was allowed” by

the commission. Iowa Code § 6B.33. Under

a 2006 amendment to § 6A.24(3), attorneys’

fees and costs are awarded to the prevailing

challenger of condemnation authority or

proceedings. When a condemnation is

abandoned or the condemnor refuses to pay

final award, attorneys’ fees, costs and actual

damages are awarded. Iowa Code § 6B.34.

An award of reasonable attorneys’ fees is

authorized in connection with expropriation

proceedings if certain conditions are met:

(1) if the amount of compensation awarded

to owner is higher than the highest offer

from the expropriating authority, La. Rev.

Stat. § 19:8(A)(3), or (2) in a “quick take” the

court may award reasonable attorneys’ fees

if the compensation deposited with the court

“is less than the amount of compensation

awarded in the judgment[,]” LA. REV.

STAT. § 48:453(E).

14

Michigan

Minnesota

Montana

Nebraska

Attorneys’ fees, expert fees, and costs

incurred in the condemnation action may

be awarded. See Mich. Comp. Laws Serv.

§ 213.66.

If final judgment or award is more than 40%

greater than condemning authority’s last

written offer before condemnation petition

is filed, then award of “reasonable attorney

fees, litigation expenses, appraisal fees,

other experts fees, and other related costs”

is mandatory. See Minn. Stat. § 117.031(a).

If the award is 20–40% more than the final

offer, the court chooses the recoverable

amount. Id.

If the court denies the condemnation or

the owner is awarded more than a final

offer from the comdenmor, the owner is

entitled to the “necessary expenses of

litigation[.]” Mont. Code A nn. § 70-30-305.

“Necessary expenses of litigation” is

defined as including, among other expenses,

attorneys’ fees, exhibit costs, expert witness

fees, and court costs. Id. at § 70-30-306.

A district judge must award the owner a

reasonable amount for attorney fees and the

fees of two expert witnesses, if: (1) the owner

appealed and the final judgment is at least

15% more than Board of Appraisers’ award,

or (2) condemning authority appealed and

the final judgment is not less than 85%

below the Board of Appraisers’ award, or

(3) both appealed and the final judgment is

more than the Board of Appraisers’. Neb.

Rev. Stat. § 76-720.

15

New York

North

Dakota

Oklahoma

Oregon

Fees, including reasonable attorneys’ fees,

can be recovered if the court’s award is

substantially higher than the condemnor’s

offer and if the court finds extra payment

to be necessary for the owner to receive

fair compensation. N.Y. Em. Dom. Proc.

Law § 701.

The court has discretion to determine

the amount in attorneys’ fees, court costs,

expert fees, and interest to award the

owner. N.D. C ent. C ode §§ 32-15-32,

32-15-35.

All fees can be recovered if the “final

judgment is that the real property cannot be

acquired by condemnation,” “the proceeding

is abandoned,” or if the jury verdict is at least

10% higher than the commissioners’ award.

The condemnor is always responsible for

filing and commissioners’ fees. Even if the

owner loses, they don’t have to pay attorney

or expert fees. Okla. Stat. tit. 27, §§ 11–12.

Fees may be recovered if the final award is

higher than the condemnor’s last written

offer, the court finds the first written offer

was not made in good faith or unreasonably

low, or the condemnor fails to take the

property within 60 days or abandons it. Or.

Rev. Stat. §§ 35.300; 35.346(7).

16

South

Carolina

South

Dakota

In actions wherein the condemnor’s right to

take is challenged, if the court determines

that the condemnor has no right “to take all

or any part of the property, the landowner’s

reasonable costs and litigation expenses

. . . must be awarded” to the owner. S.C.

Code A nn. § 28-2-510(A). A landowner

that prevails in a condemnation action may

recover “reasonable litigation expenses by

serving on the condemnor and filing with

the clerk of court an application within

fifteen days of the entry of judgment”

showing that he prevailed; stating the

amount sought; including an “itemized

statement from an attorney or expert

witness” stating and explaining the fees

charged; and explaining “all actual expense

for which recovery is sought.” S.C. Code

A nn. § 28-2-510(B)(1). “If the condemnor

abandons or withdraws the condemnation

action,” the owner is “entitled to reasonable

attorney fees, litigation expenses, and costs

as determined by the court.” S.C. CODE

ANN. § 28-2-510(B)(2).

If the final award is at least 20% higher than

the condemnor’s last offer, the owner can

recover reasonable attorneys’ fees and up

to two expert witness fees. If the owner is

the prevailing party, they may also recover

litigation expenses. S.D. Codified Laws

§ 21-35-23.

