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 GARY R. ERB AND LYNDA LIKE AS

AMICI CURIAE IN SUPPORT OF PETITIONERS

A aron Gott

Ruth Glaeser

Bona Law PC

331 2nd Avenue South,

Suite 420

Minneapolis, MN 55401

A aron Lawrence

Sabri Siraj

Bona Law PC

16 Madison Square West,

9th Floor

New York, NY 10010

Luke Hasskamp

Counsel of Record

Jarod Bona

Bona Law PC

4275 Executive Square,

Suite 200

La Jolla, CA 92037

(858) 964-4589

luke.hasskamp@bonalawpc.com

Counsel for Amici Curiae

132379

(800) 274-3321 • (800) 359-6859

i

TABLE OF CONTENTS

Page

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

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

INTERESTS OF AMICI CURIAE . . . . . . . . . . . . . . . . 1

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

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

I.

The Natural Gas Act Delegates the

Condemnation Power, Not Every Rule

that Governs Condemnations by the

United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

A. The Act confers a power and says

not h i n g ab out t he me a s u r e of

compensation . . . . . . . . . . . . . . . . . . . . . . . . . . 4

B. PennEast’s “categorical” delegation

concerns what may be condemned, not

which sovereign attributes transfer . . . . . . 5

C. Feder a l cou r t s d i st i ng u i sh t he

delegated condemnation power from

the sovereign’s collateral privileges . . . . . . . 7

D. Federa l aut hor i zat ion does not

automatically confer governmental

protections on private actors . . . . . . . . . . . . 9

ii

Table of Contents

Page

E. Bodcaw defines the constitutional

minimum but does not answer the

choice-of-law question here . . . . . . . . . . . . . 10

II. Section 717f(h)’s Silence Does Not Make the

Fifth Amendment the Exclusive Measure

of Compensation . . . . . . . . . . . . . . . . . . . . . . . . . . 11

A. Section 717f(h)’s text does not displace

state compensation law . . . . . . . . . . . . . . . . 11

B. Wallis and Kimbell Foods make

displacement, not borrowing, the

exceptional step . . . . . . . . . . . . . . . . . . . . . . 13

C. Georgia Power applied this framework

to the model federal statute and

declined to displace state law . . . . . . . . . . . 14

D. No signif icant conf lict has been

shown, and formal symmetry, higher

costs, and hypothetical future state

laws do not supply one . . . . . . . . . . . . . . . . . 15

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

iii

TABLE OF CITED AUTHORITIES

Page

Cases

Atherton v. FDIC,

519 U.S. 213 (1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Boyle v. United Techs. Corp.,

487 U.S. 500 (1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Columbia Gas Transmission Corp. v.

Exclusive Nat. Gas Storage Easement,

962 F.2d 1192 (6th Cir. 1992) . . . . . . . . . . . . . . . . . . . 17

Correctional Servs. Corp. v. Malesko,

534 U.S. 61 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

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

361 F.3d 808 (4th Cir. 2004) . . . . . . . . . . . . . . . . . . . . . 7

Equitrans, L.P. v. 0.56 Acres,

145 F. Supp. 3d 622 (N.D.W. Va. 2015) . . . . . . . . . . . . 8

Ga. Power Co. v. 138.30 Acres,

617 F.2d 1112 (5th Cir. 1980) . . . . . . . . . . . . . 14, 15, 16

GEO Group v. Menocal,

607 U.S. 438 (2026) . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 9

Hencely v. Fluor Corp.,

146 S. Ct. 1086 (2026) . . . . . . . . . . . . . . . . . . . . . . . . 3, 9

iv

Cited Authorities

Page

Like v. Transcontinental Gas Pipe Line Co.,

587 U.S. 1035 (2019) . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Maritimes & Ne. Pipeline, L.L.C. v. 16.66 Acres,

