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. HOFFMAN, ET AL.

Petitioners.

v.

WBI ENERGY TRANSMISSION, INC.

Respondent.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

BRIEF OF FLORIDA PROPERTY OWNERS

RYAN THOMAS, LEE THOMAS TRUST, AND

SUNDERMAN GROVES, INC.

AS AMICI CURIAE

IN SUPPORT OF PETITIONERS

Andrew Prince Brigham

BRIGHAM PROPERTY RIGHTS LAW FIRM, PLLC

111 Nature Walk Parkway, Suite 104

St. Augustine, Florida 32092

904-730-9001

abrigham@propertyrights.com

Counsel for Amici Curiae

i

QUESTION PRESENTED

In private condemnations under the Natural Gas

Act, should just compensation be determined by

reference to state law?

ii

TABLE OF CONTENTS

QUESTION PRESENTED ......................................... i

TABLE OF CONTENTS ............................................ ii

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

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

SUMMARY OF ARGUMENT.....................................3

ARGUMENT ...............................................................6

I.

THERE IS A DISTINCTION BETWEEN

FEDERAL AND PRIVATE ACTORS

EXERCISING EMINENT DOMAIN. ..............6

II. PRIVATE LICENSEE COMPANIES

UNDER THE NGA CONTEND THAT

THERE ARE NO SEVERANCE

DAMAGES RESULTING FROM THE

USE OF THE EASEMENTS TAKEN

FOR A NIMBY USE. ......................................11

III. STATE LAW, WHICH DEFINES

PROPERTY, MAY PROVIDE MORE

SUBSTANTIAL PROTECTION OF

PROPERTY RIGHTS THAN FEDERAL

LAW AND, THEREFORE, SHOULD

CONTROL THE MEASURE OF

COMPENSATION IN NGA TAKINGS

CASES ............................................................32

CONCLUSION ..........................................................33

iii

TABLE OF AUTHORITIES

Cases

Columbia Gas Transmission Corp. v.

Exclusive Nat. Gas Storage Easement,

962 F.2d 1192 (6th Cir. 1992) ..............................6, 7

Dade County v. Brigham,

47 So. 2d 602 (Fla. 1950) .......................................22

Georgia Power Co. v. 138.3 Acres,

617 F.2d 1112 (5th Cir. 1980) ..................................7

Jacksonville Expressway Authority v. Dupree,

108 So. 2d 289 (Fla. 1959), 69 A.LR. 2d 1445 .......22

Joseph B. Doerr Trust v.

Cent. Fla. Expressway Auth.,

177 So. 3d 1209 (Fla. 2015) ...................................22

Lynch v. Household Fin. Corp.,

405 U.S. 538 (1972) ................................................11

Miss. River Transmission Corp. v. Tabor,

757 F.2d 662 (5th Cir. 1985) ....................................6

Petersburg Sch. Dist. v. Peterson,

103 N.W. 756 (N.D. 1905) ......................................22

Sabal Trail Transmission, LLC v.

18.27 Acres of Land in Levy Cnty.,

824 Fed.Appx. 621 (11th Cir. 2020) ............ 1, 13, 31

Sabal Trail Transmission, LLC v.

18.27 Acres of Land,

59 F.4th 1158 (11th Cir. 2023) .................. 1, 6, 7, 12

Sabal Trail Transmission, LLC v.

3.291 Acres of Land in Lake County,

74 F.4th 1346 (11th Cir. 2023) ..........................1, 13

iv

Sabal Trail Transmission, LLC v.

3.291 Acres of Land in Lake County,

947 F.3d 1362 (11th Cir. 2020) .................... 1, 13, 25

Sabal Trail Transmission, LLC v.

1.127 Acres of Land,

No. 3:16-CV-263-J-20PDB, 2017 U.S. Dist.

LEXIS 92003 (M.D. Fla. June 15, 2017) ...............11

Sabal Trail Transmission, LLC v. Real Estate,

No. 1:16-CV-063-MW-GRJ, 2017 U.S. Dist.

LEXIS 99370 (N.D. Fla. June 27, 2017)................11

Sunray Mid-Con. Oil Co. v. Fed. Power Comm’n,

364 U.S. 137 (1960) ................................................10

Tenn. Gas Pipeline Co. v.

Permanent Easement for 7.053 Acres,

931 F.3d 237 (3d Cir. 2019) ................................. 6-9

United States v. Kimbell Foods, Inc.,

440 U.S. 715 (1979) ................................................32

United States v. Miller,

317 U.S. 369 (1943) ..............................................7, 8

WBI Energy Transmission, Inc. v.

