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

Supreme Court briefSep 21, 2026

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No. 25-159

In the Supreme Court of the United States

LEONARD W. HOFFMANN, ET AL., PETITIONERS

v.

WBI ENERGY TRANSMISSION, INC.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING RESPONDENT

D. JOHN SAUER

Solicitor General

Counsel of Record

ADAM R. F. GUSTAFSON

Principal Deputy Assistant

Attorney General

MALCOLM L. STEWART

Deputy Solicitor General

ZOE A. JACOBY

Assistant to the

Solicitor General

AMBER BLAHA

CHRISTOPHER ANDERSON

Attorneys

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

QUESTION PRESENTED

Whether the Fifth Amendment, as opposed to state

law, determines the measure of compensation due in a

condemnation action brought by a private entity exercising the federal power of eminent domain under the

Natural Gas Act, 15 U.S.C. 717f(h).

(I)

TABLE OF CONTENTS

Page

Interest of the United States....................................................... 1

Introduction................................................................................... 1

Statement ...................................................................................... 4

Summary of argument ................................................................. 9

Argument..................................................................................... 11

A. The Fifth Amendment defines the measure of

compensation owed by a private entity exercising

the federal eminent-domain power under the NGA .... 11

1. When the federal government condemns

property, the Fifth Amendment “just

compensation” standard applies unless

Congress provides otherwise................................... 12

2. The same default rule applies when a private

entity exercises the federal eminent-domain

power .......................................................................... 15

3. Congress did not adopt state compensation laws

in the NGA, so the Fifth Amendment standard

applies ........................................................................ 16

B. Petitioners’ alternative theories lack merit .................. 19

1. Congress did not silently choose state law to

govern the measure of compensation in federal

condemnations under the NGA ............................... 20

2. Congress did not leave a gap for courts to fill

with state law as a matter of federal common

lawmaking.................................................................. 31

Conclusion ................................................................................... 34

TABLE OF AUTHORITIES

Cases:

Agency Holding Corp. v. Malley-Duff & Associates,

483 U.S. 143 (1987)........................................................ 25, 26

Alexander v. Sandoval, 532 U.S. 275 (2001) ....................... 31

(III)

IV

Cases—Continued:

Page

Alyeska Pipeline Serv. Co. v. Wilderness Soc’y,

421 U.S. 240 (1975).............................................................. 29

Board of County Comm’rs v. United States,

308 U.S. 352 (1939).............................................................. 27

Boom Co. v. Patterson, 98 U.S. 403 (1879) .......................... 15

Brown v. United States, 263 U.S. 78 (1923) ........................ 27

Burks v. Lasker, 441 U.S. 471 (1979) ................................... 25

Davies Warehouse Co. v. Bowles,

321 U.S. 144 (1944).............................................................. 20

DelCostello v. International Bhd. of Teamsters,

462 U.S. 151 (1983).............................................................. 25

Dohany v. Rogers, 281 U.S. 362 (1930) ............................... 12

Dolan v. City of Tigard, 512 U.S. 374 (1994) ...................... 13

Georgia Power Co. v. Sanders,

617 F.2d 1112 (5th Cir. 1980) ............................................. 30

Holmberg v. Armbrecht, 327 U.S. 392 (1946) ..................... 26

Jama v. ICE, 543 U.S. 335 (2005) .................................. 27, 28

Johnson v. Transportation Agency,

480 U.S. 616 (1987).............................................................. 31

Kirby Forest Indus., Inc. v. United States,

467 U.S. 1 (1984) ................................................................. 23

Kohl v. United States, 91 U.S. 367 (1876) ........... 9, 14, 15, 25

Lackey v. Stinnie, 604 U.S. 192 (2025) ................................ 29

Luxton v. North River Bridge Co.,

153 U.S. 525 (1894).............................................................. 15

Monongahela Navigation Co. v. United States,

148 U.S. 312 (1893).............................................................. 12

Montana Dakota Utils. Co.,

21 F.E.R.C. ¶ 62,299 (1982) ................................................. 6

PennEast Pipeline Co. v. New Jersey,

594 U.S. 482 (2021).......... 2, 4, 5, 10, 15, 17-20, 23, 24, 29, 32

Pung v. Isabella County, 146 S. Ct. 1964 (2026) ................ 12

V

Cases—Continued:

Page

Reconstruction Fin. Corp. v. Beaver County,

328 U.S. 204 (1946).............................................................. 26

Ruckelshaus v. Monsanto Co., 467 U.S. 986 (1984) ........... 21

Sabal Trail Transmission, LLC v. 3.921 Acres of

Land, 74 F.4th 1346 (11th Cir. 2023) .......................... 16, 32

Schneidewind v. ANR Pipeline Co.,

485 U.S. 293 (1988).............................................................. 32

Tennessee Gas Pipeline Co. v. Permanent Easement

for 7.053 Acres, 931 F.3d 237 (3d Cir. 2019) ..................... 16

United States v. Bodcaw Co.,

440 U.S. 202 (1979).....................................2, 8, 12, 13, 19, 22

United States v. 50 Acres of Land,

469 U.S. 24 (1984) ............................................................... 12

United States v. Kimbell Foods, Inc.,

440 U.S. 715 (1979)........................................... 3, 7, 11, 32-34

United States v. Miller, 317 U.S. 369 (1943)............ 14-17, 21

United States v. 93.970 Acres of Land,

360 U.S. 328 (1959).................................................. 14, 15, 18

United States v. Reynolds, 397 U.S. 14 (1970) ................... 21

United States ex rel. Tennessee Valley Auth.

v. Powelson, 319 U.S. 266 (1943) ....................................... 21

Williston Basin Interstate Pipeline Co. & MontanaDakota Utils. Co., 30 F.E.R.C. ¶ 61,143 (1985) ............... 12

Constitution, statutes, regulations, and rules:

U.S. Const. :

Amend. V (Just Compensation Clause) ............. 1-3, 8-13,

15, 16, 19, 21, 22,

24, 28, 31, 32, 34

Amend. XIV ..................................................................... 13

Act of July 25, 1947, ch. 333, 61 Stat. 459 .............................. 5

VI

Statutes, regulations, and rules—Continued:

Page

Condemnation Act (Lands for Public Uses),

ch. 728, 25 Stat. 357 ............................................................ 28

Energy Policy Act of 2005,

Pub. L. No. 109-58, 119 Stat. 594 ...................................... 30

Equal Access to Justice Act,

Pub. L. No. 96-481, Tit. II, 94 Stat. 2325 .......................... 13

28 U.S.C. 2412(d)(1)(A) ................................................... 13

28 U.S.C. 2412(d)(2)(H)................................................... 13

Federal Power Act, 16 U.S.C. 791a et seq. ............................ 5

16 U.S.C. 814 ............................................................ 5, 6, 27

16 U.S.C. 824p.................................................................. 31

16 U.S.C. 824p(f ) ............................................................. 30

16 U.S.C. 824p(f )(1) ......................................................... 30

General Bridge Act of 1946, ch. 753, 60 Stat. 847

(33 U.S.C. 525 et seq.) ......................................................... 14

33 U.S.C. 532 .............................................................. 14, 18

Natural Gas Act, 15 U.S.C. 717 et seq. .................................. 1

15 U.S.C. 717(a) ........................................................... 4, 33

15 U.S.C. 717(b) ................................................................. 4

15 U.S.C. 717f .................................................................... 4

15 U.S.C. 717f(c) ................................................................ 4

15 U.S.C. 717f(d) ................................................................ 4

15 U.S.C. 717f(e) ................................................................ 4

15 U.S.C. 717f(h) ......................... 2, 5, 6, 9-11, 16-21, 23-32

Uniform Relocation Assistance and Real

Property Acquisition Policies Act of 1970,

Pub. L. No. 91-646, 84 Stat. 1894

(42 U.S.C. 4601 et seq.) ....................................................... 13