190 F.R.D. 15 (D. Me. 1999) . . . . . . . . . . . . . . . . . . . . . 8

Nat’l R.R. Passenger Corp. v. Two Parcels,

822 F.2d 1261 (2d Cir. 1987) . . . . . . . . . . . . . . . . . . . . 16

O’Melveny & Myers v. FDIC,

512 U.S. 79 (1994) . . . . . . . . . . . . . . . . . . . . . . . . . 15, 16

PennEast Pipeline Co. v. New Jersey,

594 U.S. 482 (2021) . . . . . . . . . . . . . . . . . . . 2, 5, 6, 7, 12

Sabal Trail Transmission, LLC v. 18.27 Acres,

59 F.4th 1158 (11th Cir. 2023) . . . . . . . . . . . . . . 6, 14, 15

Tenn. Gas Pipeline Co. v. Permanent Easement

for 7.053 Acres,

931 F.3d 237 (3d Cir. 2019) . . . . . . . . . . . . . . . . . . 10, 17

Torres v. Tex. Dep’t of Pub. Safety,

597 U.S. 580 (2022) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Transcon. Gas Pipe Line Co. v.

Permanent Easements for 2.14 Acres,

907 F.3d 725 (3d Cir. 2018) . . . . . . . . . . . . . . . . . . . . . . 7

Transwestern Pipeline Co. v. 17.19 Acres,

550 F.3d 770 (9th Cir. 2008) . . . . . . . . . . . . . . . 2, 3, 7, 8

v

Cited Authorities

Page

United States v. 93.970 Acres,

360 U.S. 328 (1959) . . . . . . . . . . . . . . . . . . . . . . . . 12, 13

United States v. Bodcaw Co.,

440 U.S. 202 (1979) . . . . . . . . . . . . . . . . . . . . . . . . . 3, 10

United States v. Carmack,

329 U.S. 230 (1946) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

United States v. Kimbell Foods, Inc.,

440 U.S. 715 (1979) . . . . . . . . . . . . . . . . . 3, 4, 13, 14, 17

United States v. Miller,

317 U.S. 369 (1943) . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Vector Pipeline, L.P. v. 68.55 Acres,

157 F. Supp. 2d 949 (N.D. Ill. 2001) . . . . . . . . . . . . . . . 8

Wallis v. Pan Am. Petroleum Corp.,

384 U.S. 63 (1966) . . . . . . . . . . . . . . . . . . . . . 3, 4, 13, 14

WBI Energy Transmission, Inc. v. 189.9 Rods,

132 F.4th 1058 (8th Cir. 2025) . . . . . . . 3-5, 8, 11, 13-15

WBI Energy Transmission, Inc. v. Easement &

Right-of-Way Across, No. 1:18-cv-78,

2022 WL 22649232 (D.N.D. Nov. 1, 2022) . . . . . . . . 17

vi

Cited Authorities

Page

Constitutional Provisions

U.S. Const. amend. V . . . . . . . . . . . . . . . . . . . . . 2, 3, 10, 11

Statutes and Rules

15 U.S.C. § 717f . . . . . . . . . . . . . . . . . 1-5, 7, 8, 11-15, 17, 18

16 U.S.C. § 791a et seq. . . . . . . . . . . . . . . . . . . . . . . . . 14, 15

40 U.S.C. § 3114 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2, 7, 8

Fed. R. Civ. P. 71.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 12

N.D. Cent. Code § 32-15-32 . . . . . . . . . . . . . . . . . . . . . . . 14

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

1

INTERESTS OF AMICI CURIAE

Amici curiae Gary R. Erb and Lynda Like are

Lancaster County, Pennsylvania property owners whose

family land was condemned by a private pipeline company

under the Natural Gas Act, 15 U.S.C. § 717f(h).1 Mr.

Erb and his family made their home on rural acreage

he called a “deer paradise,” where he hoped his sons

would one day build homes. Ms. Like inherited her land

from her father and promised him she would preserve it

for her family. In 2017, Transcontinental Gas Pipe Line

Company condemned easements across their properties

for an interstate pipeline. Transcontinental obtained

possession before compensation was determined or paid

and completed the pipeline while the owners waited for

payment.