189.9 Rods in Township 149,

No. 24-1693 (8th Cir. March 24, 2025)..............7, 12

Statutes and Other Authorities

U.S. Const. amend. V .................................. 5-8, 32, 33

15 U.S.C. § 717(f) ..................................................6, 12

15 U.S.C. § 717f(h) ................................................4, 32

16 U.S.C. § 797(e) ........................................................7

S. Rep. No. 429 ......................................................6, 10

v

Andrew Prince Brigham & Lindsey Brigham

Knott, A Practitioner’s Perspective on How

Best to Avoid the Risk of Unjust

Compensation, 10 PROP. RTS. J. 351

(2021) ............................... 5, 12-16, 23, 25, 26, 31, 32

Lincoln, Abraham (1863, November 19)

Gettysburg Address, National Archives ................11

Madison, J., Federalist No. 51 (1788) ......................10

Andrew Prince Brigham, Natural Gas Pipeline

Easements: An Overview of the Takings

Jurisprudence Associated with the

Acquisition of a Lineal Corridor when the

Condemnor is a Private Licensee of the

Eminent Domain Power under the Natural

Gas Act, 8 PROP. RTS. J. 121

(2019) .................................................... 13, 23, 25, 31

1

INTEREST OF AMICI CURIAE1

Florida property owners Ryan B. Thomas and

Lee A. Thomas, as Trustee of the Lee A. Thomas

Trust, were the appellees in appeals before the

Eleventh Circuit in Sabal Trail Transmission, LLC v.

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

and Sabal Trail Transmission, LLC v. 18.27 Acres of

Land in Levy Cnty., 824 Fed.Appx. 621 (11th Cir.

2020) (unreported).

Florida property owner Sunderman Groves,

Inc., whose principal is Sara K. Wilson, the daughter

of Charles A. (“Chuck”) and Janice E. (“Jan”)

Sunderman, both recently deceased, was the appellee

in appeals before the Eleventh Circuit in Sabal Trail

Transmission, LLC v. 3.291 Acres of Land in Lake

County, 74 F.4th 1346, 1347 (11th Cir. 2023) and

Sabal Trail Transmission, LLC v. 3.291 Acres of Land

in Lake County, 947 F.3d 1362 (11th Cir. 2020).

On or about August 3, 2026, Florida property

owners, including amici curiae, received notice from

Sabal Trail Transmission, LLC, (“Sabal Trail”) that

the interstate natural gas transmission company is

evaluating a potential expansion and extension of its

interstate natural gas pipeline system as part of a

new project called the Sabal Trail Extension and

Sabal Trail Expansion (“Project”). As described, the

Project contemplates “the expansion of the existing

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 amici curiae, its members, or its counsel.

2

pipeline from Alexander City, Alabama, to Reunion,

Florida by constructing a new pipeline generally

alongside or near to the existing pipeline route for a

distance of approximately 482 miles.”

A little over ten years ago, in March of 2016,

Sabal Trail filed condemnation lawsuits against

Florida property owners, including amici curiae, to

take pipeline easements for its initial project. While

the popular myth has it that lighting doesn’t strike

twice, it seems that natural gas pipelines do.

Having already litigated with Sabal Trail over

the compensation to be paid regarding the taking of

pipeline easements for its initial project, and now

having been provided notice of Sabal Trail’s new

project, the interest of amici curiae is that the judicial

branch safeguard their civil right of private property

ownership and, for takings under the Natural Gas

Act, continue to require, consistent with longstanding judicial precedent, that the measure of

compensation be determined by state law when

private interstate natural gas transmission

companies file condemnation lawsuits in either

federal district courts or state courts.

3

SUMMARY OF ARGUMENT

The distinction between (a) private, for-profit

companies acting under a delegation of the right to

exercise eminent domain and (b) the federal

government acting directly, and in its own name, is

especially applicable to condemnations of private

property taken pursuant to the NGA. A limited

delegation of eminent domain authority to a licensee

neither confers upon the licensee the sovereignty of

the United States nor implicate the same federal

interests that arise when the national government

itself condemns property for a federal infrastructure

project using federal labor and public funds.

Moreover, these private licensee companies are not

sworn to uphold the Constitution, exist primarily to

generate private profit, and are accountable only to

their shareholders, not the public-at-large. As such

there is nothing woven into the fabric of these private

licensee companies or existent in their corporate DNA

that safeguards the civil right of private property

ownership when acquiring private property by a

compulsory taking.

Property rights matter. As such, the Court

should not be blind to the realities of the

condemnation process when private licensee

companies are delegated the right of eminent domain.

Without embellishment, the private licensee

companies in these NGA takings cases are

characteristically extremely profitable energy

concerns, worth billions of dollars, that possess

unlimited resources with which to litigate with

private citizens over the measure of compensation

4

when exercising eminent domain. In the context of

NGA takings cases pursuant to § 717f(h), the private

licensee companies condemning easements for

natural gas pipeline typically and forcefully contend

that there are “zero severance damages” to the

property owners’ remainder properties resulting from

proximity, market fear, perception, or stigma caused

by a NIMBY (“Not-In-My-Backyard”) easement use.

Consequently, property owners who are

without economic wherewithal proceed in an

unrepresented fashion and are typically forced to

accept a compromise close to the amount of the

private licensee company’s low offers because they are

not otherwise with the means to prepare their own

valuation estimates and defend their respective

constitutional entitlement to compensation. Unless

having the practical means to engage in litigation,

private citizens whose properties are taken by private

licensee companies for natural gas pipeline

easements are substantially undercompensated for

such a NIMBY use and, therefore, do not receive a just

or equitable measure of compensation for these

takings by private licensee companies.