17

Utah

If the owner makes an offer and award

is more than their offer, they can recover

attorneys’ fees and costs may not exceed

one-third the difference between the

compensation awarded and the condemnor’s

settlement offer. Utah Code A nn. §§ 78B6-509(7).

Washington A fter trial, the condemnor pays for

reasonable attorney and expert fees if

the award is at least 10% higher than the

condemnor’s best offer made 30 days before

trial. Wash. Rev. Code § 8.25.070(1)(b).

Wisconsin Fees can be recovered if the owner wins,

the condemnor abandons the property,

or if the award is at least 15% or $2,700

(subject to adjustment by the Department

of Administration) higher than the

condemnor’s offer before the taking. Wis.

Stat. § 32.28(3).

Wyoming

The condemnor must pay the owner’s

attorneys’ fees and costs when the final

award exceeds the condemnor’s presuit

offer by 115%. Wyo. Stat. A nn. §§ 12-65-02

to 1-26-817.

d. The difference between state and federal law is not

limited to recovery of litigation expenses.

Other significant differences exist between the

applicability of state and federal law. These differences

may greatly impact the measure of compensation. Indeed,

they may result in the difference between compensation

for property actually taken and no compensation.

18

For example, many states apply the state rule for

determining the measure of compensation. Under this

rule, the measure of compensation is determined by

(1) determining the value of the property taken and

(2) then determining the difference in the value of the

remainder 5 before the taking versus the value of the

remainder after the taking. The sum of these two numbers

is the measure of compensation. Importantly, this rule

ensures an owner always receives compensation for any

property actually taken.

Under the federal rule, the measure of compensation

is determined based on the difference in the value of the

entire property before the taking and the value of the

property remaining after the taking. Under this rule, an

owner may receive no value for the property taken if the

project enhances or increases the value of the property

remaining after the taking. For example, suppose the

government takes one of two acres from a rural property

worth $10,000 an acre to construct a new road. Suppose the

remaining acre is not worth $20,000 because the highest

and best use after the taking is commercial. Under the

federal rule, the owner would receive no compensation for

the acre actually taken. Under the state rule, the owner

would receive $10,000—the value of the acre taken. This

real-life example further demonstrates the importance

of federalism and respect for state’s rights in the context

of eminent domain.

5. The remainder is the property remaining after a portion

of the property was taken.

19

CONCLUSION

OCA has been on the f ront l i nes of cr itica l

just-compensation litigation nationwide, and across the

country has argued against abrogation of critical property

rights specifically established by states or constitutions to

protect citizens from unlawful government takings. The

Eighth Circuit’s decision is precisely such an abrogation.

Strikingly, the Eighth Circuit’s abrogation is of the North

Dakota constitution’s guarantee of just compensation,

which as early as 1905 meant that the landowner must

receive “just compensation for his property, and not

that the just compensation assessed by a jury shall be

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

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

succinctly, “if the owner must disburse for costs the

money received for his land, the compensation cannot be

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

provision.” Id. at 759 (citation omitted). The Eighth

Circuit’s decision slashes this constitutional guarantee

and like guarantees across its jurisdiction, diminishing

the measure of compensation lawfully owed when private

property is taken.

Without correction by this Court, the Eighth Circuit’s

upturned rationale similarly exposes landowners in

other circuits across the country. Paying the full and

complete amount of just compensation required under

state law—equivalent to the compensation required

when the condemnor is a state or local government—is

an important check and balance against unrestrained

private takings by for-profit enterprise. Without such

a check, landowners are exposed to for-profit ravaging,

taking more from them than when the same taking is

20

exercised by those landowners’ own elected state and

local officials. Indeed, the Eighth Circuit’s decision means

that private condemnors under the NGA can take land

in several states more cheaply than those states’ own

governments could—and thus that private landowners in

those states are less compensated when the condemnor is

a for-profit enterprise than they would be had their state

or local government taken the land. Subjecting American

landowners to discounted land grabs by private parties

not only contravenes those landowners’ guarantees under

their states’ constitutions and laws but has no basis in

rational government.

This Court should reverse the judgment of the Eighth

Circuit.

Respectfully submitted,

Vince Eisinger

Counsel of Record

Robert El-Jaouhari

Landin Johnston

Cranfill Sumner LLP

5440 Wade Park Boulevard,

Suite 300

Raleigh, NC 27607

(919) 828-5100

veisinger@cshlaw.com

Maxwell Shafer

Cranfill Sumner LLP

5535 Currituck Drive,

Suite 210

Wilmington, NC 28403

Attorneys for Amicus Curiae