Amici have experienced firsthand what it means for

a private company to exercise federal eminent-domain

authority against an unwilling owner. They previously

asked this Court whether the Natural Gas Act’s delegation

of condemnation authority permits a private pipeline

company to seize immediate possession before final

judgment and payment. The Court denied their petition.

See Like v. Transcontinental Gas Pipe Line Co., 587 U.S.

1035 (2019). That question and the one presented here

implicate the same broader issue: whether the delegated

power to condemn carries with it every advantage the

1. In accord with Supreme Court Rule 37.6, no counsel for

a party authored this brief in whole or in part, and no counsel

or party made a monetary contribution intended to fund the

preparation or submission of this brief. No person other than

amici curiae and their counsel made a monetary contribution to

its preparation or submission.

2

sovereign enjoys when it condemns in its own name. Here,

the asserted advantage is the Federal Government’s

narrower measure of compensation. Amici have a direct

and informed interest in ensuring that private condemnors

receive no greater rights than Congress actually

conferred.

SUMMARY OF ARGUMENT

The decision below treated § 717f(h)’s delegation of

condemnation authority as resolving two questions the

statute never answers: (1) whether a private certificate

holder receives every rule that governs when the United

States condemns in its own name; and (2) whether the

Fifth Amendment displaces state compensation law

without the ordinary federal-common-law choice-of-law

inquiry. Neither conclusion follows.

First, Section 717f(h) delegates the power to condemn,

but it does not thereby transfer every rule or governmental

protection that accompanies condemnation by the United

States. The Eighth Circuit’s reliance on PennEast is

misplaced. PennEast held that state sovereign immunity

could not prevent a certificate holder from exercising the

delegated power against state-owned property. It did not

decide which other incidents accompany that power or how

compensation is measured. PennEast Pipeline Co. v. New

Jersey, 594 U.S. 482, 498–99, 507–08 (2021).

The cases applying the NGA confirm the distinction.

Certificate holders do not receive the Declaration of

Taking Act’s quick-take authority, and the Ninth Circuit

has explained that a private pipeline company, unlike

the United States, “has neither sovereign authority nor

3

the backing of the U.S. Treasury” to assure payment.

Transwestern Pipeline Co. v. 17.19 Acres, 550 F.3d 770,

775 (9th Cir. 2008). Those rules depend on the identity of

the condemnor, not merely the source of its condemnation

authority. And recently this Court twice reinforced the

broader distinction between federal authorization and

governmental protection. See GEO Grp. v. Menocal, 607

U.S. 438, 449–50 (2026); Hencely v. Fluor Corp., 146 S. Ct.

1086, 1095, 1098–99 (2026).

Bodcaw does not establish otherwise. It held that

litigation expenses are generally not part of the “just

compensation” required by the Fifth Amendment when

the United States condemns. United States v. Bodcaw Co.,

440 U.S. 202, 203–04 (1979) (per curiam). It did not decide

whether that constitutional floor supplies the exclusive

measure of compensation when a private party condemns

under a statute silent on the question. The Eighth Circuit

itself acknowledged that federal interests are “arguably

weightier” when the United States condemns and that

imposing fees on a private condemnor does not raise

the same concerns about spending federal dollars. WBI

Energy Transmission, Inc. v. 189.9 Rods, 132 F.4th 1058,

1062 (8th Cir. 2025). The court dismissed those differences

as “policy arguments,” id., but whether the rationale for

a sovereign-specific rule extends to a private delegatee

is a legal question.

Second, § 717f(h)’s silence on the measure of

compensation does not make the Fifth Amendment the

exclusive standard. Under Wallis and Kimbell Foods,

state law is displaced only upon a specific showing of a

significant conflict with an identifiable federal policy;

generalized appeals to uniformity do not suffice. Wallis v.

4

Pan Am. Petroleum Corp., 384 U.S. 63, 68 (1966); United

States v. Kimbell Foods, Inc., 440 U.S. 715, 729–30, 739–40

(1979). The Eighth Circuit never undertook that inquiry

because it believed there was no gap to fill.

Had it done so, the asserted federal interests would

not justify displacement. Higher compensation costs do

not themselves establish a significant conflict, and decades

of experience under the state-law rule have produced no

demonstrated interference with the NGA’s operation.