State law, which defines property, may provide

more substantial protection of property rights than

does federal law. This is so, in part, because the

measure of compensation in many states includes the

requirement that the condemnor pay for the

attorney’s fees and costs of the owner. Because in

these states, property owners have an “equal footing”

with these private licensee companies to litigate over

the measure of compensation, the compensation

awarded for these private licensee companies to pay

5

is more often than not a just or equitable measure

because, provided there is a preponderance of market

evidence to support the property owners’ valuations,

the compensation awarded includes severance

damages for the

NIMBY use associated with

easements for underground natural gas pipelines.

Although it is only North Dakota’s guarantee

of attorneys’ fees in condemnation cases that is

specifically at issue in this case, state-created rights

to attorneys’ fees will be stricken in six of the seven

states of the Eighth Circuit, and will be at serious risk

in at least 15 other states if the Eighth Circuit’s

new-fashioned split widens. See Andrew Prince

Brigham & Lindsey Brigham Knott, A Practitioner’s

Perspective on How Best to Avoid the Risk of Unjust

Compensation, 10 PROP. RTS. J. 351, 361–65 (2021).

The threat to property owners and their private

property rights thus spans the nation. To protect

those owners in at least these 21 states the circuit

split should be resolved, and resolved in favor of

having state law control the measure of compensation

in NGA takings cases.

Operatively speaking, when private licensee

companies exercise the eminent domain power under

the NGA, the Fifth Amendment’s measure of

compensation should serve as a floor and not a ceiling

and, further still, if state law affords greater

protection to property owners within a state to which

a private licensee company has commercially entered

into in order to construct an interstate pipeline, the

private licensee company should pay the measure of

compensation required by state law when eminent

domain is used to take necessary pipeline easements.

6

ARGUMENT

I.

THERE IS A DISTINCTION

BETWEEN FEDERAL AND

PRIVATE ACTORS EXERCISING

EMINENT DOMAIN.

The Natural Gas Act (“NGA”), 15 U.S.C. §

717(f), was amended by Congress in 1947 in order to

delegate the right of eminent domain to private

licensee companies to enter into a state and file

condemnation actions in either federal district court

or state courts in order to construct natural gas

transmission pipelines, but Congress was silent as

whether state or federal law controls the

determination of the measure of compensation owed

for the property taken. See S. Rep. No. 429, at 2.

Consequently, in the course of the past forty

years, the Third, Fifth, Sixth, and Eleventh Circuits

have consistently held that the measure of

compensation in condemnations filed by these private

licensee companies under the NGA must therefore be

determined by reference to state law, which often

mandates higher compensation than the floor set by

the Fifth Amendment in takings where it is

characteristically the federal government that is the

condemnor. See 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 (5th Cir. 1985); Columbia Gas Transmission

Corp. v. Exclusive Nat. 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.

7

2023). Only recently, in this case, the Eighth Circuit

expressly split with its sister circuits and instead held

that, with the delegation of the eminent domain

power, these private licensee companies “step in the

shoes” of the federal government and need only pay

the federal baseline or constitutional minimum of

compensation required by the Fifth Amendment. See

WBI Energy Transmission, Inc. v. 189.9 Rods in

Township 149, No. 24-1693 (8th Cir. March 24, 2025).

As originally recognized by Fifth Circuit in

Georgia Power, and later by both the Sixth Circuit in

Columbia Gas and by the Third Circuit in Tennessee

Gas, a private licensee who invokes the limited

delegation of eminent domain authority conferred by

either the Federal Power Act (“FPA”), 16 U.S.C. §

797(e), or the NGA is not equivalent to the United

States of America. A limited delegation of eminent

domain authority to a licensee does not confer upon

the private licensee the sovereignty of the United

States of America, and a limited delegation of

eminent domain to a licensee does not implicate the

same federal interests that arise when the national

government itself condemns property for a federal

infrastructure project using federal labor and public

funds. See Georgia Power Co. v. 138.3 Acres, 617 F.2d

1112, 1118-24 (5th Cir. 1980) (FPA case); Columbia

Gas, 962 F.2d at 1197-99.

Over time, United States v. Miller, 317 U.S. 369

(1943), and its progeny have developed and added

content to the federal common law of just

compensation, including its measure under the Fifth

Amendment. See Tennessee Gas, 931 F.3d at 247-248.

But nothing in Miller or its progeny expands its reach

to condemnations by private entities. See id. Indeed,

8

Miller itself only concerned a condemnation by the

federal government. See id. citing Miller at 317 U.S.

at 370. The same is true of Miller’s progeny. One

need look no further than the case caption. If the

caption is “United States v. So Many Acres of Land” or

“United States v. a Property Owner,” the analysis

concerns the measure of compensation under the

Fifth Amendment when eminent domain is exercised

by the federal government and not private licensee

companies. As remains true to this day, the Third

Circuit expressly found that Tennessee Gas was

unable to muster any binding authority for the

proposition that Miller applies beyond instances

where it is the federal government that is the

condemnor. See id. Stated otherwise, every one of the

cases cited by Tennessee Gas for the determination of

compensation in a condemnation lawsuit filed

pursuant to what it called the federal power of

eminent domain was to only cite cases in which the

condemnor was the federal government. See id.

