Amicus Curiae Brief — Leonard W. Hoffmann, et al., Petitioners v. WBI Energy Transmission, Inc.

Supreme Court briefAug 20, 2026

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No. 25-159

IN THE

LEONARD W. HOFFMANN, ET AL.,

Petitioners,

WBI ENERGY TRANSMISSION, INC.,

Respondent.

On Writ of Certiorari to the United States Court of

Appeals for the Eighth Circuit

BRIEF OF THE NATIONAL ASSOCIATION OF

REALTORS®, AMERICAN FARM BUREAU

FEDERATION, AND REALTORS® LAND

INSTITUTE AS AMICI CURIAE

IN SUPPORT OF PETITIONERS

Ellen Steen

Sam Spiegelman

Travis Cushman

Counsel of Record

Michael D. Thorp

SPIEGELMAN LAW GROUP

AMERICAN FARM

PO Box 1354

BUREAU FEDERATION

New York, NY 10028

600 Maryland Ave. SW 201.314.9505

Washington, DC 20024 sam@spiegelmanlawgroup.com

August 20, 2026

Counsel for Amici Curiae

TABLE OF CONTENTS

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

INTEREST OF AMICI CURIAE .............................1

INTRODUCTION AND SUMMARY OF

ARGUMENT .........................................................2

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

I. THE PRECEDENTIAL DANGERS LURKING IN THE

EIGHTH CIRCUIT’S RULING ...................................4

A. The Error Below Will Not Confine

Itself to the Eighth Circuit ...................4

B. The Error Threatens to Disincentivize

Well-Founded Takings Claims .........................7

C. How and Why the Eighth Circuit’s Rule Will

Travel ....................................................................9

II. THE ECONOMIC COSTS OF DISINCENTIVIZING

TAKINGS CLAIMS ON THOSE ENGAGED IN LAND

SALES AND CULTIVATION ................................... 11

A. Just Compensation and the

Economics of Farming........................ 13

B. Just Compensation and the

Economics of Real Estate .................. 19

CONCLUSION........................................................ 24

TABLE OF AUTHORITIES

Page(s)

Cases

Almota Farmers Elev. & Whse. Co. v.

United States, 409 U.S. 470 (1973) .......................15

Atchison, Topeka & Santa Fe R.R. Co. v.

Matthews, 174 U.S. 96 (1899)..............................7, 8

Berman v. Parker, 348 U.S. 26 (1954) ....................6, 8

Block v. Hirsh, 256 U.S. 135 (1921) ..........................21

City of Buffalo v. J.W. Clement Co.,

269 N.E.2d 895 (N.Y. 1971) ...................................21

Columbia Gas Transmission Corp. v. Exclusive

Natural Gas Storage Easement, 962 F.2d 1192

(6th Cir. 1992) ..........................................................4

Emeryville Redev. Agency v. Harcros Pigments,

Inc., 125 Cal. Rptr. 2d 12 (Ct. App. 2002) .............23

Ga. Power Co. v. 138.30 Acres of Land,

617 F.2d 1112 (5th Cir. 1980) (en banc) .............4, 9

Goldstein v. Pataki, 516 F.3d 50 (2d Cir. 2008) .........6

Kelo v. City of New London, 545 U.S. 469 (2005) ...5, 6

Miss. River Transmission Corp. v. Tabor,

757 F.2d 662 (5th Cir. 1985)....................................4

Monongahela Navigation Co. v. United States,

148 U.S. 312 (1893) ..................................................2

N.D. Dep’t of Transp. v. Rosie Glow, LLC,

911 N.W.2d 334 (N.D. 2018) ..................................18

Olson v. United States, 292 U.S. 246 (1934) ...... 12, 19

Pa. Coal Co. v. Mahon, 260 U.S. 393 (1922) ............20

iii

Penn Cent. Transp. Co. v. City of New York,

438 U.S. 104 (1978) ................................................23

PennEast Pipeline Co. v. New Jersey,

594 U.S. 482 (2021) ..................................................5

Pumpelly v. Green Bay Co., 80 U.S. (13 Wall.) 166

(1871) ......................................................................20

Sabal Trail Transmission, LLC v. 18.27 Acres

of Land, 59 F.4th 1158 (11th Cir. 2023) .................4

Tenn. Gas Pipeline Co. v. Permanent Easement

for 7.053 Acres, 931 F.3d 237 (3d Cir. 2019) ...........4

Timbs v. Indiana, 586 U.S. 146 (2019) .....................16

Tyler v. Hennepin Cnty., 598 U.S. 631 (2023) ..........16

United States v. 564.54 Acres of Land,

441 U.S. 506 (1979) .......................................... 12, 23

United States v. Bodcaw Co., 440 U.S. 202

(1979) .................................................................. 2, 15

United States v. Gettysburg Elec. Ry. Co.,

160 U.S. 668 (1896) ..................................................8

United States v. Kimbell Foods, Inc.,

440 U.S. 715 (1979) ................................................10

United States v. Miller, 317 U.S. 369 (1943) ...... 12, 17

Valley Elec. Ass’n v. Overfield, 106 P.3d 1198

(Nev. 2005) .............................................................15

Yee v. City of Escondido, 503 U.S. 519 (1992) ..........21

Statutes

15 U.S.C. §717f(h) .......................................................9

16 U.S.C. §814 .............................................................9

16 U.S.C. §824p(f)(2) ...................................................9

33 U.S.C. §532 .............................................................9

40 U.S.C. §3113 .......................................................8, 9

Iowa Code §6B.33 ......................................................15

Minn. Stat. §117.031(a) .............................................15

Other Authorities

Aaron Bartholomew, Businesses Beware: The

Changing Face of Attorney-Fee Awards in

U.S. Courts, 13 Am. U. Bus. L. Rev. 1 (2024) .......16

Aaron Walayat, When Can a Power Company Take

Your Land for Data Center Infrastructure?,

The Conversation (July 16, 2026) .........................10

Abraham Bell & Gideon Parchamovsky, Taking

Compensation Private, 59 Stan. L. Rev. 871

(2007) ......................................................................16

Alexandra B. Klass, Eminent Domain Law as

Climate Policy, 2020 Wis. L. Rev. 49 (2020) ...........9

Allison Gocke, A Tale of Two Delegations: Some

Reflections on PennEast, 41 Va. Envtl. L. Rev.