The Third, Fifth, Sixth, and Eleventh Circuits have

accordingly held that state law supplies the compensation

rule in private NGA condemnations. The Court should

reach the same conclusion and reverse the judgment below.

ARGUMENT

I.

The Natural Gas Act Delegates the Condemnation

Power, Not Every Rule that Governs Condemnations

by the United States.

A.

The Act confers a power and says nothing about

the measure of compensation.

Section 717f(h) permits a certificate holder that

cannot acquire a necessary right-of-way by agreement to

“acquire the same by the exercise of the right of eminent

domain.” 15 U.S.C. § 717f(h). The provision confers

condemnation authority. It does not prescribe the measure

of compensation.

The Eighth Circuit treated that silence as immaterial.

Because WBI received “the entire federal eminent-domain

power, not just some diluted form of it,” the court reasoned

5

that, “[b]y stepping into the federal government’s shoes,”

WBI “inherited all its rights and obligations”—including

the Federal Government’s compensation rule. WBI

Energy, 132 F.4th at 1060–62.

That inference is an error. Section 717f(h) delegates

authority to condemn. It does not thereby confer every

sovereign attribute or litigation advantage the United

States possesses when it condemns in its own name.

Federal courts repeatedly distinguish the delegated

power from those incidents. The Federal Government’s

compensation rule therefore cannot be treated as part of

the delegation without further analysis.

B. PennEast’s “categorical” delegation concerns

what may be condemned, not which sovereign

attributes transfer.

The Eighth Circuit relied on PennEast’s description of

Section 717f(h)’s delegation as “categorical.” But PennEast

defined the category in the same paragraph: “By its

terms, § 717f(h) delegates to certificate holders the power

to condemn any necessary rights-of-way, including land

in which a State holds an interest.” 594 U.S. at 498–99.

“Categorical” describes the property reachable through

the delegated power, not every rule or sovereign attribute

that accompanies a condemnation by the United States.

PennEast itself confirms this principle. The issue,

the Court explained, was “whether the United States can

delegate its eminent domain power to private parties,” not

whether it can delegate “its freestanding exemption from

state sovereign immunity.” Id. at 507. The Court expressly

left open whether delegation of that exemption “is even

6

permissible.” Id. at 507–08. The case thus distinguishes

the delegated condemnation power from at least one

sovereign attribute rather than treating all such attributes

as automatic incidents of the delegation.

This Court has since described PennEast the same

way. Torres v. Texas Department of Public Safety read it

as “resting on a broader point: The Federal Government’s

eminent domain power is complete, such that no State may

frustrate its exercise by claiming immunity to forestall

the transfer of property.” 597 U.S. 580, 598 (2022). That

gloss concerns the completeness of the power against

state resistance, not the compensation owed after the

power is exercised. The Eleventh Circuit likewise held

that PennEast did not displace its compensation precedent

because it “was concerned with a state’s attempt to deny

exercise of the federal power of eminent domain,” not

whether state or federal law supplies the measure of

compensation. Sabal Trail Transmission, LLC v. 18.27

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

PennEast ’s references to eminent domain as

“inextricably intertwined with the ability to condemn”

and to the States’ consent to the federal eminent-domain

power “in its entirety” likewise arose in resolving whether

state immunity could block the condemnation action.

594 U.S. at 503, 508. Neither formulation addressed the

measure of compensation.

PennEast rejected a clear-statement requirement

for Congress to authorize private parties to exercise

the federal eminent-domain power against state-owned

property. Id. at 507–08. It did not address the distinct

7

question here: whether § 717f(h) also displaces otherwise

applicable state compensation law by making the Federal

Government’s compensation rule part of the delegation.

PennEast did not decide that question.

C.

Federal courts distinguish the delegated

condemnation power from the sovereign’s

collateral privileges.

United States v. Carmack distinguished federal

officers acting for the sovereign from private entities

authorized to condemn “on behalf of themselves.” 329

U.S. 230, 243 n.13 (1946). Grants to the latter, the Court

explained, “are, in their very nature, grants of limited

powers” that “do not include sovereign powers greater

than those expressed or necessarily implied.” Id. The

NGA cases confirm that distinction in practice.

