CA8: Private Delegee Of Federal Eminent Domain Power Does Not Owe Attorneys Fees Even If State Law Requires

By noemailnoemail-org-robert-thomas-inversecondemn on April 1, 2025

A short one from the U.S. Court of Appeals for the Eighth Circuit.

The caption of WBI Energy Transmission, Inc. v. 189.9 rods, No. 24-1693 (Mar. 24, 2025), should tell you that this is a private-delegation federal taking, and indeed it is. Another Natural Gas Act taking by a private pipeline company.

After WBI and a property owner couldn’t agree on selling a strip of land for a natural gas pipeline, WBI filed a federal condemnation action under the NGA. Eventually the parties settled on the amount of just compensation owing for the land.

Under North Dakota law, a property owner is entitled to attorneys fees. So the owner here asserted it was entitled to such fees as part of the property. After all, full indemnity is part of its property rights, no? The District Court agreed, concluding that WBI was on the hook.

If this all sounds familiar, it is. We detailed the same issue in a case arising in the Eleventh Circuit where the court held that because Florida law requires “full compensation,” which includes the full indemnity of attorneys fees and this is part of every Florida landowner’s property rights, the private-delegee condemnor there was on the hook.

The Eighth Circuit rejected that approach. The court held that WBI merely stepped into the shoes of the federal government. And under the Fifth Amendment, attorneys fees are not included in just compensation. The NGA is silent on the subject, and therefore the owner is out of luck:

The problem is that, when it comes to eminent domain, congressional silence leaves no “gaps” to fill. See United States v. Great Plains Gasification Assocs., 813 F.2d 193, 195 (8th Cir. 1987) (observing that when we have “sufficient direction . . . , Kimbell Foods is inapplicable”). It is true that nothing in the Natural Gas Act tells certificate holders what they must pay when taking property. But we already know that any gaps are filled by the Fifth Amendment itself, including the obligation to pay “just compensation.” Bodcaw, 440 U.S. at 203; see Miller, 317 U.S. at 379–80 (applying the Fifth Amendment standard directly). The rules of the road do not change, in other words, when the federal government hands the keys over to a private party like WBI. See PennEast, 594 U.S. at 489 (observing that Congress delegated “the federal eminent domain power”).

Slip op. at 6.

What about the approach taken by the Eleventh Circuit that didn’t see the issue as one of what is or isn’t included in “just compensation,” but rather a question of what property? In both Florida and North Dakota, attorneys fees in eminent domain cases are part and parcel of the property taken, aren’t they? Or are they? The Eighth Circuit doesn’t squarely confront and reject the Eleventh Circuit’s approach.