62 (2023) ...............................................................6, 9

Am. Farmland Tr., New Land Transfer Program to

Help Nation’s Farmers Protect and Access

Farmland (Dec. 7, 2023) ........................................14

Desiree C. Hensley, Build, Baby, Build: Federal

Takings for Affordable Homes, 91 Mo. L. Rev.

21 (2026) ...............................................................5, 9

Eric R. Claeys, Takings, Regulations, and Natural

Property Rights, 88 Cornell L. Rev. 1549 (2003) ..20

Exec. Order No. 14,318, Accelerating Federal

Permitting of Data Center Infrastructure

(July 23, 2025)........................................................10

GAO-24-106690, Gas Pipeline Safety: Better Data

and Planning Would Improve Implementation

of Regulatory Changes (2024) ................................17

Good Jobs First, Data Center Moratorium Bills

Are Spreading in 2026 (2026)................................10

Ilya Somin, The Grasping Hand: Kelo v. City of New

London and the Limits of Eminent Domain

(2015) ........................................................................8

Ilya Somin, The Judicial Reaction to Kelo,

4 Alb. Govt. L. Rev. 1 (2011)....................................8

Joseph Gyourko & Jacob Krimmel, The Impact of

Local Residential Land Use Restrictions on Land

Values Across and Within Single Family Housing

Markets, 126 J. Urb. Econ. 103374 (2021) ..............9

Julia L. Hansen et al., Environmental Hazards and

Residential Property Values: Evidence from a

Major Pipeline Event, 82 Land Econ. 529

(2006) ......................................................................21

Letter from Benjamin Franklin to Jean-Baptiste Le

Roy (Nov. 13, 1789), in 10 The Writings of

Benjamin Franklin (Albert Henry Smyth ed.,

1907) .......................................................................19

Nicole Karwowski, Estimating the Effect of

Easements on Agricultural Production, Nat’l Bur.

Econ. Res., Working Paper No. 30156 (2022) .......18

Nicole Stelle Garnett, The Neglected Political

Economy of Eminent Domain,

105 Mich. L. Rev. 101 (2006) ........................... 22, 23

S. 4214, 119th Cong. (2026) ......................................10

Stephen Morgan et al., The Economic Impacts of

Retaliatory Tariffs on U.S. Agriculture, ERR-304,

U.S. Dep’t of Agric., Econ. Res. Serv. (2022) ........11

Theresa Brehm & Steve Culman, Soil Degradation

and Crop Yield Declines Persist 5 Years After

Pipeline Installations, 87 Soil Sci. Soc’y Am. J.

350(2023) ................................................................17

Thomas W. Merrill, Incomplete Compensation for

Takings, 11 N.Y.U. Envtl. L.J. 110 (2002) ............16

U.S. Dep’t of Agric., Econ. Res. Serv., Farm Sector

Income & Finances: Assets, Debt, and Wealth

(Feb. 5, 2026)..........................................................13

U.S. Dep’t of Agric., Econ. Res. Serv., Farm Sector

Income & Finances: Highlights From the Farm

Income Forecast (2026) ..........................................14

Vicki Been et al., Supply Skepticism: Housing Supply

and Affordability, 29 Hous. Pol’y Debate 25

(2019) ......................................................................12

INTEREST OF AMICI CURIAE 1

The National Association of REALTORS®

(“NAR”) is a national trade association representing

over 1.4 million members, including its institutes,

societies, and councils involved in all aspects of the

residential and commercial real estate industries.

Members are residential and commercial brokers,

salespeople,

property

managers,

appraisers,

counselors, and others engaged in the real estate

industry. Members belong to one or more of the

approximately 1,200 local and 54 state and territory

associations of REALTORS® and support private

property rights, including the right to own, use, and

transfer real property.

The American Farm Bureau Federation

(“AFBF”) was formed in 1919 and is the largest

nonprofit general farm organization in the United

States. AFBF has member organizations in all 50

states and Puerto Rico, representing more than 5.5

million member families. AFBF protects, promotes,

and represents the interests of American farmers and

ranchers. AFBF has participated as an amicus in

numerous cases before this Court in support of

property rights, in particular those of America’s

farmers.

The REALTORS® Land Institute (“RLI”) is a

nonprofit advocacy organization affiliated with NAR,

with a specific focus on developing and advocating on

behalf of a network of professionals who broker, lease,

1 Pursuant to Rule 37, counsel for amici affirm that no counsel

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

or entity, other than amici, their members, or counsel, made any

monetary contribution to its preparation or submission. All

parties received timely notice of amici’s intention to file.

develop, and manage open lands, including farms,

ranches,

recreational,

timberland,

vineyards,

orchards, and undeveloped tracts of land.

As the most prominent voices for the nation’s

housing and agricultural sectors, amici write to

impress upon this Court the urgent political, social,

and economic stakes lurking behind the legal

questions this case presents. If left standing, the

Eighth Circuit’s ruling will have a chilling effect on

inverse condemnation litigation everywhere. Given

the stakes for all of their memberships, amici will

discuss the various ways in which this chill would

undermine the constitutional and economic rights of

private property owners nationwide.