42 U.S.C. 4654(a) ............................................................. 29

42 U.S.C. 4654(a)(1) ......................................................... 13

42 U.S.C. 4654(a)(2) ......................................................... 13

VII

Regulations and rules—Continued:

Page

18 C.F.R.:

Section 157.6(d).................................................................. 4

Sections 157.201-157.218 ................................................... 6

Fed. R. Civ. P.:

Rule 71.1 ........................................................................... 18

Rule 71.1(a) ...................................................................... 18

Rule 71A (1952)................................................................ 18

Miscellaneous:

Exec. Order No. 14,154,

Unleashing American Energy,

90 Fed. Reg. 8353 (Jan. 29, 2025) ...................................... 33

Exec. Order No. 14,156,

Declaring a National Energy Emergency,

90 Fed. Reg. 8433 (Jan. 29, 2025) ...................................... 33

82 Fed. Reg. 60,007 (Dec. 18, 2017) ....................................... 6

Note, The Federal Common Law,

82 Harv. L. Rev. 1512 (1969) ............................................. 34

4 Julius L. Sackman, Nichols on Eminent Domain

(3d ed. 2026)................................................................... 20, 22

S. Rep. No. 429, 80th Cong., 1st Sess. (1947) ........ 4, 5, 18, 32

Stewart E. Sterk, The Role of State and

Federal Law in Energy Condemnations,

9 Brigham-Kanner Prop. Rts. J. 205 (2020) ..................... 21

In the Supreme Court of the United States

No. 25-159

LEONARD W. HOFFMANN, ET AL., PETITIONERS

v.

WBI ENERGY TRANSMISSION, INC.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING RESPONDENT

INTEREST OF THE UNITED STATES

This case presents the question whether the Fifth

Amendment or state law defines the measure of compensation owed by a private entity exercising the federal power of eminent domain pursuant to the Natural

Gas Act (NGA or Act), 15 U.S.C. 717 et seq. The Federal

Energy Regulatory Commission (FERC) is responsible

for administering the NGA, and private condemnation

suits further the purposes the Act is intended to serve.

The United States therefore has a substantial interest

in the resolution of the question presented here. At the

Court’s invitation, the United States filed a brief as amicus curiae at the petition stage of the case.

INTRODUCTION

The NGA delegates to certain private entities the

federal power of eminent domain to obtain rights-of(1)

2

way necessary to construct and maintain interstate

pipelines. 15 U.S.C. 717f(h). The Act does not specify

the measure of compensation owed for such takings,

and the question presented in this case is whether the

Fifth Amendment or state law supplies the applicable

compensation standard. The Eighth Circuit held that

Congress’s failure to specify a different measure of

compensation means that “the default rule” of “ ‘just

compensation’ under the Fifth Amendment” applies.

Pet. App. 6a. The court determined in particular that,

although attorney’s fees incurred by the landowner in a

condemnation suit are part of the compensation owed

for a taking under North Dakota law, id. at 3a, such fees

are not part of “just compensation” under the Fifth

Amendment. Id. at 9a-10a; see United States v. Bodcaw

Co., 440 U.S. 202, 203 (1979) (per curiam).

The Eighth Circuit’s decision was correct. The NGA’s

delegation of the federal eminent-domain power is “categorical.” PennEast Pipeline Co. v. New Jersey, 594

U.S. 482, 498 (2021). When the federal government exercises the federal eminent-domain power, it must pay

a property owner “just compensation” under the Fifth

Amendment, unless Congress affirmatively adopts state

compensation rules or otherwise mandates greater compensation. The same default rule applies when, as here,

Congress delegates the federal eminent-domain power

to a private entity. Because Congress did not specify a

measure of compensation in Section 717f(h), the Fifth

Amendment default standard applies, and attorney’s

fees are not available.

Petitioners acknowledge (Br. 7, 20) that, when the

federal government takes land in its own name, the

Fifth Amendment standard applies unless Congress explicitly provides otherwise. Petitioners argue (Br. 12-

3

37), however, that when Congress delegates the federal

eminent-domain power to a private party, state-law rules

governing the measure of compensation should presumptively apply. That argument ignores the categorical nature of the NGA’s delegation of federal condemnation authority. And petitioners offer no sound alternative reason why state-law measure-of-compensation

rules should supersede the Fifth Amendment standard

in a federal cause of action under the NGA.

Petitioners contend (e.g., Br. 47) that incorporation

of state law is appropriate here because the parties’ dispute involves “rules about land valuation.” But the decision whether to award attorney’s fees has nothing to

do with the value of the easements that respondent

took. The decision instead concerns whether petitioners should receive additional compensation, over and

above the value of the taken property. North Dakota is

free to authorize such additional compensation when

the State takes property, but the landowner in an NGA

condemnation action is entitled only to Fifth Amendment “just compensation.”

Petitioners alternatively argue (Br. 37-44) that the

NGA’s failure to specify an applicable measure of compensation left a “gap” for courts to fill through judicial

lawmaking, and that state law should be incorporated to

fill that gap under the framework of United States v.

Kimbell Foods, Inc., 440 U.S. 715 (1979). That is also

wrong. Congress’s failure to specify a measure of compensation did not leave a “gap” as to the standard of

compensation that applies. And even if it did, uniform

federal rules, rather than disparate and potentially obstructionist state laws, should fill that gap.

4

STATEMENT

1. In 1938, Congress enacted the Natural Gas Act to

regulate “the transportation of natural gas in interstate

commerce.” 15 U.S.C. 717(b). The Act reflects Congress’s determination that “[f ]ederal regulation in matters relating to the transportation of natural gas and the

sale thereof in interstate and foreign commerce is necessary in the public interest.” 15 U.S.C. 717(a).

The Act vests FERC, formerly the Federal Power

Commission, with primary authority to approve the

construction and extension of interstate natural-gas

pipelines. See 15 U.S.C. 717f. In order to build or extend an interstate pipeline, a private entity must first

obtain from FERC a “certificate of public convenience

and necessity” authorizing the project. 15 U.S.C. 717f(c).

A company seeking such a certificate must submit to

FERC an application that describes the proposed pipeline. 15 U.S.C. 717f(d). The company must make a

“good faith effort to notify all affected landowners”

whose property may be crossed by the proposed pipeline or used during construction. 18 C.F.R. 157.6(d). If

FERC determines that the proposed interstate pipeline

“is or will be required by the present or future public

convenience and necessity,” FERC issues a certificate

authorizing its construction. 15 U.S.C. 717f(e).

“As originally enacted, the NGA did not identify a

mechanism for certificate holders to secure property

rights necessary to build pipelines.” PennEast Pipeline

Co. v. New Jersey, 594 U.S. 482, 489 (2021); see S. Rep.

No. 429, 80th Cong., 1st Sess. 1 (1947) (Senate Report).

Pipeline companies relied instead on state-law mechanisms to acquire the needed land. Senate Report 1-2.

Under that regime, States could (and did) withhold authority to take land for projects that they disfavored,

5

such as those undertaken by out-of-state corporations.

Id. at 2-3. “The result was that certificate holders often

had only an illusory right to build.” PennEast, 594 U.S.

at 489.

In 1947, Congress addressed that impediment by

amending the NGA to authorize private certificate holders to exercise the federal power of eminent domain.

Act of July 25, 1947, ch. 333, 61 Stat. 459 (15 U.S.C.