The distinction between (a) private, for-profit

companies acting under a limited delegation of

eminent domain power and (b) the federal

government acting directly, and in its own name,

should not be overlooked when intending to safeguard

the civil right of private ownership. Federal actors

are ultimately accountable to federal officials, sworn

to uphold the Constitution, charged with promoting

the public good, and held accountable by the voters on

Election Day. Private licensee companies delegated

with the right of eminent domain are not sworn to

uphold the Constitution, exist primarily to generate

private profit, and are accountable only to their

shareholders, not to the public-at-large. Direct federal

9

condemnations require expenditure of taxpayer

dollars; private licensee companies are spending

corporate money. Direct federal condemnations often

require ongoing federal participation, via federal

employees and contractors, in construction and

maintenance efforts; private licensee condemnations

do not. And, in direct federal condemnations, the

federal government retains a continued ownership

interest in the property taken; no such federal

ownership interest exists in the property taken via

eminent domain by a private licensee company. This

fundamental distinction is inherent and neither

dissolves or fades away even if private entities are

found to wear the same shoes as government.

Practically speaking, the distinction has found

proper resolution in weighing the three factors in

Kimbell Foods: (i) fashioning a nationally uniform

rule is unnecessary, (ii) incorporating state law does

not frustrate the NGA's objectives, and (iii)

application of a uniform federal rule would upset

commercial relationships. See, e.g., Tennessee Gas,

931 F.3d at 251-256. Indeed, apart from carving out

a separate set of rules or creating an artificial wedge,

there is a sound reason for a private licensee company

who enters a state for private gain in the development

of an interstate pipeline to pay compensation under

the measure guaranteed property owners under that

state's law when eminent domain is exercised to

divest them of their private property. See, contra,

Tennessee Gas, 931 F.3d at 257-258 (Chagares, J.,

dissenting). The sound reason is that private citizens

need greater protection of their property rights when

it is a private entity exercising eminent domain.

10

Eminent domain is one of the harshest powers

known to law as it deprives the owner of the right to

say, “No, thank you!”, to an encumbrance that allows

another entity to put something completely

undesirable in one’s backyard, in this instance, an

interstate pipeline capable of transmitting vast

amounts of cubic feet of natural gas a day at high

pressure, without there being consent or an agreed

price. This Court has previously found that one of the

NGA’s primary aims was “to protect consumers

against exploitation at the hands of natural gas

companies.” Sunray Mid-Con. Oil Co. v. Fed. Power

Comm’n, 364 U.S. 137, 147 (1960). Because there is

nothing woven into the fabric of these private licensee

companies or existent in their corporate DNA that

safeguards the civil right of private property

ownership when acquiring private property by a

compulsory taking, the Court needs to be discerning

concerning the distinction between federal actors and

private entities that wield the eminent domain power.

Because men are not angels, and even less so given

that private entities are without the moorings of a

constitutional government and prioritize corporate

cost savings and profit over people and their

individual property rights, it cannot be said that

Congress was unaware of such distinction when

amending the Natural Gas Act in 1947 and delegating

the right of eminent domain to private licensee

companies to file condemnation actions in either

federal district court or state courts. See Madison, J.

Federalist No. 51 (1788); see, supra, S. Rep. No. 429,

at 2.

11

II.

PRIVATE LICENSEE COMPANIES

UNDER THE NGA CONTEND THAT

THERE ARE NO SEVERANCE

DAMAGES RESULTING FROM THE

USE OF THE EASEMENTS TAKEN

FOR A NIMBY USE.

“[T]he dichotomy between personal liberties

and property rights is a false one. Property does not

have rights. People have rights[, such as t]he right to

enjoy property without unlawful deprivation . . . .

That rights in property are basic civil rights has long

been recognized.” Lynch v. Household Fin. Corp., 405

U.S. 538, 552 (1972) (citations omitted).2 Those basic

civil rights also dictate that private property owners

must be compensated when their property is taken for

public use.

The freedom to own and hold property is a

valued and guarded right under social contract with

“a government of the people, by the people, and for the

people.” See Lincoln, Abraham (1863, November 19)

Gettysburg Address, National Archives. Property

rights matter. The measure of compensation paid to

those whose private property is divested from them by

eminent domain likewise matters. The amount of

money actually received by property owners in

2 See Sabal Trail Transmission, LLC v. Real Estate, No. 1:16-

CV-063-MW-GRJ, 2017 U.S. Dist. LEXIS 99370 (N.D. Fla. June

27, 2017) (order entered in federal district court in Florida

concerning condemnation cases for the Sabal Trail Natural Gas

Pipeline Project regarding the controlling law issue; see also

Sabal Trail Transmission, LLC v. 1.127 Acres of Land, No. 3:16CV-263-J-20PDB, 2017 U.S. Dist. LEXIS 92003 (M.D. Fla. June

15, 2017).

12

exchange for the taking of pipeline easements without

consent also matters. As such, the Court should not

be blind to the realities of the condemnation process

when private licensee companies are delegated the

right of eminent domain.