INTRODUCTION AND

SUMMARY OF ARGUMENT

While North Dakota’s definition of “just

compensation” aligns with those of many states to

include the costs of litigating a private-to-private land

transfer under the Natural Gas Act, the federal

version—the one the Eighth (but no other Circuits)

adopted—pointedly does not. For Natural-Gas-Act

condemnees in Arkansas, Iowa, Minnesota, Missouri,

Nebraska, and the Dakotas, the ruling means

internalizing litigation costs that could erase or even

exceed whatever the compensation to which the

Takings Clause entitles them. See Pet. App. 6a–10a;

United States v. Bodcaw Co., 440 U.S. 202, 203 (1979)

(per curiam) (quoting Monongahela Navigation Co. v.

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

provided that just compensation “is for the property,

and not to the owner”).

The argument proceeds in two Parts. Part I

explains why and how the error below will spread

beyond the facts of this case and the walls of the

courthouse in which it was made. The Eighth Circuit’s

presumption—that congressional silence displaces

state compensation law—inverts the rule this Court

has long applied to statutes that touch core state

domains, and it arrives at a moment when advocates

are already ascribing “public use” to functions that no

court has ever endorsed. The same silence on

compensation that the Eighth Circuit construed as

embedding the federal formula within the Natural

Gas Act (and, by extension, the Federal Power Act) is

ripe to appear in countless other potential delegations

of federal power.

Part II counts the costs of the Eighth Circuit’s

error to farmers and property owners, whom amici

represent. For farmers—whose land is 83 percent of

everything the sector owns and whose median farm

income is currently in the red—a compensation

measure that excludes litigation costs converts almost

every meritorious claim for more compensation into a

losing trade, and every opening offer into a discount

priced accordingly. For real estate professionals and

the property owners they represent, the same

measure writes a permanent markdown into the

value of homes within an existing or potential

infrastructural corridor. Both injuries flow from the

same source—a definition of “just compensation” that

excludes the costs of vindicating one’s constitutional

rights and thus almost invariably falls well short of

making owners whole. The Fifth Amendment’s floor

was never meant to be the Natural Gas Act’s ceiling.

This Court should reverse and hold, alongside the four

other federal circuits that have considered the issue,

that just compensation in private condemnations

under the Act and other federal delegations silent on

the matter is to be measured not by federal de facto

rules, but by the de jure rules of the state in which the

property sits.

ARGUMENT

THE PRECEDENTIAL DANGERS LURKING IN

THE EIGHTH CIRCUIT’S RULING

A. The Error Below Will Not Confine Itself to

the Eighth Circuit

The Eighth Circuit’s rule—which runs contrary to

that of the Third, Fifth, Sixth, and Eleventh

Circuits 2—at once incentivizes condemnors to reduce

payouts to far below fair-market values while

disincentivizing condemnees from seeking to

vindicate their constitutional rights to the fullest. Left

unchecked, the Eighth’s ruling will likely begin to

inform the meaning of “just compensation” in other

areas of federal law within the Circuit and perhaps

beyond. Most concerning to REALTORS® and the

professionals and property owners they represent is

the prospect that the compensation for federal

condemnations of residential areas—yes, for

pipelines, but more commonly for interstate

highways, airports, military installations, and border

security—will

likewise

decline

precipitously,

artificially depressing sales prices of homes in the

planned or potential path of such projects.

2 Tenn. Gas Pipeline Co. v. Permanent Easement for 7.053 Acres,

931 F.3d 237 (3d Cir. 2019); Miss. River Transmission Corp. v.

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

Transmission Corp. v. Exclusive Natural Gas Storage Easement,

962 F.2d 1192 (6th Cir. 1992); Sabal Trail Transmission, LLC v.

18.27 Acres of Land, 59 F.4th 1158 (11th Cir. 2023); Ga. Power

Co. v. 138.30 Acres of Land, 617 F.2d 1112 (5th Cir. 1980) (en

banc) (same rule, but under the Federal Power Act).

These fears are by no means baseless. For years

now, advocates for more public control over private

interests have been reframing PennEast as they have

many questionable applications of “public use” since

Kelo. See PennEast Pipeline Co. v. New Jersey, 594

U.S. 482 (2021) (permitting private condemnation

under federal auspice); Kelo v. City of New London,

545 U.S. 469 (2005) (allowing condemnation and

transfer to another private entity for the “public use”

of economic development).

One law professor, severely misreading PennEast

and Kelo, recently went so far as to argue that “a

taking by the federal government for the purpose of

producing affordable housing during today’s

nationwide housing market failure satisfies the Fifth

Amendment’s ‘public use’ requirement.” Desiree C.

Hensley, Build, Baby, Build: Federal Takings for

Affordable Homes, 91 Mo. L. Rev. 21, 56 (2026)

(ignoring that PennEast did not opine on what

constitutes a “public use” but only the circumstances

under which the federal government can delegate an

established public use to a private entity for

condemnation; forgetting that Kelo said New London’s

specific plan passed the “public use” test, not that

anything that plausibly improved economic conditions

would). 3 Another misreads PennEast spectacularly,

certain that because the Court signed off on the

Federal Energy Regulatory Commission’s (“FERC”)

authority to delegate a “certificate of public

convenience and necessity” to private contractors, the

“public use standard” in this context is “simply

whether a pipeline was lawfully found to be required

by the public convenience and necessity.” Alison

3 See Kelo, 545 U.S. at 478 (takings “under the mere pretext of a

public purpose” remain forbidden).