717f(h)); see PennEast, 594 U.S. at 489. Specifically,

Congress provided:

When any holder of a certificate of public convenience and necessity cannot acquire by contract, or is

unable to agree with the owner of property to the

compensation to be paid for, the necessary right-ofway to construct, operate, and maintain a pipe line or

pipe lines for the transportation of natural gas

* * * , it may acquire the same by the exercise of the

right of eminent domain in the district court of the

United States for the district in which such property

may be located, or in the State courts.

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

The drafters of Section 717f(h) explained that they

had modeled its language on “the wording of the eminent

domain provision of the Federal Power Act [16 U.S.C.

791a et seq.].” Senate Report 1; see id. at 4. That provision authorizes private entities to condemn property

necessary for the “construction, maintenance, or operation” of dams and other projects that support hydroelectric power. 16 U.S.C. 814. As in the Federal Power Act,

Congress directed that the “practice and procedure” in

any NGA condemnation action brought in federal district court “shall conform as nearly as may be with the

practice and procedure in similar action or proceeding

6

in the courts of the State where the property is situated.” 15 U.S.C. 717f(h); see 16 U.S.C. 814.

2. Respondent transports and stores natural gas.

Pet. App. 2a. In 1985, FERC issued respondent a certificate of public convenience and necessity, authorizing

respondent to operate and maintain an interstate pipeline system previously owned by another company.

Williston Basin Interstate Pipeline Co. & MontanaDakota Utils. Co., 30 F.E.R.C. ¶ 61,143, at 61,253 (1985).

Respondent also inherited the other company’s “blanket certificate,” which is an authorization to conduct relatively minor pipeline projects pursuant to a streamlined regulatory approval process. Ibid.; Montana Dakota Utils. Co., 21 F.E.R.C. ¶ 62,299, at 63,482 (1982);

see 18 C.F.R. 157.201-157.218.

In November 2017, respondent requested authorization to construct approximately 12 miles of pipeline in

McKenzie County, North Dakota, and to expand certain

existing natural-gas facilities in the area. C.A. J.A. 9,

12. Pursuant to respondent’s blanket certificate, FERC

issued a notice of authorization for the project. See 82

Fed. Reg. 60,007 (Dec. 18, 2017).

To construct and maintain the new pipeline, respondent needed to secure several easements and rights-ofway in McKenzie County. See C.A. J.A. 45. Respondent

purchased many of the necessary property interests

from local landowners, but respondent could not reach

an agreement with certain landowners, who are petitioners in this Court. Ibid. Respondent therefore sought

to obtain the relevant easements and rights-of-way

through eminent domain, pursuant to the NGA.

3. In April 2018, respondent filed a condemnation

action in the United States District Court for the District of North Dakota. Compl. 1-7; see Pet. App. 28a.

7

The parties stipulated that respondent could immediately use and possess the relevant easements and

rights-of-way, leaving only the amount of compensation

to be determined. Pet. App. 29a. After three years of

litigation on that issue, the parties reached a confidential settlement on the value of the taken property interests. Id. at 29a, 50a. But petitioners reserved the right

to move for attorney’s fees and expenses, and respondent reserved the right to contest that motion. Id. at 50a.

Consistent with the parties’ stipulation, petitioners

moved for an award of attorney’s fees and expenses.

Pet. App. 30a. Petitioners argued that state law should

control in determining the compensation owed to them

for the taking, and that “just compensation as measured

in North Dakota” “includes” “reasonable fees and expenses.” D. Ct. Doc. 127, at 10 (Oct. 4, 2021); see D. Ct.

Doc. 119, at 1-14 (Aug. 12, 2021). Respondent opposed

the motion. Respondent argued that “federal law defines just compensation in a federal condemnation” under the NGA, and that “attorney’s fees and other litigation expenses are not included in just compensation under the Fifth Amendment” or otherwise authorized by

federal statute. D. Ct. Doc. 120, at 13 (Sept. 2, 2021).

The district court granted petitioners’ motion. Pet.

App. 46a. The court observed that the NGA is “silent”

as to the applicable law and measure of compensation in

a condemnation action brought by a private party, and

indeed that the Act does not expressly require “that just

compensation be awarded.” Id. at 32a. The court concluded that the Act’s silence on that point left a gap to

be filled through common lawmaking. Id. at 32a-33a.

The court then applied the analytic framework of

United States v. Kimbell Foods, Inc., 440 U.S. 715

8

(1979), to determine whether to adopt state law or instead to fashion a uniform federal rule to fill that asserted gap. Pet. App. 33a-35a. Under that framework,

the court chose to “adopt[ ] state substantive law as the

federal standard of just compensation.” Id. at 45a. The

court of appeals concluded that under North Dakota

law, attorney’s fees and expenses are a component of

just compensation. Id. at 45a-46a.

After further briefing on the appropriate fee award,

the district court awarded petitioners $383,375.76 in attorney’s fees and expenses. Pet. App. 23a.

4. The court of appeals vacated the fee award. Pet.

App. 1a-10a. The court explained that a private entity

exercising the federal power of eminent domain under

the NGA “step[s] into the federal government’s shoes”

and “inherit[s] all its rights and obligations.” Id. at 4a.

When the federal government conducts a taking, the

court observed, the Just Compensation Clause does not

require it to pay attorney’s fees. Id. at 6a (citing United

States v. Bodcaw Co., 440 U.S. 202, 203 (1979) (per curiam)). The court further explained that, although some

federal statutes mandate compensation above the constitutional floor by requiring attorney’s fees for certain

federal takings, the NGA provision at issue here does

not. Id. at 5a-6a.

The court of appeals rejected the district court’s

Kimbell Foods-based determination to adopt state law

as the applicable rule of decision. Pet. App. 6a-9a. The

court of appeals explained that, “when it comes to eminent domain, congressional silence leaves no ‘gaps’ to

fill” with state law or federal common law on the measure of just compensation. Id. at 7a. Instead, “any gaps

are filled by the Fifth Amendment itself.” Id. at 8a. The

court also viewed this Court’s decision in PennEast as

9

confirming that the NGA delegates to private entities

“the entire federal eminent-domain power, not just

some diluted form of it.” Ibid. And it concluded that

petitioners’ policy arguments for applying state law in

this context were better directed to Congress. Id. at 9a.

SUMMARY OF ARGUMENT

A. The Fifth Amendment defines the measure of

compensation owed by a private pipeline company in a

condemnation action under the NGA, 15 U.S.C. 717f(h).

1. When the United States exercises the federal

power of eminent domain, it must pay landowners “just

compensation” within the meaning of the Fifth Amendment, unless Congress expressly adopts a standard

above that constitutional floor. One way that Congress

can depart from the constitutional floor is by requiring

the federal government to pay compensation according

to the state-law standards that apply when state entities

take land, which may be more generous than the compensation required by the Fifth Amendment. Such

state compensation laws do not apply of their own force

to the federal government. See Kohl v. United States,

91 U.S. 367, 374 (1876). So unless Congress expressly

adopts such standards or otherwise requires some specific measure of compensation, the Fifth Amendment

default applies.

2. The same principles apply when the federal government authorizes a private entity to exercise the federal eminent-domain power on its behalf. In that circumstance, the power being exercised is still that of the

federal government, so state law does not apply unless

Congress expressly so provides. Statutory silence means

that the Fifth Amendment standard applies.

10

3. Section 717f(h) authorizes private entities to exercise the eminent-domain power but does not expressly adopt state law. 15 U.S.C. 717f(h). In that circumstance, the Fifth Amendment “just compensation”

standard applies, just as it would if the statute authorized the government to condemn land in its own name.