Empirical evidence of just what goes on in

takings cases under the Natural Gas Act, 15 U.S.C. §

717f, is more often obscured and intentionally left

without trace. If negotiating a settlement, whether in

the context of a voluntary transaction prior to filing a

condemnation lawsuit or after litigation is underway,

the private licensee companies insist almost without

exception that the terms of settlement remain

confidential.3 Thus so, a majority of cases are closed

without public documentation of the total amount of

compensation paid or how such compensation is

allocated. Contrastingly, such detailed facts come

into focus when an NGA takings case proceeds

through litigation and concludes with a public trial,

verdict,

and

final

judgment;

under

such

circumstances, there is transparency.

Before the Eighth Circuit’s ruling in WBI

Energy Transmission, Inc. v. 189.9 Rods in Township

149, No. 24-1693 (8th Cir. March 24, 2025), the

Eleventh Circuit decided that “state law provides the

measure of compensation in proceedings that arise

under Section 717(f) of the Natural Gas Act.” Sabal

Trail Transmission, LLC v. 18.27 Acres of Land in

Levy Cnty., 59 F.4th 1158, 1163 (11th Cir. 2023); see

See, e.g., Andrew Prince Brigham & Lindsey Brigham Knott, A

Practitioner’s Perspective on How Best to Avoid the Risk of

Unjust Compensation, 10 PROP. RTS. J. 351, 380, n. 63 (2021).

3

13

also Sabal Trail Transmission, LLC v. 3.291 Acres of

Land in Lake County, 74 F.4th 1346, 1347 (11th Cir.

2023).

Three of the NGA takings cases appealed to the

Eleventh Circuit were subject to two jury trials.4 See

ibid; see also, generally, Sabal Trail Transmission,

LLC v. 3.291 Acres of Land in Lake County, 947 F.3d

1362 (11th Cir. 2020); Sabal Trail Transmission, LLC

v. 18.27 Acres of Land in Levy Cnty., 824 Fed.Appx.

621 (11th Cir. 2020) (unreported). These cases are

illustrative of what occurs in NGA takings cases.5

As background, commencing in March 2016,

Sabal Trail Transmission, LLC (“Sabal Trail”)6 filed

263 condemnation cases in federal courts for a lineal

corridor of some 247 miles through Florida needed to

construct a 36-inch diameter pipeline capable of

transmitting up to one billion cubic feet of natural gas

See 10 PROP. RTS. J., supra, at 361–65; see also, generally,

Andrew Prince Brigham, Natural Gas Pipeline Easements: An

Overview of the Takings Jurisprudence Associated with the

Acquisition of a Lineal Corridor when the Condemnor is a

Private Licensee of the Eminent Domain Power under the

Natural Gas Act, 8 PROP. RTS. J. 121 (2019).

5 Moreover, far from fictional accounts, these cases set forth what

really happened in the lives of the amici curiae who submit this

brief in support of the Petitioners.

6 See 10 PROP. RTS. J., supra, at 367-369. Initially, Sabal Trail

was a joint venture of Spectra Energy Partners, NextEra

Energy, Inc., and Duke Energy, but, upon completion of its

pipeline, was acquired by Enbridge, Inc. having an enterprise

value of $126 billion.

4

14

a day.7

Consequently, the dispute concerning

valuation was aptly described as follows:

In nearly all pipeline easement

acquisitions, there is a substantial

dispute as to the measure of

compensation insofar as the issue of

damages to the remainder property is

concerned—particularly

when

purported

damages

result

from

proximity to the pipeline in and of itself,

or based on market fear, perception, or

stigma.

Simply put, most in the pipeline

industry maintain that, because the

pipeline’s infrastructure is located

underground, severance damages of this

kind or nature are extremely minimal or

non-existent. Their mantra, effectively,

is: out of sight, out of mind. The industry

maintains that property owners are

compensated sufficiently by pipeline

companies that only pay a percent of the

fee value for the land acquired within

the right of way because there are no

damages to the remainder property

based upon proximity to the pipeline.

Property owners, however, disagree.

They

contend

that

a

pipeline

transmitting one billion cubic feet of

7 See id. (Counsel of record for amici curiae represented property

owners in 51 of the 263 cases filed by Sabal Trail.)

15

natural gas a day just three to four feet

underground is a classic “Not-In-MyBackyard” (“NIMBY”) use and that

property encumbered with a natural gas

pipeline easement is less valuable than

property not so encumbered.8

How do private licensee companies estimate

the measure of compensation to be paid for their

pipeline easements?

In Florida, Sabal Trail paid appraisers an

extraordinary amount of over $8.3 million for

appraisal services which, in part, led each of three

respective appraisers to conclude within every one of

their project appraisals that “zero severance

damages” result from proximity, market fear,

perception, or stigma caused by a NIMBY use.9 Two

of Sabal Trail’s appraisers had more than twenty

years of experience in natural gas pipeline projects;

however, these same appraisers over the past twenty

years had always prepared appraisals for the pipeline

companies, always opined to “zero damages,” and

8 See id. at 370-371.

9 See id. at 376-378.

(An opinion of “zero severance damages”

allows the private licensee condemnor to start at the lowest point

conceivable in each and every case. At the start of negotiations

and, in most cases, continuing on to trial, these pipeline

companies only offer to pay a percent of fee value for the

encumbered area within their easement, leaving out entirely any

severance damages to the remainder. It is a pervasive and

perpetual “industry bias” which occurs in almost every pipeline

condemnation case across the nation. It is the billion dollar

private energy company using eminent domain against small

and large private property owners alike and basically saying,

“just you go ahead and try to stop us.” See id. at 377, fn. 55.)

