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
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