The NGA’s delegation of the federal eminent-domain

power is “categorical.” PennEast Pipeline Co. v. New

Jersey, 594 U.S. 482, 498 (2021). And Congress gave no

indication that it intended for a different measure-ofcompensation rule to apply to federal delegees. On the

contrary, adopting state compensation rules would be

at odds with Congress’s purpose in enacting Section

717f(h), which was to ensure that interstate pipeline

construction was not subject to disparate and potentially obstructionist state-law eminent-domain regimes.

See id. at 489.

B. Petitioners contend that state law, rather than

the Fifth Amendment standard, should determine their

compensation for respondent’s taking of their land.

They seek to recover attorney’s fees from defending the

condemnation action, even though attorney’s fees are

not part of “just compensation” under the Fifth Amendment, on the theory that such fees are part of the compensation required for condemnations under North Dakota law. Both of petitioners’ theories in support of that

argument lack merit.

1. Petitioners first contend (Br. 12-37) that Section

717f(h)’s silence as to condemnation is best read as an

affirmative decision by Congress to adopt state law as

the measure of compensation. But they concede (Br. 7,

20) that statutory silence would mean that the Fifth

Amendment standard applies in a taking by the federal

government in its own name, and they offer no sound

11

reason why a different rule should apply when the government categorically delegates its power. Petitioners

also argue that issues of property valuation are typically the province of state law. But the compensation

dispute in this case does not concern the value of petitioners’ property; it concerns whether petitioners are

entitled to litigation costs on top of that property value.

Petitioners’ remaining arguments about the implications of the statutory silence lack merit.

2. Petitioners alternatively argue that the NGA’s

failure to specify a measure of compensation leaves a

gap to fill through judicial lawmaking. But in federal

condemnation statutes, silence as to compensation leaves

no gap to fill. Even if it did, federal law should fill that

gap under a straightforward application of the factors

this Court considered in United States v. Kimbell Foods,

Inc., 440 U.S. 715 (1979).

ARGUMENT

A. The Fifth Amendment Defines The Measure of Compensation Owed By A Private Entity Exercising The Federal Eminent-Domain Power Under The NGA

The NGA authorizes private certificate holders to exercise the federal eminent-domain power on the government’s behalf, but it does not specify any particular

measure of compensation for their takings. See 15 U.S.C.

717f(h). Respondent argues that the Fifth Amendment

standard of “just compensation” applies in this circumstance, while petitioners contend that certificate holders

are subject to the state-law measure-of-compensation

rules that apply in state condemnation actions. The

court of appeals correctly held that the Fifth Amendment, not state law, defines the measure of compensation in a private taking under the NGA. See Pet. App.

6a. When the federal government takes property, the

12

default Fifth Amendment standard applies unless Congress expressly provides otherwise. The same default

rule applies when, as here, the government exercises its

power through a private delegee.

1. When the federal government condemns property, the

Fifth Amendment “just compensation” standard applies unless Congress expressly provides otherwise

When the federal government exercises the federal

power of eminent domain, the Fifth Amendment requires it to pay “just compensation” to the property

owner. U.S. Const. Amend. V. A significant body of case

law clarifies the scope of “just compensation” under the

Fifth Amendment. As a general matter, “just compensation normally is to be measured by ‘the market value

of the property at the time of the taking.’ ” United

States v. 50 Acres of Land, 469 U.S. 24, 29 (1984) (citation omitted); but cf. Pung v. Isabella County, 146 S. Ct.

1964, 1970-1971 (2026) (discussing exceptions). Other

decisions elaborate on that standard and further define

the contours of “just compensation.” See United States

v. Reynolds, 397 U.S. 14, 16-18 (1970) (discussing the

“refinements developed over the years” to the “basic”

fair-market-value standard).

Just compensation under the Fifth Amendment “is

for the property, and not to the owner.” Monongahela

Navigation Co. v. United States, 148 U.S. 312, 326 (1893).

Accordingly, “indirect costs to the property owner

caused by the taking of his land,” such as “ ‘attorneys’

fees and expenses,’ ” are “generally not part of the just

compensation to which he is constitutionally entitled.”

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

(per curiam) (quoting Dohany v. Rogers, 281 U.S. 362,

368 (1930)) (brackets omitted).

13

Congress is free to, and sometimes does, mandate relief exceeding that constitutional floor. For example,

although attorney’s fees are not part of “just compensation” under the Fifth Amendment, the Equal Access to

Justice Act, Pub. L. No. 96-481, Tit. II, 94 Stat. 2325,

makes the federal government liable to pay such fees in

certain condemnation actions that are not resolved “by

settlement.” 28 U.S.C. 2412(d)(1)(A) and (2)(H). And the

Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, Pub. L. No. 91-646, 84 Stat.

1894 (42 U.S.C. 4601 et seq.), authorizes the payment of

attorney’s fees when the government abandons a condemnation proceeding or the final judgment is that the

government “cannot acquire the real property by condemnation.” 42 U.S.C. 4654(a)(1) and (2). Such compensation, however, “is a matter of legislative grace rather

than constitutional command.” Bodcaw, 440 U.S. at 204.

When a State or state entity exercises the power of

eminent domain under state law, the State may authorize compensation more generous than the Fifth Amendment requires. For example, a State could direct that

when a state entity takes a landowner’s property by eminent domain, the landowner is entitled to receive significantly more than the property’s fair market value.

See Resp. Br. 28-29 (citing state laws). Or a State could

require state entities to pay landowners the attorney’s

fees they have incurred in condemnation proceedings,

even though such fees are not part of “just compensation” under the Fifth Amendment.1

States may not limit landowners to compensation below the Fifth

Amendment “just compensation” standard, because the Just Compensation Clause applies to the States through the Fourteenth

Amendment. See Dolan v. City of Tigard, 512 U.S. 374, 383 (1994).

1

14

Such state laws do not apply of their own force when

the federal government exercises its power of eminent

domain. The federal government’s “power” of eminent

domain “can neither be enlarged nor diminished by a

State,” “[n]or can any State prescribe the manner in

which it must be exercised.” Kohl v. United States, 91

U.S. 367, 374 (1876). The measure of compensation in a

taking by the federal government is thus controlled by

federal law. See United States v. Miller, 317 U.S. 369,

379-380 (1943); United States v. 93.970 Acres of Land,

360 U.S. 328, 332-333 (1959).

Congress may choose, however, to adopt as the governing federal standard state-law measures of compensation that exceed the federal constitutional minimum.

See Pet. App. 5a. For example, the General Bridge Act

of 1946, ch. 753, 60 Stat. 847 (33 U.S.C. 525 et seq.), authorizes certain takings and requires compensation to

be “ascertained and paid according to the laws of [the]

State” where the condemnation occurs. 33 U.S.C. 532.

Federal standards remain the default, however, unless

Congress affirmatively “chooses to make state laws applicable.” 93.970 Acres of Land, 360 U.S. at 333. Thus,

in Miller, the Court refused to apply California compensation rules in a federal taking where Congress had not

affirmatively “adopted the local rule.” 317 U.S. at 379.

Although certain federal statutes at the time directed

courts to follow state procedural rules, the Court explained that those laws “do not, and could not, affect

questions of substantive right—such as the measure of

compensation—grounded upon the Constitution of the

United States.” Id. at 380.

As Miller illustrates, courts will not presume that

state compensation rules apply to a federal taking unless Congress says so expressly. See 317 U.S. at 379;

15

93.970 Acres of Land, 360 U.S. at 332-333. Thus, when

a statute is silent as to the measure of compensation

that the federal government owes for a particular taking, the Fifth Amendment standard applies.