Gocke, A Tale of Two Delegations: Some Reflections on

PennEast, 41 Va. Envtl. L. Rev. 62, 72–73 (2023). The

author seems to believe that the name of FERC’s

“public-convenience-and-necessity certificate” for

what has long been understood as a constitutional

“public use” (pipelines and other utilities) somehow

qualifies any uses that officials deem necessary or

even merely convenient to the public. This recursive

exercise clearly means to amplify PennEast into more

than it is—as some federal courts did, and continue to

do, for Kelo. See, e.g., Goldstein v. Pataki, 516 F.3d 50,

58 (2d Cir. 2008) (dismissing a pretext claim at the

pleadings). Cf. Kelo, 545 U.S. at 491 (Kennedy, J.,

concurring) (offering that a “plausible accusation of

impermissible favoritism” deserves serious review).

Indeed, Kelo’s progeny feature more than a handful of

endorsements of “public use” that would not even pass

Justice William O. Douglas’s notorious “well-nigh

conclusive” deference standard. Berman v. Parker,

348 U.S. 26, 32 (1954) (“Subject to specific

constitutional limitations”—a qualifier subsequent

courts tend, conveniently, to ignore—“when the

legislature has spoken, the public interest has been

declared in terms well-nigh conclusive.”).

The Eighth Circuit’s rule poses a number of

serious constitutional and economic dangers, not least

of which are the license it grants condemnors to

discount every opening offer by the price of resistance,

and the invitation it extends to read other, similarly

silent federal delegations the same way. None of this

requires the Court to revisit Kelo or PennEast. It only

asks that the Court decline to let a compensation rule

built by one sovereign supplant that of another, more

natural candidate, especially doing so without much,

if any, examination into whether federalism actually

demands that result.

B. The Error Threatens to Disincentivize

Well-Founded Takings Claims

This case does not turn on the proper scope of

“public use.” Instead, it asks only whether the “just

compensation” paid for condemnations for the public’s

use “be determined by reference to state law.” 4 Given

the contemporary legal landscape, however, there is a

palpable risk that a ruling endorsing the Eighth

Circuit’s theory of just compensation will add another

hurdle to the doctrinal challenges already facing

property rights advocates striving to cabin “public

use” within its proper constitutional contours. With

respect to amici, the Eighth Circuit’s standalone

refusal to apply state rules of just compensation to

federal takings, if nationalized, would in one fell

swoop effectively close the courthouse doors to

countless condemned owners. Research into the

behavioral economics of litigation has long noted that

artificially reducing the ex-ante odds that a would-be

plaintiff—even one with meritorious claims—will

obtain judicial relief commensurately disincentivizes

their taking legal action in the first place.

This Court has long acknowledged that feeshifting can affect compliance with the law, including

by discouraging private enforcement. In Atchison,

Topeka & Santa Fe Railroad Co. v. Matthews, 174

U.S. 96 (1899), this Court held that a railroad had to

pay the attorney’s fees of any successful plaintiff who

was injured by a fire caused by the railroad's

operation, as Kansas law dictated. The railroad

claimed that the statute violated the Fourteenth

4 The question presented reads in full: “In private condemnations

under the Natural Gas Act, should just compensation be

determined by reference to state law?” Pet. i.

Amendment because it arbitrarily singled out

railroads to be penalized for failing to pay debts. This

Court responded that the purpose of the statute was

to “secure the utmost care on the part of railroad

companies to prevent the escape of fire from their

moving trains,” and, therefore, the statute was a valid

police regulation. Id. at 98. There is no reason why

just-compensation compliance should be impervious

to the same incentive structure.

Kelo created a backlash wave of state legislation

aimed at “Kelo-proofing” private property rights. Ilya

Somin, The Grasping Hand: Kelo v. City of New

London and the Limits of Eminent Domain 135–65

(2015). But it did not spur the same federal response,

especially not from the courts. See generally Ilya

Somin, The Judicial Reaction to Kelo, 4 Alb. Govt. L.

Rev. 1 (2011) (discussing the very mixed response to

Kelo, especially as between state and federal courts).

Part of the problem in the federal system is that its

judges are beholden to more than a century of statute

and caselaw that offer the federal government broad

latitude to define “public use” as befits the context.

See, e.g., 40 U.S.C. §3113 (authorizing condemnation

whenever an authorized officer deems it “necessary or

advantageous to the Government”). See also Berman,

348 U.S. at 32; United States v. Gettysburg Elec. Ry.

Co., 160 U.S. 668, 681–82 (1896) (calling the

“[v]aluable lessons in the art of war” a “public use”

that is “so closely connected with the welfare of the

republic itself” to justify the condemnation of private

lands for statues, monuments, and other war

memorials).

Couple ongoing judicial confusion with a growing

chorus of academics, policy thinkers, and

commentators from across the ideological spectrum

pushing brave new uses of eminent domain to fasttrack quick-fix solutions to any number of real and

perceived socioeconomic ailments. See, e.g., Hensley,

supra; Gocke, supra; Alexandra B. Klass, Eminent

Domain Law as Climate Policy, 2020 Wis. L. Rev. 49,

51 (2020) (calling for the use of eminent domain “to

slow or halt the continued development of fossil fuel”

while permitting it to continue for “clean energy”

projects). These are ills that market forces are

apparently incapable of addressing—provided one

effectively ignores the inertial impact of decades of

overregulation in nearly every aspect of American life.

See generally Joseph Gyourko & Jacob Krimmel, The

Impact of Local Residential Land Use Restrictions on

Land Values Across and Within Single Family

Housing Markets, 126 J. Urb. Econ. 103374 (2021).

