Here’s the latest in a case we’ve been following. The U.S. Court of Appeals recently heard oral arguments in a case where a private Natural Gas Act condemnor (the Sabal Trail pipeline) exercised the delegated federal power of eminent domain to take the property of a Florida owner.

As we reported here, the issue is whether federal or state law applies in these cases. The big reason why the question of whose law applies is that under the Fifth Amendment, “just compensation” does not include attorneys’ and other fees, while under the Florida Constitution’s “full compensation” provision (which we noted here), a property owner may recover fees and costs. The District Court held that Florida law, not federal, applied, and Sabal Trail appealed to the Eleventh Circuit.

The arguments are worth listening to. Is this a question of “choice of law?” Or does it go to how the “property interest” is defined in these takings (by state law). Or do the federal standard of “just compensation” govern? In our opinion, the most interesting part of the arguments starts at the 20:48 mark, where one of the judges asks the property owner’s lawyer (our colleague Thor Hearne):

Let me give you what I think is a tough hypothetical for you. Maybe you’ll be able to distinguish it. Florida decides in its wisdom that when any government decides to take property for eminent domain, whether it’s permanent or an easement, or something like that, not only do you get just compensation as that term is commonly understood, you get attorneys fees and costs, and you get a brand new car. So a federal court has a case under the Gas Act and the question is: do you get the car?

(Note: we think the answer is “Yes, you get the car because Florida law defines the property interest being taken, and Florida law has included attorneys fees and costs and a car as part and parcel of an owner’s rights when their land is taken.”)

More on the arguments here: “11th Circ. Wary Of Axing Atty Fees In Pipeline Easement Cases.”