16

never found in their studies any market data which

showed a negative perception of pipelines that

affected the price negotiated between willing buyers

and willing sellers.10

Unless accepting settlement terms decidedly in

favor of the private licensee company’s appraisal

estimate, the private property owner’s only option is

to run the gauntlet of litigation, starting with

prolonged discovery and motion practice prior to trial.

Only if the private property owner is able to outlast a

condemning authority with unlimited resources

during the earlier stages of the litigation can the

owner finally proceed to trial.11 Record citations to

Daubert challenge briefs presented in the table

further example that Sabal Trail’s appraisers

concluded that “zero severance damages” result from

proximity, market fear, perception, or stigma caused

by a NIMBY use in no less than 40 cases including the

pipeline easement takings from the three amici

curiae.

10 See id.

11 See id. at 376-380.

17

Table 1

Docket

#

Case Style

Case #

Sabal Trail v. +/- 1.76 Aces

of Land in Levy County

Florida

(Alice Allen)

Sabal Trail v. +/- 3.984

Acres of Land in Suwannee

County Florida (Suzanne

Bass)

Sabal Trail v. +/- 0.0752

Acres of Land in Hamilton

County Florida (Minnie

Bell)

Sabal Trail v. +/- 3.504

Acres of Land in Suwannee

County Florida (Elizabeth

Bolton)

Sabal Trail v. +/- 0.758

Acres of Land in Suwannee

County Florida (Marlon

Brammer)

Sabal Trail v. +/- 3.522

Acres of Land in Hamilton

County Florida (Clint

Carter)

Sabal Trail v. +/- 1.823

Acres of Land in Hamilton

County Florida (Danny

Carter)

1:16-cv00073MW-GRJ

53

3:16-cv00301HES-MCR

68, 83

3:16-cv00269HES-JBT

62, 80

3:16-cv91

00302MMH-PDB

3:16-cv00288TJC-JRK

87, 105

3:16-cv00266HLA-JRK

82

3:16-cv00267TJC-MCR

94, 107

18

Sabal Trail v. +/- 0.834

Acres of Land in Suwannee

County Florida (Clyde Bass

Family LP

Sabal Trail v. +/- 1.211

Acres of Land in Levy

County Florida (Vince

Dean)

Sabal Trail v. +/- 0.7 Acres

of Land in Suwannee

County Florida (Manuel

Deguzman)

Sabal Trail v. +/- 7.684

Acres of Land in Suwannee

County Florida (Donna

Ellison)

Sabal Trail v. +/- 2.215

Acres of Land in Suwannee

County Florida (Burton

Fletcher)

Sabal Trail v. +/- 0.507

Acres of Land in Suwannee

County Florida (Mary

Fridman)

Sabal Trail v. +/- 1.127

Acres of Land in Hamilton

County Florida (Hamilton

Energy Resource

Opportunities, LLC)

3:16-cv00303HES-MCR

70, 87

1:16-cv00124MW-GRJ

80

3:16-cv99, 120

00300MMH-PDB

3:16-cv00289BJD-MCR

82

3:16-cv00304BJD-PDB

82

3:16-cv00317MMHMCR

3:16-cv00263HES-PDB

92

71

19

Sabal Trail v. +/- 0.89

Acres of Land in Suwannee

County Florida (Debra

Kolwyck)

Sabal Trail v. +/- 1.401

Acres of Land in Hamilton

County Florida (Violeta

Lara)

Sabal Trail v. +/- 1.203

Acres of Land in Suwannee

County Florida (Alfreda

Lusk)

Sabal Trail v. +/- 7.593

Acres of Land in Hamilton

County Florida (Carolyn

McCulley)

Sabal Trail v. +/- 0.76

Acres of Land in Suwannee

County Florida (Georgette

McDowell)

Sabal Trail v. +/- 3.956

Acres of Land in Levy

County Florida (Mitchell

Madden)

Sabal Trail v. +/- 3.679

Acres of Land in Levy

County Florida (Carolyn

Mikell)

3:16-cv00314TJC-PDB

77, 88

3:16-cv00278BJD-JBT

78

3:16-cv00309BJD-PDB

81

3:16-cv00276TJC-JRK

77, 89

3:16-cv00286HLA-MCR

70

1:16-cv00081MW-GRJ

72, 100

1:16-cv00111MW-GRJ

93

20

Sabal Trail v. +/- 0.589

Acres of Land in Hamilton

County Florida (Samuel

Panilag)

Sabal Trail v. +/- 0.72

Acres of Land in Lake

County Florida (Juan

Quintana)

Sabal Trail v. +/- 0.046

Acres of Land in Suwannee

County Florida (Homer

Ratliff)

Sabal Trail v. +/- 2.064

Acres of Land in Suwannee

County Florida (Teddy

Rucker)

Sabal Trail v. +/- 0.587

Acres of Land in Hamilton

County Florida (Richard

Sheehy)