2. The same default rule applies when a private entity

exercises the federal eminent-domain power

The foregoing analysis does not change when Congress authorizes a private entity to exercise the federal

power of eminent domain. “Since the founding, the

United States has used its eminent domain authority to

build a variety of infrastructure projects,” both “on its

own and through private delegates.” PennEast Pipeline Co. v. New Jersey, 594 U.S. 482, 488 (2021); see

Luxton v. North River Bridge Co., 153 U.S. 525, 530

(1894) (explaining that Congress may “use its sovereign

powers” of eminent domain “directly or through a corporation created for that object”). When a private entity condemns property pursuant to a federal delegation, the power it exercises belongs to the federal

government—not to the delegee itself. Cf. Boom Co. v.

Patterson, 98 U.S. 403, 406 (1879) (explaining that the

eminent-domain power is an “attribute of sovereignty”).

Because a private condemnor in a federal taking is exercising the “power of the Federal government,” States

may not directly regulate the use of that power. Kohl,

91 U.S. at 373; see p. 14, supra. Accordingly, regardless

of whether the government takes land in its own name

or through a delegee, questions concerning the proper

measure of compensation are issues of federal law. See

ibid.; Miller, 317 U.S. at 379; Pet. App. 6a. Under that

framework, state measure-of-compensation rules apply

only if Congress chooses to adopt them. See 93.970 Acres

of Land, 360 U.S. at 332-333. Otherwise, the Fifth

Amendment default of “just compensation” applies. Ibid.

16

3. Congress did not adopt state compensation laws in

the NGA, so the Fifth Amendment standard applies

a. Section 717f(h) authorizes certificate holders to

“acquire” property “by the exercise of the right of eminent domain,” but it does not mention compensation. 15

U.S.C. 717f(h). It was unnecessary for Congress to

specify that compensation must be paid, because the

Fifth Amendment requires payment of “just compensation” to a landowner whose property is taken. Cf. Miller, 317 U.S. at 380. Specific statutory language would

have been necessary, however, to require payment of

more than “just compensation” for a taking effected under a federal statute. The absence of such language

here means that the Fifth Amendment provides the

measure of compensation for a taking under the NGA.

See Pet. App. 6a.

Section 717f(h)’s delegation of the federal eminentdomain power to a private entity does not change the

measure-of-compensation analysis. By delegating the

federal “right of eminent domain” without further qualification, Congress authorized certificate holders to

step into the federal government’s shoes. Pet. App. 6a

(citation omitted). The NGA’s silence therefore indicates that the Fifth Amendment’s default measure of

compensation applies, just as it would if the statute authorized a taking by the federal government. See p. 15,

supra. “The rules of the road do not change, in other

words, when the federal government hands the keys

over to a private party.” Pet. App. 8a; see Sabal Trail

Transmission, LLC v. 3.921 Acres of Land, 74 F.4th

1346, 1349 (11th Cir. 2023) (per curiam) (Grant, J., concurring); Tennessee Gas Pipeline Co. v. Permanent

Easement for 7.053 Acres, 931 F.3d 237, 257-258 (3d Cir.

2019) (Chagares, J., dissenting).

17

This Court’s decision in PennEast confirms how completely a certificate holder acting under Section 717f(h)

stands in the federal government’s shoes. There, the

Court rejected New Jersey’s state-sovereign-immunity

defense to a certificate holder’s condemnation of stateowned land, explaining that States had consented in the

plan of the Convention to the exercise of the federal

eminent-domain power “in its entirety.” PennEast, 594

U.S. at 508. The Court held that because “the federal

eminent domain power can be delegated,” and Section

717f(h) “speaks with sufficient clarity to delegate th[at]

power,” States “have no immunity left to waive or abrogate when it comes to condemnation suits by the Federal Government and its delegatees.” Ibid. The Court

described the NGA’s delegation to private certificate

holders as “categorical.” Id. at 498.

b. Other contextual features confirm that Congress

did not intend for state measure-of-compensation rules

to apply in takings under the NGA. Section 717f(h) provides that condemnation actions may be brought in federal or state court, and that if they are brought in federal court, state-law “practice and procedure” should

apply where possible. 15 U.S.C. 717f(h). That language

ensures that state procedural law will govern in NGA

condemnation actions, regardless of the court in which

suit is brought. But Congress did not include any similar directive that courts apply state substantive law in

NGA condemnation proceedings. See Miller, 317 U.S.

at 380 (identifying the “measure of compensation” in a

federal condemnation suit as a “question[] of substantive right”). Congress’s selective incorporation of state

procedural law confirms the default assumption that

18

substantive measure-of-compensation issues are governed by federal law.2

The General Bridge Act, which Congress enacted

one year before it enacted Section 717f(h), reinforces

that conclusion. See p. 14, supra. The General Bridge

Act authorizes an “individual,” a “firm or corporation,”

or a state entity to exercise the same eminent-domain

powers “as are possessed by railroad corporations”

or “bridge corporations” “in the State” of the taking.

33 U.S.C. 532. That law specifies both that “the proceedings [for eminent domain] shall be the same as” in

the States, and that the substantive “just compensation

therefor” shall “be ascertained and paid according to

the laws of such State.” Ibid. The contrast between the

General Bridge Act’s incorporation of state procedural

and substantive rules, and the NGA’s substantially contemporaneous incorporation of state procedural rules

alone, further indicates that federal law governs the

measure of compensation under the NGA.

The history and purpose of Section 717f(h) point in

the same direction. Before Section 717f(h) was enacted,

certificate holders could secure rights-of-way only by

“rely[ing] on state eminent domain procedures,” which

“were frequently made unavailable to them.” PennEast,

594 U.S. at 489. Some States, for example, had barred

out-of-state gas companies from exercising the right of

eminent domain. See Senate Report 2-3. Congress addressed that problem by amending the statute to “au-

The NGA’s “practice and procedure” language has now effectively been abrogated by Federal Rule of Civil Procedure 71.1, formerly Rule 71A, which establishes uniform rules for federal condemnation actions. See Fed. R. Civ. P. 71.1(a); cf. 93.970 Acres of

Land, 360 U.S. at 333 n.7.

2

19

thorize certificate holders to exercise the federal eminent domain power,” thereby ensuring that their certificates “could be given effect.” PennEast, 594 U.S. at

489-490. If state measure-of-compensation rules governed in those condemnation actions, however, States

could impede interstate pipeline construction by requiring prohibitively high compensation. Given the problem

that Section 717f(h) was enacted to address, it is implausible that Congress would have subjected certificate

holders to disparate and potentially obstructionist

state-law compensation regimes.

c. The court of appeals correctly applied those principles to the parties’ dispute over attorney’s fees here.

The courts below determined—and this Court may assume for purposes of this case—that attorney’s fees are

part of the compensation owed in condemnation proceedings under North Dakota law. See Pet. App. 3a.

Attorney’s fees are not, however, “embraced within just

compensation” under the Fifth Amendment. Bodcaw,

440 U.S. at 202 (citation omitted). The court of appeals

rightly determined that in private condemnations under

the NGA, “the default rule applies: ‘just compensation’

under the Fifth Amendment.” Pet. App. 6a (citation

omitted). The court thus correctly reversed petitioners’

fee award. Id. at 9a.

B. Petitioners’ Alternative Theories Lack Merit

Petitioners contend that state-law measures of compensation, rather than the Fifth Amendment “just

compensation” standard, should govern in an eminentdomain proceeding under Section 717f(h). In support of

that theory, petitioners offer two alternative arguments.

Their lead argument (Br. 12-37) is that, as a matter of

statutory interpretation, Section 717f(h)’s silence as to

compensation is best read as an affirmative choice to

20

adopt state compensation law. Alternatively, petitioners argue (Br. 37-44) that the statutory silence left a gap

for courts to fill through judicial lawmaking, and that

courts should select state law as the governing federal

common-law rule. Both arguments fail.