The clearest example is the Declaration of Taking

Act’s quick-take authority. The DTA permits title to

vest upon filing a declaration and depositing estimated

compensation, but it applies only to proceedings “brought

by and in the name of the United States”; § 717f(h) grants

no comparable power. See 40 U.S.C. § 3114; E. Tenn. Nat.

Gas Co. v. Sage, 361 F.3d 808, 822–23 (4th Cir. 2004).

A certificate holder that has established its right to

condemn may in some circumstances obtain immediate

possession by preliminary injunction, but that equitable

remedy is distinct from the DTA’s quick-take authority.

See Sage, 361 F.3d at 824–25; Transcontinental Gas Pipe

Line Co. v. Permanent Easements for 2.14 Acres, 907

F.3d 725, 736 (3d Cir. 2018). As the Ninth Circuit put it,

the “additional [quick-take] right conferred” by Congress

8

is “missing from § 717f(h).” Transwestern Pipeline, 550

F.3d at 774–75. 2

Transwestern illustrates that point. The United States

may proceed without security because its constitutional

obligation to pay just compensation functions as an

implied promise backed by the sovereign. 550 F.3d at

775. A private pipeline company, by contrast, “has neither

sovereign authority nor the backing of the U.S. Treasury

to assure adequate provision of payment.” Id. Some rules

governing federal condemnations thus follow from the

identity of the condemnor, not from the eminent-domain

power itself.

Quick-take alone exposes the problem in the

Eighth Circuit’s premise that WBI “inherited all [the

sovereign’s] rights and obligations.” 132 F.4th at 1060.

If the delegation of “the entire federal eminent-domain

power” automatically carried every rule that governs a

condemnation by the United States, the DTA’s authority

to take title and possession by deposit would be one of the

most plausible incidents to come with it. Yet courts have

held that § 717f(h) confers no such power. Quick-take was

not at issue below, so the point goes to the breadth of the

2. Other incidents likewise do not transfer automatically. See

Vector Pipeline, L.P. v. 68.55 Acres, 157 F. Supp. 2d 949, 960 (N.D.

Ill. 2001) (DTA’s deposit-based interest limitation governs takings

by the United States and neither Rule 71.1 nor the NGA contains a

counterpart applicable to a private NGA condemnor); Maritimes

& Ne. Pipeline, L.L.C. v. 16.66 Acres, 190 F.R.D. 15, 17 n.1 (D. Me.

1999) (private NGA condemnor cannot invoke the United States’

sovereign immunity to bar a counterclaim); Equitrans, L.P. v.

0.56 Acres, 145 F. Supp. 3d 622, 633–34 (N.D.W. Va. 2015) (Rule

71.1(e) independently limits counterclaims as a procedural matter).

9

panel’s rationale, not its holding. But that is exactly the

problem: “inherited all” cannot itself answer whether the

Federal Government’s compensation rule travels with

the delegated power when other rules governing federal

condemnations demonstrably do not.

D.

Federal authorization does not automatically

confer governmental protections on private

actors.

Recent decisions outside the eminent-domain context

reinforce the same principle: private actors do not

automatically acquire governmental protections merely

because they perform federally authorized work.

In GEO Group v. Menocal, the Court held that a

private contractor performing federal work does not enjoy

the Government’s “derivative sovereign immunity.” 607

U.S. 438, 449–50 (2026). Sovereign immunity, the Court

explained, “is not transferrable to agents, including

contractors, of a government,” and “belongs alone to the

Government.” Id.

Hencely made the related point in rejecting federalcommon-law preemption of state tort claims. The Court

explained that Boyle v. United Technologies Corp., 487

U.S. 500 (1988), addresses “a special circumstance” in

which “the government has directed a contractor to do

the very thing that is the subject of the claim.” Hencely,

146 S. Ct. at 1095 (quoting Correctional Servs. Corp. v.

Malesko, 534 U.S. 61, 74 n.6 (2001)). Absent a contrary

statute, States may regulate or tax federal contractors “on

the same terms as any private company.” Id. at 1098–99.