Sabal Trail v. +/- 1.108

Acres of Land in Hamilton

County Florida (Asa Smith)

Sabal Trail v. +/- 13.386

Acres of Land in Lake

County Florida (Rex Smith)

Sabal Trail v. +/- 2.867

Acres of Land in Levy

County Florida (Charles

Stoel)

3:16-cv00277MMH-JBT

96

5:16-cv00162BJD-PRL

75

3:16-cv00291HES-JRK

62, 82

3:16-cv00318TJC-JRK

89, 106

3:16-cv00268HLA-JBT

80

3:16-cv00275TJC-MCR

5:16-cv00147CEM-PRL

1:16-cv00100MW-GRJ

77, 89

81, 92,

133

77

21

Sabal Trail v. +/- 0.518

Acres of Land in Hamilton

County Florida (Maxine

Sullivan)

Sabal Trail v. +/- 3.921

Acres of Land in Lake

County Florida

(Sunderman Groves, Inc.)

Sabal Trail v. +/- 18.27

Acres of Land in Levy

County Florida (Lee A.

Thomas Trust)

Sabal Trail v. +/- 2.468

Acres of Land in Levy

County Florida (Ryan

Thomas)

Sabal Trail v. +/- 0.851

Acres of Land in Suwannee

County Florida (Vincent

Thornton)

Sabal Trail v. +/- 1.692

Acres of Land in Suwannee

County Florida (United

Vision Ventures, LLC)

Sabal Trail v. +/- 0.728

Acres of Land in Suwannee

County Florida (Thomas

Van Brunt)

3:16-cv00265TJC-PDB

79, 90

5:16-cv00178JSM-PRL

65

1:16-cv00093MW-GRJ

120

1:16-cv00095MW-GRJ

92

3:16-cv00287HES-JBT

64

3:16-cv00297BJD-PDB

80

3:16-cv00315HLA-JBT

81

22

Sabal Trail v. +/- 1.51

Acres of Land in Suwannee

County Florida (Paul

Vezina)

Sabal Trail v. +/- 1.76

Acres of Land in Suwannee

County Florida (James

Voss)

Sabal Trail v. +/- 0.981

Acres of Land in Levy

County Florida (Eileen

Wynne)

3:16-cv00311HES-JBT

71, 89

3:16-cv00313BJD-JRK

97

1:16-cv00097MW-GRJ

67, 92

Accordingly, one is able to see why the district

court rulings in the Sabal Trail cases in Florida on the

controlling law issue, affirmed by the Eleventh

Circuit, were so significant to the property owners in

applying state law which, under Florida’s

constitutional measure of “full compensation,”

includes the attorney’s fees and costs incurred by the

owner in defense of eminent domain. See Dade

County v. Brigham, 47 So. 2d 602, 604-605 (Fla.

1950). As a result, the owners had both “equal

footing” with the condemnor in the Sabal Trail case in

Florida and staying power to defend their case. See

id. at 603; Joseph B. Doerr Trust v. Cent. Fla.

Expressway Auth., 177 So. 3d 1209, 1216-1217 (Fla.

2015); see also Jacksonville Expressway Authority v.

Dupree, 108 So. 2d 289 (Fla. 1959), 69 A.LR. 2d 1445,

concurrence, Drew, J.J., at 293; accord, Petersburg

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

The scope and nature of just what is at stake

concerning takings of pipeline easements under the

NGA and the persons whose property rights were

23

subject to condemnation lawsuits is clearly

understood from the examples of the cases that

proceeded to the two jury trials.

In the jury trial commencing on February 26,

2018, Sabal Trail was taking a pipeline easement of

3.921 acres from a 40-acre rural residential tract of

land owned by amicus curiae Sunderman Groves,

Inc., a holding company whose principals were Chuck

and Jan Sunderman.12 The property is located in Bay

Lake, Florida, near the metropolitan area of Orlando,

Florida. Sabal Trail’s pipeline easement is 50 feet in

width and cuts diagonally through the center of the

tract for a distance of 1,336 lineal feet as depicted in

the aerial and ground photograph trial exhibits13

below:

12 See 8 PROP. RTS. J. 121, supra, at 177-189.

13 See 10 PROP. RTS. J., supra, at 371-372.

24

Sunderman Groves, Inc.

Before Taking

25

After Taking

Sabal Trail’s appraisal estimate of $56,800, included

$43,700 in severance damages for the diagonal

bifurcation of the easement through the tract but

“zero damages” resulting from proximity to the

pipeline in and of itself, or based on market fear,

perception, or stigma.14

After over two years of

litigation and a four-day trial, a Florida jury awarded

$309,500 including $282,000 in severance damages.

See Sabal Trail Transmission, LLC v. 3.291 Acres of

Land in Lake County, 947 F.3d 1362, 1365-68 (11th

Cir. 2020). The total award is 5.4 times Sabal Trail’s

appraiser’s estimate at trial.15

In the jury trial commencing on November 5, 2018,

Sabal Trail was taking a pipeline easement of 2.46

acres from a 40-acre rural homestead owned by

amicus curiae Ryan Thomas.16 Sabal Trail was also

taking a pipeline easement of 18.27 acres from an

837-acre farm owned by amicus curiae Lee A. Thomas

Trust. The adjacent properties are located in Levy

County, Florida. Sabal Trail’s pipeline easements are

14

See 8 PROP. RTS. J. 121, supra, at 177-189.