1. Congress did not silently choose state law to govern

the measure of compensation in federal condemnations under the NGA

Petitioners’ frontline theory (Br. 12-37) is that Section 717f(h)’s silence as to compensation is best read as

manifesting an affirmative congressional choice to require courts to apply state-law measure-of-compensation

rules. That argument reflects an implausible understanding of Congress’s failure to specify the governing

measure of compensation.

a. Petitioners contend that Congress would have expected state law to govern the measure of compensation

under Section 717f(h) because state law “usually controls questions” about the “ ‘transfer of property.’ ” Pet.

Br. 17 (quoting Davies Warehouse Co. v. Bowles, 321

U.S. 144, 155 (1944)) (brackets omitted). Section 717f(h),

however, does not address the ordinary “transfer of property”; it authorizes an exercise of the federal eminentdomain power. See PennEast, 594 U.S. at 489-490. In

that context, state law does not “usually control” questions of compensation. Contra Pet. Br. 17. On the contrary, “[i]n a federal condemnation proceeding what

constitutes just compensation is a question of federal

law.” 4 Julius L. Sackman, Nichols on Eminent Domain § 12.01[4], at 12-33 (3d ed. 2026) (Nichols); see

21

Miller, 317 U.S. at 380-381. That is the relevant background principle against which Section 717f(h) should

be interpreted.3

Petitioners also argue (Br. 17) that compensation

disputes often involve subsidiary questions of “property

valuation,” which are traditionally the province of state

law. See id. at 17-19. That argument does not help

petitioners here, however, because the compensation

dispute in this case does not concern the value of the

easements that respondent took. To the contrary, the

parties to this case settled their dispute about the value

of the taken property interests before litigating the

attorney’s-fee issue. See Pet. App. 29a, 50a.

Petitioners characterize (Br. 47) the issue before this

Court as “whether transaction costs in acquiring land

are part of that land’s fair price.” But the value of a

real-property interest does not rise or fall with the fees

charged by the landowner’s attorney. Instead, the dispute in this case concerns whether the compensation

To be sure, even in federal condemnations, state law plays a role

in defining the meaning and scope of the “property” that is protected by the Fifth Amendment. See United States ex rel. Tennessee Valley Auth. v. Powelson, 319 U.S. 266, 279 (1943). That is because “property interests are not created by the Constitution,” but

rather “are defined by existing rules or understandings that stem

from an independent source such as state law.” Ruckelshaus v.

Monsanto Co., 467 U.S. 986, 1001 (1984) (brackets, citation, and ellipsis omitted). But “[u]nlike private property, whose source lies

outside the Constitution, ‘just compensation’ is the federal constitutional remedy for interference with that property.” Stewart E.

Sterk, The Role of State and Federal Law in Energy Condemnations, 9 Brigham-Kanner Prop. Rts. J. 205, 218 (2020). State-law

“supplements” to that standard therefore “have no federal constitutional significance.” Id. at 219; see Miller, 317 U.S. at 381.

3

22

owed for a taking of property should include the landowner’s litigation expenses in addition to the taken

property’s value. Cf. Bodcaw, 440 U.S. at 203 (describing attorney’s fees incurred in condemnation actions as

“indirect costs to the property owner caused by the taking of his land”). North Dakota is free to require that

such expenses be awarded when property is taken by

the State. But there is no sound basis for reading the

NGA to incorporate state-law rules authorizing such

awards.4

b. Petitioners rely substantially on Congress’s decision in the NGA to delegate federal eminent-domain

power to private pipelines. See Pet. Br. 15, 19-23. They

concede that when the federal government takes property in its own name, the Fifth Amendment defines the

measure of compensation absent “an explicit statutory

command otherwise.” Id. at 7. But they argue that

when a private delegee exercises the same power, the

opposite presumption applies, so that courts must apply

state-law measure-of-compensation rules unless Congress explicitly adopts a different standard. Id. at 20.

Petitioners offer no sound reason why the NGA’s

delegation to a private entity justifies reversing the

usual default rules. They contend that the Fifth

Amendment standard should not be the default because

Even in cases that do involve valuation disputes, the States’ relative experience in matters of land valuation does not justify the inference that Congress intended for state law to govern the compensation owed in a federal condemnation action under the NGA. Notwithstanding that state experience, courts are “not required” to follow state law when “determining value of property taken by the federal government by eminent domain.” 4 Nichols § 12.01[7], at 1242. State expertise likewise cannot justify requiring the application

of state law to determine the value of property taken by federal delegees under the NGA.

4

23

landowners’ right to compensation in a taking under

Section 717f(h) does “not flow only from the Fifth

Amendment.” Pet. Br. 15. In their view, the obligation

to pay compensation is inherent in the nature of the

power to file a “straight” condemnation action, a proceeding “whose purpose is to adjudicate how much

[landowners] must be paid for their land.” Id. at 14-15;

see Kirby Forest Indus., Inc. v. United States, 467 U.S.

1, 3-4 (1984) (describing “straight condemnation”). But

even on petitioners’ view, the source of the obligation to

pay is federal law, not state law. See Pet. Br. 15 (arguing that the obligation to pay flows from what the federal “statute authorizes”). And the power exercised is

still that of the federal government. State measure-ofcompensation rules therefore do not apply of their own

force, and there is no reason to suppose that Congress

intended to incorporate such rules absent an express

textual directive to that effect. See pp. 14-15, supra.

Petitioners next posit that the usual default rules

should not apply to Section 717f(h) because “private delegations of eminent domain” are “disfavored” and should

be read “narrowly.” Pet. Br. 19; see id. at 19-23. This

Court has recognized, however, that the NGA’s delegation of eminent-domain power is “categorical.” PennEast,

594 U.S. at 498. Petitioners downplay PennEast, arguing that the Court was describing as “ ‘categorical’ ” only

“the delegation of the power to sue,” not the power to

sue under the same compensation standards that apply

to the federal government. Pet. Br. 46. That is not what

“categorical” means. In all events, the lines that petitioners draw make little sense. Petitioners do not explain why Congress would have simultaneously given

certificate holders the federal government’s significant

power to sue the States, while withholding the federal

24

government’s ordinary protection from state-law rules

mandating compensation above what the Fifth Amendment requires.

Petitioners assert (Br. 21) that even a categorical

delegation does not confer “the full scope of the sovereign’s powers and immunities.” To be sure, the NGA’s

delegation to litigate eminent-domain suits does not entitle the pipelines to the federal government’s “immun[ity] from state tax laws,” ibid., or otherwise to exercise the government’s powers outside the specific context of the delegation. But within that context, Congress

has delegated the federal government’s power in its entirety. See Pet. App. 8a; PennEast, 594 U.S. at 498. For

the same reason, petitioners do not benefit from their

assertion that Section 717f(h) authorizes pipelines to

file direct condemnation actions, but not to take land

first and pay later in a so-called inverse condemnation

action. See Pet. Br. 14. Even assuming that pipelines

can bring only direct condemnation actions, Congress’s

categorical delegation means that they may do so on

substantially the same terms as the federal government, including the standard of compensation owed.

See p. 15, supra.

Petitioners also contend (Br. 26-29) that different interpretive presumptions should apply to private delegations of eminent-domain power because private entities

lack the federal government’s sovereign immunity. Petitioners’ theory appears to be that, while the government enjoys sovereign immunity from state measureof-compensation laws, those laws apply of their own

force to private pipelines, so Congress must affirmatively specify when it wants to displace them. See ibid.

But as explained above, a federal delegee pursuing a

condemnation action under the NGA is still exercising

25

the eminent-domain “power of the Federal government,” so state law does not apply of its own force.