10

Neither decision concerns eminent domain nor

resolves the compensation question. Their narrower

relevance is that federal authorization does not itself

confer governmental protections on a private actor. That

principle reinforces—but does not drive—the eminentdomain authorities above.

E. Bodcaw defines the constitutional minimum

but does not answer the choice-of-law question

here.

The Eighth Circuit also relied on Bodcaw, but

Bodcaw’s holding is narrower than the court supposed.

Bodcaw held that a landowner’s appraisal and other

litigation expenses are generally not part of the “just

compensation” required by the Fifth Amendment when

the United States condemns property. 440 U.S. at 203–04.

That establishes the constitutional minimum on that point.

It does not establish that the Fifth Amendment supplies

the exclusive measure whenever a private party exercises

federally delegated condemnation authority.

Bodcaw’s separate rule that “litigation costs cannot

be assessed against the United States in the absence of

statutory authorization,” id. at 203 n.3, is likewise specific

to the sovereign. As the Third Circuit observed, nothing in

United States v. Miller, 317 U.S. 369 (1943), or its progeny

“expands its reach to condemnations by private entities.”

Tenn. Gas Pipeline Co. v. Permanent Easement for 7.053

Acres, 931 F.3d 237, 248 (3d Cir. 2019). Those decisions fix

the measure of compensation for property condemned “by

the United States.” Id.

11

The Eighth Circuit itself acknowledged the difference.

When the United States condemns, the court acknowledged,

the “powerful federal interests at play” are “arguably

weightier than when a private company like WBI is

acting on its own,” and requiring a private condemnor

to pay attorney’s fees and other indirect costs “does not

raise the same fiscal ‘concerns about the spending of

federal dollars’ that exist when the United States does

the taking.” WBI Energy, 132 F.4th at 1062. The court

dismissed those differences as “policy arguments better

addressed to Congress.” Id. But whether the rationale

for a rule governing the sovereign extends to a private

delegatee is a legal question, not a policy question. And

where Congress has not answered it, the displacement

principles that govern, addressed below, point to state law.

II. Section 717f(h)’s Silence Does Not Make the

Fifth Amendment the Exclusive Measure of

Compensation.

A.

Section 717f(h)’s text does not displace state

compensation law.

Petitioners’ opening brief explains in detail why

ordinary statutory interpretation points to state

compensation law. Pet’rs Br. 12–37. But even if the Court

instead reads § 717f(h)’s silence as leaving a choice-of-law

gap, neither the Act nor the Fifth Amendment supplies an

exclusive federal rule. The question would then become

whether federal law displaces the otherwise applicable

state law or adopts it as the federal rule of decision.

What the Act does say confirms that Congress did not

affirmatively displace state law.

12

Section 717f(h)’s forum and procedural provisions

point, if anything, toward the States. A certificate holder

may proceed “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). And, as

enacted, a federal action’s “practice and procedure . . .

shall conform as nearly as may be” to those of the state

where the property sits. Id. That conformity requirement

governed “procedural matters only.” United States v.

93.970 Acres, 360 U.S. 328, 333 n.7 (1959). Rule 71.1 has

since superseded it in federal court without supplying

any measure of compensation. See Fed. R. Civ. P. 71.1.

Any suggestion that specifying state procedure silently

commands federal substance is thus an argument from

congressional silence rather than statutory command, and

Petitioners explain why it would also create an incoherent

regime in which federal courts apply a federal rule while

state courts apply their own. Pet’rs Br. 48.

The 1947 amendment’s history confirms the point.

Congress supplied a federal power to condemn because

certificate holders had been “left to rely on state eminent

domain procedures, which were frequently made

unavailable to them.” PennEast, 594 U.S. at 489. That

history explains the grant of a power, not the displacement

of the law governing what a private condemnor must pay.

Further, 93.970 Acres does not dictate otherwise.