C. How and Why the Eighth Circuit’s Rule

Will Travel

Statutes like the Federal Power Act’s licensee

provision, 16 U.S.C. §814, and the government’s

general condemnation authority, 40 U.S.C. §3113,

both permit the federal government to seize or

contract for the seizure of private property. But like

the Natural Gas Act, both do so without identifying

the proper measure(s) for just compensation. Compare

15 U.S.C. §717f(h) and 16 U.S.C. §814 with 33 U.S.C.

§532 (expressly borrowing state compensation law),

and 16 U.S.C. §824p(f)(2) (supplying a federal

definition). Congress knows how to choose the

measure for compensation. When it does not, the rule

defaults to state law. See, e.g., Ga. Power Co., 617 F.2d

at 1123.

While authorities typically steer pipelines away

from residential zones, the same cannot be said for the

recent proliferation if data centers that have become

a new node of both local and national debate. And as

the prospect grows for federal laws to overrule local

moratoria on data centers, the question of how—and

how fully—to compensate owners in those projects’

paths will not stay confined to gas lines for long. See

Exec. Order No. 14,318, Accelerating Federal

Permitting of Data Center Infrastructure (July 23,

2025); Good Jobs First, Data Center Moratorium Bills

Are Spreading in 2026 (2026) (tracking moratorium

bills in at least a dozen states) (available at:

https://tinyurl.com/2j46aejx); S. 4214, 119th Cong.

(2026)

(proposing

the

opposite—a

federal

moratorium).

Utilities in Georgia, Pennsylvania, and elsewhere

are already invoking—or threatening—eminent

domain to route transmission lines to hyperscale

computing campuses, and landowners are contesting

whether such takings serve a “public use” at all. Aaron

Walayat, When Can a Power Company Take Your

Land for Data Center Infrastructure?, The

Conversation (July 16, 2026) (available at:

https://tinyurl.com/mr2ztbys). However those publicuse disputes are resolved, the compensation question

inevitably follows right behind. And if federal law

comes to occupy this field the way the Natural Gas Act

occupies pipelines, the decision below supplies the

default—that is, the constitutional floor, fees

excluded, for every parcel in its path.

This Court knows well that when Congress

legislates against the backdrop of state property law

and says nothing about the measure of compensation,

state law typically fills in the gap. United States v.

Kimbell Foods, Inc., 440 U.S. 715, 727–29 (1979)

(reasoning that “when there is little need for a

nationally uniform body of law, state law may be

incorporated as the federal rule of decision” because

the state code “furnish[es] convenient solutions” that

are “in no way inconsistent with adequate protection

of the federal interests” implicated) (internal citation

omitted). The Court should say so plainly here—

before the Eighth Circuit’s contrary presumption

writes itself into the Federal Power Act, the general

condemnation statute, and whatever new statutes

Congress enacts as the nation’s infrastructure

continues to evolve.

II.

THE ECONOMIC COSTS OF DISINCENTIVIZING

TAKINGS CLAIMS ON THOSE ENGAGED IN LAND

SALES AND CULTIVATION

At first glance, farmers (and ranchers) and real

estate professionals do not have much in common.

One cultivates land, the other clientele. The former

tends to open fields, the latter open houses. Outside

these and a litany of other differences, however, both

share a fundamental dependence upon real estate—

either the cultivation or purchase and sale thereof—

to secure the fruits of their labor and thereby play

their part in a functional economy.

Every artificial adjustment to the fair market

value of their (or their clients’) real estate carries

costs. Some are less quantifiable than others. It is

difficult (though not impossible) to calculate the dollar

value that a new tariff shaves off of the farmlands

hosting crops and livestock so levied. See, e.g.,

Stephen Morgan et al., The Economic Impacts of

Retaliatory Tariffs on U.S. Agriculture, ERR-304, U.S.

Dep’t of Agric., Econ. Res. Serv., at 16–23 (2022)

(calculating the costs of retaliatory tariffs on various

agricultural items). It is as, if not more difficult to

determine what percentage drop in new builds are

attributable to the rising cost of drywall. So too is

trying to then calculate whether that drop in new

builds actually raises or reduces existing home prices

in one neighborhood over another. See generally Vicki

Been et al., Supply Skepticism: Housing Supply and

Affordability, 29 Hous. Pol’y Debate 25 (2019)

(discussing the “ripple effects” of new construction on

surrounding areas).

While by no means arithmetical, calculating just

compensation typically proves far less daunting. In

most cases, one looks at the market in comparable

properties as it stood at a fixed point in time—that is,

at the moment of actual or effective condemnation

(which carries its own, albeit non-mathematical,

challenges). See Olson v. United States, 292 U.S. 246,

255 (1934) (market value “at the time of the taking

contemporaneously paid in money”). The exercise

involves few, if any, of the more dynamic variables

that tend to complicate the ex-post pricing of

macroeconomic trends (whereas ex-ante pricing is

(relatively) simply a matter of observing real-time,

open-market transactions). Cf. United States v.

Miller, 317 U.S. 369, 376 (1943) (presupposing ease in

calculating if an owner should “have the benefit of any

increment of value added to the property taken by the

action of the public authority in previously

condemning adjacent lands”). The smaller the market,

the more difficult this task becomes. Cf. United States

v. 564.54 Acres of Land, 441 U.S. 506, 510–11 (1979)

(noting the challenges with determining just

compensation when there is no “ready market” for the

property seized).

Given the relative ease in calculating the just

compensation owed to a condemned or overregulated

owner, it is also relatively easy to determine at what

precise dollar figure it becomes economically

irrational for that owner to pursue a takings claim—

as when the likelihood of recovering the legal costs of

securing just compensation goes from potentially

100% under state law to somewhere near zero under

the federal formulation (and this is before one

considers their chances of winning at all).

That is the “easy” part. The complexities mount,

and begin to rival those of the tariff and drywall

examples, if one tries to calculate how the falloff in

meritorious takings claims impacts the housing and

farmland markets overall (for example). 5 Still, even a

partial accounting of the broader economic situation

of farmers and property owners reveals some stark

realities that amici hope will inform the Court’s

decisionmaking.