Kohl, 91 U.S. at 373. And even leaving aside the eminentdomain context and the question of sovereign immunity,

substantive “state law does not operate of its own force”

in a case brought under a “federal cause of action.” Burks

v. Lasker, 441 U.S. 471, 476 (1979); see DelCostello v.

International Bhd. of Teamsters, 462 U.S. 151, 159 n.13

(1983). Congress thus had no need to specify that state

measure-of-compensation rules would not apply in a

federal condemnation action under Section 717f(h)—

even one brought by a private entity.

Petitioners ground their contrary argument in Justice Scalia’s concurrence in the judgment in Agency

Holding Corp. v. Malley-Duff & Associates, 483 U.S.

143 (1987). See Pet. Br. 26. There Justice Scalia opined

that, absent express federal preemption, state statutes

of limitations should apply of their own force in federal

causes of action. Agency Holding, 483 U.S. at 157-164.

Justice Scalia’s opinion in Agency Holding does not

help petitioners.

Justice Scalia’s view appears to have been limited to

state statutes of limitations; he did not suggest that

other types of state laws should apply of their own force

in adjudicating federal causes of action. And even in the

statute-of-limitations context, Justice Scalia acknowledged that the Court had long ago abandoned his analytic approach. See Agency Holding, 483 U.S. at 164.

Petitioners suggest (Br. 24-25) that Justice Scalia’s theory at least prevailed when Congress enacted Section

717f(h) in 1947. That, too, is wrong; Justice Scalia cited

a 1946 decision taking a different (and in his view incorrect) approach to the application of state statutes of limitations to suits asserting federal causes of action. See

26

Agency Holding, 483 U.S. at 164 (citing Holmberg v.

Armbrecht, 327 U.S. 392, 395 (1946)).

c. Petitioners argue that Congress would have expected state measure-of-compensation rules to govern

in Section 717f(h) condemnation suits, because Congress enacted that provision against the backdrop of judicial decisions applying state law in federal causes of

action. But the decisions that petitioners invoke were

all irrelevant or unreasoned, or were outdated by the

time Section 717f(h) was enacted.

Several of the cited decisions did not involve the federal eminent-domain power at all. For example, petitioners identify (Br. 24) early decisions applying state

statutes of limitations to federal causes of action. And

even if those decisions were relevant here, this Court

had abandoned that approach to state statutes of limitations by 1947. See p. 25, supra.

Petitioners also invoke (Br. 25) Reconstruction Finance Corp. v. Beaver County, 328 U.S. 204 (1946),

which held that in a federal statute subjecting certain

real property to state and local taxes, the term “real

property” should take its content from state law. Id. at

209. Reconstruction Finance has no bearing on the

proper construction of Section 717f(h). The decision did

not involve eminent domain, and it did not purport to

announce a general rule or presumption that state law

should govern all issues relating to property. See p. 21

n.3, supra (discussing the role of state law in defining

the meaning and scope of “property” in federal takings).

Instead, the Court’s reasoning was statute-specific: the

Court found it sensible to draw on state-law understandings of “real property” in construing a law that authorized States to tax that property. See Reconstruction Fin., 328 U.S. at 209-210.

27

Petitioners rely on some decisions that addressed

eminent domain, but those decisions likewise do not

support petitioners’ inferences about the NGA. For example, petitioners rely (Br. 23-24) on this Court’s decision in Brown v. United States, 263 U.S. 78 (1923),

which encouraged courts adjudicating federal condemnation suits to “adopt the local rule” for compensation,

“if it is a fair one” and “a provision making for just compensation.” Id. at 87. But the Brown Court made clear

that in condemnation suits the measure of compensation

was a question of federal law, and it borrowed a statelaw rule only “because recognition of state interests was

not deemed inconsistent with federal policy.” Board of

County Comm’rs v. United States, 308 U.S. 343, 352

(1939). In any event, as petitioners recognize (Br. 24

n.2), the Court in Miller retreated from Brown’s preference for borrowing state compensation rules. Section

717f(h) was enacted only four years after Miller was decided, so Miller rather than Brown provides the relevant backdrop to the congressional action here.

Petitioners further contend (Br. 30) that, when Congress enacted Section 717f(h), the settled understanding in the courts of appeals was that state law “governed

that very language” in the Federal Power Act’s similarly worded eminent-domain provision, 16 U.S.C. 814.

See Pet. Br. 30-31. To establish that Congress ratified

a “ ‘settled construction’ ” of the Federal Power Act

when it passed Section 717f(h), petitioners must identify a “judicial consensus so broad and unquestioned

that we must presume Congress knew of and endorsed

it.” Jama v. ICE, 543 U.S. 335, 349 (2005). The authority that petitioners invoke falls far short of that high

standard.

28

Petitioners point to only four decisions. Pet. Br. 3031. Two “cited both federal and state cases,” but neither

specified which law governed the measure of compensation. Id. at 30. The other two are Eighth Circuit decisions that stated, without discussion or explanation,

that Nebraska law controlled the measure of compensation. Id. at 30-31. It is unclear whether a party in any

of those cases argued that federal law should govern, or

whether application of federal law would have changed

the outcomes. That handful of unreasoned decisions “is

too flimsy to justify presuming” congressional ratification when every other interpretive clue is “to the contrary.” Jama, 543 U.S. at 352.

d. Petitioners’ arguments about the consequences of

respondent’s interpretation are similarly unpersuasive.

Petitioners assert (Br. 31) that under respondent’s theory, Section 717f(h) silently imposed “a massive wealth

transfer from private landowners to private pipeline

companies.” But they have not identified any pre-1947

state regimes that both permitted interstate pipelines

to condemn land and entitled landowners to “massive[ly]” greater compensation than the Fifth Amendment standard.

For similar reasons, petitioners are wrong to say

that, under respondent’s interpretation, landowners

“woke up poorer the day after § 717f(h) passed.” Pet.

Br. 32. Before Congress enacted Section 717f(h), landowners were already subject to eminent-domain proceedings commenced by the federal government, with

compensation measured under the Fifth Amendment

standard. See, e.g., Condemnation Act (Lands for Public Uses), ch. 728, 25 Stat. 357 (authorizing federal condemnation of land “for the erection of a public building

or for other public uses”). Section 717f(h)’s enactment

29

simply authorized private entities to condemn property

for pipeline use under the same compensation standard.

And Section 717f(h)’s core purpose was to overcome

state-law obstacles to condemnation of necessary easements by authorizing pipelines to sue as the federal government’s delegees. See PennEast, 594 U.S. at 489-490.

The consequences of accepting petitioners’ interpretation would be far more disruptive. In addition to allowing States to erect barriers to pipeline construction,

see pp. 18-19, supra, petitioners’ theory would produce

doctrinal inconsistencies. Most notably, petitioners’ argument is inconsistent with this Court’s repeated admonitions that under the “American Rule,” federal

courts may not award attorney’s fees to a party in litigation without “express statutory authorization” to do

so. Lackey v. Stinnie, 604 U.S. 192, 199 (2025) (citations

omitted). Congress has authorized fee awards in condemnation proceedings involving delegees, but only in

circumstances not present here. See 42 U.S.C. 4654(a).

Petitioners assert (Br. 47) that the American Rule is

not implicated here because state courts that award attorney’s fees in condemnation actions “are adopting

rules about land valuation” rather “rules about litigation costs.” But as explained above (at 21-22), the parties here do not dispute the value of the condemned

easements; their disagreement concerns whether fees

can be collected on top of that value. In all events, the

whole point of requiring Congress to clearly authorize

attorney’s fees is to obviate the need for courts to “pick

and choose” the statutory contexts in which fee-shifting

is appropriate. Alyeska Pipeline Serv. Co. v. Wilderness Soc’y, 421 U.S. 240, 263 (1975). Petitioners ask the

Court to do just that.