There, the United States itself condemned a leasehold

needed for a military installation and applying the State’s

election-of-remedies doctrine would have forced the

Government to surrender either its contractual right of

revocation or its right to immediate possession. 360 U.S.

at 332. In that setting, the Court said “[c]ondemnation

13

involves essential governmental functions” and that

federal law governs where “essential interests of the

Federal Government” are concerned. Id. at 332–33. But

the case did not involve compensation owed by a private

delegatee, nor did it ask whether state law should supply

the federal rule where Congress has left that question

unanswered. Those are the questions to which Wallis and

Kimbell Foods speak.

B. Wallis and Kimbell Foods make displacement,

not borrowing, the exceptional step.

The governing framework begins with Wallis. Before

a federal court fashions a federal rule, “a significant

conflict between some federal policy or interest and the

use of state law . . . must first be specifically shown.” 384

U.S. at 68. It is not enough that Congress could have

enacted a complete federal regime: “[w]hether latent

federal power should be exercised to displace state law

is primarily a decision for Congress,” which legislates

“against the background of the total corpus juris of the

states.” Id. Kimbell Foods applies the same allocation. It

“reject[ed] generalized pleas for uniformity as substitutes

for concrete evidence” of impairment and held that,

absent such reasons, “the prudent course is to adopt the

readymade body of state law as the federal rule of decision

until Congress strikes a different accommodation.” 440

U.S. at 729–30, 739–40.

The decision below inverted that framework. It treated

§ 717f(h)’s silence as eliminating any choice-of-law inquiry

and making the constitutional minimum the exclusive

rule, while dismissing the reasons for applying state law

as “policy arguments better addressed to Congress.”

14

WBI Energy, 132 F.4th at 1062–63. But Wallis assigns

the decision in precisely the opposite direction. It is the

displacement of state law that is “primarily a decision for

Congress.” 384 U.S. at 68. Congressional silence itself

does not displace state law. Absent a demonstrated conflict

with federal policy, Kimbell Foods points to the readymade law of the state where the property lies. 3

C.

Georgia Power applied this framework to the

model federal statute and declined to displace

state law.

The same framework has already been applied to the

closely parallel delegation in Section 21 of the Federal

Power Act. In Georgia Power Co. v. 138.30 Acres, the en

banc Fifth Circuit began “with the premise that state

law should supply the federal rule” absent contrary

congressional intent or a significant conflict with federal

interests. 617 F.2d 1112, 1115–16 (5th Cir. 1980) (en banc).

Because the condemnation involved a private licensee

using private funds to acquire private property, the federal

interests were “not sufficient to warrant displacement of

state law” governing compensation. Id. at 1118.

Georgia Power’s approach became the prevailing

rule under the Natural Gas Act, as Petitioners recount.

Pet’rs Br. 3–4, 35. What makes that Federal Power Act

3. To the extent that a party or the United States invokes

the American Rule, that rule does not resolve the antecedent

choice-of-law question whether state law should be incorporated

as the federal rule under Kimbell Foods. Amici curiae do not ask

this Court to determine the ultimate operation of N.D. Cent. Code

§ 32-15-32. That state-law issue may be addressed on remand.

15

precedent decisive here is that Congress “intended the

eminent-domain right to be coextensive under the Federal

Power Act and the Natural Gas Act,” and that under both

statutes courts “must apply the same substantive law

on what ‘compensation’ includes.” Sabal Trail, 59 F.4th

at 1169–70. The choice-of-law analysis Georgia Power

performed under the model statute therefore governs the

same question under § 717f(h).

D.

No significant conflict has been shown, and

formal symmetry, higher costs, and hypothetical

future state laws do not supply one.

The decision below reduced the question to a metaphor:

the “rules of the road do not change,” it reasoned, when the

Government “hands the keys over to a private party like

WBI.” 132 F.4th at 1062. But Atherton v. FDIC rejected

the same move: a federal charter, standing alone, “shows

no conflict, threat, or need for ‘federal common law’” and

“does not answer the critical question.” 519 U.S. 213, 223

(1997). A court may not “substitute analogy or formal

symmetry for the controlling legal requirement,” which is

the existence of a significant conflict or threat to a federal

interest. Id. at 224. WBI’s exercise of federally delegated

condemnation authority therefore identifies a federal

interest. It does not establish that state compensation law

significantly conflicts with that interest.