A. Just Compensation and the Economics of

Farming

Federal authorities forecast that farm real estate

will be worth $3.77 trillion in 2026—83% of all sector

assets. U.S. Dep’t of Agric., Econ. Res. Serv., Farm

Sector Income & Finances: Assets, Debt, and Wealth

(Feb. 5, 2026). Much of it is working collateral, with

farm real-estate debt projected at $404.3 billion for

the same fiscal year. Id. Loans these lands

collateralize are essential to the regular operations of

small- and medium-sized agribusinesses. Id. For

many farming families, the remainder doubles as

retirement funds and inter vivos transfers to

beneficiaries—mostly children and grandchildren—

5 Whether, for example, systematic under-compensation along

certificated corridors depresses land values county-wide,

discourages improvements near mapped routes, or tightens

agricultural credit—questions the literature has only begun to

take up.

who have been preparing for years to assume

ownership and control from the eventual decedents.

See Am. Farmland Tr., New Land Transfer Program

to Help Nation’s Farmers Protect and Access

Farmland (Dec. 7, 2023) (nearly 300 million acres of

farmland expected to change hands within twenty

years) (available at https://tinyurl.com/muu3e56e). In

this light, farmers seeking to vindicate the entire

value lost as a result of a condemnation

underpayment are not haggling at the margins.

Awards that markedly undershoot the actual

obtainable price tag of lands that have both market

and collateral values severely undermine impacted

owners’ capacities to maintain their farms as going

concerns.

For all the wealth tied up in farmland, the median

farm household is forecast to lose money farming in

2026—roughly $1,200 in farm-sourced income, with

wages from outside farming expected to cover some if

not most of the shortfall. U.S. Dep’t of Agric., Econ.

Res. Serv., Farm Sector Income & Finances:

Highlights From the Farm Income Forecast (2026)

(available at: https://tinyurl.com/3bartnur). Most

small (and many medium) outfits do not carry cash

sufficient to spend—and potentially never recover—

on asserting takings claims under the Natural Gas

Act or any other federal law. So when a condemnor’s

opening offer comes in at roughly half of fair market

value—as it did in this case—the Eighth Circuit’s rule

leaves the condemnee the Hobson’s choice to take the

lesser (though certainly sizeable) loss in forfeit sales

revenues or roll the dice, sue for closer to the full

value, and—win or lose—expend a large if not

majority portion of “just” compensation on legal fees.

One Petitioner’s legal bills exceeded $380,000,

whereas under the North Dakota rule that the federal

district court applied, every such dollar was

recoverable. See N.D. Cent. Code §32-15-32; Pet. App.

18a.

This case paints a particularly stark picture.

North Dakota’s rule—the one the district court

applied—enables awarding a condemned owner their

reasonable costs and “reasonable attorney’s fees for all

judicial proceedings” related to the vindication of their

full constitutional rights. N.D. Cent. Code §32-15-32.

Sister states have similar schedules. Minnesota

requires fees, litigation expenses, and appraisal and

expert costs whenever the final award exceeds the

condemnor’s final written offer by more than 40%.

Minn. Stat. §117.031(a). Iowa requires them

whenever the commissioners’ award exceeds 110% of

the final offer. Iowa Code §6B.33.

These rules are by no means perfect—especially

as they tend to provide for flip-switch rather than

graduated relief—but the federal approach pales in

comparison. The latter offers only fair market value—

“the full monetary equivalent of the property taken,”

Almota Farmers Elev. & Whse. Co. v. United States,

409 U.S. 470, 473 (1973) (internal citation omitted)—

with the costs of proving that value excluded outright.

Bodcaw, 440 U.S. at 203 (“[A]ttorneys’ fees and

expenses are not embraced within just compensation.”

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

Compensation rules are set after FERC

certification but long before any condemnation

petition is filed. Condemnors who know, ex ante, that

a would-be condemnee will have to absorb most if not

all of their own litigation costs will of course use this

asymmetrical leverage to their pecuniary advantage.

Cf. Valley Elec. Ass’n v. Overfield, 106 P.3d 1198, 1200

(Nev. 2005) (noting fee exposure can force owners “to

accept unfair ‘low-ball’ settlement offers”). Law-andeconomics literature is chock-full of research

effectively confirming that cost-allocation rules

determine whether meritorious claims are brought at

all, especially in the takings space. See, e.g., Aaron

Bartholomew & Sharon Yamen, Businesses Beware:

The Changing Face of Attorney-Fee Awards in U.S.

Courts, 13 Am. U. Bus. L. Rev. 1, 22–36 (2024)

(cataloguing recent changes to fee-shifting regimes to

a hybrid of the English and American Rules that tend

to favor claimants in order to encourage more, not

less,

litigation);

Abraham

Bell

Gideon

Parchomovsky, Taking Compensation Private, 59

Stan. L. Rev. 871, 887–90 (2007) (analyzing empirical

research showing the prohibitive impact of litigation

costs on inverse condemnation actions, including

complaints that “‘low-ball’ offers have compelled”

condemnees “to spend thousands of dollars to get their

own appraisals, hire attorneys, and fight for a fair

price for land they didn’t want to sell”) (internal

citation omitted); Thomas W. Merrill, Incomplete

Compensation for Takings, 11 N.Y.U. Envtl. L.J. 110,

116–17 (2002) (observing that “value is fixed based on

an opinion or educated guess about what the

negotiated price of the property would have been if,

contrary to fact, the owner had sought to sell it and a

willing buyer had sought to buy it on the day of the

taking . . . using various valuation techniques similar

to those used in appraising property in other nonmarket contexts . . . .”).