15 See 10 PROP. RTS. J., supra, at 379.

16 See 8 Prop. Rts. J. 121, supra, at 189-210.

26

50 feet in width and cut diagonally for a distance of

837 lineal feet through Ryan Thomas’ homestead,

within 500-feet of his house, and for a distance of

5,643 lineal feet through portions of the Lee A.

Thomas Trust’s farm, including a grove of mature oak

trees next to a twenty-acre pond and Ryan Thomas’

house, and through agricultural fields. As a result of

the taking, 25 oak trees were removed from the grove.

The takings are depicted in the aerial and ground

photograph trial exhibits17 below:

Ryan Thomas

17 See 10 PROP. RTS. J., supra, at 373-375.

27

Before Taking

After Taking

28

Lee A. Thomas Trust

29

Before Taking

30

After Taking

31

Regarding Ryan Thomas, Sabal Trail’s

appraisal estimate of $6,800, included “zero damages”

resulting from proximity to the pipeline in and of

itself, or based on market fear, perception, or stigma.18

Regarding the Lee A. Thomas Trust, Sabal Trail’s

appraisal estimate of $59,700, also included “zero

damages” resulting from proximity to the pipeline in

and of itself, or based on market fear, perception, or

stigma.19 After over two years of litigation and a fiveday trial, a Florida jury awarded Ryan Thomas

$463,439, including $451,654 in severance damages,

and Lee A. Thomas Trust $861,264, including

$782,083 in severance damages. See Sabal Trail

Transmission, LLC v. 18.27 Acres of Land in Levy

Cnty., 824 Fed.Appx. 621, 623-24 (11th Cir. 2020)

(unreported). The total award for Ryan Thomas was

68 times Sabal Trail’s appraiser’s estimate at trial

and the total award for Lee A. Thomas Trust was 14.4

times Sabal Trail’s appraiser’s estimate at trial.20

From the Sabal Trail cases in Florida, one is

not only able to perceive the disparity between the

condemnor’s “zero severance damages” contention

and final jury award but how the protection of the

private citizen’s property rights absolutely depended

upon a property owner having an “equal footing” in

regards to the litigation over the measure of

compensation with the private licensee company.

Under state law, in addition to the compensation

awarded by these jury verdicts, Sabal Trail was

required to pay for the attorney’s fees and costs

18 See 8 PROP. RTS. J. 121, supra, at 189-210.

19 See id.

20 See 10 PROP. RTS. J., supra, at 379.

32

incurred by the property owners in defense of eminent

domain.

Jury verdicts were rendered. Final

judgments were entered, appealed, and affirmed.

Once again, Sabal Trail’s initial offers of $6,800,

$59,700, and $56,800, respectively, are held for

comparison to corresponding jury verdicts of

$463,469, $861,254, and $309,500.21 See id. at 377,

382.

III. STATE LAW, WHICH DEFINES

PROPERTY, MAY PROVIDE MORE

SUBSTANTIAL PROTECTION OF

PROPERTY RIGHTS THAN

FEDERAL LAW AND, THEREFORE,

SHOULD CONTROL THE MEASURE

OF COMPENSATION IN NGA

TAKINGS CASES

Whether a respective state’s law controls the

measure of compensation under (a) the best reading

of the § 717f(h)text, (b) the finding that § 717f(h) does

not preempt state law as neither a federal objective

nor a federal project is frustrated, or, (c) the filling an

interstitial “gap” in a federal statute according to the

three-factor analysis articulated in United States v.

Kimbell Foods, Inc., 440 U.S. 715 (1979), state law

should control the measure of compensation in

takings cases under the NGA. If Congress had

intended for the measure of compensation for NGA

takings pursuant to § 717f(h) to be controlled by the

Fifth Amendment, it would have provided same

21 See id. at 379 (Of the 51 cases represented by counsel of record

for amici curiae, 32 cases were resolved in settlement with Sabal

Trail after one or both of the two jury trials.)

33

within the plain text of the federal statute. Rather,

Congress, here, was silent and has remained silent

through historic amendment to the NGA.

CONCLUSION

Given that neither a federal objective nor

federal program is frustrated in the least, following

sound principles of federalism allowing the

sovereignty of each state to govern within their

respective orbits, if state law affords greater

protection of property rights or higher compensation

over the minimum compensation under the Fifth

Amendment, private licensee companies which are

constructing a portion of their interstate pipeline

infrastructure within a state under the NGA should

be required to compensate property owners for the

involuntary takings of easements under the measure

of compensation defined by that state jurisdiction’s

property law.

This Court should reverse the judgment of the

Eighth Circuit.

Respectfully submitted,

Andrew Prince Brigham

BRIGHAM PROPERTY RIGHTS LAW FIRM, PLLC

111 Nature Walk Parkway, Suite 104

St. Augustine, Florida 32092

904-730-9001

abrigham@propertyrights.com

Counsel for Amici Curiae