Increased cost does not supply the required conflict. In

O’Melveny & Myers v. FDIC, the FDIC argued that state

law might “deplet[e] the deposit insurance fund,” but the

Court rejected a theory resting on “the forgoing of any

money which, under any conceivable legal rules, might

accrue to the fund.” 512 U.S. 79, 88 (1994) (alteration and

16

emphasis in original). “[T]here is no federal policy that

the fund should always win,” the Court explained, and its

cases have “previously rejected ‘more money’ arguments.”

Id. Georgia Power reached the same conclusion in the

parallel condemnation context. Although the utility

argued that state law would increase acquisition costs

passed on to consumers, the en banc court refused to make

Georgia landowners “partially . . . subsidize a private

Georgia utility and consumers of electric power” absent

evidence that Congress had struck that balance. 617 F.2d

at 1123–24. The possibility that state law may require a

private pipeline company to pay more likewise does not

establish a significant conflict with federal policy.

The rule does not require borrowing state law when an

actual conflict exists. National Railroad Passenger Corp.

v. Two Parcels applied the Georgia Power framework but

declined to borrow a Connecticut rule that would have

forced Amtrak either to pursue local variance proceedings

or to pay for entire parcels irrespective of their nexus

to the project, contrary to an express statutory limit on

Amtrak’s condemnation authority. 822 F.2d 1261, 1265–67

(2d Cir. 1987). That was concrete interference with the

operation of a national federal program. By contrast, the

court distinguished Georgia Power precisely because the

state rule there “resulted solely in higher condemnation

costs.” Id. at 1267. That is the only concrete consequence

identified here. Two Parcels therefore illustrates the

significant-conflict exception rather than undermining

the borrowing framework.

17

Experience under the state-law rule confirms

the absence of any demonstrated conflict here. 4 The

Sixth Circuit identified the “only conceivable effect” of

borrowing state law as the possibility that condemnors

“might be required to pay more or less than under an

alternative federal common-law rule,” a variation “far too

speculative to warrant displacing state law.” Columbia

Gas Transmission Corp. v. Exclusive Nat. Gas Storage

Easement, 962 F.2d 1192, 1198 (6th Cir. 1992). The Third

Circuit tested the concern more concretely. Although

recognizing that a state rule could theoretically be “so

far out of step with federal law as to create a significant

conflict,” the court noted that, “[p]ressed at length for

other examples of ‘crazy state laws,’” counsel for the

pipeline company “could not produce any,” and the court

was “unpersuaded by the theoretical possibility that some

others may exist.” Tenn. Gas, 931 F.3d at 253–54. Kimbell

Foods leaves room to except a state law that actually

prejudices federal interests. What it does not permit is

displacement of state law across the board based on a

conflict that remains hypothetical.

4. Indeed, the district court here reached the same

conclusion. Applying the Kimbell Foods factors, it found that an

award of attorney’s fees would not frustrate the objectives of the

Natural Gas Act. WBI Energy Transmission, Inc. v. Easement &

Right-of-Way Across, No. 1:18-cv-78, 2022 WL 22649232, at *5–7

(D.N.D. Nov. 1, 2022).

18

CONCLUSION

For the foregoing reasons, the Court should hold that

just compensation is determined by reference to state law

when a private party condemns under the Natural Gas

Act and reverse the judgment below.

Respectfully submitted,

A aron Gott

Ruth Glaeser

Bona Law PC

331 2nd Avenue South,

Suite 420

Minneapolis, MN 55401

A aron Lawrence

Sabri Siraj

Bona Law PC

16 Madison Square West,

9th Floor

New York, NY 10010

Luke Hasskamp

Counsel of Record

Jarod Bona

Bona Law PC

4275 Executive Square,

Suite 200

La Jolla, CA 92037

(858) 964-4589

luke.hasskamp@bonalawpc.com

Counsel for Amici Curiae