This

Court

recognizes

that

prohibiting

transactional asymmetries like excessive fines, for

example, “has been a constant shield throughout

Anglo-American history.” Timbs v. Indiana, 586 U.S.

146, 153 (2019). As has just compensation. See Tyler

v. Hennepin Cnty., 598 U.S. 631, 642 (2023) (“Our

precedents have also recognized the principle that a

taxpayer is entitled to the surplus in excess of the debt

owed.”). While not always correctable—as in cases

when the Court finds that lawmakers and regulators

made poor but constitutional policy choices—there are

cases in which the choice of law is both bad policy and

unconstitutional.

The country’s gas-transmission network already

runs some 300,000 miles. See GAO-24-106690, Gas

Pipeline Safety: Better Data and Planning Would

Improve Implementation of Regulatory Changes

(2024). Much of it beneath working farms and

ranches. What that burial does to the ground above is

now well documented. Agronomists in Ohio monitored

29 farms crossed by three new pipelines. They found

that corn yields on acreage above the pipeline were

between 23.8 and 19.5 percent below adjacent,

undisturbed grounds—five years after installation.

Theresa Brehm & Steve Culman, Soil Degradation

and Crop Yield Declines Persist 5 Years After Pipeline

Installations, 87 Soil Sci. Soc’y Am. J. 350, 351 (2023).

Such losses are compensable in principle but

almost never in practice. See United States v. Miller,

317 U.S. at 376–77 (highlighting the confusion: “If a

distinct tract is condemned, in whole or in part, other

lands in the neighborhood may increase in market

value due to the proximity of the public improvement

erected on the land taken. Should the Government, at

a later date, determine to take these other lands, it

must pay their market value as enhanced by this

factor of proximity. If, however, the public project

from the beginning included the taking of certain

tracts but only one of them is taken in the first

instance, . . . ” and so on).

Further difficulties in calculation emerge when

one considers the sheer acreage involved. Generally,

when a home is taken, it is the entire property at once.

In large acreage properties, when only a portion is

taken, the direct dollar per acreage value is harder to

determine because it significantly affects (and usually

diminishes) the overall value and usability of the

remaining property. And the larger the property, the

harder it is to quantify the proximate costs of an

easement—viz., how a pipeline easement over a

portion of the property affects value and usability

depending upon how far the unburdened acreage.

Harder still is predicting how value depreciation will

impact long-term utility and marketability. See

generally Nicole Karwowski, Estimating the Effect of

Easements on Agricultural Production, Nat’l Bur.

Econ. Res., Working Paper No. 30156 (2022) (noting

the complex causal relationship between conservation

easements and the usability and actual use of the

unburdened portion of the property) (available at:

https://tinyurl.com/3tk9dbr5).

Many farmers-turned-condemnees in the Eighth

Circuit will in most cases find themselves doubly

injured and uncompensated. First, by the

underwhelming “purchase” price for a pipeline

easement. Second, by the subsequent revenues lost to

soil degradation directly attributable to that

easement. These can include the costs of paying

expert witnesses to collect, analyze, and compare soil

samples and yield records (to say nothing of the costs

of hiring a forensic accountant and/or an agrarian

economist to prove the actual amount of revenues so

forfeited). See, e.g., N.D. Dep’t of Transp. v. Rosie

Glow, LLC, 911 N.W.2d 334, 335–37 (N.D. 2018)

(district court must account for expert-witness costs

under state law). Because of, or despite the fact that

pipeline easements keep “taking” long after the

compensation stops flowing, the front-end award is a

farmer’s only likely chance at being made whole—a

chance that the Eighth Circuit has rendered costprohibitive to most small- and mid-size farmercondemnees.

For nearly a century, this Court has recited that a

condemned owner “is entitled to be put in as good a

position pecuniarily as if his property had not been

taken.” Olson, 292 U.S. at 255 (emphasis added). A

farmer or rancher who winds up with fair market

value minus the sizeable—sometimes exceeding—

costs of litigating their claims is not made whole. Not

by a longshot. Especially accounting for the reduced

likelihood of their suing at all, combined with the

growing confidence this instills in condemnors to

continually lowball their initial and final offers. North

Dakota and its neighbors wrote their compensation

rules to prevent this exact result, while the Eighth

Circuit casts aside a mountain of caselaw and choiceof-law rules in order to erase them.

B. Just Compensation and the Economics of

Real Estate

Real estate professionals, in turn, rely on a robust,

organic housing market free of as many artificial

barriers to dynamic pricing as possible. The potential

exercise of eminent domain has long played a role in

home-pricing, though this is not to say that it never

should. Benjamin Franklin famously limited life’s

certainties to “death and taxes.” Letter from Benjamin

Franklin to Jean-Baptiste Le Roy (Nov. 13, 1789), in

10 The Writings of Benjamin Franklin 68–69 (Albert

Henry Smyth ed., 1907). Whether or not it was

intentional, Poor Richard 6 forgot to include

“regulations”—though, if anything, this likely

reflected their virtual nonexistence in his day—at

least in their modern forms. Contrary to some

scholars, a regulation could work a taking, and did, as

early as the mid-nineteenth century, if not earlier.

See, e.g., Pumpelly v. Green Bay Co., 80 U.S. (13 Wall.)

166, 177 (1871) (“It would be a very curious and

unsatisfactory result, if in construing a provision of

constitutional law, . . . it shall be held that if the

government refrains from the absolute conversion of

real property to the uses of the public it can destroy

its value entirely, . . . subject it to total destruction

without making any compensation, because, in the

narrowest sense of that word, it is not taken for the

public use.”). See Eric R. Claeys, Takings,

Regulations, and Natural Property Rights, 88 Cornell

L. Rev. 1549, 1553 (2003) (arguing that “modern

takings

law

and

scholarship

profoundly

misunderstand nineteenth-century state regulatory

takings law,” and that while “[e]arly state eminentdomain opinions did not organize takings cases under

the same categories that we apply now, [] it is still

possible to identify a series of decisions that closely

resemble modern regulatory takings cases”).

