This just in: the U.S. Supreme Court has agreed to review a case from North Dakota (brought by our colleagues Derrick Braaten and the good folks at the Institute for Justice), asking whether attorneys fees are included in just compensation when a private pipeline takes property using the federal power of eminent domain delegated in the Natural Gas Act.

As you may recall, there’s a lower court split on this.

Under North Dakota law, a property owner is entitled to attorneys fees in eminent domain cases under the ND Constitution. 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. But the Eighth Circuit held that no, the Fifth Amendment, not state property law, establishes the standard for what compensation is due, and the courts have long held that just compensation does not include the owner recovering her attorneys fees.

The Eleventh Circuit by contrast, concluded in the Sabal Trail case that when state law recognizes an owner’s right to recover attorneys fees in eminent domain cases, then a private pipeline exercising the federal power under the NGA is also on the hook. The Florida Constitution requires “full” compensation, and as the Florida Supreme Court has held, that includes the owner recovering fees and costs (see Dade Cnty. v. Brigham, 47 So. 2d 602 (1950)), and in Sabal Trail, the court held that if state law says something is private property, then the Fifth Amendment requires compensation for that interest.

[Disclosure: we filed a brief to that effect in Sabal Trail.]

Here’s the Question Presented the Court agreed to resolve in the Hoffman case:

The grant was very much anticipated, especially after the Solicitor General agreed with the cert petition that the case was certworthy. The only question remaining is whether the Court will agree that when local law recognizes the ability of a landowner to recover attorneys fees in eminent domain actions (some do, but most don’t), must a private party deploying the federal power of eminent domain also recognize it.

Stay tuned, arguments in the fall.