30

e. Post-enactment developments likewise do not support petitioners’ interpretation. Contra Pet. Br. 33-37.

Petitioners contend that “contemporaneous jurists understood” Section 717f(h) to silently adopt state-law

compensation rules, because in the first 15 years after

its enactment, a handful of state courts calculating the

compensation owed in condemnations under that provision relied on state-law precedents. Id. at 34. But those

post-enactment state-court decisions shed no light on

the meaning of Section 717f(h), because as with the preenactment cases discussed above (at 28), it is unclear

whether any party argued that federal law should apply.

Petitioners further argue (Br. 35-37) that Congress

acquiesced in their interpretation when it enacted the

Energy Policy Act of 2005, Pub. L. No. 109-58, 119 Stat.

594. That statute amended and added to various energy

laws, including the NGA and the Federal Power Act.

One new provision authorized private entities to condemn land for interstate electricity transmission facilities, and it defined the compensation owed in those proceedings as fair market value (including severance damages). 16 U.S.C. 824p(f )(1). But Congress did not amend

the Federal Power Act’s existing eminent-domain provision for hydropower companies (on which Section 717f(h)

is modeled), which the Fifth Circuit had construed as

incorporating state measure-of-compensation rules. See

Georgia Power Co. v. Sanders, 617 F.2d 1112, 1124 (1980)

(en banc). Petitioners read those legislative choices as

evidence that Congress approved of Georgia Power’s inference from statutory silence and “avoided that interpretation when it wanted to” by enacting an express

compensation standard in Section 824p(f ). Pet. Br. 36.

Congress’s failure to correct Georgia Power does not

indicate its agreement with that decision. Arguments

31

about congressional inaction generally “deserve[] little

weight in the interpretive process,” because it is “ ‘impossible to assert with any degree of assurance’ ” that

inaction signals affirmative approval of a particular judicial interpretation. Alexander v. Sandoval, 532 U.S.

275, 292 (2001) (brackets and citations omitted); see

Johnson v. Transportation Agency, 480 U.S. 616, 672

(1987) (Scalia, J., dissenting). Here, congressional inaction is particularly unrevealing because petitioners

have not identified a broad pre-existing consensus of

reasoned lower-court decisions. See pp. 28, 30, supra.

Petitioners also draw the wrong inference from Congress’s adoption of a fair-market-value standard in

16 U.S.C. 824p. To the extent that provision sheds any

light on Congress’s reaction to Georgia Power, it reflects Congress’s specification of a compensation standard that would not allow courts to repeat the Fifth Circuit’s error.

2. Congress did not leave a gap for courts to fill with

state law as a matter of federal common lawmaking

In the alternative, petitioners argue (Br. 10, 37-39)

that the NGA’s failure to specify a measure of compensation leaves a “gap” to fill through judicial lawmaking,

and that as a matter of federal common law, state compensation rules should be used to fill that gap. Both

parts of that argument are wrong.

a. For the reasons explained above, the NGA’s silence as to the measure of compensation in a private

condemnation suit does not leave a statutory “gap” to

fill with judge-made law. See pp. 16-19, supra. Instead,

that silence indicates that the default Fifth Amendment

standard applies. See ibid.; Pet. App. 7a. Treating Section 717f(h) as an invitation for judicial lawmaking

32

would “improperly expand[ ] federal common law.” 3.921

Acres of Land, 74 F.4th at 1349 (Grant, J., concurring).

b. Even if the NGA is viewed as leaving a gap to be

filled through judicial lawmaking, this Court should select federal rather than state law to fill that gap. Petitioners contend (Br. 37-44) that the factors this Court

considered in United States v. Kimbell Foods, Inc.,

440 U.S. 715 (1979), favor the incorporation of state

measure-of-compensation rules as the governing federal standard. On the contrary, each of the Kimbell

Foods factors points to adopting a uniform federal

rule—here, the Fifth Amendment standard that courts

already apply when the federal government takes land.

First, the NGA’s text and history evidence a felt

“need for a nationally uniform body of law.” Kimbell

Foods, 440 U.S. at 728. Congress enacted the NGA to

bring “ ‘uniformity’ ” to “matters relating to wholesale

sales and transportation of natural gas in interstate

commerce.” Schneidewind v. ANR Pipeline Co., 485

U.S. 293, 305, 310 (1988) (citation omitted). Congress

added Section 717f(h) specifically in response to the

problems private pipeline companies had faced when

they were subject to disparate state eminent-domain

laws. See PennEast, 594 U.S. at 489-490; Senate Report

1-3. Adopting state measure-of-compensation rules

would reintroduce the lack of uniformity that Congress

sought to avoid. As discussed above (at 18-19), individual States could effectively deter the construction of interstate pipelines by requiring private pipeline companies to pay prohibitively high compensation.

Petitioners assert (Br. 49) that States would have no

incentive to pass such extreme compensation laws because such laws would make States’ “own infrastructure

projects impossibly expensive.” But a State could simply

33

require different rates of compensation for favored and

disfavored categories of infrastructure projects. Petitioners further assert (ibid.) that States have not passed

such laws yet. But Congress delegated the federal

eminent-domain power to ensure that pipeline certificate holders need not depend on States’ voluntary forbearance. Incorporating state measure-of-compensation

laws as the federal rules of decision would undermine

that choice. Petitioners additionally contend (Br. 29)

that even under their regime, federal courts could decline to apply “state-law rules that discriminate against

federal projects or otherwise render them impossible.”

But state laws can frustrate a pipeline’s construction

without facially discriminating against federal projects

or rendering them completely impossible. And the need

for such a safety valve only underscores the problems

with petitioners’ proposal to adopt state-law rules.

Second, applying state law here “would frustrate”

congressional objectives “[a]part from considerations of

uniformity.” Kimbell Foods, 440 U.S. at 728. The NGA

reflects Congress’s judgment that the interstate transportation of natural gas “is affected with a public interest.” 15 U.S.C. 717(a). The Executive Branch has also

emphasized the importance of interstate pipelines to

the country’s economic competitiveness and national security. See Exec. Order No. 14,154, Unleashing American Energy, 90 Fed. Reg. 8353, 8353-8354 (Jan. 29,

2025); Exec. Order No. 14,156, Declaring a National

Energy Emergency, 90 Fed. Reg. 8433, 8433 (Jan. 29,

2025). A regime that permits individual States to impede pipeline construction jeopardizes those interests.

And at a minimum, increases in the cost of pipeline construction are likely to be passed down to consumers.

34

Third, applying the Fifth Amendment compensation

standard would not “disrupt commercial relationships

predicated on state law.” Kimbell Foods, 440 U.S. at

729. The Court in Kimbell Foods observed that in some

cases, adopting a “readymade body of state law” may

provide greater “stability” for business than fashioning

a new and indeterminate federal regime. Id. at 739-740;

see Note, The Federal Common Law, 82 Harv. L. Rev.

1512, 1519 (1969). But in this case, there is a “readymade” federal option: the Fifth Amendment “just compensation” standard that applies by default to federal

takings. See pp. 12-15, supra. Property owners can already expect that standard to apply if the federal government takes their land. So it would not disrupt commercial expectations to apply the same standard to a

taking by a private pipeline under the NGA.

CONCLUSION

The judgment of the court of appeals should be affirmed.

Respectfully submitted.

D. JOHN SAUER

Solicitor General

ADAM R. F. GUSTAFSON

Principal Deputy Assistant

Attorney General

MALCOLM L. STEWART

Deputy Solicitor General

ZOE A. JACOBY

Assistant to the

Solicitor General

AMBER BLAHA

CHRISTOPHER ANDERSON

Attorneys

SEPTEMBER 2026

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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