By the 1920s, the concept of “regulatory takings”

had a name, with Justice Oliver Wendell Holmes

famously announcing that, “while property may be

regulated to a certain extent, if regulation goes too far

it will be recognized as a taking.” Pa. Coal Co. v.

Mahon, 260 U.S. 393, 415 (1922). This is as true for

housing as anything else. Indeed, this Court has made

quite clear that most categories of housing regulation

6 Franklin’s nom de plume for his Almanack, published annually

from 1732 to 1758.

are not going away any time soon. See, e.g., Yee v. City

of Escondido, 503 U.S. 519 (1992); Block v. Hirsh, 256

U.S. 135 (1921). And while the mere prospect of a

(more common) regulatory or (less common) physical

taking of residential lands for pipeline easements is

not itself a taking, depending on its likelihood it can

certainly impact what buyers are willing to pay. See

generally, Julia L. Hansen et al., Environmental

Hazards and Residential Property Values: Evidence

from a Major Pipeline Event, 82 Land Econ. 529 (2006)

(finding statistically significant price discounts near a

Bellingham, Washington pipeline once buyers

repriced its risk).

The City of Buffalo spent much of the 1960s

threatening to condemn a printing plant within its

borders. The New York Court of Appeals held that the

owner could recover (should they prove) the dollar

amount of condemnor’s “affirmative value-depressing

acts.” City of Buffalo v. J.W. Clement Co., 269 N.E.2d

895, 905 (N.Y. 1971) (internal citations omitted).

While not a common outcome (nor is it uncommon so

much as it is rarely broached at all), the ruling shows

a court willing to recognize what economists have

proven time and again—that the mere threat of

condemnation or overregulation indeed distorts

market prices. This creates a self-fulfilling prophecy

in which the fear of condemnation or overregulation

reduces the very price tag that the condemnor must

later offer in order to meet the Fifth Amendment’s

“just compensation” requirement.

Notice the similarities with the situation in which

many farmers find themselves. For them, point-intime valuation fails to capture the subsequent losses

resulting from soil degradation, etc. For property

owners (and the real estate professionals who

facilitate their sales and purchases), point-in-time

valuation likewise ignores the antecedent losses

attributable to the prospect of condemnation or

overregulation.

Homes also hold “dignitary” and “sentimentality”

premiums for many owners that are not captured in

“just” compensation calculus. See Nicole Stelle

Garnett, The Neglected Political Economy of Eminent

Domain, 105 Mich. L. Rev. 101, 107–110, 127 (2006)

(discussing subjective valuation of residents rooted in

emotional attachment to their own homes and the

“indignan[ce] when faced with the loss of autonomy

that the threatened eminent domain action

represents” and “their anger at the amount of money

that the government offers them”).

The empirical research reveals that the threat of

litigation, combined with the plausible costs of

fighting and losing such claims, “should help deter

government from responding” to underdevelopment,

for example, “with inefficient takings”—of residential

neighborhoods, say. Id. at 140 (discussing other

studies). This disincentive diminishes substantially

when the condemnor has the influence and funding of

a more powerful patron behind it, as is often the case

for private pipeline operators armed with a FERC

license. Id. at 141 (“When the funding for a project

comes from a higher level of government . . .,”

condemnors “have little incentive to consider whether

the economic benefits of a proposed project will

ultimately materialize.”). As Professor Garnett notes,

all of these transactional asymmetries compound in

private takings, again, as here. “[O]wners may take

an additional ‘dignitary’ hit because private

beneficiaries frequently receive a windfall from the

transaction.” Id. at 145. All the more reason to

integrate the costs of litigation into the ultimate pay

package a condemnee can expect or even merely hope

to obtain. As one California appellate court observed:

“[O]ne would expect a prudent condemnor to offer its

best estimate of fair market value plus some reflection

of its own savings from avoiding trial, with a further

upward adjustment for elimination of potential

liability for the condemnee's litigation expenses.”

Emeryville Redev. Agency v. Harcros Pigments, Inc.,

125 Cal. Rptr. 2d 12, 29 (Ct. App. 2002).

Fair market value was always the conservative

measure of “just” compensation—even before takings

caselaw began integrating more economic calculus

than Justice Holmes’s “gone-too-far” “formula,” for

example. See 564.54 Acres, 441 U.S. at 510–11; Penn

Cent. Transp. Co. v. City of New York, 438 U.S. 104,

124 (1978) (noting that “this Court has accordingly

recognized, in a wide variety of contexts, that

government may execute laws or programs that

adversely affect recognized economic values” without

compensating for every single dollar lost).

Fee- and cost-shifting rules are one way state

legislatures keep almost inevitable shortfalls from

swallowing much if not all of the “just” compensation

owed in a given case. Strip them out—as the decision

below does for every Natural Gas Act condemnation—

and the discount becomes a feature rather than a bug.

And the more courts endorse it, the greater the power

balance grows in condemnors’ favor. A compensation

rule that lets condemnors buy at values they know

they can set artificially low will not stay caged in the

Eighth Circuit forever. Sooner or later, as with any

rule that favors condemnors—who have the built-in

advantage of choosing when and how to initiate a

takings dispute—others will continue to push at its

outer limits. Without this Court’s definitive word,

some will, regrettably, succeed.

CONCLUSION

For the foregoing reasons, and those set forth by

Petitioners, the Court should reverse the Eighth

Circuit ruling below and rule in favor of a state-law

theory of just compensation.

Respectfully submitted,